IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0424-19
LARRY THOMAS CHAMBERS, JR., Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
WILLIAMSON COUNTY
RICHARDSON, J. delivered the opinion of the unanimous Court.
OPINION
A jury convicted Appellant of possession of a controlled substance after a police
officer found drugs during a traffic stop. The officer claimed he initiated the stop because
Appellant’s truck had no license plate. However, Appellant’s truck did have a license plate.
The court of appeals held that the trial judge did not err in refusing Appellant’s request for
an Article 38.23 instruction. We granted review to determine whether Appellant is entitled
to an Article 38.23 instruction when there is a factual dispute regarding the officer’s
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credibility, as well as a conflict between the officer’s testimony on both redirect and cross-
examination, photographs, and his dashcam video. We hold that, under these
circumstances, Appellant is entitled to such an instruction. Accordingly, we reverse and
remand to the court of appeals for a harm analysis.
BACKGROUND
At about 10:45 p.m. on April 1, 2017, a Round Rock Police sergeant initiated a
traffic stop claiming that Appellant’s pickup truck had no rear license plate, which is
required by law. See Tex. Transp. Code Ann. § 504.943 (West 2018); 547.322 (West 2011).
During the traffic stop, the officers found two pistols and substances that appeared to be
narcotics. Appellant was arrested and later indicted for possession of four grams or more,
but less than 200 grams, of penalty group 1 controlled substance. See Tex. Health & Safety
Code Ann. § 481.115(d) (West 2017). The State introduced into evidence at trial the
officer’s dashcam video and still photos of the back of the vehicle. These show definitively
that a paper license plate was indeed attached to the back of Appellant’s truck.
Appellant filed a motion to suppress, asserting that the State failed to prove the
vehicle had no license plate. The trial court denied that motion. However, at trial, Appellant
also requested an Article 38.23 instruction to tell the jury to disregard any evidence it found
to be obtained in violation of the Constitution or laws of the United States or Texas. The
trial court refused to give the instruction, and the jury found Appellant guilty of the offense
charged and imposed a sentence of twenty years in prison. On appeal, the Texarkana Court
of Appeals held that the trial court did not err in refusing to give a 38.23 instruction. Based
on our review of the record and our analysis of Texas law, we reverse the decision of the
court of appeals and remand for a harm analysis.
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ANALYSIS
The trial court must provide the jury with a written charge that sets forth the law
applicable to the case. Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013); Tex.
Code Crim. Proc. art. 36.14. We review a claim of alleged charge error by determining
whether the charge was erroneous, and if it was, we conduct a harm analysis. Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
This Court has held, and the court of appeals here reiterated, that if a defendant
raises a fact issue regarding whether a traffic stop violated the Constitution or the laws of
the United States or Texas, the trial court should instruct the jury to disregard any evidence
it finds was unconstitutionally or illegally obtained. Hamal v. State, 390 S.W.3d 302, 306
(Tex. Crim. App. 2012) (citing Tex. Crim. Proc. Ann. Art. 38.23(a)). This Court has also
clarified that there must be a genuine dispute about a material fact, and the disputed fact
must be essential to deciding the lawfulness of the challenged conduct. See Madden v.
State, 242 S.W.3d 504, 510-11 (Tex. Crim. App. 2007). Moreover, an Article 38.23
instruction is mandatory only if there is a factual dispute regarding how the evidence was
obtained. See Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). So it is here.
Appellant Meets the Requirements of Article 38.23
Pursuant to Article 38.23 of the Texas Code of Criminal Procedure, a defendant
must meet three requirements for submission of a 38.23(a) jury instruction: (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) that contested fact issue must be material to the lawfulness
of the challenged conduct in obtaining the evidence. See Tex. Code Crim. Pro. Art. 38.23;
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Madden, 242 S.W.3d at 510 (Tex. Crim. App. 2007). Here, Appellant requested an Article
38.23 instruction and satisfied all three requirements.
