Affirmed and Memorandum Opinion filed August 23, 2018.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00481-CR

MARK ANTHONY GASAWAY, Appellant 

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 56th District Court 

Galveston County, Texas 

Trial Court Cause No. 16-CR-1519 

MEMORANDUM OPINION 

In this appeal from a conviction for possession of a controlled substance, we 

consider the following two issues: (1) whether the trial court abused its discretion 

when it denied a motion to suppress, and (2) whether the trial court erred in its 

submission of the jury charge. As to the first issue, we conclude that the trial court’s 

ruling is supported by the record, and as to the second issue, we conclude that there 

is no error in the jury charge. Accordingly, we overrule both issues and affirm the 

trial court’s judgment. 
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BACKGROUND 

This case is about drugs, but it originates from an investigation into an 

unrelated assault. The complainant in that assault called police to report that she had 

been physically beaten by her boyfriend. An officer was dispatched to the 

complainant’s apartment, where she was waiting with a small group of people. The 

complainant informed the officer that her boyfriend had already left, but she 

indicated that he may be walking around nearby. She described her boyfriend as 

being African American with a light complexion and tattoos. She also said that when 

she last saw her boyfriend, he was in red shorts, he was either shirtless or in a red 

and white striped shirt, and he was carrying a black bag. 

The officer left the complainant’s apartment to search for the boyfriend, and 

in less than a minute, he found appellant walking around in the immediate vicinity. 

Appellant was not the complainant’s boyfriend, but he roughly matched the 

description of the boyfriend. Appellant is African American with a light skin tone 

and tattoos, and at the time of the encounter, he was wearing red shorts with a white 

shirt and red lanyard. He was not carrying a black bag. 

The officer stopped appellant and asked for his name. Appellant answered 

truthfully, but the officer continued to detain him. When the officer expressed a 

desire to conduct a pat-down search for weapons, appellant ran away on foot. The 

officer gave chase and eventually apprehended appellant, who was found to be in 

possession of methamphetamine. 

MOTION TO SUPPRESS 

Appellant moved to suppress the drugs, arguing in two separate points that the 

officer lacked reasonable suspicion to stop him. In his first point, appellant argued 

that the stop was unreasonable because the complainant affirmatively told the officer 
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before he began his search that appellant was not her boyfriend. In his second point, 

appellant argued that the stop was unreasonable because the complainant’s 

description of her boyfriend was so general that it could encompass any black man 

in the area. The implication of this second point was that the officer had a duty to 

obtain a more specific description of the suspect before he began his search. 

Both of these points were litigated in a pretrial hearing. As for the first point, 

there was conflicting evidence. The complainant testified that when the officer first 

arrived on the scene, he pointed to a suspect in the parking lot and asked the 

complainant if the suspect was the man who had assaulted her. The complainant said 

that she recognized the suspect as appellant and she told the officer “no.” This 

exchange occurred shortly before the complainant gave the officer a description of 

her boyfriend. 

The officer controverted the complainant’s testimony. He said that when he 

pointed to the suspect, he was referring to a different person who was not appellant. 

The officer also added that he did not see appellant until after the complainant 

provided the description of her boyfriend. 

As for the second point, the officer gave the following explanation for why he 

stopped appellant: “Because he matched the brief description she gave me of him. 

He was in the immediate area. He had the red shorts. I considered him a lighter tone 

black gentleman. He was in the parking lot. He had tattoos. So he met the reasonable 

suspicion.” 

The trial court denied appellant’s motion, and now appellant complains of that 

ruling in his first issue on appeal. 

We review a trial court’s ruling on a motion to suppress for an abuse of 

discretion. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). Under 
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this standard, we give almost total deference to the trial court’s determination of 

historical facts that are supported by the record, especially if the trial court’s ruling 

is based on an evaluation of credibility and demeanor. See Guzman v. State, 955 

S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same level of deference to a 

trial court’s ruling on “application of law to fact questions” or “mixed questions of 

law and fact” if resolution of those questions also turns on an evaluation of 

credibility and demeanor. Id. For pure questions of law, our review is de novo. See 

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). 

Even though appellant based his motion to suppress on two separate points in 

the trial court, he limits his argument on appeal to just the second of those points. 

He contends that the officer had a duty to ask the complainant for a more detailed 

description of her boyfriend, such as his height, weight, hair color, age, and facial 

hair. Appellant continues: “If an officer, through neglect or design fails, in his or her 

duty to question a witness of the salient descriptive features of a potential suspect, if 

reasonably available to the officer, then the stop of a potential suspect is not 

reasonable, and a later mistake . . . of the identity of the individual stopped is also 

not reasonable.” 

