In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-25-00049-CR
BENJAMIN FRED CLARK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court Upshur County, Texas Trial Court No. 19854
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice Rambin MEMORANDUM OPINION
An Upshur County jury convicted Benjamin Fred Clark of possession of a controlled
substance, methamphetamine, in an amount of one gram or more but less than four grams. See
TEX. HEALTH & SAFETY CODE ANN. 481.115(c) (Supp.). Clark pled true to two enhancement
paragraphs, and the jury assessed punishment at ninety-nine years’ imprisonment after finding
two habitual offender enhancements true. See TEX. HEALTH & SAFETY CODE ANN. 481.115(c);
TEX. PENAL CODE ANN. § 12.42(d) (Supp.).
On appeal, Clark complains that (1) the trial court erred by denying his motion to
suppress the traffic stop, (2) this Court should revisit the pretextual doctrine, (3) no probable
cause was present to conduct the open-air dog sniff, (4) the trial court erred by including a jury
instruction statement identifying methamphetamine as a controlled substance, (5) the trial court
improperly refused his requested probable cause instruction, and (6) cumulative error. We
affirm the trial court’s judgment.
I. Applicable Facts
In May 2023, Justin Nustad, a deputy with the Upshur County Sheriff’s Office and part
of the Upshur County Special Investigations Unit, observed a white Ford Ranger pickup truck at
a location that was under surveillance for narcotics activity. Later that same day, Nustad saw
what he believed to be the same truck on Highway 259. Nustad turned around to follow the
truck. Nustad admitted that his purpose for doing so was to “obtain[] probable cause for a traffic
stop.” He saw the truck turn onto Highway 154, then left onto Sego Lily Road. The truck then
2 turned right onto Spider Lily Road without using its turn signal. The State introduced the
following map into evidence.
Both parties agreed that the exchange spans at least ninety-six feet between Highway 154
and the point where Sego Lily Road and Spider Lily Road diverge.
On the morning of trial, the parties, by agreement, offered additional evidence regarding
the motion to suppress. For the purpose of supplementing the record on the motion to suppress,
the trial court admitted a video of the intersection offered by the State and four photographs of
the intersection offered by Clark. Below is a screenshot from the video offered by the State, with
3 a view of Sego Lily Road on the left, and Spider Lily Road on the right, as seen after turning off
of Highway 154.
After initiating the traffic stop, Nustad approached the truck. Clark provided a shopping
card of some sort instead of a driver’s license, appeared nervous, and failed to produce current
insurance or registration. Nustad requested consent to search the vehicle and Clark refused.
After Clark declined consent to search, Nustad deployed his certified K-9 to perform a drug
search of Clark’s vehicle. Nustad’s K-9 alerted to Clark’s truck. Nustad then conducted a
warrantless search that uncovered 1.14 grams of methamphetamine in a hidden dashboard
compartment.
The search of Clark’s truck took a significant amount of time because Nustad expected
contraband to be hidden. Nustad discovered a dashboard knob that he could tell had been
4 tampered with. Upon removal, Nustad uncovered a baggie containing suspected
methamphetamine. A further search of the back seat uncovered a hide-a-key box containing a
second baggie of methamphetamine, along with two suspected baggies of mushrooms and a bag
of penis-shaped candies. Clark said that he got the candy from a vape store.
Micaela Steward, a forensic scientist with the Texas Department of Public Safety Crime
Laboratory in Tyler, testified that the substance was methamphetamine, weighing a combined
weight of 1.14 grams. The jury returned a guilty verdict.
During the punishment phase, Clark pled true to the enhancement paragraphs, and the
jury heard evidence of Clark’s sixteen prior convictions. The jury assessed ninety-nine years’
imprisonment.
