COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-270-CR
NANCY CAROL KESSLER APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM COUNTY CRIMINAL COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION 1 ON REHEARING
I. Introduction
After reviewing Appellant’s motion for rehearing, we deny the motion.
We withdraw our January 14, 2010 opinion and judgment and substitute the
following.
1 See Tex. R. App. P. 47.4. Appellant Nancy Carol Kessler appeals her conviction for driving while
intoxicated (DWI). In two points, Appellant contends the trial court erred by
denying (1) her motion to suppress evidence acquired because of a warrantless
stop and (2) a jury instruction to disregard any evidence that the jury believed
was illegally obtained. We will affirm.
II. Factual and Procedural Background
While responding to an unrelated call 2 shortly after 2:00 a.m. on
December 29, 2007, Officer Caleb Goodman of the Grapevine Police
Department brought his marked patrol car to a stop directly behind Appellant’s
vehicle at a red light on Main Street at the Northwest Highway intersection.
After the traffic light turned green, Appellant’s vehicle accelerated from a stop,
stayed to the right through the intersection, and made an abrupt, evasive
maneuver to the left to avoid hitting the curb at the northeast corner of the
intersection. Officer Goodman activated his in-car video camera, 3 initially
believing that the driver was (1) not paying attention, (2) suffering from a
2 Officer Goodman testified the call was for an alarm or loud disturbance. 3 The trial court admitted the video into evidence and granted permission to publish it during the hearing without objection. Officer Goodman testified that he captured video footage of Appellant’s car moving through the intersection and almost striking the curb because the video camera is always on and records footage from thirty seconds before the camera’s activation. The jury also viewed the video.
2 medical condition, or (3) intoxicated. Shortly after traveling through the
intersection, Appellant’s vehicle moved halfway into a designated left-turn lane
but continued traveling straight on North Main Street.
When Officer Goodman activated his overhead lights, Appellant pulled
over into a nearby parking lot. Based on Appellant’s driving behavior and
Officer Goodman’s observations after making the stop, Goodman placed
Appellant under arrest for DWI. 4
In a pretrial motion, Appellant moved to suppress all evidence from the
traffic stop. The trial court held a hearing on Appellant’s motion on July 21,
2008. Officer Goodman testified at the hearing that based on his training and
experience, he thought it reasonable to believe that Appellant might be
intoxicated based on (1) the time of day, (2) the numerous locations selling
alcoholic beverages that close at 2:00 a.m. in that area, (3) the vehicle’s abrupt
move to the left to narrowly miss a curb, and (4) then not driving in a single
lane. Officer Goodman further testified that he did not believe Appellant’s
driving behavior constituted a traffic violation. 5
4 Officer Goodman testified Appellant slurred her speech, smelled of alcohol, performed the standardized field sobriety tests poorly, and had lost the normal use of her mental and physical faculties. 5 Appellant’s testimony at trial is almost identical to the testimony he presented during the hearing on Appellant’s motion to suppress.
3 On cross-examination, Appellant’s counsel attempted to impeach Officer
Goodman with his testimony during Appellant’s Administrative License
Revocation (ALR) hearing in May 2008, in which the following exchange had
occurred:
Q: “Was there any other traffic violation for which you stopped her?”
A: “No, sir.” That was my response [at the ALR hearing].
Q: And then after that?
....
A: “Just failure to drive in a single lane. Yes.”
Q: All right. Would you agree that was your sworn testimony back in May of this year?
A: Yes, sir.
Q: Involving the same stop?
Q: At no time during the hearing of the ALR did you ever suggest, let alone mention, that you believed you had reasonable suspicion to stop that vehicle because it might be being driven by an intoxicated person, correct?
4 A: I haven’t read the transcript, but, sir, I don’t recall being asked. And, no, sir, I don’t recall responding to that question.
Officer Goodman also testified that in neither the narrative’s or DWI case
report’s “probable cause” sections did he write that he suspected Appellant
might not be paying attention, might be suffering from a medical condition, or
may be intoxicated—nor did he write about his training and experience that
caused him to believe Appellant might be intoxicated as a result of his
observations. He explained that he “merely documented things that could lead
[him] to believe that was what was occurring.” In the three-page narrative, he
wrote that the probable cause for the stop of Appellant’s vehicle was:
[t]hat it came very close to striking a curb in the area where signal light post which controls northbound traffic intersection is located, that it had to take evasive action and avoid striking the post and curb and drove with both left-side tires . . . in lane designated as left-turn only lane.