First, Appellant proved there was an issue of fact. Although the police officer here
testified that he pulled Appellant over because Appellant’s truck was missing a rear license
plate, the record shows that the truck did have a temporary plate. Specifically, the dashcam
video, though not good quality, shows that Appellant’s temporary license plate can be seen
on the back left side of his truck. Likewise, the high quality still photos that the State
introduced into evidence depict a license plate on Appellant’s vehicle. Thus, the evidence
raises a question regarding what the police officer could see and whether he actually could
see a license plate.
These facts are similar to the situation in Madden. The Madden opinion addressed
two 38.23 requests by the defendant. See Madden, 242 S.W.3d at 511. In the first request,
this Court acknowledged that the trial court and court of appeals were correct in concluding
that the defendant was entitled to a 38.23 charge where the dashcam video confirmed the
defendant said he was traveling at a speed of 55 mph, but the officer testified that the
defendant was traveling at a speed of 61 mph. In Madden, this Court also addressed other
issues, including an additional 38.23 charge, that do not apply to this case and that we do
not include in our analysis. Id. Here, the court of appeals’ analysis suggests that Appellant
was required to affirmatively prove the officer could see the license plate in order to get a
38.23 instruction. See Chambers v. State, 2019 WL 1412230, at *6 (Tex. App. – Texarkana
March 29, 2019, pet. granted). But that is not the case. As this Court has explained, the
evidence need not prove the existence of the fact; it just has to raise the factual issue. See
Madden, 242 S.W.3d at 510; Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App.
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2012). The evidence here does exactly that, so Appellant has met the first requirement to
submit a jury instruction under Article 38.23.
Second, Appellant proved the evidence on the fact issue was affirmatively
contested. Here, the dashcam video and still photographs depicting a license plate
affirmatively contest the officer’s claim that he could not see a license plate. As in Madden,
where a conflict existed between the officer’s and defendant’s testimony regarding
speeding, here, a conflict exists between the officer’s testimony claiming that there was no
license plate and the dashcam video and photos depicting a license plate. See Madden, 242
S.W.3d at 514; Chambers, 2019 WL 1412230, at *6. Thus, Appellant has met the second
requirement for an Article 38.23 instruction.
Third, and finally, Appellant showed the fact issue was material to the lawfulness
of the stop. Here, the officer’s testimony suggested that the traffic stop was based on
Appellant not having a license plate on his truck. Since the evidence showed that Appellant
did have a license plate displayed on the back of his truck, then whether an objectively
reasonable basis for the stop existed was a contested fact issue that was material to the
lawfulness of the stop. This fact issue, then, is certainly material to the legality of the stop,
and Appellant has satisfied the third requirement.
The trial judge should have given the jury an Article 38.23 instruction. Again, we
reiterate that the Article 38.23 instruction is a right afforded to a defendant even after a trial
court’s motion to suppress ruling. In this case, the trial court clearly acted within its
discretion and authority to deny the motion to suppress, but Appellant was entitled to have
the jury consider the lawfulness of the stop under Article 38.23.
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The court of appeals set out the correct standard here but failed to follow it. The
court spent much time emphasizing the timing of the photos, but no matter the time they
were taken, they still raise a fact issue about what the officer could see, which raises a
question about whether he was mistaken or being untruthful. See Chambers, 2019 WL
1412230, at *6. Because this was not a legal judgment based on uncontested facts, the trial
judge erred by not including an Article 38.23 instruction in the jury charge. Appellant was
entitled to have the jury decide whether evidence was obtained by the officer in violation
of any provisions of the Constitution or laws of the State of Texas, see Tex. Crim. Proc.
art. 38.23, and if so, to have the jury instructed to disregard such evidence.
CONCLUSION
Because the court of appeals affirmed the trial court’s denial of an Article 38.23
instruction, we reverse the decision of the court of appeals and remand to the court of
appeals to conduct a harm analysis.
FILED: APRIL 6, 2022
PUBLISH