II. Motion to Suppress
Nustad testified that he stopped Clark for failing to use a turn signal. The motion to
suppress focused on whether Clark was required to use a turn signal. At the pre-trial hearing on
the motion to suppress, Clark argued that because it is “essentially a straight shot” from Sego
Lily Road to Spider Lily Road, Clark was not required to use a turn signal when turning onto
Spider Lily Road. At the pre-trial hearing on the motion to suppress, Nustad testified that Clark
failed to signal before turning right onto Spider Lily Road. The trial court denied Clark’s pre-
trial motion to suppress. In his first issue, Clark argues that the trial court erred in denying his
motion to suppress. We find no abuse of discretion in the trial court’s decision.
5 A. Standard of Review
“An appellate court reviews a trial court’s ruling on a motion to suppress for an abuse of
discretion.” State v. McGuire, 689 S.W.3d 596, 601 (Tex. Crim. App.), cert. denied, 145 S. Ct.
443 (2024) (citing Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010)). “Almost
complete deference is given to the [trial] court’s determination of historical facts and its rulings
on the application of law to those questions of fact.” Id. (citing Crain, 315 S.W.3d at 48). “The
same deference is afforded to the trial court in deciding mixed questions of law and fact that are
based on an assessment of credibility and demeanor.” Id. at 601–02 (citing Crain, 315 S.W.3d at
48). “For mixed questions of law and fact that do not involve an evaluation of credibility and
demeanor, however, we conduct a de novo review.” Id. at 602 (citing Crain, 315 S.W.3d at 48).
“If the trial court’s ruling is correct on any theory of law applicable to the case and reasonably
supported by the evidence, the ruling will be upheld.” Id.; see Armstrong v. State, 713 S.W.3d
893, 902 (Tex. Crim. App. 2025) (“We sustain the trial court’s decision on the motion if it is
correct under any applicable theory of law.”).
“A warrantless traffic stop is a Fourth Amendment seizure that is analogous to temporary
detention; thus, it must be justified by reasonable suspicion.” State v. Hardin, 664 S.W.3d 867,
872 (Tex. Crim. App. 2022). “If an officer has a reasonable suspicion that a person has
committed a traffic violation, the officer may conduct a traffic stop.” Id. “Reasonable suspicion
exists if the officer has specific articulable facts that, combined with rational inferences from
those facts, would lead the officer to reasonably conclude the person is, has been, or soon will be
6 engaged in criminal activity.” Id. “When making a determination of reasonable suspicion, we
consider the totality of the circumstances.” Id.
The reasonable suspicion inquiry is not a test of whether there was, in fact, a traffic
violation. Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App. 2015) (“The question in
this case is not whether appellant was guilty of the traffic offense but whether the trooper had a
reasonable suspicion that she was.”). Reasonable suspicion allows for reasonable mistakes:
“[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.” Robinson v. State, 377 S.W.3d 712, 720–21 (Tex. Crim. App. 2012). However,
“[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of
fact or of law—must be objectively reasonable. We do not examine the subjective understanding
of the particular officer involved.” Daniel v. State, 683 S.W.3d 777, 783 (Tex. Crim. App. 2024)
(quoting Heien v. North Carolina, 574 U.S. 54, 66 (2014)). In Ford v. State, the Texas Court of
Criminal Appeals held that “law enforcement training or experience may factor into a
reasonable-suspicion analysis.” Ford v. State, 158 S.W.3d 488, 494 (Tex. Crim. App. 2005)
(citing United States v. Cortez, 449 U.S. 411, 419 (1981)). However, “reliance on this special
training is insufficient to establish reasonable suspicion absent objective factual support.” Id.
(citing Cortez, 449 U.S. at 419). Consequently, the court rejected an officer’s testimony that a
vehicle was following too closely when there was no objective testimony to support the officer’s
judgment. Id. (“The State failed to elicit any testimony pertinent to what facts would allow [the
officer] to objectively determine Ford was violating a traffic law in support of his judgment.”);
7 see State v. Hneidy, 510 S.W.3d 458, 463 (Tex. App.—San Antonio 2013, pet. ref’d) (“[T]he
question is not whether, in hindsight, Appellee actually failed to continuously signal for 100 feet
before turning; rather, it is whether an officer could have reasonably concluded based on
specific, articulable facts and rational inferences from those facts that Appellee failed to
continuously signal for 100 feet.”).