In his DWI Case Report, Officer Goodman wrote: “Failed to drive in single
lane—almost struck curb/drove straight through lane designated left turn,”
under the subheading of “Probable cause/reasonable suspicion for stop.”
However, Officer Goodman testified that his “experience, working
wrecks and doing DWI enforcement” led to his belief that the Appellant might
be intoxicated. Officer Goodman further testified:
5 I mean, it’s very, very common to see a vehicle not stay in the one lane when a person’s intoxicated. I can’t list all the cases that I’ve had in the past to suggest that, but I’ve got lots of pictures of cars wrapped around poles and—which have struck curbs, which has taken faulty evasive action, as a result of being in the wrong lane, which resulted in a collision.
Officer Goodman agreed that he had no knowledge of where Appellant
had been that evening or that she needed medical assistance. However, he
also said he did not draw a conclusion that Appellant was intoxicated based on
her driving:
Q: Do you believe it’s important to put in a DWI case report and a DWI narrative your conclusions regarding a person’s being intoxicated?
Q: And do you believe that it’s important to put in there the facts that support those conclusions?
Q: But you did not recite in either one of those, either the DWI case report or the narrative, a conclusion that you thought she was intoxicated because of her driving habits; isn’t that right?
A: Sir, I didn’t form that conclusion by observing her driving.
At the conclusion of the hearing, the trial court denied Appellant’s motion to
suppress without making findings of fact or conclusions of law.
At trial, Appellant pleaded not guilty to the DWI charge. On cross-
examination, Officer Goodman admitted he testified under oath at Appellant’s
6 ALR proceeding that he had reason to believe Appellant violated a traffic law
by failing to maintain a single lane of traffic; that he also thought Appellant was
either “(a) intoxicated, (b) having a medical condition, or (c) just not paying
attention to the roadway”; and that he was “testifying [to] the same thing [at
trial] as [he] was [during the ALR proceeding].”
During the charge conference, Appellant requested a jury instruction
pursuant to article 38.23 of the Texas Code of Criminal Procedure regarding the
validity of Officer Goodman’s stop of Appellant’s vehicle. The trial court denied
Appellant’s jury instruction request. A jury convicted Appellant of DWI, and the
judge sentenced her to a fine of $550 and sixty days in jail, probated to
eighteen months on community supervision.
III. Discussion
A. Motion to Suppress
In her first point, Appellant contends that the trial court erred by denying
her motion to suppress because Officer Goodman’s stop of Appellant’s vehicle
cannot be justified either by reasonable suspicion to believe Appellant was
intoxicated or by the proper exercise of a police officer’s community caretaking
function. The State argues that the evidence shows Officer Goodman had
sufficient reasonable suspicion that a crime was being committed to justify his
7 initial detention of Appellant and that her failure of the field sobriety tests gave
him probable cause to arrest her for driving while intoxicated.
1. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when
8 application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
When the record is silent on the reasons for the trial court’s ruling, or
when there are no explicit fact findings and neither party timely requested
findings and conclusions from the trial court, we imply the necessary fact
findings that would support the trial court’s ruling if the evidence, viewed in the
light most favorable to the trial court’s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede,
214 S.W.3d at 25. We then review the trial court’s legal ruling de novo unless
the implied fact findings supported by the record are also dispositive of the legal
ruling. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court
gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740
(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.
Crim. App. 2003), cert. denied, 541 U.S. 974 (2004). The historical facts in
this case are not disputed; therefore, we review the ruling on the motion to
9 suppress de novo. See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App.
1999).
In reviewing the suppression determination, we are deferential to the trial
court and will reverse only if the decision is unsupported by the record. Upton
v. State, 853 S.W.2d 548, 553 (Tex. Crim. App. 1993). In determining
whether a trial court’s decision is supported by the record, we generally
consider only the evidence adduced at the suppression hearing because the
ruling was based on it rather than evidence introduced later. Rachal v. State,
917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996);
Hardesty v. State, 667 S.W.2d 130, 133 n.6 (Tex. Crim. App. 1984).
However, this general rule is inapplicable when the suppression issue has been
consensually re-litigated by the parties during trial on the merits. Rachal, 917
S.W.2d at 809. Where the State raises the issue at trial either without
objection or with subsequent participation in the inquiry by the defense, the
defendant has made an election to re-open the evidence, and consideration of
the relevant trial testimony is appropriate in our review. Id.; see also Webb v.
