## NO. 12-08-00043-CR IN THE COUR T OF APP EALS TWELFTH COURT OF APP EALS D ISTRICT

TYLER, TEX AS

RO BERT BU RTO N, § APP EAL FRO

M T HE APPELLANT V . § 24 1ST DI STR ICT CO UR T
TH E ST ATE OF TEX AS, APP ELL EE § SMI TH CO UN TY, T EXAS

MEMORA NDUM OPIN ION Robert B urt o n appea ls his conviction for drivingwhile intox icated, subse quent offe nse. Ap pe lla nt r a ise s f our i ssu e s o n a

pp e a l. We a ff

ir m.

B ACKG ROUND Three office rs from the T yler police depar tment were conductingan investi g ation on Confeder ate Stree t in Tyler, Te x as at a pproxi mately 2:00 a .m. Offic er Bur g e wa s takingpictures a nd looking f or evide nce while sta n d i n g i n the stree t. He wa s standing unde r a stre et light, a nd the office rs had flashlights. Appellant was driving on Confeder ate St ree t and narrowly missed striking Bur g e with his vehicle. The other two off icer s at the sce ne we re a

ble to g et Appel l an t’s attention and have him stop hi s vehicle. The office rs approa ched Appellant and obser ved that he sme lled of alcohol and his e y es we re bloodshot. The office rs talked to A ppellant about his le vel of intox ication, had Appe llant perfor

m tests to determine whe ther he was intox icated, a n d ev entually

arr ested Appellant for

drivingwhile intox icated. Appellant wa s indicted for the felon y o ff en s e of dr iving while intoxicated, subsequent offe nse. Be fore the trial, Appellant filed a motion to suppress evidenc e alleg ing that th e o ff i cer s2

unlawfully

detained hi m. The trial cour t car ried the motion until after the testimony of Serg eant Connie Castle, the State’s first witness at trial. Appellant reur g ed his motion follo wi n g C as tle’s testimony , and the tria l court over ruled it. The jury

convicted A

ppellant of drivingwhile intox icated wi t h t wo p ri o r o ffe nses. Followinga trial on punishment, the jury found that Appe llant had two previous convic tions for felony offe nses and a ssessed punishment at n i n et y

–n ine year s of imprisonment. This appeal followe d.

M OT I ON T O S U PPRE SS In his second issue, Appellant contends that the trial court should have g rante d his moti on to suppress bec ause Ser g eant Castle’s stop of his ve hicle was illega l. Specifica lly , Appellant ar gues that the stop of his vehicle was not justified beca use the offic er did not have a re asonable suspicion that Appellant had c ommitt ed or w as committing a crime. Stand ard of Review In revie wingthe trial cour t’s rulingon a motion to suppress, we apply a bifurc ated standa rd of re view. See Car

mouch ev . St ate , 1 0 S. W.3 d 3 23 , 3 27 (T e x. Cr im. Ap p. 20 00 ). We g ive a lmo st total defe renc e to the trial co u rt ’s d etermination of historical fac ts, while conductinga de novo revie w of the tria l court’s a pplication of the lawto those fac ts. See id . The trial c ourt is the exclusive finder of fac t in a motion to s uppress he aringand may choose to be lieve or disbelieve any or all of a ny wit n es s ’s t estimony

. See Rome ro v . St ate , 800 S.W .2d 539, 544 (Tex. Crim. App. 1990). The tr ial court’s r

uling will be sustained if

it is correc t on any

theory of law applicable to the
case . Sta te

v . Ro ss , 32 S.W .3d 853, 856 (Tex. Crim. App. 2000). Appli cable Law L aw e nf or c e me nt o ff

ic e rs may sto p a

nd br ie fl y de ta in p e rs on s su sp e c te d o f c ri min a l a c tiv ity on less information than is constitutionally require d for probable cause to arre st. Terry v . Ohio , 392 U. S. 1 , 2 1–22 , 88 S. Ct . 1 86 8, 18 80 , 2 0 L . E d. 2d 88 9 ( 19 68 ). Suc h a

n inve sti g ativ e de te nti on

is permissible when the detainingoffice r has spe cifi c , a r ti culable f acts that, take n toge ther with rational infere nces f

rom those fa cts, cre ate a

rea sonable suspicion that the pe rson detaine d is, has been, or
soon will be enga g ed in criminal activity

