Arron Thompson v. State

IN THE
TENTH COURT OF APPEALS

No. 10-12-00279-CR

ARRON THOMPSON,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 40th District Court
Ellis County, Texas
Trial Court No. 35783CR

MEMORANDUM OPINION

In three issues, appellant, Arron Thompson, challenges his conviction for

evading arrest with a prior conviction, a state-jail felony. See TEX. PENAL CODE ANN. §

38.04(a), (b)(1)(A) (West Supp. 2012). We affirm.

I. BACKGROUND

City of Ennis Police Officer Brian Clark was on patrol at about 9:00 p.m. on

November 6, 2010, when he received a dispatch to report to an apartment complex in

Ennis, Texas. When he arrived at the apartment complex, Officer Clark saw “several
subjects were in the parking lot pointing at the vehicle that was passing as I was pulling

in saying that he’s in that car.” Officer Clark turned around and initiated a traffic stop

of the vehicle that was identified. On this evening, Officer Clark was driving a marked

police car and was wearing his uniform that had a badge and distinctive patches

identifying him as a police officer. Officer Clark stopped the vehicle a few hundred feet

from the apartment complex, and he identified appellant as a passenger in the vehicle.

Appellant stayed inside the vehicle until another police officer—Corporal Brad Sherrard

of the Ennis Police Department—arrived.

Corporal Sherrard, also driving a marked police car and wearing his police

uniform, responded to the apartment complex based on a report of a possible criminal

trespass. Corporal Sherrard spoke with the reporting parties in the parking lot of the

apartment complex. The reporting parties stated that someone entered their apartment

without their consent and described the perpetrator as wearing a “white beater” or

“wife beater” with dark pants and a “doo rag” on his head. A video of Corporal

Sherrard’s interview of the reporting parties was admitted into evidence.

After speaking with the reporting parties, Corporal Sherrard went to the location

where Officer Clark had stopped the vehicle in which appellant was a passenger.

Corporal Sherrard requested that appellant exit the vehicle so that he could ask him a

few questions. Corporal Sherrard subsequently read Miranda warnings to appellant

because,

[d]ue to his clothing description. He best matched the description given
by the reporting party, the complainant, so we wanted to speak with him
further about the offense or incident in question. So I read him his

Thompson v. State Page 2
 Miranda rights because, at that point in my mind, he had become a suspect
for the trespass.[1]

Corporal Sherrard denied that appellant was under arrest at this point and that he

simply wanted to ask appellant a few questions about the incident. No testimony

indicated that either Corporal Sherrard or Officer Clark informed appellant that he was

a suspect at that time. In the middle of the Miranda warnings, appellant “took off

running.” Police chased appellant for four city blocks until they eventually

apprehended him.

Appellant was charged by indictment with evading arrest with a prior conviction

for evading arrest on September 15, 1999. The case proceeded to trial before a jury.

After the jury was selected by appellant’s court-appointed attorney, appellant informed

the trial court that he wished to exercise his right to self-representation. The trial court

admonished appellant regarding the dangers and disadvantages of self-representation,

but appellant insisted that he wanted to represent himself for the remainder of the trial,

though standby counsel was present outside the courtroom. At the conclusion of the

trial, the jury found appellant guilty of the charged offense and sentenced him to 730

days in state-jail facility with a $10,000 fine. This appeal followed.2

1 On cross-examination, Corporal Sherrard acknowledged that appellant was not wearing a
sleeveless shirt when he was questioned and admitted that appellant did not “fit the description to a T.”
However, Corporal Sherrard noted that appellant was wearing dark pants, a white shirt, a red “doo rag”
on his head, and a white multicolored jacket on the night in question. In his cross-examination of
Corporal Sherrard, appellant emphasized that he did not fit the description provided of the perpetrator
because he was not wearing a white, sleeveless shirt.