Appellant cites to no authority for these propositions, and they are contrary to 

established law. 

An officer can detain a person without a warrant for investigatory purposes if 

the officer has a reasonable suspicion of criminal activity. See State v. Kerwick, 393 

S.W.3d 270, 273 (Tex. Crim. App. 2013). Reasonable suspicion exists when the 

officer has specific and articulable facts that the person is, has been, or will soon be 

engaged in criminal activity. See Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. 

Crim. App. 2017). A determination of reasonable suspicion is made by considering 

the totality of the circumstances. See Ford v. State, 158 S.W.3d 488, 492–93 (Tex. 
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Crim. App. 2005). This standard turns on objective proof of what the officer actually 

knew at the time of the detention—in other words, what the officer saw and what he 

was told—not, as appellant suggests, what the officer “could have or should have 

known.” See State v. Duran, 396 S.W.3d 563, 572 (Tex. Crim. App. 2013). 

Viewed in the light most favorable to the trial court’s decision, the evidence 

supports a finding that the officer had specific and articulable facts that appellant 

was the complainant’s boyfriend and that he had just committed an assault. The 

officer was told by the complainant that her boyfriend was African American with 

light-colored skin and tattoos. There was testimony that appellant matched that 

description. The officer was also told by the complainant that her boyfriend was 

wearing red shorts and that he was walking around nearby. There was testimony that 

appellant matched that description too. Indeed, the officer encountered appellant 

almost immediately after he left the complainant’s apartment. Based on all of these 

matches, the officer could have reasonably suspected that appellant was the 

complainant’s boyfriend, and therefore, the officer had reasonable suspicion to 

detain him. See Thomas v. State, 297 S.W.3d 458, 461–62 (Tex. App.—Houston 

[14th Dist.] 2009, pet. ref’d) (holding that the detention was reasonable because the 

defendant matched the witness’s general description of being a black or Hispanic 

male in bright red shoes). 

To be sure, appellant did not completely match the complainant’s description 

of her boyfriend: appellant was not shirtless or wearing a striped shirt, he was not 

carrying a black bag, and he identified himself by his own true name. However, these 

variances are not dispositive. An officer can draw on his own experience and 

specialized training when conducting an investigation, which may include 

knowledge that a suspect may try to change his appearance or his name in an effort 

to evade identification. See id. at 462 (the witness reported the suspect as wearing 
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dark clothing, but the defendant was stopped while wearing a white shirt, and the 

detention was still upheld as reasonable because the officer could have reasonably 

determined that the defendant removed his jacket to avoid detection). An officer can 

also conclude that a witness’s description is inaccurate, and here, the officer may 

have reasonably determined that the complainant had confused a red and white 

striped shirt (which her boyfriend may have been wearing) with a white shirt and a 

red lanyard (which is what appellant was actually wearing). Cf. Louis v. State, 825 

S.W.2d 752, 755 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (holding that a 

stop of a light tan car was reasonable even though the witness reported the suspect 

car as being white because “a white car could easily be confused with a light tan 

car”).

Looking at the totality of the circumstances, and what the officer actually 

knew at the time of the detention, we conclude that appellant’s detention was 

reasonable. The reasonableness of this detention is not vitiated by the officer’s 

ultimate mistake about appellant’s identity. See Robinson v. State, 377 S.W.3d 712, 

720–21 (Tex. Crim. App. 2012) (“A mistake about the facts, if reasonable, will not 

vitiate an officer’s actions in hindsight so long as his actions were lawful under the 

facts as he reasonably, albeit mistakenly, perceived them to be.”). Nor is it vitiated 

by the officer’s failure before the search to obtain more specific details about the 

complainant’s boyfriend, such as his height or weight. See Thomas, 297 S.W.3d at 

461 (upholding a detention where the witness generally described the suspect as 

being a black or Hispanic male with red shoes, even though the witness did not 

provide “any height, weight, or other distinguishing factors”). Because the detention 

was reasonable, the trial court did not abuse its discretion by denying the motion to 

suppress. We overrule appellant’s first issue. 
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THE JURY CHARGE 

Appellant’s second issue on appeal relates back to the first point he raised in 

his motion to suppress, which was whether the complainant had affirmatively 

eliminated him as a suspect before the officer began his search. 

This point was re-litigated during the trial on the merits. The jury heard the 

complainant testify that when the officer first arrived on the scene, he pointed to a 

man in the parking lot and asked whether that man was the person who had assaulted 

her. The complainant testified that the officer was pointing at appellant, and that she 

answered the officer with a “no.” Controverting this testimony, the officer testified 

that he had been pointing at a person who was standing next to the complainant. The 

officer added that he did not even notice appellant until after he met with the 

complainant and obtained a description of her boyfriend. 

