COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00256-CR
HARRELL RICHMOND THORNTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 8 OF TARRANT COUNTY
TRIAL COURT NO. 1211078
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MEMORANDUM OPINION 1
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A jury convicted Appellant Harrell Richmond Thornton of misdemeanor
driving while intoxicated (DWI), enhanced by one prior DWI conviction, and the
trial court sentenced him to 365 days’ confinement, probated for two years, and
imposed a fine of $4,000. Appellant brings two points on appeal, contending that
the trial court reversibly erred by failing to include a correctly worded article 38.23
1
See Tex. R. App. P. 47.4.
instruction in the jury charge and by denying his motion to suppress. Because
the trial court did not err, we affirm the trial court’s judgment.
Brief Statement of Facts
At the hearing on the motion to suppress, Jason Morehouse testified that
he was employed as a police officer with the City of Fort Worth. At approximately
2:06 a.m. on August 25th, 2010, Officer Morehouse was in a marked patrol
vehicle, facing southbound at the intersection of Oakmont Boulevard and Bryant
Irvin. There are two left turn lanes at this intersection. Officer Morehouse
testified that he was stopped in the right-side left turn lane, and Appellant pulled
up in the left-side left turn lane. Officer Morehouse testified that the signal lights
for the turn lanes as well as the “straight” lanes were red. He explained that he
was on his way home and on the phone with his wife as he sat at the intersection
and admitted that he tends to “relax a little bit” when he is not on duty. Officer
Morehouse further testified that drivers do not “pay attention as much to the
roads” when they are talking on cell phones.
According to Officer Morehouse, the light for southbound traffic (the
“straight” lanes) turned green, but the left-turn signal remained red. Officer
Morehouse testified that Appellant nevertheless turned left on the red light. The
officer activated his emergency lights and initiated a traffic stop of Appellant,
which ultimately resulted in his arrest for DWI. Officer Morehouse’s patrol vehicle
was not equipped with a video camera. The record therefore does not include a
2
video recording of his contact with Appellant. Officer Morehouse’s trial testimony
was essentially the same as his testimony in the suppression hearing.
Patty Gillespie testified that she was a diesel mechanic with the United
States Air Force. On August 25th, 2010, she and Appellant had been driving his
mother’s truck to determine why it was making a “squealing noise.” Gillespie
testified that she and Appellant had driven the truck in a parking lot for “a good
45 minutes to an hour” but could not determine what was causing the noise.
After unsuccessfully trying to determine what was causing the noise, she and
Appellant were heading to her apartment on Oakmont Boulevard. Gillespie was
in the passenger seat. She testified that they were driving south on Bryant Irvin
and pulled into the far left-hand turn lane at the Oakmont intersection. Gillespie
further testified that they were stopped at the red light for fifteen to twenty
seconds before a police car pulled up to their right.
According to Gillespie, she told Appellant that a police car was next to
them and that she was going to try to determine what was causing the noise in
the truck by using “the side of the car for the echo[e]s to bounce off to see if we
c[ould]—front, back, rear, middle, you know.” In this manner, Gillespie explained,
she could determine if the noise was coming from the brakes or the transmission
or a “belt in the front.” To hear better, Gillespie rolled her window down and tilted
her head out of the window. She testified that she definitely saw the officer and
that she was watching the traffic light. According to Gillespie, the left-turn light
turned green, and Appellant proceeded to make a left turn. Gillespie testified that
3
she travelled that street every day and was familiar with this intersection.
Gillespie testified that she was “100 percent sure that light was green.” She
testified that Officer Morehouse’s vehicle began to move a few seconds before
Appellant began his left turn. Gillespie’s trial testimony was essentially the same
as her testimony in the suppression hearing.
At the suppression hearing, Appellant testified that on August 25th, 2010,
he and Gillespie had been trying to determine “where a clanking noise or
squealing noise was coming from underneath the truck.” Appellant had asked
Gillespie to help him determine what was wrong with the truck because she was
a mechanic with the United States Air Force. Appellant testified that they drove
the truck around in two separate parking lots but could not determine the cause
of the noise. After driving around in the second parking lot, they decided to
return to Gillespie’s apartment. Appellant drove southbound and, at an
intersection, pulled into the far left-hand turn lane. Appellant testified that
Gillespie informed him that a police car was on her right and that she was going
to use that car as a deflector of sound in order to isolate the squeaking noise that
the truck was making. At that time, the left turn arrow was red. Appellant
testified that the left turn signal changed to green, and he proceeded to turn left.
