Katelynn Rose Garza v. State

Opinion issued September 1, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00076-CR
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KATELYNN ROSE GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4
Brazoria County, Texas
Trial Court Case No. 198893
OPINION
Appellant Katelynn Garza was charged with misdemeanor possession of
marijuana. See TEX. HEALTH & SAFETY CODE § 481.121(b)(1). A jury found her
guilty and imposed a $500 fine as punishment.
In this appeal, Appellant argued that the trial court erred when it denied her
request for a jury instruction regarding illegally obtained evidence. See TEX. CODE
CRIM. PROC. art. 38.23(a). In an opinion dated April 16, 2015, we concluded that
the evidence did not demonstrate any material fact dispute implicating the legality
of the traffic stop that led to the discovery of marijuana in Appellant’s car, and we
affirmed the trial court’s judgment.
Appellant filed a motion for en banc reconsideration. We withdraw our
opinion and judgment issued April 16, 2015, and we issue this opinion and
judgment in their stead. Our disposition remains unchanged, but under this court’s
precedent, Appellant’s motion for en banc reconsideration is rendered moot by our
withdrawing and reissuing our opinion. See, e.g., Brookshire Bros. v. Smith, 176
S.W.3d 30, 14 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on
reh’g).
We affirm.
Background
Around midnight on December 18, 2012, Pearland Police Officer N. Palomo
pulled over a car because he observed that its passenger-side headlamp was not
functioning properly. Appellant was driving the car. Palomo walked up to the car,
and Appellant stated, “headlights.” Palomo said, “yes,” to which she replied, “I just
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got stopped for that in Friendswood.” As Palomo spoke with Appellant about the
car’s headlamp, he smelled the odor of marijuana coming from the car.
Palomo asked Appellant to exit the car, which she did. She admitted that she
had been smoking marijuana earlier that evening. A search of the vehicle
uncovered several marijuana cigarettes, which Appellant admitted were hers.
Palomo arrested her for possession of marijuana.
The State charged Appellant with the misdemeanor offense of possession of
marijuana. At the end of trial, Appellant proffered for inclusion in the jury charge
an article 38.23 instruction to the effect that evidence should not be considered if it
resulted from an illegal traffic stop. Specifically, her counsel questioned whether
there was reasonable suspicion to justify the traffic stop, explaining at the charge
conference that a fact issue existed about “what condition [her] vehicle was in . . .
specifically, the headlamps and the amount of light that they were emitting . . . .”
The court denied the requested charge, and the jury found Appellant guilty.
This appeal followed.
Analysis
In a single issue, Appellant contends that the trial court erred when it denied
her request for a jury instruction regarding illegally obtained evidence. She argues
that the instruction was warranted by a factual dispute concerning her passenger-
side headlamp: whether it was working and the amount of light it produced. We
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review a challenge to a jury charge using a two-step process. See Sakil v. State, 287
S.W.3d 23, 25–26 (Tex. Crim. App. 2009). First, we must determine whether the
jury charge contained an error. Id. at 25. If it did, we then evaluate whether the
error was harmful so as to constitute reversible error. Id. at 25–26.
“To conduct a traffic stop in compliance with the Fourth Amendment, an
officer must have ‘reasonable suspicion.’” E.g., Hamal v. State, 390 S.W.3d 302,
306 (Tex. Crim. App. 2012). An officer has reasonable suspicion when he is aware
of “specific articulable facts that, when combined with rational inferences from
those facts, would lead him to reasonably suspect that a particular person has
engaged or is (or soon will be) engaging in criminal activity.” Id. (quoting York v.
State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011)). “The reasonable suspicion
standard is wholly objective; the subjective intent of the officer conducting the
investigation is irrelevant.” Id. “The standard requires only ‘some minimal level of
objective justification” for the stop.’” Id. (quoting Foster v. State, 326 S.W.3d 609,
614 (Tex. Crim. App. 2010)). “Whether the facts known to the officer amount to
reasonable suspicion is a mixed question of law and fact subject to de novo
review.” Id. (citing State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex. Crim. App.