A reviewing court determines whether a law enforcement officer’s “reasonable suspicion
of criminal activity” is supported by the totality of the circumstances using a bifurcated standard
of review. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). “First, we ‘give
“almost total deference to the trial court’s determination of the historical facts that the record
supports,” and second, we review de novo the trial court’s application of the law to facts, which
do not turn on credibility and demeanor.’” Id. at 203–04 (quoting Abney v. State, 394 S.W.3d
542, 547 (Tex. Crim. App. 2013)). “We review de novo whether the totality of circumstances is
sufficient to support an officer’s reasonable suspicion of criminal activity.” Crain, 315 S.W.3d
at 48–49. “When a police officer stops a defendant without a warrant, the State has the burden of
proving the reasonableness of the stop at a suppression hearing.” Cortez, 543 S.W.3d at 204
(citing Russell v. State, 717 S.W.2d 7, 9–10 (Tex. Crim. App. 1986)). Here, Clark was arrested
without a warrant, so the State had the burden to prove that the initial traffic stop was justified by
reasonable suspicion. See id.; Ford, 158 S.W.3d at 492.
B. Applicable Law
Section 545.104 of the Texas Transportation Code defines when a turn signal is required:
(a) An operator shall use the signal authorized by Section 545.106 to indicate an intention to turn, change lanes, or start from a parked position. 8 (b) An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.
TEX. TRANSP. CODE ANN. § 545.104.
There are two Mahaffey v. State decisions of the Court of Criminal Appeals that address
the definition of “turn” under Section 545.104. Mahaffey v. State (Mahaffey 2010), 316 S.W.3d
633, 634 (Tex. Crim. App. 2010); Mahaffey v. State (Mahaffey 2012), 364 S.W.3d 908, 914
(Tex. Crim. App. 2012). Both cases deal with the same maneuver, by the same defendant, on the
same road.
1. Mahaffey 2010 Expressly Addressed “[T]urn”
In 2010, the Court of Criminal Appeals considered the case of a defendant who was
arrested for driving while intoxicated based on an investigation following a traffic stop for failing
to use a turn signal on State Highway 198 in Henderson County. Mahaffey 2010, 316 S.W.3d at
634. The defendant, Mahaffey, moved to suppress, asserting that the stop was improper because
there was no reasonable suspicion of a traffic violation to support the initiation of the stop. Id.
Southbound State Highway 198 had two lanes of travel but narrowed to a single lane, the left,
which then went across the Cedar Creek Lake bridge. Id. Mahaffey was traveling in the right
lane. Id. He passed a “Merge Left” sign and then moved into the left lane. Id. At the point
where he merged, there was no longer a stripe dividing the two lanes. Id. When he moved into
the sole remaining lane, Mahaffey did not use his turn signal. Id.
In doing so, did Mahaffey “turn” or “change lanes” under Section 545.104? See TEX.
