COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00109-CR

DONALD LEWIS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 3 OF DENTON COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Donald Lewis appeals his conviction for driving while intoxicated 

(DWI). Lewis raises four issues on appeal regarding voir dire, the 

constitutionality of the DWI statute, and the jury instructions. We will affirm.

 

1See Tex. R. App. P. 47.4.
2

II. FACTUAL AND PROCEDURAL BACKGROUND

Several Fort Worth police officers worked an off-duty assignment directing 

traffic at Texas Motor Speedway one race day in April 2011. At around 10:30 

that night, there was a lot of pedestrian and vehicular traffic leaving the 

speedway. Officer Jennifer Bell was notified by radio to be on the lookout for a 

golf cart with three people in it; the driver was driving in the grass and in and out 

of the vehicles that were lined up to leave the speedway, and the golf cart had 

almost hit a pedestrian. She soon saw the golf cart coming towards her with no 

lights on weaving around vehicles. The golf cart almost hit Officer Bell, and she 

grabbed the driver‟s arm and told him, “[S]top, police, stop now.” The driver

replied that he did not have to stop and continued driving. Officer Bell was 

wearing her police uniform with a fluorescent yellow safety vest that said “Police” 

on it. She ran after the golf cart and radioed to Corporal D.J. Lusty, another offduty officer working traffic at the speedway that night, to stop the golf cart 

because it had almost hit her and because the driver would not stop. 

Corporal Lusty saw the golf cart coming towards him and told the driver, 

“[S]top, police.” The golf cart did not stop, and Corporal Lusty stepped out of the 

way as the right side of the golf cart struck his arm. Corporal Lusty ran alongside 

the driver‟s side of the golf cart and told the driver to pull over. Corporal Lusty 

grabbed the steering wheel and attempted to steer the golf cart toward a fence to 

slow it down. The driver asked, “[W]hat‟s the problem, officer?” Corporal Lusty 

replied that the golf cart had hit him and had almost hit another officer. Corporal 
3

Lusty grabbed the back of the driver‟s shirt, causing it to tear. Corporal Lusty 

then jumped on the back of the golf cart and continued to tell the driver to stop. 

With the help of a speedway employee on a four-wheeler, the officer stopped the 

golf cart. The driver, identified as Lewis, was handcuffed. 

Officer Carlene Bounds conducted the DWI investigation after Lewis was 

arrested. She noticed that Lewis had an odor of alcoholic beverage on him, that 

his speech was slurred, and that his eyes were bloodshot and watery. Lewis 

admitted that he had been drinking alcoholic beverages. He failed field sobriety 

tests and was taken to the police station, where he consented to a breath test. 

The results showed that Lewis had an alcohol concentration of 0.152 and 0.135 

grams of alcohol per 210 liters of breath. Retrograde extrapolation evidence 

presented at trial showed that Lewis would have had an alcohol concentration of 

between 0.14 and 0.16 grams of alcohol per 210 liters of breath at 10:30 that 

night, when Corporal Lusty stopped him. 

Lewis was charged with DWI and misdemeanor evading arrest. The jury 

found Lewis guilty of DWI and found him not guilty of evading arrest. The trial 

court sentenced Lewis to 120 days in jail and a $500 fine, suspended imposition 

of the jail sentence, and placed Lewis on community supervision for fifteen 

months. 

III. LIMITATION OF DEFENSE COUNSEL’S QUESTIONING IN VOIR DIRE

In his first issue, Lewis argues that the trial court abused its discretion by 

not allowing defense counsel to discuss with the jury panel during voir dire the 
4

difference between misdemeanor evading arrest (which does not require the use 

of a motor vehicle) and felony evading arrest (which, in this case, would require 

the use of a motor vehicle).

2

 See Tex. Penal Code Ann. § 38.04(a), (b). The 

State objected that Lewis had not been charged with felony evading arrest so 

that offense was not a proper subject of voir dire. Defense counsel responded

that felony evading arrest (and the definition of a motor vehicle as it applies to 

felony evading arrest) were relevant to both the law and the facts:

We believe as the trial continues that there is going to be testimony 

and evidence that comes out that Mr. Lewis was arrested for felony 

evading. We‟d like to educate the jury on the definition of a motor 

vehicle and what makes it felony evading rather than just a normal 

evading case, and because of that, we want to use the slides to 

educate them to those purposes. 

