Opinion issued January 29, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00189-CR
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RUBEN TOTTEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1365961
OPINION
A jury convicted appellant, Ruben Totten, of possession of between one and
four grams of a controlled substance, found two enhancements true, and assessed his
punishment at 25 years’ confinement. In a single issue on appeal, appellant contends
the trial court erred by refusing his requested Article 38.23 jury charge.1
BACKGROUND
This case was previously decided by this Court on March 31, 2015. See Totten
v. State, No. 01-14-00189-CR, 2015 WL 1501799 (Tex. App.—Houston [1st Dist.]
Mar. 31, 2015) (not designated for publication) (hereafter, “Totten 1”). The Court of
Criminal Appeals reversed and remanded the case to this Court. See Totten v. State,
No. PD.-0483-15, 2016 WL 5118331 (Tex. Crim. App. Sept. 21, 2016) (not
designated for publication) (hereafter, “Totten 2”).
Background Facts
The facts relevant to the disposition of this appeal are set forth in the Court of
Criminal Appeals’ opinion as follows:
In October 2012, Houston Police Department Officer Trant, while
sitting in an unmarked car, surveilled a duplex known for narcotics
activity. While watching the duplex, Trant saw a green Ford Ranger
drive past him and pull into the duplex’s parking lot. Two men got out
of the vehicle. One opened the Ranger’s hood and appeared to be
examining the engine. The other walked toward the duplex. After a
short time, the man returned from the duplex and got into the Ranger.
1
See TEX. CODE CRIM. PROC. ANN. art. 38.23 (providing that “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 in such event, the jury shall disregard any such evidence
so obtained”).
2
They both drove off. As the Ranger left the location, the driver failed
to use the turn signal as it turned from Brownsville on to Frankie Street.
Instead of attempting to pull the Ranger over for the traffic violation,
Trant notified Officers Kunkel and Betancourt, who were driving a
marked patrol unit, about the traffic violation he saw. Trant described
the vehicle to Kunkel and Betancourt as a green Ford Ranger.
****
Kunkel confirmed that Trant notified the officers that he observed a
green Ford Ranger turn without using a turn signal and provided the
direction the Ranger was traveling. Although he did not recall being
given a license-plate number, Kunkel identified the vehicle within a few
seconds, and he and Officer Betancourt pulled over a green Ford
Ranger. Kunkel approached the passenger side window where Totten
was sitting. When asked if he had anything illegal on his person, Totten
responded that he had a switchblade knife. Kunkel placed Totten in
handcuffs for possession of a prohibited weapon and, searching Totten
incident to the arrest, found crack cocaine in Totten’s shoe.
Id. at *1.
This Court’s Previous Opinion and the Court of Criminal Appeals’s Opinion
On original submission of this case, appellant argued that he was entitled to a
jury instruction under Article 38.23 for two reasons: (1) that there was a fact question
about whether the green truck Kunkle and Betancourt detained was the same green
truck that Trant had seen turn without signaling and (2) that there was a fact question
about whether Trant was in a position to even see the green truck turn without
signaling. Totten 1, 2015 WL 1501799 at *2. This Court ruled in appellant’s favor
on his first reason, holding that appellant should have received an Article 38.23
instruction because there was a fact question about whether the green truck stopped
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by Kunkle and Betancourt was the same green truck that Trant had seen turn without
signaling. Id. at *4.
The Court of Criminal Appeals agreed that there was a fact question about
whether Kunkle and Betancourt pulled over the same green truck that Trant saw turn
without signaling, Totten 2, 2016 WL 5118331 at *2, but concluded that the fact
issue was irrelevant because “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.” Id. However, the Court of
Criminal Appeals remanded the case to this Court because we “did not address
Totten’s alternative argument in support of his jury-charge claim” and instructed us
“to determine . . . whether a material factual dispute existed that required an Article
38.23 instruction.” Id. at *3.
On remand, the parties filed amended briefs, addressing appellant’s
alternative argument that there was a fact question about whether Officer Trant was
in a position to have seen whether appellant signaled before turning.
ARTICLE 38.23 INSTRUCTION
In his sole issue on remand, appellant contends as follows:
The defense offered photographs and maps challenging Officer Trant’s
ability to observe the traffic violation he claimed to have witnessed.
