NUMBER 13-11-00451-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

EDUVIGES MARGARITA ZAVALA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the County Court at Law No. 1

of Brazos County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Benavides

Appellant Eduviges Margarita Zavala appeals her jury conviction for driving while 

intoxicated, a Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04 (West 2011). 

The trial court sentenced Zavala to 180 days’ confinement at the Brazos County Jail and 

fined $2,000.00. By one issue, Zavala asserts that the trial court erred in denying her 

request to include a jury instruction under article 38.23 of the code of criminal procedure. 
2

See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005). Because we conclude that 

the evidence did not raise an issue of fact to warrant an article 38.23 instruction, we 

affirm.1

I. BACKGROUND2

On or about March 9, 2008, Zavala drove her former boyfriend James Yeppez 

home after a night out at Tonix, a club in Brazos County, Texas. Zavala testified that 

she arrived at Tonix with her niece that night, but left with Yeppez after offering to drive 

him home.3 

The following testimony was presented at trial:

A. State’s Witness

Texas Department of Public Safety Trooper Tommy Lyons testified that he 

conducted an unrelated traffic stop on the right shoulder of Farm to Market Road 2818 in 

the early morning hours of March 9, 2008 when a blue Ford F-150 sped past his patrol 

unit, failing to slow down or switch to the left lane. See TEX. TRANSP. CODE ANN. § 

545.157(a) (West 2011) (specifying action to be taken by a driver when approaching an 

emergency vehicle on the roadway). Trooper Lyons stated that after he finished with 

the driver of the unrelated traffic stop, he pursued the F-150 and observed it: (1) cross

into the improved shoulder on the right side of FM 2818; (2) fail to stop at a designated 

stop point in the road; and (3) cross into the improved shoulder again after the stop at the 

 

1

This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to an 

order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).

 

2

Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for 

it. See TEX. R. APP. 47.4.

3

 According to Zavala, she offered to drive Yeppez’s truck because he was drunk, stumbled

around, and told Zavala that he was going to drive himself. 
3

intersection. Trooper Lyons then testified that he activated his overhead emergency 

lights to pull the vehicle over, and he later determined it to be driven by Zavala, with 

Yeppez as a passenger.

When the prosecutor asked Trooper Lyons why he had reasonable suspicion to 

make the stop, he stated three reasons: (1) “passing a stationary emergency vehicle 

without slowing”; (2) “going onto improved shoulder where prohibited; and (3) “[failing] to 

stop at the designated point.” 

During the stop, Trooper Lyons performed a series of field sobriety tests on 

Zavala, concluded that she was intoxicated. He placed her under arrest. Trooper Lyons 

also testified that he placed Yeppez under arrest for public intoxication after observing 

him to be “highly intoxicated” and “highly belligerent.” See TEX. PENAL CODE ANN. § 

49.02 (West 2011). 

B. Defense’s Witness

Zavala testified in her own defense and denied having knowledge that Trooper 

Lyons’s unit was on the side of FM 2818 when she passed it because his emergency 

lights were not activated. Zavala agreed that her vehicle crossed the shoulder line “a 

couple of times” and attributed it to Yeppez’s physical advances toward her as she 

attempted to steer his pickup. 

A Brazos County jury convicted Zavala of driving while intoxicated, and the trial 

court assessed punishment at 180 days imprisonment and a $2,000.00 fine. Zavala 

appealed.
4

II. ARTICLE 38.23 INSTRUCTION

In her sole issue, Zavala contends that the trial court erred for not including an 

instruction in the jury charge pursuant to article 38.23. See TEX. CODE CRIM. PROC.

ANN. art. 38.23.

A. Applicable Law and Standard of Review

In part, article 38.23 states that:

In any case where the legal evidence raises an issue [. . .] 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.

Id. A defendant is entitled to this mandatory instruction if: (1) the evidence heard by 

the jury raises an issue of fact; (2) the evidence on that fact is affirmatively contested; 

and (3) that contested factual issue must be material to the lawfulness of the challenged 

conduct in obtaining the evidence. See Madden v. State, 242 S.W.3d 504, 509–10 

(Tex. Crim. App. 2007). 

Finally, our first duty in analyzing jury-charge issues is to determine whether error 

exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we 

find error in our review, we then analyze that error for harm. Id.

B. Discussion

Here, Zavala argues that a factual dispute existed for the reasonableness of her 

stop by Trooper Lyons to require an article 38.23 instruction. See Terry v. Ohio, 392 

U.S. 1, 21–22 (1968); Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (en 

banc) (recognizing Terry-stops in Texas). Specifically, Zavala asserts that conflicting 

testimony was elicited as to whether Zavala recognized Trooper Lyons’s patrol unit as an 

emergency vehicle to require compliance under section 545.157(a). See TEX. TRANSP.
5

CODE ANN. § 545.157(a). We agree with Zavala and the trial court that a factual dispute 

exists regarding whether Zavala knew that Trooper Lyons’s unit was an emergency 

vehicle. 

However, the State argues that the purported violation of section 545.157(a) was 

only one of three reasons given by Trooper Lyons to justify the reasonableness of the 

stop. The record shows that the State and Zavala both agree that she crossed twice 

into the improved shoulder, where prohibited, which violated the transportation code. 

See id. § 545.058 (West 2011). This undisputed traffic violation defeats the first 

requirement to warrant an article 38.23 jury instruction. See Madden, 242 S.W.3d at 

510–11 (holding that “if other facts, not in dispute, are sufficient to support 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.”). Furthermore, 

the “disputed fact must be an essential one in deciding the lawfulness of the challenged 

conduct.” Id. 

We are not persuaded by Zavala’s argument that Trooper Lyons would not have 

observed the improved-shoulder violations but for the first purported traffic violation 

under 545.157(a). See id. Here, the disputed fact is not essential in deciding the 

lawfulness of the stop, since it is well-settled that “a traffic violation committed in an 

officer’s presence authorizes an initial stop.” Armitage v. State, 637 S.W.2d 936, 939 

(Tex. Crim. App. 1982); see Espericueta v. State, 838 S.W.2d 880, 882 (Tex. 

App.—Corpus Christi 1992, no pet.). In this case, Trooper Lyons observed Zavala’s 

violation of section 545.058. Accordingly, we hold that the trial court did not err in 
6

denying Zavala’s request for an article 38.23 instruction. See Madden, 242 S.W.3d at 

510–11; Ngo v. State, 175 S.W.3d at 743. Her sole issue is overruled.

III. CONCLUSION

We affirm the trial court’s judgment. 

__________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

19th day of July, 2012.