Ryan William Madden v. State

Opinion issued March 17, 2005

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-01243-CR

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RYAN WILLIAM MADDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 917531

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DISSENTING OPINIONI respectfully dissent. I would hold that there was insufficient evidence to raise a fact issue as to the illegality of the search; thus the trial court did not err in refusing to grant an Article 38.23(a) instruction. I would affirm the judgment of the trial court.

          Introduction

          Appellant’s theory of the case, as explained in the defense’s opening argument at trial, was not that appellant was not guilty, but that the evidence of his guilt was illegally obtained. Although appellant filed a pre-trial motion to suppress the evidence of narcotics, he failed to set the motion for hearing prior to trial. Instead, he waited until the officers had testified at trial about the traffic stop, the facts giving rise to Officer Lily’s suspicion that appellant was engaged in illegal activities, appellant’s detention to permit a drug-sniffing dog to be brought to the scene, the dog’s alerting to the trunk of appellant’s rental car, the search of the trunk, and the discovery of the cocaine. A videotape of appellant’s behavior at the scene had been admitted into evidence, and testimony had been received regarding the seizure, chain of custody, and composition of the three kilograms of cocaine found in appellant’s trunk.

          Only when the State sought to admit the cocaine into evidence did appellant’s counsel object and request that the jury be excused before he stated the grounds of his objection. The court immediately recessed the jury and held a hearing on appellant’s motion to suppress the cocaine on the ground that “this is the fruits of an illegal search based upon without [sic] probable cause, without reasonable suspicion and in the excessive detention and we object to it and we assert that it should be suppressed.” After hearing the arguments of counsel, the court denied the motion to suppress and admitted the cocaine into evidence.

          The defendant requested that the trial court instruct the jury both as to (1) its right to disregard evidence obtained without probable cause to stop appellant’s vehicle for a traffic violation and (2) its right to disregard the narcotics evidence if they found that Officer Lily lacked reasonable suspicion to continue the detention beyond the traffic stop for a narcotics search. The trial court denied appellant’s proferred instruction regarding reasonable suspicion to continue detention, which would have instructed the jury that if they found that the vehicle appellant was driving had been “stopped by a police officer in a bona fide stop or arrest for the traffic offense of speeding, and that the officer, while questioning the driver of the said vehicle concerning the traffic offense, acquired reasonable suspicion to believe and did believe that a narcotics offense was being committed, whereupon he continued the detention of [appellant] and the vehicle beyond the time necessary to effect the investigation for speeding,” they could “consider the evidence obtained by the search of the suspect vehicle,” and, if they did “not so find beyond a reasonable doubt,” or if they had “a reasonable doubt thereof,” they should “wholly disregard such evidence recovered in the search of the vehicle, and not consider it as any evidence whatsoever.” The jury convicted appellant, and this appeal ensued.

          Jury Charge

          In his third point of error, appellant contends that the trial court erred by denying his request for an Article 38.23(a) instruction regarding the legality of appellant’s continued detention after Lily had ended his investigation of appellant’s speeding.

          Article 38.23 (a) provides as follows:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this article, then and in that event, the jury shall disregard any such evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23 (a) (Vernon Supp. 2004) (emphasis added). The question, therefore, is whether the legal evidence raises an issue as to whether the cocaine was obtained in violation of law, specifically through an illegal detention to search for narcotics. Appellant argues that because there were disputed facts regarding his detention, an Article 38.23(a) instruction was required to inform the jury of their right to disregard the evidence of the fruits of the search if they found the detention unreasonable. I disagree with appellant and with the majority that the disputed evidence raises a fact issue as to whether Officer Lily had reasonable suspicion to prolong the detention, warranting an Article 38.23(a) instruction.

          Garza v. State, 126 S.W.3d 79, 84-85 (Tex. Crim. App. 2004), and Thomas v. State, 884 S.W.2d 215, 216-17 (Tex. App.— El Paso 1994, pet. ref’d) (discussed in Garza, 126 S.W.3d at 84), are both strikingly similar to this case. In Garza, the petitioner argued to the Court of Criminal Appeals that the trial court had erred in denying his request for an Article 38.23 jury instruction regarding the legality of the search of his van, in which cocaine was found. Garza, 126 S.W.3d at 85. The Court of Criminal Appeals disagreed. While acknowledging that “[a] fact issue about whether evidence was illegally obtained may be raised ‘from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable,’” — as the majority in this case observes—the court nonetheless specifically noted “that an Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained.” Id. (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App. — Houston [1st Dist.] 1996, pet. ref’d).