. See Bro the r v . St ate , 16 6 S.W. 3d

25 5, 25 7 ( Te x. Cr im. App. 2005). The exis tence of re asonable suspicion turns on an objective assessment of the detainingB ec au se re aso na b l e susp i cio n p ro vid ed a law f ul b asis f

o r t he st o p , w e d o no t rea ch A p p ell an t ’ s f i rst 1 i s s ue— whe t her Ser gea nt Cast l e h ad probabl e c aus e t o s t op Ap pel l ant

— or App el l ant ’ s t hi r d i s s ue— whe t her A p p e llan t wa s h a rm e d b y the trial c o u rt’s d e n ia l o f t h e m o tio n to su p p re ss. See T EX
. R. A PP
. P. 47. 1.
3 office r’s a ctions in light of the fa cts and c ircumstance s confr onting him at the time, and not on the office r’s state of

mind. See Maryland v. Macon , 472 U.S. 463, 470–71, 105 S. Ct. 2778, 2783, 86 L . E d. 2d 37 0 ( 19 85 ); Grif

fi n v . St ate , 215 S.W .3d 403, 409 (Tex. Crim. App. 2006). Ana lys is Se rg e ant Ca stl e te sti fi e d that Ap pe lla nt a lmo st dr ov e his ve hic le int o O ff ic e r B ur g e . Sh e a lso testified that she thought Appellant’s act i o n s may have be en intentional and that he may have committ ed t h e crime of

ag g ravated assault. Appe llant did not contest this evidence. Instead, Ap pe lla nt c la ime d that it wo uld no t have be e n a c ri me , e ve n if his ve hic le ha d s tr uc k B ur g e , b e c a

us e Bur g e wa s in the path of tra ffic a nd would have be en the one at fa ult if a collision had occur red. Th is a rgume nt m isp e rc e ive s th e natur e of re a so na ble su sp ic ion . Wh e the r A pp e lla nt w ou ld have be e n guil ty

of an of fe ns e if he ha d s tr uc k B ur g e is a

dif fe re nt q ue sti on fr om whe the r r e a so na

ble
su sp ic ion e xiste d. Re a so na

ble su sp ic ion e xists wh e n an of fi c e r ha s sp e c if

ic , a rt ic ula ble fa c ts that, taken tog ether

with r ational infere nces from those fac ts, w ould le ad him to rea sonably conclude that a person has enga g ed or is about to enga g e in cr iminal activity

. Broth er , 166 S.W .3d at 257. Under this standard, Castle ac quired re asonable suspicion when she saw Appe llant’s vehicle a lmost st rike Bur g e. Theref

ore, Castle acte d lawfully when she stopped Appellant’s ve hicle, and the trial court did not err whe n it overruled A ppell an t ’s motion to s uppress. We over rule Appe llant’s second issue. 1

J URY C HARG E In h is f ourt h is su e , App e lla

nt c omp la ins that th e tr ia l cou rt e rr on e ou sly re

je c te d h is r e qu e st to instruct the jury

that it should di sreg ard a ny illega lly obtained evide nce. Appli cable Law No e vid e nc e ob ta ine d in viol atio n of t he c on sti tut ion s o r l aws of the Un ite d St ate s o r t

he state of Texas is a dmissibl e in a c riminal trial. T EX
. C ODE
. C R IM
. P R OC
. ANN
. art 38.23(a ) (Ve rnon 2005). When there is a que stion as to whether evidenc e was illega lly obtained, the jury

must be instructed4

that they are to disreg ard suc h evidenc e if they believe, or have a reasonable doubt as t o whether , the evidenc e wa s obtained illeg ally

. Id

. A de fe nd ant’ s right to the su bmi ssi on of jur

y ins tr uc tio ns un de r ar

tic le 38 .2 3( a ) i s li mit e d to disputed issues of fac t that are materia l to his claim of a constitutional or statutory viol at ion that would rende r evide nce ina dmissibl e. Ma dd e n v . St ate , 242 S.W .3d 504, 509–10 (Tex. Crim. App. 2 0 0 7 ) ( ci t i n g Pie rc ev

. St ate , 32 S.W .3d 247, 251 (Tex. Crim. App. 2000)).