The trial court refused the request to instruct the jury under Article
38.23. Did the trial court commit reversible error by refusing to give a
requested jury instruction under Article 38.23?
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Applicable Law
Article 38.23 provides:
(a) 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.
(b) 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.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a).
Noting that the “terms of the statute are mandatory,” the Court of Criminal
Appeals has held that “when an issue of fact is raised, a defendant has a statutory
right to have the jury charged accordingly.” Madden v. State, 242 S.W.3d 504, 510
(Tex. Crim. App. 2007).
A defendant must meet three requirements for the trial court to submit an
instruction pursuant to Article 38.23: “(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.” Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008) (citing
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007)). The evidence
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raising a fact issue “may be strong, weak, contradicted, unimpeached, or
unbelievable.” Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002).
In Madden v. State, the Court of Criminal Appeals provided the following
explanation about the type of conflicting, affirmative evidence requiring an Article
38.23 jury instruction:
To raise a disputed fact issue warranting an Article 38.23(a) jury
instruction, there must be some affirmative evidence that puts the
existence of that fact into question. In this context, a cross-examiner’s
questions do not create a conflict in the evidence, although the
witnesses’s answers to those questions might.
Here, for example, one issue was whether appellant exceeded the speed
limit of 55 m.p.h. through a construction site, giving Officer Lily a
reasonable suspicion to stop him. If Officer Lily testifies that appellant
did speed and Witness Two (or appellant) testifies that he did not speed,
this disputed factual issue must be submitted to the jury. If the jury finds
that appellant did obey the speed limit and that Officer Lily was
unreasonable in believing that he did not, then they may not consider
the evidence obtained as a result of this unlawful detention. If, however,
Officer Lily says that appellant did speed, and Witness Two (or
appellant) says that he doesn’t remember or doesn’t know, there is no
disputed fact to submit because there is no affirmative evidence of a
factual conflict. Similarly, if Officer Lily testifies that appellant did
speed, but the cross-examiner grills him, “Isn’t it true that he really did
obey the speed limit, you’re wrong or you’re lying?” there is no factual
dispute unless Officer Lily admits, “Yes, that is true.” The cross-
examiner cannot create a factual dispute for purposes of an Article
38.23(a) instruction merely by his questions. It is only the answers that
are evidence and may create a dispute. Even the most vigorous cross-
examination implying that Officer Lily is the Cretan Liar does not raise
a disputed issue. There must be some affirmative evidence of “did not
speed” in the record before there is a disputed fact issue. Because there
was such evidence in this record, the trial judge properly gave a jury
instruction on this disputed fact.
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242 S.W.3d at 513–14 (footnotes omitted).
Here, the only pieces of evidence relevant to appellant’s alleged failure to
properly signal were Trant’s testimony and the photographs and maps admitted
during his testimony. See Oursbourn, 259 S.W.3d at 177 (“This factual dispute can
be raised only by affirmative evidence, not by mere cross-examination questions or
argument.”). Thus, the issue before this Court is whether the photographs and maps
affirmatively contested Trant’s testimony about appellant’s failure to properly signal
as it relates to the lawfulness of the subsequent traffic stop.
Analysis
Appellant relies on Mills v. State, 296 S.W.3d 843, 849 (Tex. App.—Austin
2009, pet. ref’d), to argue that the photographs and maps admitted at trial challenged
“Trant’s ability to observe the traffic violation he claimed to have witnessed[,]” and
that “there is a question as to whether Officer Trant could have seen what he testified
to.”
In Mills, the defendant activated his blinker before turning, but the arresting
officer testified that the defendant did not activate the blinker within 100 feet of the
intersection, as required by law. Id. at 846. The officer stopped the defendant based
on the traffic violation, and a subsequent search revealed illegal drugs. Id. The
defendant argued that a video of the stop raised a fact issue regarding whether the
police officer was in a position to see the defendant’s blinker for 100 feet before it
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reached the intersection. Id. at 846–47. In concluding that Mills should have been
given a requested Article 38.23 instruction, the Austin Court of Appeals noted that
the officer’s responses on cross-examination and the video were sufficient to raise a
fact question about the officer’s ability to have seen the alleged traffic offense. Id.
at 848–49. Specifically, the court noted that, on cross-examination, defense counsel
elicited testimony from the officer about his location relative to the defendant’s
vehicle and obstacles that could have blocked his line of sight. Id. at 847. The court
also noted that the video of the arrest “contained various potential obstacles to [the
officer’s] line of sight,” and that on the videotape a “building or trailer blocks one’s
view of Market Street behind it until the patrol car passes to the left of the building
and almost immediately turns right onto Market Street,” and that “Mill’s car appears
to come into view when [the officer] passes the portable building and immediately
turns right.” Id. at 846.
