Chubb v. State

821 S.W.2d 298, 1991 WL 241801

• Court: Court of Appeals of Texas
• Decided: January 9, 1992
• Docket: 13-90-451-CR
• Status: Published

Opinions

OPINION

NYE, Chief Justice.

A jury found appellant guilty of driving while intoxicated, and the court assessed punishment at ninety days in jail, probated for two years, and a $500 fine. We affirm.

Appellant’s sole complaint is that the second paragraph of the court’s charge failed to apply the law to the facts of the case. The State responds that the charge given was adequate and, alternatively, that appellant was not even entitled to the instruction. Tex.Code.Crim.Proc.Ann. art. 38.-23(a) (Vernon Supp.1991) provides:

No evidence obtained by an officer or other person in violation of any provision 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.

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.

Under this article, if the evidence raises a factual dispute concerning an investigatory detention, the trial court must instruct the jury to resolve the factual dispute and, if the resolution shows that the detention was improper, to disregard evidence obtained from it. Stone v. State, 703 S.W.2d 652, 655 (Tex.Crim.App.1986).

In the present case, Officer Grace Good testified that she was on routine patrol when she saw appellant’s car approach hers. Appellant had on his high beam headlights. She flicked her high beams, and appellant flicked his lights two or three times and then went back to his high beams. She turned her patrol car around and followed him to a nearby convenience store. Officer Good parked at a distance and observed appellant get out of his car, leaving his headlights on. Appellant staggered into the store and, several minutes later, staggered out. He turned off his lights and sat in his car with the door open and his feet outside. Officer Good went to appellant, asked for identification, detected signs of intoxication, administered field sobriety tests, and then arrested appellant, formally.

Appellant testified, on the other hand, that he was driving to the convenience store when a car approached him with bright lights. He flicked his lights and continued on to the store, where he parked, entered, and bought cigarettes. As he exited the store, Officer Good immediately stopped him and asked for identification. Appellant explicitly denied staggering and contradicted Good’s testimony concerning events at the convenience store.

We find that the evidence raised a factual dispute concerning the validity of the stop. Under appellant’s version, Officer Good had no reason to stop him and administer sobriety tests, and any evidence obtained as a result of the stop should have been disregarded. Under Officer Good’s version, she had reason to detain appellant and investigate whether he was intoxicated. Under these controverted facts, the trial court was required to give, as it did, an article 38.23 instruction. Accordingly, we must determine whether the charge which the trial court gave was sufficient.

The charge read as follows:

You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against such accused. An officer is permitted to make a temporary investigative detention of a motorist if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, that the person detained is connected with such activity, and that there is some indication that the activity is related to crime or a criminal offense. Now, bearing in mind that the State has the burden of proof on the issue of reasonable suspicion and if you do not find from the evidence that on the occasion in question the officer had a reasonable suspicion that some activity out of the ordinary was or had occurred, that the person detained was connected with such activity, if any, and that there was some indication that the activity, if any, was related to crime or a criminal offense, or if you have a reasonable doubt thereof, you will disregard the testimony of the officers relative to the stopping of the defendant and their opinions and conclusions drawn as a result thereof and you will not consider such evidence for any purpose whatsoever.

Appellant objected, to the above charge and requested a charge worded as follows:

You are instructed that under our law no evidence obtained or derived by an officer or other person as a result of an unlawful stop and detention shall be admissible in evidence against an accused. An officer is permitted, however, to make a temporary, investigative detention of a motorist if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred, that the person detained is connected with such activity, and that there is some indication that the activity is related to a crime or a criminal offense.

Now, bearing in mind these instructions, if you find from the evidence beyond a reasonable doubt that on the occasion in question the defendant, William C. Chubb, did have his bright lights on and did stagger to and from the 7-Elev-en store immediately preceding his detention by the police officer involved herein, then such detention of the accused would be legal. Unless you find the facts so to be beyond a reasonable doubt, you will disregard the testimony of the officers relative to the detaining of the defendant and their conclusions drawn as a result thereof and you will not consider such evidence for any purpose whatsoever and say by your verdict “not guilty.”

A charge, rather than state mere abstract propositions of law and general statements of principles contained in the statutes, must clearly apply the law to the very facts of the case. Hill v. State, 640 S.W.2d 879, 883 (Tex.Crim.App.1982); Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App.1975). Appellant contends that the charge did not apply the laws to the facts. The State contends that the charge “clearly applied the law to the facts.”

Obviously, the trial court’s charge is not as factually specific as appellant’s requested charge. Nonetheless, we find that the trial court’s charge is more factually specific than the abstract law contained in article 38.23. Whereas article 38.23 merely states that evidence obtained in violation of federal and state law shall not be considered, the trial court’s instruction points the jury to evidence obtained as the result of an investigative detention, which is how the evidence in this case was obtained. The charge then instructs the jury that an officer may stop a motorist if the officer has a reasonable belief that some activity out of the ordinary has occurred and that there is some indication that the activity is related to a crime. It then directs the jury not to consider the testimony of the officers if it finds that the officer on the occasion in question had no reasonable suspicion to believe that something out of the ordinary had occurred.

The function of the court’s charge is to lead the jury in its deliberations and to prevent confusion. Williams v. State, 547 S.W.2d 18, 20 (Tex.Crim.App.1977); Lugo v. State, 732 S.W.2d 662, 666 (Tex.App.—Corpus Christi, no pet.).

After careful consideration of the law and the facts of this particular case, we find that the charge was sufficient to direct the jury’s attention to the ultimate issue of whether Officer Good had reason to believe that appellant was involved in criminal activity. The individual disputed facts (who had bright lights, why did appellant flash his lights, did appellant stagger, did appellant sit in his car, did Good approach appellant before he got to his car, etc.) were significant only to the extent that they affected the ultimate question of whether Officer Good had a reason to stop appellant in the first place. Because the jury could have found some of the disputes in favor of appellant and some in favor of the State, a correct charge which took into account the variety of possible factual resolutions would have been unduly lengthy and confusing.¹ By charging as it did, the trial court adequately directed the jury to consider the ultimate fact issue (did the officer on the occasion in question have a reason to stop appellant).

Even if the charge could have been tied more directly to the facts without creating confusion for the jury, we find that any error was harmless. Under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984), if an error in the charge was the subject of a timely objection, as here, reversal is mandated if there was “some harm” to the accused from the error. In determining whether there was “some harm,” the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, argument of counsel, and any other relevant information revealed by the record of the trial as a whole.

Counsel for both parties discussed the specific factual disputes during jury argument. Although we recognize that jury argument will not cure errors in an incorrect charge, jury argument is a factor in assessing harm. In this case, because any deficiency in the charge was one of degree in the lack of factual specificity, and because the argument clarified the exact factual disputes, we find any error harmless. Appellant’s sole point of error is overruled.

The judgment of the trial court is affirmed.

Dissenting opinion by DORSEY, J.

1 . While the matter may simply have been a question of whether the jurors believed the officer or the appellant, a charge which restricted the jury to finding that one version or the other was credible would have deprived the jury of its right to believe a portion of each witnesses’ testimony.