Appellant “started real easy and then picked up speed so [they] could hear the
clanking.” Appellant testified that he and the officer turned at approximately the
same time. Appellant further testified that he was “100 . . . percent positive” that
4
the left turn signal turned green before he made his left turn. Appellant did not
testify at trial.
Motion to Suppress
Appellant argues in his second point that the trial court reversibly erred by
denying his motion to suppress the fruits of the warrantless stop that he argues
was not based on reasonable suspicion. We review a trial court’s ruling on a
motion to suppress evidence under a bifurcated standard of review. 2 In
reviewing the trial court’s decision, we do not engage in our own factual review. 3
The trial judge is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given their testimony. 4 Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if the
trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn on
an evaluation of credibility and demeanor. 5
2
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
3
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
4
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
5
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09
(Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim.
App. 2002).
5
The trial court chose to believe the testimony of the officer that he had
observed a traffic violation and to disbelieve the defense witnesses denying the
traffic violation. As the trial court noted in its fifth conclusion of law, “when a
traffic law violation is committed in an officer’s presence, the officer has probable
cause to lawfully stop and arrest or detain the violator.” 6
Appellant and his passenger testified that he entered the intersection to
make his left turn while the governing light was green. The officer testified that
the light was red. He may have been distracted; he may even have been wrong.
But the evidence before us shows merely a swearing match. The trial court was
free to believe the witness he found most credible. The officer’s testimony
satisfied, at minimum, the standard necessary to justify the initial stop. We
overrule Appellant’s second point.
Jury Charge
At the charge conference, Appellant requested an article 38.23 instruction.
The trial court included the following instruction in the jury charge:
You are instructed that under our law no evidence obtained or
derived by an officer or other person as a result of an unlawful stop
and detention shall be admissible in evidence against such accused.
An officer is permitted, however, to make such a temporary
investigative detention of a motorist if the officer has a reasonable
suspicion that some activity out of the ordinary is or has occurred,
that the person detained is connected with such activity, and that
6
Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986); Tyler v.
State, 161 S.W.3d 745, 748 (Tex. App.—Fort Worth 2005, no pet.).
6
there is some indication that the activity is related to a crime or a
criminal offense.
Now, bearing in mind these instructions, if you find from the
evidence that on the occasion in question [Appellant] did not
disregard a [the handwritten word “valid” is inserted here in the
typewritten jury charge] signal device immediately preceding the
stop and detention by the police officer involved herein, or you have
a reasonable doubt thereof, then such detention of the accused
would be illegal, and if you find the facts so to be, or if you have a
reasonable doubt thereof, you will disregard any evidence obtained
as a result of the temporary investigative detention, and you will not
consider such evidence for any purpose whatsoever.
Appellant made no objection. Indeed, Appellant specifically stated, “No
objections, Your Honor.” Appellant argues in his first point on appeal, however,
that the court’s charge
erroneously phrased the factual dispute in terms of whether the
Appellant disregarded a “valid signal device.” . . . The Court’s
charge does not define “valid signal device.” This left the jury with
no ability to determine the true disputed fact (was the light red or
green) within the 38.23 framework. Furthermore, the trial court’s
attempt to instruct the jury with the mandated language of 38.23 is
confusing, at best.
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. 7 If error occurred, whether it was
preserved determines the degree of harm required for reversal. 8 Unpreserved
7
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
8
Id.
7
charge error warrants reversal only when the error resulted in egregious harm. 9
The appropriate inquiry for egregious harm is a fact-specific one that must be
performed on a case-by-case basis. 10
In making an egregious harm determination, “the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.” 11 Errors that result in egregious harm are those “that affect the very
basis of the case, deprive the defendant of a valuable right, vitally affect the
defensive theory, or make a case for conviction clearly and significantly more
persuasive.” 12 The purpose of this review is to illuminate the actual, not just
theoretical, harm to the accused. 13
A person who enters an intersection when the light governing his entering
the intersection is red disregards a valid signal device. The trial court, under the
9
Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code
Crim. Proc. Ann. art. 36.19 (West 2006).
10
Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.
State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
11
Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–
10 (applying Almanza).
12
Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172).
13
Almanza, 686 S.W.2d at 174.
8
facts of this case, did not commit error in providing the jury instruction now
complained of. Even if we were to assume that the charge was erroneous,
though, such error would not be egregious. The jury charge called to the jury’s
attention the disputed evidence about the signal light and instructed the jury that
Appellant committed a traffic violation only if the jury found that he had entered
the intersection against the light. The jury was instructed to consider the fruits of
the stop only if the stop was lawful and pursuant to a traffic violation. We
therefore overrule Appellant’s first point.
Conclusion
Having overruled Appellant’s two points on appeal, we affirm the trial
court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 15, 2015
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