The trial court did not allow defense counsel to present the felony evading arrest 

definition of a motor vehicle to the panel. 

Lewis argues that defense counsel should have been allowed to show the 

“absurdity” between charging Lewis with DWI (which requires the use of a motor 

vehicle) and not charging him with felony evading arrest (which also requires the 

use of a motor vehicle) but instead charging him with misdemeanor evading 

arrest (which does not require the use of a motor vehicle); he argues that the 

issue was “tied to the credibility of the officers and the good faith of the 

 

2Specifically, defense counsel was prohibited from showing the jury panel 

a PowerPoint slide containing the definition of a motor vehicle as it applies to the 

felony evading arrest statute. See Tex. Transp. Code Ann. § 541.201(23) (West 

2011); Tex. Penal Code Ann. § 38.04(b), (c) (West Supp. 2012). 
5

prosecutors.” As the State points out, it has considerable discretion in deciding 

what charges to bring against a defendant. See Raetzsch v. State, 709 S.W.2d 

39, 41 (Tex. App.—Corpus Christi 1986, no pet.) (citing United States v. 

Goodwin, 457 U.S. 368, 382, 102 S. Ct. 2485, 2493 (1982)). Here, the State 

chose to charge Lewis with misdemeanor evading arrest, a lesser-included 

offense of felony evading arrest. See Tex. Penal Code Ann. § 38.04(a), (b); see 

also Powell v. State, 206 S.W.3d 142, 143 (Tex. App.—Waco 2006, pet. ref‟d)

(explaining that evading arrest on foot is a lesser-included offense of evading 

arrest by vehicle). Because felony evading arrest was not at issue, the trial court 

did not abuse its discretion by precluding defense counsel from presenting to the 

jury panel the definition of a motor vehicle that is applicable to that offense. See 

Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (explaining that trial 

court has broad discretion over the propriety of a particular question during jury 

selection and that discretion will not be disturbed absent an abuse of discretion); 

see also Hernandez v. State, 390 S.W.3d 310, 315 (Tex. Crim. App. 2012) 

(explaining that trial court retains discretion to restrict voir dire questions that are 

confusing or misleading). We overrule Lewis‟s first issue.

IV. THE DEFINITION OF A “MOTOR VEHICLE”

In part of his second issue, Lewis argues that the State‟s defining, during 

voir dire, a “motor vehicle” to include “anything that can put you on the road” was 

overbroad and misled the jury panel. Lewis did not object to this statement and,
6

consequently, did not preserve his complaint for our review.3 See Tex. R. App. 

P. 33.1(a)(1) (requiring a timely request, objection, or motion stating the specific 

grounds for the desired ruling to preserve a complaint for review); Clark v. State, 

365 S.W.3d 333, 339 (Tex. Crim. App. 2012); see also Espinosa v. State, 194 

S.W.3d 703, 708 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (“When [an] 

appellant complains about an improper remark by the prosecutor during voir dire, 

[the] appellant must object when the remark is made.”).

Lewis further argues in the remainder of his second issue and in his third 

issue that if, in fact, the DWI statute‟s definition of a motor vehicle does include 

“skateboards and roller skates and various household conveniences,” then the 

statute is overbroad and void for vagueness. Lewis did not challenge the 

constitutionality of the statute in the trial court and has thus failed to preserve this 

complaint for our review.4 See Tex. R. App. P. 33.1(a)(1); Karenev v. State, 281 

S.W.3d 428, 434 (Tex. Crim. App. 2009) (holding that appellant may not raise 

 

3

In voir dire, the State also read to the jury panel the correct definition of a 

“motor vehicle” applicable to the offense of DWI—“a device in, on, or by which a 

person or property is or may be transported or drawn on a highway.” See Tex. 

Penal Code Ann. § 32.34(a)(1) (West 2011) (defining motor vehicle as such), 

§ 49.01(3) (West 2011) (applying section 32.34‟s definition of a motor vehicle to 

intoxication offense chapter). The State then offered a horse and buggy as an 

example and elicited from the jury panel other examples, including a bicycle, a 

skateboard, a moped, a golf cart, and a tractor. Defense counsel did not object 

during this exchange.

