Opinion issued March 17, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01243-CR
RYAN WILLIAM MADDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 917531
O P I N I O N
Appellant, Ryan William Madden, was charged by indictment with two paragraphs of felony possession of cocaine with intent to deliver. The State proceeded on the first paragraph alleging cocaine weighing at least 400 grams; the State abandoned the second count involving cocaine weighing 2.9 kilograms. A jury found appellant guilty and sentenced him to 30 years in prison. Appellant, in three points of error, contends that the trial court erred as follows: (1) in denying appellant’s motion to suppress the evidence collected from the trunk of the rental car he was driving because he was detained after the traffic offense investigation should have been completed to allow for a narcotics-sniffing dog to arrive; (2) in denying his motion for a mistrial after it became known that the videotape furnished to appellant by the State was misleading and adversely affected appellant’s theory, preparation, and presentation of his case; and (3) in denying his request for an article 38.23 instruction regarding the legality of appellant’s continued detention after the investigation on the traffic offense had concluded. We reverse and remand.
BACKGROUND
On July 10, 2002, Trooper Lawrence Lily of the Texas Department of Public Safety observed appellant exceeding the speed limit by driving 61 miles per hour in a 55-miles-per-hour construction zone on Interstate 10. He also observed another vehicle, a GMC Jimmy, pass appellant’s car and begin “riding the bumper” of an 18 wheeler at a speed of 63 miles per hour. Both vehicles had Florida license plates. Lily had received training regarding the tactics of drug convoys and felt that the driver of the GMC Jimmy was seeking to divert his attention from appellant’s car by performing an illegal activity. He proceeded to stop both vehicles for speeding.
After both vehicles were stopped, Lily identified himself and asked appellant to step to the rear of his car with his driver’s license. Lily testified that appellant’s hands were shaking tremendously as he handed Lily his Florida driver’s license. Lily further noted that appellant’s face was trembling. Lily proceeded to question appellant on where he was coming from and who owned the car. Appellant indicated that he was coming from Burlestine [sic] and that the car was a rental. The direction appellant pointed, according to Lily, did not coincide with the direction appellant said he was coming from. Lily looked at the rental papers for the vehicle. He found that the car was rented in Orlando, Florida and that the rental agreement had expired four days before. Appellant told Lily that he had dealt with the overdue return of the rental car over the phone. When Lily asked him who he was traveling with, appellant answered that he was traveling by himself.
When asked if he had been arrested for anything previously, appellant responded that he had been arrested for driving while intoxicated. Lily ran a driver’s license and criminal history check on appellant and was informed that he had been arrested for larceny in 1996. Lily then requested backup and a Harris County K-9 unit.
When his backup, Trooper Kunz, arrived, Lily questioned the people in the GMC Jimmy. Both of the people in the GMC Jimmy, Michael Johnson and Joseph Watt, also had Florida driver’s licenses and said that they knew appellant. This, Lily believed, contradicted appellant’s statement that he was traveling by himself. Appellant then told Lily that he misunderstood the question at the time and that he was traveling with Johnson and Watt. Johnson and Watt claimed that they were coming from Arlington, Texas and that they had been there for two days. Appellant told Lily that he stayed with his family while in Texas. However, when confronted with Johnson’s and Watt’s statements, that they were visiting their family, appellant changed his story, saying that he was traveling with Johnson and Watt and had stayed with their family.
When the K-9 unit arrived, approximately 25 minutes after the request, Lily asked the K-9 handler, Deputy Peterson, to run his dog around the exteriors of the vehicles. Peterson did so and informed Lily that the dog positively alerted for some form of narcotics located both in the trunk of appellant’s rental car and in the back of the GMC Jimmy. Lily searched the rental car’s trunk and found a container filled with dog food and a sack containing three bricks of cocaine, a rifle, a shotgun, three handguns, and ammunition. Two-way radios were also found in both cars. No drugs were found in the GMC Jimmy.
DISCUSSION
In his third point of error, appellant contends that the trial court erred by denying his request for a jury instruction regarding the legality of appellant’s continued detention after the investigation of his speeding offense should have ended. Appellant argues that there are disputed facts regarding the basis for his detention after the investigation for the speeding offense should have been concluded.
Lily testified that one of the six facts that led to his suspicion that appellant’s vehicle contained contraband, and to his continued detention of appellant, was appellant’s nervousness, demonstrated by his hands shaking, his fumbling with his wallet, and his face trembling. Appellant claims that a videotape in evidence does not show the shaking, fumbling, and trembling that Lily described.
After the State and appellant rested, the trial court held a charge conference, at which appellant proffered two article 38.23 instructions and requested that they be included in the jury charge. His first requested instruction regarded Lily’s reasonable suspicion for the initial stop to investigate the traffic offense, and the second regarded Lily’s reasonable suspicion to continue detaining appellant after the investigation of the traffic offense ended. The trial court granted appellant’s request for the article 38.23 instruction regarding the initial traffic stop, noting that the videotape showed that appellant had told Lily that he was only going 55 miles per hour, which created a fact issue as to Lily’s reasonable suspicion to initiate the traffic stop.
However, the trial court denied appellant’s request that the jury charge include the second article 38.23 regarding his continued detention. At the charge conference, appellant’s counsel argued that the videotape rebutted Lily’s testimony that he observed appellant’s hands shaking, appellant fumbling with his wallet, and appellant’s face contorting. The trial court responded to appellant’s argument as follows:
I think the record is clear on what you are saying are factual disputes. I do not think that there are factual disputes to be determined by a jury. I think all the things that you are setting out are for an Appellate Court, if it goes there, to decide whether or not those things rise to the level of what they believe in 2002 will allow an officer to keep them there the 15 minutes it took to get the drug dog there and I do not think that there are any factual disputes. I am not going to give you a charge on that . . . .