2012)). “A police officer’s reasonable mistake about the facts may yet legitimately
justify his own conclusions that there is probable cause to arrest or reasonable
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suspicion to detain.” Robinson v. State, 377 S.W.3d 712, 720 (Tex. Crim. App.
2012).
The traffic stop in this appeal occurred at nighttime, when the use of motor-
vehicle headlights was required. See TEX. TRANSP. CODE § 547.302(a). A motor
vehicle must be equipped “with at least two headlamps,” and “[a]t least one
headlamp shall be mounted on each side of the front of the vehicle.” Id.
§ 547.321(a) & (b). A motor-vehicle headlight must produce “an uppermost
distribution of light or composite beam that is aimed and emits light sufficient to
reveal a person or vehicle at a safe distance of at least 450 feet ahead during all
conditions of loading.” Id. § 547.333(b)(1).1 The headlight shall produce “a
lowermost distribution of light or composite beam that” must be aimed and emit
light “sufficient to reveal a person or vehicle at a distance of at least 150 feet
ahead.” Id. § 547.333(b)(1)(A). Generally speaking, a car’s headlights at night
1
Appellant asserts that a lamp identified by section 547.321(a) includes “a
combination of” her headlamps, such that one dimly lit headlamp and one
brightly lit headlamp together could produce the statutorily required light
sufficient to reveal a person or vehicle at a distance of at least 450 feet. The
State interprets the Code to require each headlamp to produce independently
the statutorily required amount of light. As a result, the State contends that
any headlamp emitting less than the required “uppermost distribution of
light” violates the Code. Our disposition of this appeal does not depend upon
resolving this interpretive dispute. See TEX. R. APP. P. 47.1.
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must emit light “sufficient to reveal a person or vehicle at a safe distance ahead of
the vehicle.” Id. § 547.333(c).
Article 38.23 of the Code of Criminal Procedure provides that evidence
obtained in violation of the Constitution or laws of Texas or the United States shall
not be admitted in evidence against the accused in a criminal case. TEX. CODE
CRIM. PROC. art. 38.23(a). In any case in which “the legal evidence” raises such an
issue, “the jury shall be instructed that if it believes, or has a reasonable doubt” that
the evidence was illegally obtained, “then and in such event, the jury shall
disregard any such evidence so obtained.” Id. A defendant must meet three
requirements before she is entitled to a jury instruction under article 38.23(a):
(1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on
that fact must be affirmatively contested; and (3) the contested factual issue must
be material to the lawfulness of the challenged conduct in obtaining the evidence.
Hamal, 390 S.W.3d at 306. If other undisputed facts are sufficient to establish the
lawfulness of the challenged conduct, then the disputed fact issue is not submitted
to the jury because it is not material to the ultimate admissibility of the evidence.
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007); Rocha v. State,
No. 01-13-00897-CR, 2015 WL 1122279, at *5 (Tex. App.—Houston [1st Dist.]
Mar. 12, 2015, pet. ref’d).
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“The first requirement for obtaining a jury instruction under Article 38.23, is
that the defendant requests an instruction on a specific historical fact or facts.”
Madden, 242 S.W.3d at 511. “The jury decides facts; the judge decides the
application of the law to those facts.” Id. To raise a disputed fact necessary for an
article 38.23(a) instruction, there must be some affirmative evidence that puts the
existence of that fact into question. Id. at 513. Nevertheless, a fact issue about
whether evidence was legally obtained may be raised “from any source, and the
evidence may be strong, weak, contradicted, unimpeached, or unbelievable.”
Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v.
State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d.)).
At trial, the reason Palomo gave for pulling Appellant over was that her
passenger-side headlamp “was not operating.” Palomo explained the difference
between a headlight and a parking light:
There’s a set of parking lights, when you . . . either click your lights
over once—or however your vehicle is set up—turns on the parking
lights or just turns on the taillights and the two amber lights on the
outside corners of the vehicle without turning on the actual headlights
themselves, the white lights that illuminate in front. Secondly is the
actual headlight where . . . you . . . turn the dial over one more click
and it actually illuminates the headlights which produces the white
lights for you to be able to visually see everything at nighttime in
front of your vehicle as you would need to.
