Larry Thomas Chambers, Jr. v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00090-CR
LARRY THOMAS CHAMBERS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 277th District Court
Williamson County, Texas
Trial Court No. 17-068-K277
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion on Remand by Chief Justice Stevens
MEMORANDUM OPINION ON REMAND
Larry Thomas Chambers, Jr., was convicted by a Williamson County1 jury of possession
of four or more but less than 200 grams of a penalty group 1 controlled substance
(methamphetamine).2 He was assessed a sentence of twenty years’ imprisonment. On original
submission, this Court affirmed the trial court’s judgment. Particularly, we overruled
Chambers’s argument that the trial court should have granted his request for a jury instruction
pursuant to Article 38.23 of the Texas Code of Criminal Procedure.3 After granting Chambers’s
petition for discretionary review, the Texas Court of Criminal Appeals reversed our finding on
the Article 38.23 issue and remanded the case to us for a harm analysis. See Chambers v. State,
No. PD-0424-19, 2022 WL 1021279, at *3 (Tex. Crim. App. Apr. 6, 2022).
I. Background
A Round Rock police officer conducted a traffic stop of Chambers because the officer
could not see a properly illuminated license plate on the back bumper of Chambers’s truck.
Other evidence at trial showed a temporary, paper license tag on the corner of the truck’s
bumper. The Texas Court of Criminal Appeals found that the record supported Chambers’s
request for a jury instruction under Article 38.23 of the Texas Code of Criminal Procedure.
Article 38.23 provides that, if the jury “believes, or has a reasonable doubt,” that the evidence
1
Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any
conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See TEX. R.
APP. P. 41.3.
2
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (Supp.).
3
See TEX. CODE CRIM. PROC. ANN. art. 38.23.
2
has been obtained “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,” the jury must not consider
that evidence in deliberating on a defendant’s guilt. TEX. CODE CRIM. PROC. ANN. art. 38.23(a).
Having found that Chambers “was entitled to have the jury decide whether evidence was
obtained by the officer in violation of any provisions of the Constitution or laws of the State of
Texas,” “and if so, to have the jury instructed to disregard such evidence,” the Texas Court of
Criminal Appeals reversed and remanded this matter with instructions for this Court to conduct a
harm analysis. Chambers, 2022 WL 1021279, at *3.
II. Standard of Review
Where, as here, jury charge error has been found,4 we “then evaluate whether sufficient
harm resulted from the error to require reversal.” Wilson v. State, 391 S.W.3d 131, 138 (Tex.
App.—Texarkana 2012, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim.
App. 1994)). “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law
from the court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13. “A trial
court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415
S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC.
ANN. art. 36.14). “The purpose of the jury charge is to inform the jury of the applicable law and
guide them in its application to the case.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.
1996). “It is not the function of the charge merely to avoid misleading or confusing the jury: it
4
“[T]he terms of [Article 38.23] are mandatory, and the jury must be instructed accordingly” where it is shown that
the defendant is entitled to the instruction. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).
Because Chambers was entitled to the instruction and did not receive it, the trial court’s charge was erroneous. See
id.; Malone v. State, 163 S.W.3d 785, 802 (Tex. App.—Texarkana 2005, pet. ref’d) (citing Vrba v. State, 69 S.W.3d
719, 719 (Tex. App.—Waco 2002, no pet.)).
3
is the function of the charge to lead and prevent confusion.” Williams v. State, 547 S.W.2d 18,
20 (Tex. Crim. App. 1977).
“The level of harm necessary to require reversal due to jury charge error is dependent
upon whether the appellant properly objected to the error.” Murrieta v. State, 578 S.W.3d 552,
555 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor, 871 S.W.2d at 732). Here, Chambers
preserved error by asking the trial court for a jury instruction on the Article 38.23 issue. Thus,
we must reverse if Chambers “suffered ‘some harm’ from the omission” of the instruction.
Malone v. State, 163 S.W.3d 785, 802 (Tex. App.—Texarkana 2005, pet. ref’d) (citing Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim App. 1984) (op. on reh’g)).
In reviewing for some harm, we consider: “(1) the jury charge as a whole, (2) the
arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors present in
the record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Our harm review is
case specific and requires consideration of the entire record. See Rogers v. State, 550 S.W.3d
190, 192 (Tex. Crim. App. 2018).
III. Harm Analysis
There was conflicting evidence before the jury about the circumstances leading to
Chambers’s traffic stop. While the police officer testified that he did not see a license plate on
the back bumper of Chambers’s truck, there was also photographic evidence of a temporary,
albeit expired, license tag on the left side of the bumper. Even so, the jury charge did not include
an instruction under Article 38.23(a). Had that instruction been included, it is possible that the
jury might have disbelieved the police officer’s testimony about the reason he stopped
4
Chambers. Had the jury so concluded, it would not have considered the evidence obtained after
the stop.
In closing argument, Chambers’s attorney argued as if the charge did include an
instruction under Article 38.23.5 Counsel referenced the charge and told the jury that they were
the “exclusive judges of the facts proved.” He continued, “[F]or instance, if you had about a car-
length distance between someone, you can decide whether or not someone on [sic] a lighted car
could see it from that far away and whether or not that was truthful testimony or not.” We read
this statement as counsel’s attempt at arguing that the jury should have disbelieved the police
officer’s testimony about the reason for the traffic stop. Yet even though Chambers argued for
the jury to consider the credibility of the officer, he was unable to point to an instruction in the
charge and argue that the jury could disregard the evidence if it found the evidence was obtained
in violation of the law.
As to the entirety of the evidence, not only was there conflicting evidence about the
circumstances leading to Chambers’s traffic stop, but the State’s case consisted entirely of the
methamphetamine acquired after the traffic stop. Where all the evidence pointing to an
accused’s guilt comes from a source that should have been submitted to the jury under Article
38.23, the accused is harmed. See Rodriguez v. State, 239 S.W.3d 277, 281–82 (Tex. App.—
Amarillo 2007, pet. ref’d); Vrba v. State, 69 S.W.3d 713, 719 (Tex. App.—Waco 2002, pet.
ref’d) (finding that, because “[t]he record contain[ed] no evidence of Vrba’s guilt independent of
5
Counsel began his argument, “I had hoped to be talking to you about something else at this stage of the trial, but the
judge rules the courtroom, and she tells us what we can talk about and what you can rule on. . . . Her papers get
judged by an appellate court.”
5
that obtained as a result of the stop” and the defendant was entitled to an Article 38.23
instruction on the legality of that stop, defendant suffered harm); Patterson v. State, 847 S.W.2d
349, 353 (Tex. App.—El Paso 1993, pet. ref’d).
Had the jury, through an Article 38.23(a) instruction, been provided the opportunity to
disregard the evidence if they disbelieved the police officer, the jury could have excluded the
methamphetamine acquired after the traffic stop if they had a reasonable belief that the evidence
was obtained in violation of the law. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a). Moreover,
without considering this highly incriminating evidence, the jury might have chosen to believe
Chambers’s “not guilty” plea, especially considering that the State’s case relied entirely on the
methamphetamine acquired after the traffic stop. As a result, under these circumstances, we find
that a majority of the harm factors weigh in favor of a finding that Chambers suffered some harm
in the absence of the requested Article 38.23(a) instruction.
IV. Conclusion
Because we have concluded that Chambers suffered some harm from the error, we
reverse the trial court’s judgment and remand the cause for a new trial.
Scott E. Stevens
Chief Justice
Date Submitted: December 28, 2022
Date Decided: March 1, 2023
Do Not Publish
6