IN THE

TENTH COURT OF APPEALS

No. 10-09-00353-CR

WESLEY MARION HINDS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 08-00928-CRF-361

MEMORANDUM OPINION

Wesley Marion Hinds appeals from his conviction for aggravated assault with a 

deadly weapon. TEX. PEN. CODE ANN. § 22.02 (West 2003). Hinds was sentenced by the 

trial court to forty years’ imprisonment. Hinds complains that the trial court erred by 

refusing to include an instruction pursuant to article 38.23 of the Code of Criminal 

Procedure and that the evidence was both legally and factually insufficient to sustain 

his conviction. Because we find that he was not entitled to the instruction and the 

evidence was legally sufficient, we affirm the judgment of the trial court.
Hinds v. State Page 2

Jury Charge Error

In his first issue, Hinds complains that the trial court erred by refusing his 

request to include in the jury charge an instruction based on article 38.23 of the Code of 

Criminal Procedure.

Standard of Review 

Our review of error in a jury charge involves a two-step process. Abdnor v. State, 

871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25-26 

(Tex. Crim. App. 2009). Initially, we must determine whether error occurred. If so, we 

must then evaluate whether sufficient harm resulted from the error to require reversal. 

Abdnor, 871 S.W.2d at 731-32.

Preservation of Error

Hinds objected to the lack of an instruction pursuant to article 38.23 at trial 

because he contended that there was a fact issue regarding the legality of the stop, 

which was whether Hinds was stopped because he was speeding or because another 

officer told the arresting officer to stop Hinds. On appeal, he complains that there was a 

factual dispute regarding whether Hinds was stopped for speeding or because another 

officer told him to, there was a dispute whether the officer was following the right 

vehicle prior to the stop, and there was a dispute regarding whether or not Hinds was 

actually speeding. 

The State contends that Hinds has waived his complaints that were not made to 

the trial court. We disagree. Because Hinds is complaining of jury charge error, he can 

raise the failure to include the instruction for the first time on appeal even if no 
Hinds v. State Page 3

objection was made; however, the harm analysis would be different for the reasons that 

were not raised before the trial court. It is true that a defendant who affirmatively 

states, “no objection,” when evidence is offered forfeits his right to complain on appeal 

that the evidence was illegally obtained under article 38.23. However, a defendant may 

still request and receive a jury instruction under article 38.23 if the evidence raises a 

contested factual issue that is material to the lawfulness of obtaining the evidence and 

the failure to include the instruction may be raised on appeal in the same manner as any 

other unpreserved charge error. Holmes v. State, 248 S.W.3d 194, 196, 202 n.32 (Tex. 

Crim. App. 2008). Therefore, we will address Hinds’s issue in its entirety.

Article 38.23

Article 38.23(a) of the Code of Criminal Procedure states: 

(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 such event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). The Court of Criminal Appeals 

has held that the second sentence of article 38.23 requires a jury instruction only if there 

is a genuine dispute about a fact that is material to the admissibility of the challenged 

evidence. See Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden v. 

State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). Three foundation requirements must 

be established by a defendant to trigger the necessity for an article 38.23 instruction: (1) 
Hinds v. State Page 4

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 claimed to have 

been seized illegally. See Oursbourn, 259 S.W.3d at 177; Madden, 242 S.W.3d at 510. 

This requires that the defendant offer evidence that, if credited, would create a 

reasonable doubt as to a specific factual matter essential to the admissibility of the 

challenged evidence. See Oursbourn, 259 S.W.3d at 177; Madden, 242 S.W.3d at 510. This 

factual dispute can be raised only by affirmative evidence, not by mere crossexamination questions or argument. Oursbourn, 259 S.W.3d at 177; Madden, 242 S.W.3d 

at 513 nn. 22-23. The jury is to decide only the disputed factual issue—for example, did 

the officer hold a gun to the defendant’s head to extract a confession. Oursbourn, 259 

S.W.3d at 177. If there is no disputed factual issue, the legality of the conduct is 

determined by the trial judge alone, as a question of law. The legal question would 

never go to the jury. Oursbourn, 259 S.W.3d at 177-78.

Hinds presented no affirmative evidence relating to the illegality of the stop but 

merely attempted to show inconsistencies in the testimony between the officers and the 

arresting officer’s inability to determine exactly what rate of speed Hinds was traveling 

at prior to the stop. We find that there was no affirmative evidence presented to create 

a factual issue regarding whether or not Hinds was speeding. The Court of Criminal 

Appeals stated in Oursbourn that in the earlier example regarding holding a gun to the 

defendant’s head to extract a confession, a fact question would be created if there were 
Hinds v. State Page 5

affirmative testimony that he did indeed hold a gun to the defendant’s head, which 

would then become an issue for the jury to determine.

The testimony given by the officer who stopped Hinds was that he believed that 

Hinds was speeding and that he was not driving reasonably or prudently. 