          The Garza court held that since the defendant’s testimony did not “‘differ significantly’ from that of the officers” as to “how the officers discovered the drugs and the paraphernalia,” suggestions by the defendant’s counsel that the officers were on a fishing expedition did not “rise to the level of creating a fact issue.” Id. at 86. It stated, “That appellant ‘disagrees with the conclusion that probable cause was shown as a matter of law” is not the same as appellant controverting the facts. . . . The question of whether the search was legal is a question of law, as none of the circumstances surrounding the search were controverted by appellant.” Id. (emphasis in original).

          Similarly, in Thomas, the defendant was arrested after a weapons search of his body resulted in the discovery of contraband; the facts of the case showed that, in the process of searching the defendant’s outer clothing for a weapon, the officer had developed probable cause to search defendant’s pockets for contraband. Therefore, the court held that the defendant’s request for an Article 38.23(a) instruction on grounds that the search went beyond the legal scope of the detention was properly denied. Thomas, 884 S.W.2d at 215(cited favorably in Garza, 126 at 86-87).

          In this case, likewise, there is no factual dispute sufficient to raise an issue for the jury as to whether Officer Lilly had reasonable suspicion to continue appellant’s detention. There is only a dispute over whether the videotape is sufficiently clear in showing that appellant’s hands were not shaking to refute Officer Lily’s testimony that appellate was nervous and his hands were shaking. As the Court of Criminal Appeals observed in Garza, “That appellant ‘disagrees with the conclusion that probable cause was shown as a matter of law” is not the same as appellant’s controverting the facts of the search. See 26 S.W.3d at 86. Even if there is a dispute over appellant’s visible nervousness, hence over Officer Lily’s credibility in this regard, this dispute is not enough to raise a fact issue as to the legality of the search.

          A routine traffic stop is a detention and must be reasonable under both the United States and Texas constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex. Crim. App. 1997). To be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); Davis, 947 S.W.2d at 243, 245. In making an investigatory detention that stops short of an arrest, the officer’s action must be supported by reasonable suspicion to believe that the person or is about to be engaged in criminal activity. United States v. Arvizu, 534 U.S. 266, 273 122 S. Ct. 744, 750 (2002). To make a reasonable-suspicion determination, the court must look at the “totality of the circumstances” of the case to see whether the detaining offer had a “particularized and objective basis” for suspecting legal wrongdoing. Id. at 273, 122 S. Ct. at 750; see also $217,950.00 In United States Currency v. State, 54 S.W.3d 918, 924 (Tex. App.—Corpus Christi 2001, no pet.) (stop based on traffic violation will not justify continued detention to await arrival of drug-detection dog unless officer has specific articulable facts which, under totality of circumstances, raise reasonable suspicion that vehicle contains contraband); Veal v. State, 28 S.W.3d 832, 835 (Tex. App.—Beaumont 2000, pet. ref’d). Although an officer’s reliance on a mere “hunch” is insufficient to justify an investigatory detention, the likelihood of criminal activity need not rise to the level required for probable cause and falls considerably short of the preponderance of the evidence standard. Arvizu, 534 U.S. at 274, 122 S. Ct. at 751. The standard of review of reasonable suspicion determinations is de novo. Id. at 276, 122 S. Ct. at 751.

          In Arvizu, the Supreme Court held that a border patrol agent had reasonable suspicion for an investigatory stop of the defendant’s minivan where (1) the stop occurred in a remote area of rural Arizona; (2) it was reasonable for the agent to infer from his observations, his registration check, and his experience that the defendant had set out from a border town along a little-traveled road used by smugglers to avoid a border patrol checkpoint; (3) the vehicle had turned away from known recreational areas, diminishing the chance that the defendant and his family were on a picnic; (4) the children’s elevated knees suggested concealed cargo; and (5) the children’s prolonged mechanical waving was odd. Id. at 277, 122 S. Ct. at 752-53.