He explained why he perceived one of the headlights to be malfunctioning:
I could see that the light—the actual headlight itself was not
illuminated; so it was not actually shining out the white light that is
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necessary for the driver to be able to see everything 90 degrees from
the rearview mirror to the right side of the vehicle . . . or passenger’s
side of the vehicle, correctly. I could see that the parking light was
working; it was emitting an orange light going around where the
headlight should be but was obviously not . . . the white headlight as it
should be.
The testimony was illustrated through the use of video recorded by Palomo’s
car and three still images captured from the video. While viewing the first still
image, admitted as State’s Exhibit 1, Palomo compared the depiction of another
car to Appellant’s car. He showed how the other car’s two headlights produced
“distinct lighting” that could be seen “on the ground . . . coming from the front of
each headlight as that vehicle travels.” While viewing the second image, admitted
as State’s Exhibit 2, he explained what he perceived on the night of the arrest:
You’ll notice that the driver’s side light is illuminated, and there is a
white aura that’s striking the [pavement] directly in front of the
driver’s side light. The passenger one is notably dimmer, and there is
no aura striking directly in front of where this light is. The reason for
this is because this one has the headlight that is illuminated and is
actually shining out onto the roadway. This one’s a parking light
that’s shining through the housing of the headlight.
Palomo also showed how the same effect could be observed in the video after he
had turned his car around to follow Appellant’s. A still image captured from the
portion of the video where Palomo followed Appellant’s car from behind was
admitted as State’s Exhibit 3. While viewing this evidence, Palomo explained:
As you can see on the left side of the vehicle, or the driver’s side of
the vehicle, there’s a white light that extends all the way out and also
shines all the way up into this area here. Now, that white light is very
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visible . . . from our perception of where we’re sitting at now. On the
passenger’s side of the vehicle, there’s no white light; there’s a slight
lighting right here on the side from where the parking light is
illuminated at, but obviously absent of the white light that the driver’s
side would be producing.
When asked why the lack of white light was problematic, Palomo responded:
Because the headlight on the right side of the vehicle, the passenger’s
side of the vehicle not being illuminated, as you can see how dark all
this is, that is going to limit any driver’s perception, reaction time to
be able to see and react to any kind of road hazard or danger that
would be presented on this side of the roadway.
Palomo testified that he conducted a traffic stop based on his perception of an
absence of light on the passenger side of Appellant’s car. He further explained the
traffic stop by stating that “it’s necessary for a vehicle to have two headlights to
maintain safe driving standards on the roadway at nighttime,” “it’s a violation not
to have the two headlamps,” and that he initiated the stop “to notify the driver of it
because many drivers do not check their own headlights and taillights and all that
and let them know of the violation.” When he approached Appellant after pulling
her over, she acknowledged, “headlights.” He said, “yes,” to which she replied, “I
just got stopped for that in Friendswood.”
Appellant presented evidence, through her father’s testimony, disputing
Palomo’s testimony that the passenger-side headlamp was “not operating.” After
he viewed State’s Exhibit 1, the first of the still images from the patrol car video,
Mr. Garza testified without objection that “they look like they’re both working”
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because “they’re both shining and illuminating. You can see the lights there and
there on the street.” He further testified that he maintained the car and that, since
the arrest, he had not changed the passenger-side headlamp because it “hasn’t been
out.”
After viewing the video on cross-examination, Mr. Garza claimed he saw
one working headlamp and “a little bit of light” from the passenger-side headlamp.
When asked on cross-examination if he saw “two operable headlamps,” he
answered, “I just see one.” 2 But he later reasserted: “To me, in looking at that
picture, the light is not out.”
The defense also offered into evidence a photograph taken by Mr. Garza
days before trial, depicting the car with its lights on but the passenger-side
headlamp disconnected. The evidence was offered in an attempt to demonstrate
that had the entire passenger-side headlamp been out as Palomo testified, the car
would have produced far less light than was depicted in the State’s exhibits.