Once investigation of conduct that initiated a traffic stop is concluded, continued detention is permitted only if there is reasonable suspicion to do so. Woods v. State, 956 S.W.2d 33, 35, 38 (Tex. Crim. App. 1997). To demonstrate reasonable suspicion in this case, the State had to present to the trial court specific articulable facts, which, when combined with rational inferences from those facts, led Lily to reasonably suspect that appellant “had engaged, was engaging, or was soon to engage in criminal activity.” Id. (applying totality of circumstances test for reasonableness of temporary detention and requiring detaining officer to have specific articulable facts and rational inferences from those facts, leading him to reasonable suspicion of criminal activity). See also $217,950.00 in United States Currency v. State, 54 S.W.3d 918, 924 (Tex. App.—Corpus Christi 2001, no pet.) (“A stop based on a violation of a traffic regulation will not justify detention to await the arrival of a drug detection dog . . . [which] is necessarily a greater imposition on a motorist than conducting a search immediately upon the arousal of a reasonable suspicion.”).
A defendant is entitled to a jury instruction under article 38.23(a) when a fact issue exists regarding the basis for an officer’s seizure of evidence. Davy v. State, 67 S.W.3d 382, 388 (Tex. App.—Waco 2001, no pet.) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)). When a fact issue is raised, regardless of the level it rises to, the trial court is statutorily bound to submit an instruction to the jury. See Jordan v. State, 562 S.W.2d 472, 473 (Tex. Crim. App. 1978) (“The terms of Article 38.23 are clearly mandatory, the only issue being whether under the facts of a particular case an issue concerning the validity of the search is raised by the evidence.”); Reece v. State, 878 S.W.2d 320, 324, (Tex. App.—Houston [1st Dist.] 1994, no pet.) (same).
Lily testified that he did not think the videotape conclusively showed that appellant was shaking, trembling, and fumbling with his wallet. Lily speculated that this was due to the low quality of the videotape and was not necessarily evidence contradicting his testimony as to one of the six facts upon which he based his reasonable suspicion.
The question of whether Lily’s testimony about appellant’s conduct is contradicted by what the videotape shows is a fact issue for the jury to decide; that is, the jury had to decide whether appellant was shaking, trembling, and fumbling with his wallet, based on Lily’s testimony and the videotape.
Therefore, we hold that it was error for the trial court not to give the article 38.23 instruction on the reasonableness of the continued detention. We next apply the harmless error rule of article 36.19 to the failure to give the article 38.23 instruction. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
Under this standard, when, as here, a defendant has made a timely objection and there is error, reversal is required if there is “some harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). Thus, we must reverse provided the error is not harmless. Id. To determine whether there is harm, we must evaluate “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.” Id. Some harm means any actual harm, regardless of degree. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). We may affirm cases involving preserved charging error only if no harm has occurred. Id. But we must measure the error’s harmfulness at least in part against the likelihood that the verdict was actually based on another theory of culpability unaffected by the erroneous charge. Govan v. State, 682 S.W.2d 567, 570–71 (Tex. Crim. App. 1985), overruled on other grounds by Brown v. State, 716 S.W.2d 939, 945 (Tex. Crim. App. 1986); see also Atkinson, 934 S.W.2d 896, 897 (Tex. App.—Fort Worth 1996) (analyzing harm after remand by Court of Criminal Appeals in Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002)).
We begin our harm analysis by analyzing the jury charge itself. See Almanza, 686 S.W.2d at 171. The jury was given an article 38.23 instruction regarding the initial stop for speeding. The jury charge allowed the jury to resolve that factual issue in appellant’s favor and not to consider the evidence from the search of the rental car. However, the jury here resolved the factual issue regarding the initial stop for speeding in favor of the State, and the jury charge did not allow resolution of the factual issue of whether Lily had reasonable suspicion to warrant continued detention. Had the jury resolved this second factual issue in favor of appellant, then it would have been instructed not to consider the tainted evidence.
We next examine the state of the evidence, including contested issues and the weight of the probative evidence. See id. The evidence in this case bearing on the seizure of the drugs consists of, as previously stated, Lily’s testimony, the videotape, and the drugs.
We next examine the arguments of counsel. See id. Appellant’s counsel told the jury, in opening arguments, that the evidence would show that there was no reasonable suspicion that would justify appellant’s continued detention. In closing arguments, appellant’s counsel re-asserted the conflict between the videotape and Lily’s testimony regarding the signs of nervousness Lily alleged that appellant displayed. But, as the charge was worded, the jury was not allowed to give effect to appellant’s counsel’s argument regarding the reasonableness of the suspicion leading to appellant’s continued detention. The trial court’s denial of appellant’s requested instruction undermined appellant’s best opportunity to get the jury to conclude that the cocaine was illegally seized. Moreover, there is no other theory of culpability that would be unaffected by an erroneous charge. See Govan, 682 S.W.2d at 570–71. The prosecutor, of course, highlighted the evidence that appellant “was lying and he was shaking.”
After examining the entire jury charge, the jury verdict, the disputed and undisputed evidence, the weight of the probative issues, and the arguments of counsel, we conclude that the failure to provide an article 38.23 instruction regarding appellant’s continued detention produced at least some actual harm to appellant. See Almanza, 686 S.W.2d at 172. Because this issue is determinative, we need not address appellant’s other points of error.CONCLUSION
We reverse the judgment of the trial court and remand the cause to the court below for further proceedings consistent with this opinion.
Sam Nuchia
Justice
Panel consists of Justices Taft, Nuchia, and Keyes.
Publish. Tex. R. App. P. 47.2(b).