          Here, Lily testified to six facts that led to his suspicion that appellant’s vehicle contained contraband: (1) the diversionary tactics taken by the GMC Jimmy, which were consistent with the tactics used by drug convoys; (2) appellant’s nervousness, including his hands shaking and his face trembling; (3) appellant’s uncertainty about his whereabouts while in the state; (4) appellant’s statement that he had only been arrested for DWI when he had also been arrested for larceny; (5) the fact that the rental agreement for the vehicle had expired; and (6) the conflicts among appellant’s statement that he was traveling alone and had stayed with his family, the statements of the two men in the GMC Jimmy, and appellant’s revised statement regarding his stay in the State. The only one of these factors as to which there was conflicting evidence was Officer Lily’s testimony regarding appellant’s nervousness, which appellant contends was refuted by the videotape of his arrest.

          The facts in this case are very similar to those in Arvizu and almost identical to those this court found to be sufficient to establish reasonable suspicion in Sims v. State. 98 S.W.3d 292, 296-97 (Tex. App.—Houston [1st Dist] 2003, pet. ref’d). In Sims, we found that a reasonable suspicion of criminal behavior was justified when (1) another car was traveling in an erratic manner in front of the officer in an apparent attempt to distract the officer; (2) the car contained a “large amount” of air fresheners; (3) the driver of the car was “extremely nervous”; (4) the driver hesitated before she spoke, and the trooper believed that her explanation of where she had come from was internally inconsistent; (5) when the trooper asked the driver to step out from between the cars, she put her hands up as if she were being placed under arrest; and (6) the driver was driving a rental van and was unable to provide the rental agreement paperwork. In both Arvizu and Sims, applying the totality of the circumstances test, the court found that the officer had reasonable suspicion to detain the driver and the vehicle for a narcotics search.

          Appellant relies upon Veal v. State to support his argument that Lily lacked reasonable suspicion to detain him long enough for a narcotics dog to sniff the vehicle. Veal v. State, 28 S.W.3d at 836-37. Veal, however, is distinguishable. In Veal, the court held that, although the officer’s testimony that he observed the defendant’s vehicle abruptly change lanes without signaling and then stop while still in the lane of travel on an interstate highway demonstrated an objectively valid reason for stopping him, despite evidence of a somewhat pretextual nature of the stop, the defendant’s wearing a dress shirt and tie late at night, driving from Houston, and taking several seconds to answer where he had eaten that night did not give rise to a reasonable suspicion of criminal activity justifying an investigatory detention. Id. at 837.

          As in Arvizu and Sims, while each of the facts Lily testified to here, standing alone, might not give him reasonable suspicion that appellant was involved in some form of criminal activity, the totality of the circumstances plainly supports a finding of reasonable suspicion of such activity, even if the jury were to decide that the videotape refuted Officer Lily’s testimony that appellant was nervous.

          An Article 38.23(a) instruction is given only when the legal evidence raises an issue as to whether evidence was obtained by an officer or other person in violation of a provision of law. See Tex. Code Crim. Proc. Ann. art. 38.23 (a). Here, even the jury’s determination that the videotape did not show appellant’s nervousness would not be enough to show that Officer Lilly lacked reasonable suspicion to continue to detain appellant after the traffic stop ended. Since appellant did not raise an issue as to the legality of his continued detention for a narcotics search, the proferred instruction to the jury to disregard evidence obtained if they found Officer Lily lacked reasonable suspicion to continue the detention would have been improper.

          I would hold that the trial court did not err in denying an Article 38.23(a) instruction regarding reasonable suspicion to continue detention. If, however, it was error to fail to charge the jury under Article 38.23(a), I would hold that the error was harmless because five of the six reasons the trooper gave justifying the detention were sufficient as a matter of law.

          Conclusion

          I would overrule appellant’s third point of error.

          I would affirm the judgment of the trial court. 

                                                             Evelyn Keyes

                                                             Justice

Panel consists of Justices Taft, Nuchia, and Keyes.

Publish. Tex. R. App. P. 47.2(b).