2 Appellant filed his pro se notice of appeal on July 23, 2012. Despite several warnings, appellant
filed several other documents in this Court without serving the items on all parties to the appeal. See TEX.
R. APP. P. 9.5. We therefore abated the appeal to the trial court to conduct any necessary hearings for a
determination of appellant’s indigence and whether counsel should be appointed. The trial court

Thompson v. State Page 3
 II. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant challenges the sufficiency of the evidence supporting

his conviction. Specifically, appellant argues that the evidence contained in the record

is insufficient to establish that his detention or arrest was lawful.

A. Applicable Law

In reviewing the sufficiency of the evidence to support a conviction, we view all

the evidence in a light most favorable to the prosecution to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d

560 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). If the record supports

conflicting inferences, we must presume that the factfinder resolved the conflicts in

favor of the prosecution and therefore defer to that determination. Jackson, 443 U.S. at

326, 99 S. Ct. at 2792-93. The factfinder is entitled to judge the credibility of witnesses

and can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). A factfinder is permitted

to draw reasonable inferences from the facts as long as they are supported by the

evidence presented at trial. Merritt, 368 S.W.3d at 525.

The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,

conducted a hearing and determined that counsel should be appointed to represent appellant on appeal.
Thus, appellant is represented by counsel in this matter.

Thompson v. State Page 4
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “A person commits an offense if he

intentionally flees from a person he knows is a peace officer . . . attempting lawfully to

arrest or detain him.” TEX. PENAL CODE ANN. § 38.04(a). The offense is a state-jail

felony if the actor has been previously convicted of evading arrest or detention, which

was the case here. Id. § 38.04(b)(1)(A). In his first issue, appellant only disputes the

sufficiency of the evidence to prove that the arrest or detention was lawful. Specifically,

appellant contends that the officers did not have reasonable suspicion to detain him or

probable cause to arrest him.

The Texas Court of Criminal Appeals has recognized three distinct categories of

interactions between police officers and citizens: (1) encounters; (2) investigative

detentions; and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).

Courts look to the totality of the circumstances to determine into which category an

interactions falls. Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010).

An investigatory detention occurs when a person yields to an officer’s show of

authority under a reasonable belief he is not free to leave. Id. The inquiry is whether a

reasonable person in the citizen’s position would have felt free to decline the officer’s

requests or otherwise terminate the encounter. Id. “[A] police officer can stop and

briefly detain a person for investigative purposes if the officer has a reasonable

suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the

officer lacks probable cause.” Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997)

(quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)). This

is an objective standard that disregards any subjective intent of the detaining officer and

Thompson v. State Page 5
looks solely to whether an objective basis for the detention exists. Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005). When an officer subjects a defendant to an

investigatory detention, it is the State’s burden to prove the reasonableness of the

warrantless detention. Id.

Reasonable suspicion exists if the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably

conclude a particular person actually is, has been, or soon will be engaged in criminal

activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Whether

reasonable suspicion exists depends on the content of the information known to the

officer as well as its degree of reliability. Martinez v. State, 348 S.W.3d 919, 923 (Tex.

Crim. App. 2011). The State need not, however, establish that a crime actually occurred

prior to the investigatory detention. Id. In determining what constitutes reasonable

suspicion, a court may look only at those facts known to the officer at the inception of

the detention, and a detention or search unlawful at its inception may not be validated

by what it turns up. State v. Griffey, 241 S.W.3d 700, 704 (Tex. App.—Austin 2007, pet.

ref’d); see Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375, 1379, 146 L. Ed. 2d 254 (2000)

(“The reasonableness of official suspicion must be measured by what the officers knew

before they conducted their search.”). The reasonableness of a temporary detention is

examined in terms of the “totality of the circumstances” at its inception. See Woods, 956

S.W.2d at 38. Individual circumstances must not be considered in isolation, and the

facts known to the officer must amount to something more than an inchoate and

unparticularized suspicion or hunch. Id. at 35. Moreover, the Woods Court recognized

Thompson v. State Page 6
that “there may be instances when a person’s conduct viewed in a vacuum, appears

purely innocent, yet when viewed in light of the totality of the circumstances, those

actions give rise to reasonable suspicion.” Id. at 38.