TRANSP. CODE ANN. § 545.104. By the time the case got to the Court of Criminal Appeals, the
9 State switched from the theory it had used in the trial court, that Mahaffey had “change[d]
lanes,” and focused on whether Mahaffey had “turn[ed].” Mahaffey 2010, 316 S.W.3d at 634,
637. The Court of Criminal Appeals held that the meaning of “turn” is “plain, and unambiguous,
and does not lead to an absurd result.” Id. at 638. In so concluding, the court determined there is
no relevant statutory definition of “turn.” Id. at 638–39. The court used the plain meaning of
“turn,” which the court said is “to change directions—to turn the vehicle from a direct course of
the roadway.” Id. at 639. The court made several explanatory statements. Id. “You either turn
left, or you turn right out of the direct course or flow of normal traffic.” Id. “Thus, if the road
itself makes sharp switchback turns going up the mountain, the driver need not signal these
‘turns’ because he is simply following the ‘direct course’ of the road and of the traffic on that
winding road.” Id. “It is when he turns right or left out of the ‘direct course’ of the road that he
must signal his intention.” Id. Accordingly, the court held that Mahaffey was not required to use
his turn signal since what he did was not a “turn” within the plain meaning of that word as found
in Section 545.104. Id. at 643.1
Having held that “turn” is unambiguous, the court nonetheless addressed the State’s
position that “turn” is ambiguous. Id. at 640–41. The court noted that the Texas Driver’s
Handbook contains numerous examples of when a turn signal is required, but what Mahaffey did
is not among those examples: “To the degree that the statute might be considered ambiguous,
we defer to the administrative determination by the Texas Department of Public Safety that the
1 When discussing Mahaffey 2010 and Mahaffey 2012, we do not extend the holdings of those cases beyond the maneuver other than the one made by Mahaffey himself. See Hardin, 664 S.W.3d at 878 (“Each case involving the review of traffic stop depends upon the unique circumstances of that offense, so it is inappropriate to suggest how this Court would apply this statute to another and obviously incomplete set of facts.”). 10 Transportation Code requires a signal for only one type of merge—that of entering a freeway.”
Id. at 641.
Mahaffey 2010, however, did not address the statutory term “lane change” as found in
Section 545.104(a). Id. at 643 (“We did not grant review of that question.”). Thus, Mahaffey
2010’s remand amounted to an instruction to the intermediate court of appeals to consider the
meaning of the term “lane change” in Section 545.104(a). See id.; Mahaffey 2012, 364 S.W.3d
at 911 (“We held that the merge was not a turn and remanded the case to the court of appeals to
determine if the maneuver constituted a lane change under the statute so as to require a signal.”).
2. Mahaffey 2012 Spoke to “[T]urn” When Addressing “[C]hange [L]anes”
In 2012, the Court of Criminal Appeals addressed the meaning of “change lanes” in
Section 545.104(a) regarding the same stop on State Highway 198 at the Cedar Creek Lake
bridge. Mahaffey 2012, 364 S.W.3d at 909–11. Regarding that statutory term, the court held,
“As a practical matter, ‘changing lanes’ requires the existence of more than one lane: In order to
change lanes from Lane A to Lane B, Lane A must exist. . . . [N]o signal is required when two
lanes become one.” Id. at 913.2
In addressing the arguments of the parties regarding what constitutes a lane change, the
court spoke to intersections and provided further comments on the meaning of a “turn.” Id. at
914. On remand, the intermediate court of appeals had reasoned that drivers are required to use
turn signals at intersections even though there are no lane markers in the middle of intersections,
2 When discussing Mahaffey 2010 and Mahaffey 2012, we do not comment on other drivers on other roads making other maneuvers but instead recount those holdings regarding the maneuver made by Mahaffey himself. 11 and therefore, drivers should likewise be required to use turn signals after the lane markers have
ended between lanes that have merged. Id. (citing Mahaffey v. State, No. 12-08-00430-CR, 2011
WL 721505, at * 3 (Tex. App.—Tyler Mar. 2, 2011) (not designated for publication), rev’d on
other grounds by Mahaffey 2012). The Court of Criminal Appeals rejected that analogy. Id.
Whereas the cessation of lane markings of merged lanes “denot[es] the termination of the lane,”
the same is not true at intersections. Id. “[L]ane markings do not terminate at intersections of
laned roadways; rather, they are briefly suspended immediately before the intersection and
reappear immediately after the intersection.” Id. For this reason, the “suspen[sion]” of lane
markings at intersections does not make intersections a turn-signal-free zone. See id. For
example, the move from a right-hand turn only lane into the right lane of an intersecting road
requires a turn signal because it is a “turn” within the meaning of Section 545.104(a). Id.
