NO. 12-08-00043-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROBERT BURTON, § APPEAL FROM THE 

APPELLANT

V. § 241ST DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Robert Burton appeals his conviction for driving while intoxicated, subsequent offense.

Appellant raises four issues on appeal. We affirm.

BACKGROUND

Three officers from the Tyler police department were conducting an investigation on

Confederate Street in Tyler, Texas at approximately2:00 a.m. Officer Burge was taking pictures and

looking for evidence while standing in the street. He was standing under a street light, and the

officers had flashlights. Appellant was driving on Confederate Street and narrowly missed striking

Burge with his vehicle. The other two officers at the scene were able to get Appellant’s attention

and have him stop his vehicle. The officers approached Appellant and observed that he smelled of

alcohol and his eyes were bloodshot. The officers talked to Appellant about his level of intoxication,

had Appellant perform tests to determine whether he was intoxicated, and eventually arrested

Appellant for driving while intoxicated.

Appellant was indicted for the felony offense of driving while intoxicated, subsequent

offense. Before the trial, Appellant filed a motion to suppress evidence alleging that the officers
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unlawfully detained him. The trial court carried the motion until after the testimony of Sergeant

Connie Castle, the State’s first witness at trial. Appellant reurged his motion following Castle’s

testimony, and the trial court overruled it. The jury convicted Appellant of driving while intoxicated

with two prior offenses. Following a trial on punishment, the jury found that Appellant had two

previous convictions for felony offenses and assessed punishment at ninety–nine years of

imprisonment. This appeal followed. 

MOTION TO SUPPRESS

In his second issue, Appellant contends that the trial court should have granted his motion

to suppress because Sergeant Castle’s stop of his vehicle was illegal. Specifically, Appellant argues

that the stop of his vehicle was not justified because the officer did not have a reasonable suspicion

that Appellant had committed or was committing a crime. 

Standard of Review

In reviewing the trial court’s ruling on a motion to suppress, we apply a bifurcated standard

of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost

total deference to the trial court’s determination of historical facts, while conducting a de novo

review of the trial court’s application of the law to those facts. See id. The trial court is the

exclusive finder of fact in a motion to suppress hearing and may choose to believe or disbelieve any

or all of any witness’s testimony. See Romero v. State, 800 S.W.2d 539, 544 (Tex. Crim. App.

1990). The trial court’s ruling will be sustained if it is correct on any theory of law applicable to the

case. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). 

Applicable Law

Law enforcement officers may stop and briefly detain persons suspected of criminal activity

on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392

U.S. 1, 21–22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968). Such an investigative detention is

permissible when the detaining officer has specific, articulable facts that, taken together with rational

inferences from those facts, create a reasonable suspicion that the person detained is, has been, or

soon will be engaged in criminal activity. See Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim.

App. 2005). The existence of reasonable suspicion turns on an objective assessment of the detaining
 Because reasonable suspicion provided a lawful basis for the stop, we do not reach Appellant’s first 1

issue—whether Sergeant Castle had probable cause to stop Appellant—or Appellant’s third issue—whether

Appellant was harmed by the trial court’s denial of the motion to suppress. See TEX. R. APP. P. 47.1.

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officer’s actions in light of the facts and circumstances confronting him at the time, and not on the

officer’s state of mind. See Maryland v. Macon, 472 U.S. 463, 470–71, 105 S. Ct. 2778, 2783, 86

L. Ed. 2d 370 (1985); Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim. App. 2006).

Analysis

Sergeant Castle testified that Appellant almost drove his vehicle into Officer Burge. She also

testified that she thought Appellant’s actions may have been intentional and that he may have

committed the crime of aggravated assault. Appellant did not contest this evidence. Instead,

Appellant claimed that it would not have been a crime, even if his vehicle had struck Burge, because

Burge was in the path of traffic and would have been the one at fault if a collision had occurred.