There is no requirement that the “facts adduced to give rise to a reasonable

suspicion must show that the detainee has committed, is committing, or is about to

commit, a particular and distinctively identifiable penal offense.” Derichsweiler v. State,

348 S.W.3d 906, 916 (Tex. Crim. App. 2011). The Derichsweiler Court explained that:

Unlike the case with probable cause to justify an arrest, it is not a
sine qua non of reasonable suspicion that a detaining officer be able to
pinpoint a particular penal infraction. The reason is simple but
fundamental. A brief investigative detention constitutes a significantly
lesser intrusion upon the privacy and integrity of the person than a full-
blown custodial arrest. For this reason, a warrantless investigative
detention may be deemed “reasonable” for Fourth Amendment purposes
on the basis of a lesser quantum or quality of information—reasonable
suspicion rather than probable cause. Likewise, because a detention is less
intrusive than an arrest, the specificity with which the articulable
information known to the police must demonstrate that a particular penal
offense has occurred, is occurring, or soon will occur, is concomitantly
less. It is, after all, only an “investigative” detention. So long as the
intrusion does not exceed the legitimate scope of such a detention and
evolve into the greater intrusiveness inherent in an arrest-sans-probable-
cause, the Fourth Amendment will tolerate a certain degree of police
proaction.

Id. at 916-17 (internal footnotes omitted) (emphasis in original); see Woodward v. State,

668 S.W.2d 337, 344 (Tex. Crim. App. 1987) (op. on reh’g) (noting that probable cause is

to be evaluated by the court on the basis of the collective information of the police

rather than that of only the officer who conducts the search or performs the act of

arresting).

Thompson v. State Page 7
B. Discussion

On appeal, appellant argues that: (1) Officer Clark did not testify to specific,

articulable facts upon which a temporary detention of appellant for further

investigation was justified; (2) the detention was longer than necessary to dispel Officer

Clark’s suspicions; and (3) he was unlawfully arrested at the time he fled from police.

1. Temporary Detention

The evidence adduced at trial shows that Officer Clark was dispatched to an

apartment complex in Ennis, and upon arrival, he was directed by several witnesses to

a car that was leaving the location. Appellant was a passenger of the car that was

identified by several witnesses and eventually stopped by Officer Clark. Corporal

Sherrard testified that the dispatch involved a possible criminal trespass at the

apartment complex. We recognize that Corporal Sherrard acknowledged that

appellant’s clothing did not match the clothing description provided by witnesses “to a

T.” However, witnesses stated that appellant was wearing a white shirt, dark pants,

and a “doo rag” on this head—all of which closely matched the clothing appellant was

wearing at the time of the stop. In any event, it is within the discretion of the

factfinder—the jury—to resolve any conflicts in the testimony, and we are to defer to

the jury’s resolution of such conflicts. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93; see

also Chambers, 805 S.W.2d at 461. Clearly, by convicting appellant of the charged

offense, the jury resolved the conflict in the evidence against appellant.

Thompson v. State Page 8
 And as we stated above, reasonable suspicion can be based on the collective

information of the police rather than that of only the officer who conducts the search or

performs the act of arresting. See Derichsweiler, 348 S.W.3d at 914 (“Moreover, the

detaining officer need not be personally aware of every fact that objectively supports a

reasonable suspicion to detain; rather, the cumulative information known to the

cooperating officers at the time of the stop is to be considered in determining whether

reasonable suspicion exists.” (internal quotations & footnotes omitted)); see also

Woodward, 668 S.W.2d at 344. Therefore, considering the knowledge of both Officer

Clark and Corporal Sherrard in addition to the totality of the circumstances, we

conclude that the record contains sufficient, articulable facts that give rise to reasonable

suspicion that appellant was involved in criminal activity and, thus, supports the

temporary detention of appellant. See State v. Kerwick, 393 S.W.3d 270, 2013 Tex. App.

LEXIS 430, at **6-7 (Tex. Crim. App. Feb. 27, 2013) (citing Martinez, 348 S.W.3d at 923;

York v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011)); see also Castro, 227 S.W.3d at

741.