C. Application
We defer to the trial court’s factual findings and, consequently, find no abuse of
discretion. See McGuire, 689 S.W.3d at 601 (“Almost complete deference is given to the [trial]
court’s determination of historical facts and its rulings on the application of law to those
questions of fact.” (citing Crain, 315 S.W.3d at 48)). Clark’s motion to suppress did not ask the
trial court to construe Section 545.104. Nor did Clark request a statutory construction at the
hearing on his motion to suppress. Even if a construction of “turn” had been asked for, none was
needed; the Court of Criminal Appeals has held that “turn,” as used in Section 545.104, should
be given its plain and ordinary meaning. Mahaffey 2010, 316 S.W.3d at 639.
12 Clark’s motion to suppress hinged in significant part on the credibility and demeanor of
Nustad. Although Nustad did not parrot the language of Mahaffey 2010 (e.g., “direct course or
flow of normal traffic”), see id., he did testify to his familiarity with the roads and to how Spider
Lily Road turns off of Sego Lily Road by stating, “I’ve been down there a lot. I mean, it’s not a
[ninety degree turn] for sure, but it’s definitely -- you have to turn.” Nustad testified that Sego
Lily Road runs north and south, and that Spider Lily Road turns off of Sego Lily Road. Nustad
testified that Spider Lily Road itself does not cross Sego Lily Road; it ends at Sego Lily, and it
does not continue to meet State Highway 154. Nustad testified that he did not measure the
distance from State Highway 154 to Spider Lily Road but agreed that the direct distance is
approximately ninety-six feet.3
Based on Nustad’s testimony, along with the photographic and videographic evidence,
the trial court did not abuse its discretion in determining that the State met its burden to prove
that Nustad had reasonable suspicion for a traffic stop. Nustad had “reasonable suspicion based
on ‘specific articulable facts that, when combined with rational inferences from those facts,
would lead him to reasonably suspect that’” Clark had committed a traffic violation because
Clark did not use a turn signal when he turned from Sego Lily Road, the direct course, onto a
different road (Spider Lily Road). Burleson v. State, No. 06-19-00258-CR, 2020 WL 1896690,
3 During Clark’s motion to suppress hearing, he argued that he need not have used a right turn signal because Spider Lily Road had effectively been extended to State Highway 154 by drivers cutting diagonally across Sego Lily Road via a “cut through” next to the intersection of Sego Lily Road and State Highway 154. On appeal, Clark argues that it was “impossible” for Clark to use his turn signal because the distance between State Highway 154 and Spider Lily Road was less than 100 feet. “[A] particular argument relied upon on appeal must have been presented to the trial court.” Clarke v. State, 270 S.W.3d 573, 582 (Tex. Crim. App. 2008). Clark did not make this argument to the trial court and does not cite any authority that legal impossibility is applicable in this scenario. Therefore, Clark waived these arguments. See TEX. R. APP. P. 33.1(a)(1)(A), 38.1(i). 13 at *5 (Tex. App.—Texarkana Apr. 17, 2020, pet. ref’d) (mem. op., not designated for
publication) (quoting Jaganathan, 479 S.W.3d at 247); see TEX. TRANSP. CODE ANN.
§ 545.104(b).
We overrule the first point of error.
III. Pretext
In Clark’s second issue, he requests that we revisit the pretextual doctrine. See
Crittenden v. State, 899 S.W.2d 668 (Tex. Crim. App. 1995).
[A] complaint is not preserved for appeal unless it was made to the trial court “by a timely request, objection or motion” that “stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.”
Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) (quoting TEX. R. APP. P. 33.1);
see also TEX. R. EVID. 103. “[T]he point of error on appeal must comport with the objection
made at trial.” Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); see Clarke, 270
S.W.3d at 582 (“[A] particular argument relied upon on appeal must have been presented to the
trial court.”). Here, Clark did not argue this issue to the trial court.
Clark’s second point of error is overruled.