In this case, there is no videotape of the arrest; the only exhibits are maps and
photographs2 of the location at which Trant testified that he observed appellant turn
2
Appellant’s brief contains photographs and maps that have been altered from those
admitted at trial, presumably in an attempt to “clarify” Officer Trant’s testimony
about the exhibits. These modifications are not part of the appellant record because
they were not admitted at trial in this condition. See TEX. R. APP. 34.6(a)(1), (g).
In addition, the alterations are misleading. For example, appellant’s altered version
of Defendant’s Exhibit 1 purports to show that Officer Trant was parked at the
intersection of Brown and Hollywood Street. However, according to the scale
provided at the bottom of the map, that would have been almost 1000 feet (333
yards) from the intersection where the alleged offense occurred, but both parties
agree that Trant was only 300 feet (100 yards) from the intersection. The 100-yard
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right without signaling. Because appellant’s cross-examination of Trant cannot raise
a fact question, we look to his answers to those questions and the exhibits admitted
at trial to determine whether a fact question was raised regarding Trant’s ability to
have seen the failure-to-signal traffic offense.
Trant testified that he was observing the intersection of Frankie and
Brownsville Streets from his location approximately 100 yards (300 feet) down
Brownsville Street. He was not using binoculars. Trant admitted that he could see
less than half of the duplex that he had under surveillance near that intersection, but
he was able to see the green truck when it left the duplex and stopped at the stop
sign. At that point, he noticed that the truck did not signal before turning right. When
the truck actually turned right, it went out of his view. Trant testified that it was
around 4:45 p.m. when he observed the traffic offense and that it was still daylight.
He was not questioned about, nor did he mention, any obstructions between his
vantage point and the intersection at which he observed appellant’s failure to signal.
Likewise, Defendant’s Exhibits 1 through 8 show no obstructions. Defendant’s
Exhibit 5 is an aerial view that shows Frankie Street running horizontally at the top
distance testified to by Trant would put his position near Brownsville and Beacon
Streets, which, in fact, corresponds more closely with a mark made on Defendant’s
Exhibit 1 as it was admitted at trial and Trant’s testimony about his location. Indeed,
Trant testified that he had pulled off the side of the road on Brownsville Street
between Beacon and Frankie Streets. Thus, this Court will consider only the actual
exhibits admitted at trial and will disregard the altered versions of the exhibits in
appellant’s brief.
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and Brownsville Street running vertically. The duplex complex under surveillance
is at the top on the left of the photograph, and a dot marks Trant’s location further
down Brownsville on the right side of the street. There are no visible obstructions
between that location and the intersection of Brownsville and Frankie Streets. And,
Defendant’s exhibit 8 is a photograph taken from the intersection of Frankie and
Brownsville Streets, shows the entrance to the duplex complex under surveillance
on the right and the stop sign at which appellant failed to signal on the left.
According to his testimony, Trant was located located approximately 100 yards
further down Brownsville on the same side as the street as the stop sign. Defendant’s
exhibit 8 also shows no obstructions to Trant’s line of sight.
Because the testimony and photographs in this case do not raise an issue as to
whether Trant’s view of the intersection was obstructed, this case is distinguishable
from Mills. Indeed, it is more like Pryor v. State, No. 03-13-00347-CR, 2015 WL
2066228 (Tex. App.—Austin May 1, 2015, pet. ref’d), in which the Austin Court of
Appeals distinguished its opinion in Mills because, unlike in Mills, “there was no
such equivocation [regarding obstructions] in the officer’s testimony.” Id. at *2 fn.1.
There being no fact issue raised about Officer Trant’s ability to see appellant’s
failure to signal, the trial court did not err in refusing appellant’s request for a 38.23
jury instruction.
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CONCLUSION
We overrule appellant’s sole issue on remand and affirm the trial court’s
judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Publish. TEX. R. APP. P. 47.2(b).
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