4

To the extent that Lewis‟s argument could be interpreted as challenging 

the sufficiency of the evidence to prove the motor-vehicle element of DWI, Lewis 

concedes in his brief that a golf cart is a motor vehicle under penal code section 

32.34(a)‟s definition. 
7

facial challenge to constitutionality of statute for first time on appeal); Holmes v. 

State, 380 S.W.3d 307, 308 (Tex. App.—Fort Worth 2012, pet. ref‟d) (“[A] 

challenge to the constitutionality of a statute is a forfeitable right and must be 

preserved in the trial court during or after trial.”). We overrule Lewis‟s second

and third issues.

V. ARTICLE 38.23 INSTRUCTION

In his fourth issue, Lewis argues that the trial court erred by refusing his 

request to include an article 38.23 instruction in the jury charge regarding the 

officers‟ reasonable suspicion to stop him. 

Article 38.23(a) of the code of criminal procedure prohibits the admission 

of evidence against an accused in a criminal trial if the evidence was obtained in 

violation of the Texas or United States constitutions or laws. Tex. Code Crim. 

Proc. Ann. art. 38.23(a) (West 2005). The statute further provides, 

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.

Id. 

If a defendant successfully raises a factual dispute over whether evidence 

was illegally obtained, inclusion of a properly-worded article 38.23 instruction is 

mandatory. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). To 

be entitled to the submission of a jury instruction under article 38.23(a), a 

defendant must establish that (1) the evidence heard by the jury raises an issue 
8

of fact; (2) the evidence on that fact is affirmatively contested; and (3) the 

contested factual issue is material to the lawfulness of the challenged conduct in 

obtaining the evidence. Id.; cf. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. 

Crim. App. 2008). If there is no dispute regarding the factual basis for the 

challenged search or seizure, then the legality of the conduct is determined by 

the trial judge alone—as a question of law—and a jury instruction is 

inappropriate. Madden, 242 S.W.3d at 510. “A fact issue about whether 

evidence was legally obtained may be raised „from any source, and the evidence 

may be strong, weak, contradicted, unimpeached, or unbelievable.‟” Garza v. 

State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 

933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, pet. ref‟d)). 

Here, Lewis argues that the testimony of three witnesses—himself and the 

two passengers in his golf cart—contradicted Officer Bell‟s testimony that she 

yelled at Lewis to stop and that he almost struck her. One of the passengers, 

Georg Schmid, testified that the parking lot was chaotic and that he did not know 

the police were trying to stop the golf cart until Corporal Lusty jumped on the cart. 

When asked if he remembered a female officer telling them to stop, he replied, “I 

don‟t remember [a] female officer. I remember a female parking attendant.” 

Schmid also testified that Lewis almost hit only “the dude that jumped in the way” 

and jumped on the golf cart—Corporal Lusty. Jennings, the other passenger,

testified that he saw what he thought was a “parking lot attendant” tell them to 

stop and said something about being on the grass, but he did not know whether 
9

Lewis heard the attendant. Jennings testified that he did not see Lewis hit 

anyone with his golf cart. Lewis himself testified that a female parking attendant 

stepped in front of his golf cart and that he swerved to “kind of go around her,” at 

which point Jennings told him that she had said something to them about being 

on the grass. Lewis testified that he did not know she was a police officer and 

that she never grabbed his arm or told him to stop. 

This evidence raises, at most, a disputed fact issue about whether Lewis 

knew that a police officer—Officer Bell—was trying to stop him.

5

 None of the 

above testimony nor any other evidence in the record creates a disputed issue of 

fact regarding Lewis driving in and out of the grass and vehicles and almost 

hitting Officer Bell or Corporal Lusty—as a basis for reasonable suspicion to stop 

Lewis. See Madden, 242 S.W.3d at 513 (explaining that no disputed fact exists 

if, for example, officer testified that appellant “did speed” and appellant testified 

that he “doesn‟t remember or doesn‟t know” whether he was speeding because 

there is no affirmative evidence of a factual conflict). Accordingly, Lewis was not 

entitled to an article 38.23 jury instruction. See Hamal v. State, 390 S.W.3d 302, 

302 (Tex. Crim. App. 2012). We overrule Lewis‟s fourth issue.

 

5

The jury found Lewis not guilty of evading arrest. 
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VI. CONCLUSION

Having overruled Lewis‟s four issues, we affirm the trial court‟s judgment.

SUE WALKER

JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: April 18, 2013