IV. Open Air K-9 Search
In Clark’s third point of error, he argues that Nustad did not have probable cause to
conduct an open-air sniff. Clark did not file a motion to suppress or object on this basis when the
State introduced that evidence at trial. See Strehl v. State, 486 S.W.3d 110, 112 (Tex. App.—
Texarkana 2016, no pet.). “To preserve error, the record must show that appellant made a timely
14 request, objection, or motion, and that the trial court ruled on it.” Garza v. State, 126 S.W.3d 79,
81–82 (Tex. Crim. App. 2004) (citing TEX. R. APP. P. 33.1(a)); see TEX. R. EVID. 103.
Clark did not request suppression of the traffic stop either in writing or orally based on a
lack of probable cause for the K-9 search. Clark also did not object at trial when the State
offered the body-camera footage or Nustad’s testimony describing the traffic stop. See Strehl,
486 S.W.3d at 112. A lack of objection at trial can waive the issue if the circumstances indicate
abandonment. Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013).
Clark’s third point of error is overruled.
V. Jury Charge Instruction
In his fourth issue, Clark argues that the trial court improperly included a jury instruction
defining that methamphetamine is a controlled substance.
A. Applicable Law
A trial court must submit a charge setting forth the “law applicable to the case.” TEX.
CODE CRIM. PROC. ANN. art. 36.14. “Trial courts are obliged to instruct juries on ‘the law
applicable to the case,’ which includes the statutory definitions that affect the meaning of the
elements of the offense.” Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011)
(quoting Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009)). “As the instrument
by which a jury is empowered to conviction, jury charges are meant to inform the jury of how to
apply the applicable law to the facts of the case.” Alkayyali v. State, 713 S.W.3d 780, 790 (Tex.
Crim. App. 2025). “The [jury] charge ‘must contain an accurate statement of the law and must
15 set out all the essential elements of the offense.’” Id. (quoting Vasquez v. State, 389 S.W.3d 361,
366 (Tex. Crim. App. 2012)).
To convict for possession of a controlled substance, the State must prove that the
defendant (1) knowingly or intentionally possessed the controlled substance and (2) knew that
the substance was contraband. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (Supp.),
§ 481.115(c), § 481.002(5), (38) (Supp.). “Whether methamphetamine was a controlled
substance in Penalty Group 1 is a question of law, not of fact.” Plumlee v. State, No. 02-17-
00174-CR, 2018 WL 3153543, at *5 (Tex. App.—Fort Worth June 28, 2018, pet. ref’d) (mem.
op., not designated for publication).
B. Analysis
The jury charge here states, “Methamphetamine is a controlled substance listed in Penalty
Group One of the Texas Controlled Substances Act.” That statement correctly reflects Section
481.102(6) of the Texas Health and Safety Code. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.102(6) (Supp.). Such a definition is part of the law applicable to this case. See Mendez v.
State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (stating that the trial court’s “charge should
include, at a minimum, ‘all of the law applicable to the criminal offense that is set out in the
indictment or information,’ as well as ‘general admonishments, including . . . the presumption of
innocence, proof beyond a reasonable doubt, unanimity of the verdict, and so forth”) (quoting
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007))); see Fields v. State, Nos. 02-
24-00066-CR & 02-24-00067-CR, 2025 WL 1085194, at *8 (Tex. App.—Fort Worth Apr. 10,
16 2025, no pet.) (mem. op., not designated for publication) (citing TEX. CODE CRIM. PROC. ANN.
art. 36.14; TEX. HEALTH & SAFETY CODE ANN. § 481.102(6)).
Clark’s fourth point of error is overruled.
VI. Refusal of Requested Jury Instruction
In his fifth point of error, Clark argues that the trial court erred by denying his request for
an Article 38.23 of the Texas Code of Criminal Procedure jury instruction. See TEX. CODE
CRIM. PROC. ANN. art. 38.23.
A. Standard of Review
Denial of a requested jury instruction is reviewed de novo. Abdnor v. State, 871 S.W.2d
726, 732 (Tex. Crim. App. 1994).