State, 760 S.W.2d 263, 272 n.13 (Tex. Crim. App. 1988), cert. denied, 491
U.S. 910 (1989).
10 2. Applicable Law and Analysis
The Fourth Amendment6 protects against unreasonable searches and
seizures. U.S. Const. amend. IV. To suppress evidence because of an alleged
Fourth Amendment violation, the defendant bears the initial burden of producing
evidence that rebuts the presumption of proper police conduct. Torres v. State,
182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005). A defendant satisfies this burden by
establishing that a search or seizure occurred without a warrant. Torres, 182
S.W.3d at 902; Ford, 158 S.W.3d at 492. Once the defendant makes this
showing, the burden of proof shifts to the State, which must then establish that
the government agent conducted the search or seizure pursuant to a warrant
or that the agent acted reasonably. Torres, 182 S.W.3d at 902; Ford, 158
S.W.3d at 492.
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868,
6 Appellant makes no argument that the stop violates the Texas Constitution independent of the protection afforded by the Fourth Amendment. See, e.g., Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998). Therefore, we analyze Appellant’s claim solely under the Fourth Amendment. See State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998).
11 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App.
2000).7 Reasonable suspicion exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that when combined
with rational inferences from those facts, would lead him to reasonably
conclude that a particular person is, has been, or soon will be engaged in
criminal activity. Ford, 158 S.W.3d at 492. This is an objective standard that
disregards any subjective intent of the officer making the stop and looks solely
to whether an objective basis for the stop exists. Id.
Because the trial court did not file findings of fact and conclusions of law,
we must determine whether the evidence, viewed in the light most favorable
to the trial court’s decision to deny the motion to suppress, supports implied
findings supporting that decision. See Kelly, 204 S.W.3d at 819. In other
words, we must determine whether Officer Goodman testified to specific,
articulable facts justifying his detention of Appellant. See id.
Appellant’s argument asks us to judge the validity of the stop based on
Officer Goodman’s mistaken subjective belief that Appellant committed a traffic
7 Because a routine traffic stop typically involves only a short, investigative detention, as opposed to a custodial arrest, we analyze traffic stops under the principles developed for investigative detentions set forth in Terry, 392 U.S. at 22, 88 S. Ct. at 1880; see Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); Martinez v. State, 236 S.W.3d 361, 369 (Tex. App.—Fort Worth 2007, no pet.).
12 violation. Appellant contends that even though Officer Goodman testified that
he had three possible reasons for stopping Appellant’s vehicle, the fact that
Officer Goodman did not include this information in his contemporaneous
reports shows that he was being untruthful.
However, the trial court obviously believed Officer Goodman’s testimony,
and we must defer to its assessment of Officer Goodman’s credibility. Ross,
32 S.W.3d at 855. Thus, we must take as true Officer Goodman’s testimony
that he thought Appellant could have been intoxicated based upon his training
and the specific instances of Appellant’s driving he observed. Hughes v. State,
No. 02-07-00370-CR, 2008 WL 4938278, at *3 (Tex. App.—Fort Worth Nov.
20, 2008, pet. ref’d) (mem. op., not designated for publication). And, as
stated above, we must determine whether reasonable suspicion existed based
upon an objective standard considering the totality of the circumstances, not
upon the officer’s subjective intent in making the stop. Ford, 158 S.W.3d at
492. Thus, we must determine whether the objective facts testified to by
Officer Goodman show that he had reasonable suspicion to justify stopping
Appellant, regardless of the reasons stated in his report. Curtis v. State, 238
S.W.3d 376, 380–81 (Tex. Crim. App. 2007).
Here, Officer Goodman observed Appellant abruptly swerve to the left to
avoid a curb shortly after 2:00 a.m., which is when local bars closed.
13 Appellant also failed to drive the car within a single lane of traffic, moving “the
majority of the vehicle” into a designated left-turn lane while continuing to drive
straight. Officer Goodman testified that based on his experience, narrowly
avoiding a curb with such a quick movement and failing to remain in a single
lane were signs of possible intoxication.
Appellant argues that these observations do not constitute evidence of
fact-specific conduct of intoxication, and thus, Officer Goodman had no
reasonable suspicion to stop Appellant’s vehicle. Appellant relies on Bass v.