2. The Length of the Temporary Detention

Appellant also argues that the temporary detention lasted longer than necessary

to confirm or dispel Officer Clark’s suspicions. Appellant’s argument hinges upon a

finding that he should have been immediately released once it became apparent that he

did not match the description of the perpetrator provided by witnesses. Because we

have already concluded that reasonable suspicion existed to support the temporary

detention, we reject this argument. Furthermore, we note that nothing in the record

Thompson v. State Page 9
indicates that the temporary detention was longer than necessary to complete the

purpose of the detention.3 See Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004)

(noting that an “investigative stop can last no longer than necessary to effect the

purpose of the stop”).

3. Whether Appellant Was Under Arrest at the Time He Fled

And finally, appellant argues that he was unlawfully arrested at the time he fled

from police. Specifically, appellant contends that his liberty was restricted when he fled

and that the police did not have probable cause to arrest him at that time. We disagree.

Determining when police have placed a defendant in custody is to be determined

“on an ad hoc basis, after considering all of the (objective) circumstances.” Dowthitt v.

State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (citing Shiflet v. State, 732 S.W.2d 622,

629 (Tex. Crim. App. 1985)). In making that determination, courts are to determine

whether a reasonable person, given all of the objective circumstances, would have

perceived the detention to have been a restraint on movement “comparable

to . . . formal arrest[.]” State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012).

Nevertheless, if the answers of the person being interviewed by police give the

police probable cause to arrest the person being interviewed, an interview that began as

an investigative detention can change into a custodial interrogation. See Dowthitt, 931

S.W.2d at 255. A noncustodial interrogation can become a custodial interrogation if,

during the interview, the suspect’s freedom to leave is restricted to the degree

3 Appellant admits in his brief that he had been detained for approximately 10 minutes when
Corporal Sherrard requested that he exit the car.

Thompson v. State Page 10
associated with an arrest and the restrictions on the suspect’s movements are created by

law enforcement officers, the suspect is told he cannot leave, or the police create a

situation that would make a reasonable person who was innocent believe that his

freedom of movement is significantly restricted. Id.

Appellant asserts that he was under arrest when Corporal Sherrard began asking

him questions, ordered him to take his hands out of his pockets, and provided Miranda

warnings after requesting that he exit the vehicle and finish a telephone call. A video of

the interaction was admitted into evidence, and nothing on the video would

demonstrate to a reasonable person that his freedom of movement was significantly

restricted. In fact, any argument suggesting that appellant’s freedom of movement was

significantly restricted is severely undermined by the fact that appellant fled from

police for four city blocks. Furthermore, appellant was not placed in handcuffs, nor did

the officers tell appellant that he could not leave. See State v. Sheppard, 271 S.W.3d 281,

289 (Tex. Crim. App. 2008) (explaining that the use of handcuffs does not automatically

convert a temporary detention into a Fourth Amendment arrest). Thus, at the time in

which he fled, appellant was subject to a temporary detention.

And to the extent that appellant argues that Corporal Sherrard’s act of reading

appellant his Miranda rights amounted to a formal arrest, we note that the Texas Court

of Criminal Appeals has emphasized that, in making the custody determination, the

primary question is whether a reasonable person would perceive the detention to be a

restraint on his movement comparable to formal arrest, given all the objective

circumstances. Ortiz, 382 S.W.3d at 372. In evaluating whether a reasonable person

Thompson v. State Page 11
would believe his freedom has been restrained to the degree of formal arrest, courts

look only to the objective factors surrounding the detention. Id. The subjective beliefs

of the detaining officer are not included in the calculation of whether a suspect is in

custody. Id. at 372-73. But if the officer manifests his belief to the detainee that he is a

suspect, then that officer’s subjective belief becomes relevant to the determination of

whether a reasonable person in the detainee’s position would believe he is in custody.

Id. at 373.

Once again, we note that appellant’s freedom of movement was not restrained.