Article 38.23 states that, in any case where the evidence raises a fact issue as to whether it was obtained in violation of any provisions of the United States Constitution or laws of the State of Texas, “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 . . . the jury shall disregard any such evidence so obtained.”
Garza, 126 S.W.3d at 85(quoting TEX. CODE CRIM. PROC. ANN. art. 38.23). Questions of law,
such as the existence of reasonable suspicion or probable cause, are generally reserved for the
trial court. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
“The reasonable suspicion standard is wholly objective; the subjective intent of the
officer conducting the investigation is irrelevant.” Hamal v. State, 390 S.W.3d 302, 306 (Tex.
Crim. App. 2012). “The standard requires only ‘some minimal level of objective justification’
for the stop.” Id. (quoting Foster v. State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010)).
17 “Whether the facts known to the officer amount to reasonable suspicion is a mixed question of
law and fact subject to de novo review.” Id.
“Article 38.23 provides that evidence obtained in violation of the Constitution or laws of
the United States or Texas may not be admitted in a criminal case.” Id. (citing TEX. CODE CRIM.
PROC. ANN. art. 38.23). “The statute also provides that a jury instruction should be submitted if a
fact issue is raised about whether such a violation has occurred.” Id. (citing TEX. CODE CRIM.
PROC. ANN. art. 38.23). “The jury instruction requires the jury to disregard evidence that it finds
was obtained in violation of the United States or Texas Constitution or laws.” Id. (citing TEX.
CODE CRIM. PROC. ANN. art. 38.23).
To be entitled to an Article 38.23 jury instruction, three predicates must be met: (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.
Id.
“To raise a disputed fact issue, there must be some affirmative evidence that contradicts
the existence of that fact.” Yoda v. State, 630 S.W.3d 470, 480 (Tex. App.—Eastland 2021, pet.
ref’d). “This evidence can come ‘from any source,’ regardless of whether it is ‘strong, weak,
contradicted, unimpeached, or unbelievable.’” Id. (quoting Garza, 126 S.W.3d at 85). However,
“[a] defendant’s questions on cross-examination cannot, by themselves, raise a disputed fact
issue,” id. (citing Madden v. State, 242 S.W.3d 504, 515 (Tex. Crim. App. 2007)), though “the
witnesses’ answers to those questions might raise a fact issue,” id. (citing Madden, 242 S.W.3d
at 513). “Vague suggestions by appellant’s counsel that the officers were on a fishing
18 expedition, without more, do not rise to the level of creating a fact issue.” Garza, 126 S.W.3d at
86.
Article 38.23 requires the trial judge to instruct the jury that it must disregard evidence
obtained in violation of the law if, and only if, a material disputed fact issue exists as to the
circumstances of the law violation. See Madden, 242 S.W.3d at 509–11. “[A]n Article 38.23
instruction must be included in the jury charge only if there is a factual dispute about how the
evidence was obtained.” Garza, 126 S.W.3d at 85.
C. Analysis
Clark orally requested an instruction allowing the jury to decide whether probable cause
existed for the traffic stop. He requested that the following language be added to the jury charge:
“I would rather there be an instruction that to find probable cause and gave [sic] the jury the
ability to make a determination as to whether or not cause existed based upon my client turning
off of 154 onto Spider Lily.” Clark did not provide a specific and written proposed jury
instruction and relied solely on argument. His argument “did not set out any specific historical
fact . . . that the jury was to focus upon and then decide if [Nustad] was unreasonable . . . .”
