Singleton v. State

ON REHEARING

In a Motion for Rehearing, Singleton contends that, based on our decision, the evidence legally cannot support the jury’s finding on the instruction given pursuant to Tex.Code CRim. PROC. Ann. art. 38.23(a) (Vernon Supp.2002) that Singleton, beyond a reasonable doubt, actually violated the statute against exhibition of acceleration on the night in question. According to the jury instructions, he contends the jury should not have been able to consider any evidence resulting from the stop. Thus, he contends our decision contradicts the jury’s finding. However, we review the sufficiency of the evidence to support a jury’s finding against a hypothetically correct jury charge, not the jury charge as given when it is erroneous. See Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997). The jury should not have been confined to determine whether Singleton violated exhibition of acceleration when other traffic violations were supported by the evidence. Additionally, the question for the jury is whether the evidence supports a finding that the officer had reasonable suspicion to believe the violation occurred, not whether the violation actually occurred beyond a reasonable doubt. Furthermore, the purpose of the Article 38.23 instruction is to allow the jury to resolve any factual disputes that impact the admissibility of the evidence. TexCode Crim. Proc. Ann. art. 38.23 (Vernon Supp.2002). The only fact that may have been disputed was whether Singleton’s tires squealed. The jury’s finding indicates the jury resolved that dispute in favor of the officer’s testimony that the tires did squeal. Given that, measuring the evidence against the hypothetically correct jury charge, we find the evidence was sufficient to support the jury’s finding and verdict.

Singleton also contends that the appellate court, in reviewing the trial court’s denial of a motion to suppress for lack of reasonable suspicion to stop, should consider the testimony of the officer during trial as well as at the suppression hearing. The Texas Court of Criminal Appeals has held that in reviewing the trial court’s decision regarding a motion to suppress, we examine the record as it existed at the time of the suppression hearing. O’Hara v. State, 27 S.W.3d 548, 551 (Tex.Crim.App.2000). Therefore, if an appellant intends for us to review the evidence adduced at trial, the appellant should raise an issue allowing us to do so, such as challenging the sufficiency of the evidence to support the jury’s findings.

Singleton contends our opinion regarding reasonable suspicion and probable cause for the initial stop is contrary to our holding in Bass v. State, 64 S.W.3d 646 (Tex.App.-Texarkana 2001, pet. ref d). In Bass, the officer did not testify that he observed any unsafe behavior or that he saw any movement that was unsafe, and thus the stop could not reasonably be based on a violation of a statute that requires an operator of a vehicle to operate the vehicle in a manner that is unsafe. Singleton enumerates many articulable observations that would suggest unsafe driving and argues that because the officer’s testimony did not include any of these *353observations, the articulable facts to which he did testify were insufficient. Additionally, Singleton points to the officer’s acknowledgment that tires squeal for reasons other than turning unsafely. He contends the officer should have investigated those other causes as a basis for determining that the turn was not made in an unsafe manner. These arguments would be relevant if the State had to prove Singleton in fact turned in an unsafe manner. However, the State’s burden, as detailed in our opinion, does not require more than a reasonable suspicion. Although the officer’s testimony did not articulate any visual movement indicating loss of control of the vehicle, the officer articulated facts he observed regarding the surrounding conditions of the turn, such as the dry pavement which .was clear of debris and the squealing of tires. He also indicated that while Singleton was not speeding, it was the speed and angle at which he made the turn that caused the tires to squeal. While this causal relationship may not be an observable fact, it does indicate his observation of the vehicle’s speed and angle in making the turn and the officer’s deduction, based on his experience, that such speed and angle can cause a vehicle’s tires to squeal. The speed, angle, and squealing of the tires may reasonably have given rise to the officer’s reasonable suspicion that the turn was made in an unsafe manner, a manner which could cause harm to the driver, the flow of traffic, or others persons or their possessions. Such harm or the narrow escape of such harm is not required. An officer is not required to wait until such harm occurs or narrowly escaped harm exists in order to have a reasonable suspicion that such a violation has occurred.

The Motion for Rehearing is overruled.