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.
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See Tex. R. App. P. 47.4.
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 off-
duty 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
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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
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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
2
Specifically, 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).
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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,
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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.
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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.
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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
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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
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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.
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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
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