Furthermore, nowhere in the record or on the accompanying video do police indicate

that appellant was not free to leave. Moreover, the record does not reflect that either

Officer Clark or Corporal Sherrard informed appellant that he was a suspect at the time

he fled.4 Therefore, we cannot say that a reasonable person would perceive appellant’s

detention to be a restraint on his movement comparable to a formal arrest after

considering all the objective circumstances. See id.

Based on the foregoing, we overrule appellant’s first issue.

III. THE JURY CHARGE

In his second and third issues, appellant complains about the jury charge.

Specifically, appellant contends that the failure to include definitions for “lawful

detention” and “lawful arrest” and an instruction pursuant to article 38.23(a) of the

4 We recognize that Corporal Sherrard testified that he believed appellant to be a suspect once he

determined that appellant’s clothing matched the description provided by witnesses. However, the
record does not reflect that Corporal Sherrard told appellant that he was a suspect; therefore, Corporal
Sherrard’s subjective belief that appellant was a suspect is irrelevant to the determination as to whether
appellant was in custody. See State v. Ortiz, 382 S.W.3d 367, 372-73 (Tex. Crim. App. 2012).

Thompson v. State Page 12
Texas Code of Criminal Procedure caused him egregious harm; thus, his conviction

should be reversed and remanded for a new trial.

A. Standard of Review

In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

Appellant admits that he did not object to the jury charge, nor did he request the

aforementioned definitions or article 38.23(a) instruction; thus, he must show egregious

harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious harm, we

consider the entire jury charge, the state of the evidence, the final arguments of the

parties, and any other relevant information revealed by the record of the trial as a

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

Thompson v. State Page 13
valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B. Applicable Law

The trial court must provide the jury with “a written charge distinctly setting

forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).

Moreover, the trial court may not express “any opinion as to the weight of the

evidence.” Id.; see Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim. App. 2007). Because

“[j]uries are free to consider and evaluate the evidence in whatever way they consider it

relevant to the statutory offenses, special, non-statutory instructions, even when they

relate to statutory offenses or defense, generally have no place in the jury charge.”

Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (internal quotations omitted).

C. Discussion

Here, the language in the charge tracks the language of section 38.04(a) of the

Texas Penal Code—the governing criminal statute in this case. TEX. PENAL CODE ANN. §

38.04(a); see Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury charge which

tracks the language of a particular statute is a proper charge on a statutory issue.”); see

also Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996). The definitions

mentioned by appellant on appeal are special, non-statutory instructions that were not

required in the charge. See Kirsch, 357 S.W.3d at 652. Furthermore, appellant does not

explain what definitions could have been included in the charge to aid the jury’s

understanding.

Thompson v. State Page 14
 Moreover, the record indicates that appellant chose to forego representation at

trial and represent himself. While appellant attempted to assert a defensive theory that

the detention was unlawful because he did not match the clothing description provided

by witnesses, he did not object to the charge and he did not request additional

instructions in the charge. This is but one of the potential dangers associated with self-

representation. We note that courts have held that parties advancing pro se are held to

the same standards as licensed attorneys and that a defendant who elects to represent

himself cannot thereafter complain that the quality of his own defense amounted to a

denial of effective assistance of counsel. See Johnson v. State, 760 S.W.2d 277, 279 (Tex.

Crim. App. 1988) (noting that pro se litigants are held to the same standards as a

licensed attorney and are not granted any special consideration); see also Farretta v.

California, 422 U.S. 806, 834 n.46, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975). Based on

our review of the record, and given the fact that the charge language tracked section

38.04 of the Texas Penal Code, we do not believe that the failure to include the special

definitions mentioned by appellant on appeal rendered the charge erroneous.

Appellant also argues that the trial court should have sua sponte provided an

article 38.23(a) instruction in the charge. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a).

Under article 38.23(a), “[n]o evidence obtained by an officer . . . in violation of any

provisions of the Constitution or laws . . . shall be admitted in evidence against the

accused” at trial. Id.; see Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012).