State,8 State v. Arriaga, 9 State v. Tarvin,10 and Hernandez v. State. 11
In Bass and Hernandez, the State failed to carry its burden to show
articulable facts that demonstrated the reasonableness of the stop of
appellants’ vehicles on the basis of a suspicion appellants were intoxicated
because the officer neither testified that, based on his experience, he
subjectively suspected appellants of being intoxicated, nor that anything about
the objective circumstances—time, location, or the vehicle’s movement—would
8 64 S.W.3d 646 (Tex. App.—Texarkana 2001, pet. ref’d). 9 5 S.W.3d 804 (Tex. App.—San Antonio 1999, pet. ref’d). 10 972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d). 11 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d).
14 have led a reasonable officer to suspect [appellants] were intoxicated. Bass,
64 S.W.3d at 650; Hernandez, 983 S.W.2d at 870.
The Arriaga court held that the State had failed to present specific facts
that characterized the appellant’s driving as indicative of intoxication to justify
a reasonable stop when the officer was unable to testify with any certainty the
number of times he observed appellant’s vehicle drift within his lane. Arriaga,
5 S.W.3d at 807. In Tarvin, the court noted that, although the officer observed
Tarvin’s weaving within his own lane of traffic, the officer “never testified that
he was conducting an investigatory stop, nor did he testify to suspecting any
criminal activity other than weaving out of the lane.” Tarvin, 972 S.W.2d at
912.
Here, unlike the facts in the above cases, Officer Goodman testified that,
based on his training and experience, he believed that Appellant might be
driving while intoxicated given the specific manner in which she operated the
vehicle in conjunction with the time of night and location. In addition, he
testified that he stopped the vehicle to investigate why Appellant was driving
erratically.
We find the facts in this case similar to Hughes v. State, in which this
court concluded an officer testified to specific, articulable facts that would lead
a reasonable person to conclude that the car’s driver was possibly driving while
15 intoxicated. 2008 WL 4938278, at *4. In Hughes, the driver had trouble
remaining in a single lane of traffic, almost ran into a curb, and drove well
below the speed limit around 2:00 a.m., when local bars were closing.
However, unlike the officer in Hughes, Officer Goodman did not testify that the
sole reason for stopping Appellant’s car was failure to maintain a single lane of
travel. Id. (McCoy, J., dissenting). Officer Goodman instead testified that he
had multiple reasons for stopping Appellant, including reasonable suspicion to
believe Appellant might be driving while intoxicated.
In addition, we find these facts distinguish this case from Fowler, in
which this court determined the facts testified to by the officer initiating the
traffic stop, even if believed by the trial court, were not sufficient to establish
reasonable suspicion of either DWI or a violation of the Texas Transportation
Code. Fowler v. State, 266 S.W.3d 498, 504–05 (Tex. App.—Fort Worth
2008, pet. ref’d) (en banc) (holding that an officer’s honest but mistaken
understanding of the traffic law, which was the sole reason for making the
stop, is not an exception to the reasonable suspicion requirement).
Viewing the evidence in the light most favorable to the trial court’s ruling,
we hold that Officer Goodman testified to specific, articulable facts that would
lead a reasonable person to conclude that Appellant was possibly driving while
intoxicated. Curtis, 238 S.W.3d at 380–81; James v. State, 102 S.W.3d 162,
16 172 (Tex. App.—Fort Worth 2003, pet. ref’d). Thus, the trial court did not
abuse its discretion by finding that Officer Goodman had reasonable suspicion
to stop Appellant, and it properly denied Appellant’s motion to suppress. We
overrule Appellant’s first point.
B. Trial Court’s Denial of Jury Instruction
In her second point, Appellant argues that the trial court erred by denying
her request to instruct the jury to disregard any illegally obtained evidence. 12
See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Appellant
contends she was denied her right to have the jury make a factual finding
because her requested jury instruction addressed the factual basis for the
legitimacy of Officer Goodman’s stop of Appellant’s vehicle. The State
counters that there was no material fact issue concerning the lawfulness of
Officer Goodman’s stop.
Under article 38.23 of the code of criminal procedure, no evidence
obtained in violation of the federal or state constitutions or laws may be
admitted in evidence against the accused. Id. When the evidence raises an
issue regarding a violation, the jury must be instructed that if it believes, or has
a reasonable doubt, that the evidence was obtained in violation of the law, it
12 Appellant made a verbal request for the instruction during the charge conference.
17 must disregard the illegally obtained evidence. Id. A defendant’s right to the
submission of a jury instruction under article 38.23 is limited to disputed issues
of fact that are material to her claim of a constitutional or statutory violation
that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504,
509–10 (Tex. Crim. App. 2007). 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. Id. at 513. “A fact issue about
whether evidence was legally obtained may be raised ‘from any source, and the
evidence may be strong, weak, contradicted, unimpeached, or unbelievable.’”
Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (citing Wilkerson
v. State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996, writ
ref’d)). If there is no dispute regarding the factual basis for the challenged
seizure, then the legality of the conduct is determined by the trial judge
alone—as a question of law—and a jury instruction is inappropriate. Madden,
242 S.W.3d at 510; Garza, 126 S.W.3d at 85.
Appellant’s requested jury instruction raises a question of law because it
does not contest any of the essential facts that led Officer Goodman to stop her
vehicle. See Brooks v. State, 707 S.W.2d 703, 706 (Tex. App.—Houston [1st
Dist.] 1986, pet. ref’d) (stating that where the essential facts concerning a
search or an arrest are not in dispute, the legality of the search or arrest is a
18 question of law). Appellant testified she was at an establishment that served
alcohol until the establishment’s 2:00 a.m. closing time. She also testified that
this establishment was less than a mile from the intersection where she had to
“move [her] car, the steering wheel, towards the left” because she almost hit
the curb. 13 Appellant also admitted the left tires of her vehicle and part of her
vehicle later moved into the designated left-turn lane. On cross-examination,
Appellant agreed that her driving behavior gave Officer Goodman “a reason to
want to pull me over.” Thus, Appellant did not dispute any pertinent fact that
Officer Goodman stated he relied on in forming a reasonable suspicion Appellant
might be driving while intoxicated, and the record contains no affirmative
evidence placing the existence of a material fact to Appellant’s claim of a
constitutional or statutory violation into question. See Madden, 242 S.W.3d
at 513; see Brooks, 707 S.W.2d at 706.
Appellant contends that on cross-examination, Officer Goodman admitted
he stopped the vehicle for having violated a traffic law—not for any of the three
reasons he stated in his direct testimony—and that his conflicting testimony
raised a material fact issue for the jury. However, a cross-examiner’s questions
13 Appellant testified that she almost hit the curb after being distracted because her cell phone “went off.” However, upon being stopped, she did not tell Officer Goodman about her cell phone going off and admitted to him that she could hear herself slurring her words.
19 do not create a conflict in the evidence, although the witness’s answers to
those questions might. Madden, 242 S.W.3d at 513. Even the most vigorous
cross-examination implying that Officer Goodman was lying about why he
stopped Appellant does not raise a disputed issue. See id. at 514; Cerda v.
State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d)
(impeachment of officer as to why he stopped a driver did not create a factual
dispute for purposes of art. 38.23(a)); see also Trent v. State, 925 S.W.2d
130, 133 (Tex. App.—Waco 1996, no writ) (holding cross-examination of
officer did not raise factual dispute for purposes of article 38.23(a) and
rejecting defendant’s contention that although “he did not present any
controverting evidence on the legality of the arrest, . . . he sufficiently attacked
the credibility of [witness] to require an instruction); 40 George E. Dix & Robert
O. Dawson, Criminal Practice and Procedure § 4.194 (2d ed. 2001) (noting that
“a fact issue is not generated by the possibility that the jury may disbelieve all
or some of [the State’s] testimony”).
Here, a thorough review of the record reveals that Officer Goodman’s
answers to trial counsel’s questions on cross-examination were insufficient to
warrant an article 38.23(a) jury instruction because his responses failed to raise
a disputed fact issue for the challenged detention. See Madden, 242 S.W.3d
at 513. Officer Goodman admitted that he testified during the May 2008 ALR
20 hearing that he believed he had probable cause to believe Appellant violated a
traffic law by failing to remain in her lane. However, Officer Goodman did not
agree with Appellant’s trial counsel that Appellant’s inability to remain in her
lane was the sole reason he stopped Appellant; he recalled it was only “one of
the things” that gave him reasonable suspicion to stop Appellant’s car to
determine if she was driving while intoxicated. As in Cerda and Trent, an
implication arising by questions posed during cross-examination that Officer
Goodman was untruthful does not raise a factual dispute requiring an article
38.23(a) jury instruction. See Cerda, 68 S.W.3d at 217; Trent, 925 S.W.2d
at 133.
Appellant was not entitled to her requested jury instruction because there
was no conflict in the evidence that raised a disputed fact issue material to the
legal question of whether Officer Goodman could stop Appellant. Appellant’s
requested instruction instead asked the jury to make a legal determination. See
Madden, 242 S.W.3d at 510. Therefore, we overrule Appellant’s second point.
21 IV. Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: March 25, 2010