Madden, 242 S.W.3d at 512. Clark’s oral request for a proposed jury instruction “focused only
on the law.” See id.4 (“What appellant wanted was a jury instruction on whether the totality of
4 The Madden court further stated,
“Reasonable suspicion,” in this context, is not the type of suspicion, hunch, or notion that the ordinary person might have. Rather, it is a legal term of art. The jury, however, is not an expert on legal terms of art or the vagaries of the Fourth Amendment. It cannot be expected to decide whether the totality of certain facts do or do not constitute “reasonable suspicion” under the law. That would require a lengthy course on Fourth Amendment law. Even many experienced lawyers and judges disagree on what constitutes “reasonable suspicion” or “probable cause” in a given 19 facts that [Nustad] listed constituted ‘reasonable suspicion’ under the Fourth Amendment.”).
“Whether or not the appellant was required to use a turn signal at this ‘meeting’ of the two
roadways was an application-of-law-to-fact question that is properly left for the trial court’s
determination.” Robinson, 377 S.W.3d at 718.
Nustad’s testimony was direct and uncontradicted that Clark did not signal for the right
turn onto Spider Lily Road. No witness disputed the physical characteristics of the intersection.
Cross examination raised only the argument that the junction of the roadways was confusing and
that signaling was not required. It is not proper to submit to the jury a dispute over “the legal
significance of the character of the roadway.” Id. at 722.
Because no evidence raised a material disputed historical fact concerning either the
signaling or the physical characteristics of the roadways at issue, the trial court properly declined
to submit an Article 38.23 instruction. Clark’s fifth point of error is overruled.
VII. Cumulative Error
In his sixth issue, Clark argues that the cumulative effect of the trial court’s alleged errors
described above caused him sufficient harm to justify the reversal of the trial court’s judgment.
To make a finding of cumulative harm from multiple errors, we must find that the trial court
erred in the issues presented by Clark. See Buntion v. State, 482 S.W.3d 58, 79 (Tex. Crim. App.
2016) (finding “no cumulative harm” because the “appellant . . . failed to prove error concerning
each of [his] claims separately”). Because Clark failed to prove error in any of his claims of
situation. It is the trial judge who decides what quality and quantum of facts are necessary to establish “reasonable suspicion.” Only if one or more of those necessary facts are disputed does the judge ask the jury to decide whether the officer’s belief in those facts was reasonable.
Madden, 242 S.W.3d at 511. 20 error, his claim of cumulative harm from these alleged errors must also fail. We overrule Clark’s
sixth point of error.
VIII. Modification of the Judgment
Even though we have overruled Clark’s points of error, we must modify the trial court’s
judgment. “This Court has the power to correct and modify the judgment of the trial court for
accuracy when the necessary data and information are part of the record.” Anthony v. State, 531
S.W.3d 739, 743 (Tex. App.—Texarkana 2016, no pet.) (citing TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)). “The authority of an appellate court to
reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the
question of whether a party has or has not objected in the trial court.” Id. (quoting Asberry v.
State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en banc)).
We must correct the judgment to confirm (1) Clark’s plea of not guilty at trial and (2) the
proper felony degree. See Anthony, 531 S.W.3d at 743. The record clearly reflects that Clark
pled not guilty before the trial began, but the trial court’s judgment states that Clark pled
“GUILTY.” Also, the trial court’s judgment states that Clark was convicted of a “1ST DEGREE
FELONY.” Clark was indicted and convicted under Section 481.115(a), which reads, “[A]
person commits an offense if the person knowingly . . . possesses a controlled substance listed in
Penalty Group 1.” TEX. HEALTH & SAFETY CODE ANN. § 481.115(a). The indictment and jury
charge clearly reflect that he was charged with a third-degree felony of possession of a controlled
substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c). The State filed a notice of
enhancement, increasing the punishment range to twenty-five years to life. Clark pled true to
21 both of those allegations. However, enhancements do not increase the degree of offense. As a
result, we modify the trial court’s judgment to read (1) Clark pled “NOT GUILTY” at trial and
(2) to reflect that Clark was convicted of a “3RD DEGREE FELONY.”
IX. Conclusion
As modified, we affirm the trial court’s judgment.
Jeff Rambin Justice
Date Submitted: October 28, 2025 Date Decided: February 4, 2026
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