Additionally, he had been told to stop the vehicle by another officer. Reasonable 

suspicion that an individual has committed a traffic offense is all that is required to 

justify a traffic stop. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The 

officer testified that the truck Hinds was driving accelerated and the officer then 

pursued Hinds at a speed of approximately seventy miles per hour for approximately 

two miles until he caught up to him. The road was curvy and bumpy and it was dark 

outside. The speed limit was believed to be forty miles per hour on that stretch of road. 

It is not necessary that the exact speed of a vehicle be established; rather it is a 

traffic violation to drive at a speed that is not reasonable or prudent given the 

circumstances. See TEX. TRANSP. CODE ANN. § 545.351(a) (West 1999). There was no 

disputed fact issue affirmatively raised by Hinds. Therefore, he was not entitled to the 

submission of the instruction and the trial court did not err by refusing to include it in 

the jury charge. Issue one is overruled.

Legal Sufficiency

Hinds complains in his second issue that the evidence was legally insufficient for 

the jury to have determined that he caused the cut on the victim’s abdomen or face with 

a knife. The Court of Criminal Appeals has determined that there is now only one 

standard for determining the sufficiency of the evidence, which is the standard as set 
Hinds v. State Page 6

forth in Jackson v. Virginia. Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App. LEXIS 

1240 (Tex. Crim. App. Oct. 6, 2010) (plurality op.). In reviewing the sufficiency of the 

evidence to support a conviction, we view all of the evidence in the light most favorable 

to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 

560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As fact-finders, 

it is the responsibility of the jury to determine the credibility and weight of the 

witnesses’ testimony, as we are unable to observe the demeanor and credibility of the 

witnesses from a cold record. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). 

“After giving proper deference to the jury’s fact-finding determinations, we will uphold 

the verdict unless a rational factfinder must have had reasonable doubt as to any 

essential element.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). 

The Facts

Hinds was at the victim’s house one night for a birthday party for a mutual 

friend, where a large group of people had gathered to play cards and drink. A fight 

broke out between a father and son, and the victim stepped in to break it up. When 

Hinds attempted to get involved, the victim yelled at everyone, including Hinds, to stay 

out of the situation, which made Hinds angry. Hinds made threats to the victim 

regarding cutting him or hurting him. Hinds pulled out a knife and held it to the 

victim’s face. One witness stated that Hinds threatened to kill the victim while holding 

the knife to his face. A scuffle broke out between Hinds and the victim and they were 

separated by others at the party. A second witness said that Hinds was “swinging” and 
Hinds v. State Page 7

“slashing” at the victim with the knife while the others were trying to separate them, 

although no one saw Hinds actually cut the victim.

Hinds left the party and the victim went inside where he realized that he had 

been cut on his face and stomach. According to the victim, the cut was from where 

Hinds held the knife to his face, although he did not remember Hinds holding a knife to 

his face. It was not until after the victim went inside that he realized that his face and 

stomach had been cut. Photographs of the victim’s injuries were admitted into 

evidence. The victim treated his injuries himself and did not seek medical attention, 

although the stomach cut was painful and took some time to recover from. 

Hinds returned to the party at least one other time and made more threats to the 

victim. At the time of the altercations, the victim was highly intoxicated and many of 

those at the party had been drinking. The victim admitted that his recollection was 

hazy due to his intoxication. There was some dispute as to what kind of knife Hinds 

brandished, but the witnesses generally stated that it was straight and not a folding 

knife. A knife was located under the seat in the vehicle Hinds was driving when he was 

apprehended; however, it was a switchblade. Hinds matched the description of the 

individual the witnesses stated had been involved in the altercation with the victim. 

There was no evidence of any other weapons being seen at the scene.

Analysis

Hinds contends that the evidence was legally insufficient for the jury to have 

found that the victim’s injuries were caused by a knife that Hinds used. Rather, Hinds 

contends that the victim’s injuries could have occurred during the scuffle between 
Hinds v. State Page 8

them, during which Hinds suffered a cut across his nose. Further, he contends that the 

victim was involved in other altercations, including breaking up the father-son fight. 

Hinds contends that the jury’s determination that Hinds cut the victim with a knife was 

mere speculation rather than based on rational inferences. We disagree.

Viewing the evidence in a light most favorable to the verdict and giving the 

jury’s determinations of credibility appropriate deference, we find that the evidence as 

set forth above was legally sufficient for the jury to have found that the injuries were 

caused by the knife that Hinds held to the victim’s face and swung around during the 

altercation as opposed to being caused some other way. We overrule issue two.

Factual Sufficiency

Hinds complains in his third issue that the evidence was factually insufficient for 

the jury to have found that he caused the victim’s injuries with a knife. Because the 

Court of Criminal Appeals recently held that “the Jackson v. Virginia standard is the only 

standard that a reviewing court should apply in determining whether the evidence is 

sufficient,” we overrule Hinds’s third issue. Brooks v. State, No. PD-210-09, 2010 Tex. 

Crim. App. LEXIS 1240, 2010 WL 3894613, at *14 (Tex. Crim. App. Oct. 6, 2010).

Conclusion

Having overruled each issue on appeal, we affirm the trial court’s judgment.

TOM GRAY

Chief Justice
Hinds v. State Page 9

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed January 12, 2011

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