“When evidence presented before the jury raises a question of whether the fruits of a

police-initiated search or arrest were illegally obtained, ‘the jury shall be instructed that

Thompson v. State Page 15
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.’” Robinson, 377 S.W.3d at 719 (quoting TEX. CODE CRIM. PROC.

ANN. art. 38.23(a)). In Madden v. State, the Texas Court of Criminal Appeals held that, to

be entitled to an article 38.23 instruction, the defendant must show that: (1) an issue of

historical fact was raised in front of the jury; (2) the fact was contested by affirmative

evidence at trial; and (3) the fact is material to the constitutional or statutory violation

that the defendant has identified as rendering the particular evidence inadmissible. 242

S.W.3d 504, 509-10 (Tex. Crim. App. 2007).

When a disputed, material issue of fact is raised successfully, the terms of article

38.23 are mandatory, and the jury must be instructed accordingly. Id. at 510. Evidence

to justify an article 38.23 instruction can derive “from any source,” no matter whether

“strong, weak, contradicted, unimpeached, or unbelievable.” Garza v. State, 126 S.W.3d

79, 85 (Tex. Crim. App. 2004). However, such evidence must raise a “factual dispute

about how the evidence was obtained.” Id. “Where the issue raised by the evidence at

trial does not involve controverted historical facts, but only the application of the law to

undisputed facts, that issue is properly left to the determination of the trial court.”

Robinson, 377 S.W.3d at 719.

At trial, appellant emphasized that he was not wearing a sleeveless shirt on the

night in question. Corporal Sherrard admitted that appellant did not fit the description

provided by witnesses “to a T.” Apparently, on appeal, appellant argues that the jury

should have been instructed that, if they did not believe that he was wearing a

Thompson v. State Page 16
sleeveless shirt under his jacket on the night in question, then the detention was

unlawful and the jury should have been provided an article 38.23 instruction. We do

not find this distinction to rise to the level of a material fact issue.

As stated earlier, there was ample evidence supporting the officers’ reasonable-

suspicion determination. First, the witnesses to the alleged criminal trespass pointed to

the car in which appellant was a passenger and informed Officer Clark that the

perpetrator of the criminal trespass was inside that vehicle. Further, witnesses

recounted that the perpetrator was wearing a “white beater” or “wife beater” (i.e., a

white shirt), dark pants, and a “doo rag” on his head. When appellant was stopped,

officers noticed that he was wearing a white shirt, dark pants, and a “doo rag” on his

head. And when pressed, Corporal Sherrard agreed that appellant did not appear to be

wearing a sleeveless shirt at the time of the stop, though the video of the stop

demonstrated that appellant was wearing a jacket when speaking to Corporal Sherrard.

We do not find appellant’s distinction between a sleeveless white shirt and a white shirt

with sleeves to be significant as to be material and necessitate an article 38.23

instruction. See Madden, 242 S.W.3d at 510; see also Robinson, 377 S.W.3d at 719-20.

In any event, even if it was error for the trial court not to include an article 38.23

instruction in the jury charge, after examining the entire jury charge, the state of the

evidence, final arguments of the parties, and other relevant information, we fail to see

how the absence of an article 38.23 instruction in the charge was egregiously harmful in

this case, which involved the prosecution of appellant for evading arrest. See Stuhler,

218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121; Olivas, 202 S.W.3d at 144.

Thompson v. State Page 17
 Based on the foregoing, we do not believe that an article 38.23 instruction was

required because we have concluded that the officers had reasonable suspicion to

detain appellant and because appellant has not directed us to a material fact dispute

regarding how any evidence was obtained. See Madden, 242 S.W.3d at 510; see also

Robinson, 377 S.W.3d at 719-20. And to the extent that it was error to not include an

article 38.23 instruction in the charge, we conclude that such error, if any, was not

egregiously harmful. See Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121; Olivas,

202 S.W.3d at 144. Accordingly, we overrule appellant’s second and third issues.

IV. CONCLUSION

Having overruled all three of appellant’s issues on appeal, we affirm the

judgment of the trial court.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 30, 2013
Do not publish
[CR25]

Thompson v. State Page 18