During the charge conference, appellant cited this conflict in the evidence and 

then requested the following instruction under Article 38.23, which is the Texas 

exclusionary rule: 

You are further instructed that under the laws of the State of Texas, no 

evidence obtained by an officer 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. Therefore, if you believe, 

or if you have a reasonable doubt that as to whether or not [the 

complainant] told [the officer] that the defendant, Mark Gasaway, was 

not the person who assaulted her prior to [the officer] stopping the 

defendant, then, you, the jury, shall disregard any such evidence 

obtained, namely the controlled substance recovered by [the officer] 

and not consider it for any reason. 

The trial court rejected this instruction and gave the following instruction 

instead: 
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You are instructed that 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. 

 You are further instructed that our law permits the stop and 

detention of a person by a peace officer without a warrant when the 

officer has reasonable suspicion to believe that the person is involved 

in criminal activity. 

 By the term “reasonable suspicion,” as used herein, is meant 

specific articulable facts which, when taken together with rational 

inferences from those facts, would warrant a man of reasonable caution 

to believe that an offense has been or is being committed. 

 Therefore, bearing in mind these instructions, if you find from 

the evidence that, on the occasion in question, [the officer] did not have 

reasonable suspicion to believe that the Defendant was involved in an 

Assault Causing Bodily Injury—Family Violence against [the 

complainant] immediately prior to the stop, or if you have a reasonable 

doubt thereof, you will disregard any and all evidence obtained as a 

result of the Defendant’s detention by the officer and you will not 

consider such evidence for any purpose whatsoever. 

 However, if you find from the evidence that, on the occasion in 

question, [the officer] did have reasonable suspicion to believe that the 

Defendant was involved in an Assault Causing Bodily Injury—Family 

Violence against [the complainant] immediately prior to the stop, then 

you may consider the evidence obtained by the officer as a result of the 

detention. 

Appellant contends that the trial court erred by denying his requested 

instruction, but his legal argument is not fully constructed. The only point that he 

makes in his brief is that his requested instruction should have been granted because 

he satisfied the requirements for an instruction under Article 38.23. 

We agree with appellant on that basic premise. He did satisfy the requirements 

under Article 38.23. See Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 

2012 (“To be entitled to an Article 38.23 jury instruction, three predicates must be 
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met: (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) the contested factual issue must 

be material to the lawfulness of the challenged conduct.”). 

We would even say that appellant’s requested instruction was better than the 

instruction given by the trial court because his requested instruction more 

specifically directed the jury to the historical fact in dispute. See Madden v. State, 

242 S.W.3d 504, 508 n.7 (Tex. Crim. App. 2007) (approving an “admirable” 

instruction because it “specifically directs the jury’s attention to the one historical 

fact . . . in dispute and tells the jury to decide this fact”). Appellant’s instruction 

pointedly asked “whether or not [the complainant] told [the officer] that the 

defendant, Mark Gasaway, was not the person who assaulted her prior to [the officer] 

stopping the defendant,” whereas the trial court’s instruction more broadly asked 

whether the officer had “reasonable suspicion to believe that the Defendant was 

involved in an Assault Causing Bodily Injury—Family Violence against [the 

complainant] immediately prior to the stop.” 

But appellant makes no argument that the trial court’s instruction was 

somehow deficient. In fact, his brief contains no mention of the trial court’s 

instruction at all. Parts of his brief even give the impression that the trial court 

provided no instruction under Article 38.23 whatsoever. 

During closing arguments, defense counsel could have emphasized the 

evidence that the complainant told the officer before the detention that appellant was 

not the person who had assaulted her. That evidence, if believed, would have 

supported a finding that the officer did not have “reasonable suspicion to believe that 

the Defendant was involved in an Assault Causing Bodily Injury—Family Violence 

against [the complainant] immediately prior to the stop,” which, under the trial 
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court’s instruction, would have required the jury to disregard the evidence obtained 

as a result of the detention. 

But defense counsel did not make that argument. He argued instead that the 

officer’s detention was unlawful because it was the product of racial profiling. He 

made no mention during closing statements that the complainant had affirmatively 

eliminated appellant as a suspect before the officer began his search. 

Even though we agree with appellant that his requested instruction was legally 

correct, we conclude that appellant has not established any error in the charge as 

given. We therefore overrule his second issue. 

CONCLUSION 

The trial court’s judgment is affirmed. 

 

 /s/ Tracy Christopher

 Justice 

Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

Do Not Publish — Tex. R. App. P. 47.2(b).