This argument misperceives the nature of reasonable suspicion. Whether Appellant would

have been guilty of an offense if he had struck Burge is a different question from whether reasonable

suspicion existed. Reasonable suspicion exists when an officer has specific, articulable facts that,

taken together with rational inferences from those facts, would lead him to reasonably conclude that

a person has engaged or is about to engage in criminal activity. Brother, 166 S.W.3d at 257. Under

this standard, Castle acquired reasonable suspicion when she saw Appellant’s vehicle almost strike

Burge. Therefore, Castle acted lawfully when she stopped Appellant’s vehicle, and the trial court

did not err when it overruled Appellant’s motion to suppress. We overrule Appellant’s second

issue.1

JURY CHARGE

In his fourth issue, Appellant complains that the trial court erroneously rejected his request

to instruct the jury that it should disregard any illegally obtained evidence. 

Applicable Law

No evidence obtained in violation of the constitutions or laws of the United States or the state

of Texas is admissible in a criminal trial. TEX.CODE.CRIM.PROC.ANN. art 38.23(a) (Vernon 2005).

When there is a question as to whether evidence was illegally obtained, the jury must be instructed
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that they are to disregard such evidence if they believe, or have a reasonable doubt as to whether, the

evidence was obtained illegally. Id.

A defendant’s right to the submission of jury instructions under article 38.23(a) is limited to

disputed issues of fact that are material to his claim of a constitutional or statutory violation that

would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App.

2007) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)). 

The terms of the statute are mandatory, and when an issue of fact is raised, a defendant has a statutory

right to have the jury charged accordingly. The only question is whether under the facts of a particular

case an issue has been raised by the evidence so as to require a jury instruction. Where no issue is

raised by the evidence, the trial court acts properly in refusing a request to charge the jury.

Madden, 242 S.W.3d at 510 (quoting Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App.

1982)).

A defendant must meet three requirements before he is entitled to the submission of a jury

instruction under article 38.23(a):

(1) The evidence heard by the jury must raise an issue of fact;

(2) The evidence on that fact must be affirmatively contested; and

(3) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining

the evidence.

Madden, 242 S.W.3d at 510. If there is no disputed factual issue, the legality of the conduct is

determined by the trial judge alone, as a question of law. Id. Said another way, a defendant is not

entitled to an instruction when the jury is not being asked to decide a disputed issue of historical fact

because the jury “cannot be expected to decide whether the totality of certain facts do or do not

constitute ‘reasonable suspicion’ under the law.” Id. at 511.

A review of the record shows that no material factual dispute existed at the time of the trial

court’s refusal to submit the requested instruction to the jury. Castle witnessed Appellant’s vehicle

almost strike Officer Burge and believed that Appellant may have committed the offense of

aggravated assault. Sergeant Castle had reasonable suspicion that a crime had been committed, and

she stopped Appellant. 
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Appellant argues that there was a factual dispute. Specifically, he argues that Castle testified

that he “drove safely and yet also drove in a manner that led her to believe he was committing the

offense of aggravated assault.” This is similar to the scenario described in Madden in which a single

witness can create a fact question by giving inconsistent testimony. Id at 513–514. But that did not

happen here. When Appellant argues that Castle testified he drove “safely,” he appears to be

referring to Castle’s testimony that Appellant was not speeding. This does not create a fact question.

Castle testified consistently that Appellant drove down the middle of the road and almost struck a

police officer. Appellant did not contest the factual underpinnings of the stop at the suppression

hearing, and there were no fact issues for the jury to decide. Rather, the question was whether

undisputed facts gave rise to a reasonable suspicion. This was a legal question properly decided by

the trial court. See id. at 517. As such, the trial court properly denied Appellant’s request for an

article 38.23 jury instruction. We overrule Appellant’s fourth issue.

 

DISPOSITION

Having overruled Appellant’s first and fourth issues, and having determined it is unnecessary

to address his second and third issues, we affirm the trial court’s judgment.

 BRIAN HOYLE 

 Justice

Opinion delivered November 26, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)