Mr. Garza further testified that he had tested the lights and verified that he could
2
The State contends that there is “no dispute” that the passenger-side
headlamp was “not functioning” at the time of Garza’s arrest, because
Mr. Garza testified on cross-examination that he saw only one “operable”
headlamp. To the extent that this testimony suggested that the headlamp was
producing no light at all, however, it merely contradicts Mr. Garza’s
previous testimony and other defense evidence. See Garza v. State, 126
S.W.3d 79, 85 (Tex. Crim. App. 2004).
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see “both lights on” from 1,000 feet away, and that at the time of the test, the car
was in the same condition as on the night of the arrest.
The legal justifications for the traffic stop depend on whether Palomo had
reasonable suspicion that Appellant had a faulty headlight in violation of the
Transportation Code. Reasonable suspicion existed in this case to the extent that
Palomo was aware of specific articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably suspect that Appellant’s
headlights failed to emit light sufficient to reveal a person or vehicle at a safe
distance ahead. See Hamal, 390 S.W.3d at 306; see also TEX. TRANSP. CODE
§ 547.333(c).
Appellant contends that a fact issue was raised as to reasonable suspicion to
justify the traffic stop because Mr. Garza testified that “he believed both headlights
were functioning normally.” The record does not support that characterization of
his testimony. Mr. Garza testified that it appeared to him from the still image of the
patrol car video that the headlights were “both working.” But that was not
sufficient to affirmatively controvert Palomo’s detailed testimony about a distinct
difference in the quality of light emanating from each headlight. As he perceived
the vehicle coming toward him, Palomo testified that the right headlight “was not
actually shining out the white light that is necessary for the driver to be able to see
everything 90 degrees from the rearview mirror to the right side of the vehicle . . .
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or passenger’s side of the vehicle, correctly.” Instead, “it was emitting an orange
light going around where the headlight should be but was obviously not the white
headlight as it should be.” Palomo explained how the video showed the driver’s
side headlight was illuminated, with “a white aura that’s striking the [pavement]
directly in front of the driver’s side light.” In contrast, the passenger side headlight
was “notably dimmer,” with “no aura striking directly in front” of the car on the
street. When Palomo turned his car around to follow Appellant’s, he perceived an
absence of light on the passenger side of Appellant’s car. Immediately upon being
pulled over, Appellant acknowledged an issue with her headlights, stating that she
“just got stopped for that in Friendswood.”
Even to the extent Appellant has demonstrated an issue of material fact as to
whether the headlight was “working” to some degree, she presented no evidence
that the headlight was “functioning normally.” Nor did she present any other
evidence to create a fact issue as to whether Palomo was either lying or
unreasonably mistaken in his perception that the headlight on the passenger side
was “notably dimmer,” to the degree that a reasonable police officer would believe
that Appellant might have committed a traffic violation because her headlights
failed to emit light sufficient to reveal a person or vehicle at a safe distance ahead.
See Robinson, 377 S.W.3d at 720–21 (explaining that an article 38.23(a)
instruction is appropriate when “there is a dispute about whether a police officer
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was genuinely mistaken, or was not telling the truth”); Francis v. State, 425
S.W.3d 554, 559 (Tex. App.—Fort Worth 2014, no pet.) (“‘At a safe distance’
requires evidence of the existing conditions, including darkness, atmospheric
conditions, traffic, and roadside hazards.”).
Because appellant did not raise any material fact issue, she was not entitled
to an article 38.23 jury instruction. Hamal, 390 S.W.3d at 306. Accordingly, the
trial court did not err in denying her request for the jury instruction.
Conclusion
The evidence did not raise an affirmatively contested material issue of fact
concerning the legality of the traffic stop that led to the discovery of marijuana in
appellant’s car. As such, she was not entitled to an article 38.23 jury instruction.
Accordingly, we affirm the trial court’s judgment.
Michael Massengale
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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