T he t erm s o f

t he st at ut e are ma nd at o ry , and when an i ss ue o f f act i s rai sed, a d ef

end ant has a st at ut o ry r i gh t t o hav e t he j ur y ch ar ged a ccor di ng l y . T he onl y ques t i on i s whe t her un der t he f act s of a par t i cul ar c a se a n issu e ha s b e e n ra ise d b y the e v id e n c e so a s to re q u ire a ju ry in stru c tio n . W h e re no issu e is ra ise d b y the e v id e n c e , t h e trial c o u rt a c ts p ro p e rly in r e fus ing a re q u e st to c h a rg e the ju ry.

M a dden , 2 4 2 S

. W

. 3 d

at5 1 0 (qu o t i n g Mur

phy v . St ate , 6 4 0 S. W. 2 d 2 9 7 , 2 9 9 ( T e x. Cr im. App. 1982)). A def

endant must meet thre e re quirements bef ore he is entitled to the submis sion of a jury instruction under a

rticle 38.23(a ):

(1 ) T h e e v id e n c e he a rd b y the ju ry m u st ra ise a n issu e o f f a c t; (2) T he evi d ence o n t hat f act m ust be af

f i rma t i vel y co nt est ed ; and (3) T hat co nt est ed f act ual i ss ue m ust be m at eri al to t he l awf ul ness o f the chall enged c o nd uct i n ob t ai ni ng t he evi dence

. Madden , 2 42 S.W. 3d

at 51 0. I f t

he re is n o d isp ute d f

a c tua l is su e , t he legality

of the c on du c t is deter mined by the trial judg e alone , as a que stion of law. Id . Said another w ay , a def endant is not entitled to a

n instruction when the jury is not being a sked to dec ide a disputed issue of historica l fac t beca use the jury “c annot be e x pecte d to decide whether the totality

of ce rtain fa cts do or do not constitute ‘re asonable suspicion’ under the law.” Id

. at 511. A re view of the rec ord shows that no mater ial fac tual dispute exi sted at the time of the trial
c ourt ’s re fu sa l to su

bmi t the re qu e ste d ins tr

uc tio n to the jur

y . Ca stl e wi tne sse d App e lla nt’ s v e hic le
a lm o s t s trik e O f

f ic e r B ur g e an d

b e li e v e d th at A p p e ll an t m ay

h av e c o mm itte d

th e o f f e n s e of ag g ravated assault. Serg eant Castle had reasonable suspicion that a cr ime had bee n committed, and she stopped Appe llant.5

Appellant ar gues that there was a fac tual dispute. Specifica lly , he ar gues that Castle testified that he “dr ove saf

ely and yet also drove in a manner t hat l ed her to believe he was c ommitt ing the offe nse of a g g ravated assault.” T his is si milar to the scena rio described in Madden in whic h a si ng le witness can c reate a f

act que stion by g iving inconsistent testimony

. Id at 513–514. B ut that did not happen he re. When Appe llant argues that Castle tes t i fi ed he drove “saf ely ,” he a ppear s to be ref err ing to Castle’ s testimony that Appellant wa s not speeding . This does not cre ate a fac t question. Castle testified consist ently that Appellant drove down the middle of the r oad and a lmost st ruck a police off icer . Appellant did not contest the fa ctual under p i n n i n gs of the stop at the suppre ssion hearing, a nd there wer e n o fac t issues for the jury to decide. Rather, the que stion was whether undisputed fac ts ga

ve rise to a reasonable suspicion. This was a leg al question proper ly decide d by the trial cour

t. See id. at 517. As such, the tr ial court prope rly denied Ap p el l ant’s request for a n article 38.23 jury

instruction. We overrule A ppellant’s four

th issue.

D I S P OS I T I ON Havingoverr

uled Appellant’ s first and four th is s ues, and ha

ving de termined it is unnece ssary to addre ss his second and third issues, we af fi rm the tr ia l c ourt ’s jud g me nt.



### BRIAN HO Y LE J ustice

Opinion delivere d November 26, 2008. Pane l co ns i s t ed of

Wor t hen , C. J. , Gri

f f i t h, J. , an d Hoyl e, J.

(DO N OT PUBL I SH)