Bendy v. State

• Decision Date: 23 March 2022
• Docket Number: 12-21-00073-CR
• Court: Texas Court of Appeals
• Parties: ANTHONY EUGENE BENDY, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE

ANTHONY EUGENE BENDY, JR., APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

No. 12-21-00073-CR

Court of Appeals of Texas, Twelfth District, Tyler

March 23, 2022

DO NOT PUBLISH

Appeal from the 114th District Court of Smith County, Texas (Tr. Ct. No. 114-0238-21)

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

GREG NEELEY, JUSTICE

Anthony Eugene Bendy, Jr. appeals his conviction for possession of a controlled substance with intent to deliver. In a single issue, Appellant argues that the trial court abused its discretion in refusing to submit an instruction in its charge pursuant to Article 38.23 of the Texas Code of Criminal Procedure and that such a refusal amounted to reversible error. We affirm.

Background

On May 1, 2020, Officer Blake Kelley^[1] of the Tyler Police Department was on patrol when a tan Tahoe pulled into his lane at the intersection of South Baxter and East Front Streets. Officer Kelley had to engage his brakes to avoid a collision. As a result, he initiated a traffic stop for failure to yield the right of way. After making contact with the driver, Appellant, Officer Kelley observed that Appellant's eyes appeared "heavy" and his breath smelled like alcohol. Officer Kelley shined his flashlight in the backseat and observed a glass jar with a gold lid that contained a green leafy substance he believed to be marijuana. He also observed an open container of Hennessey alcohol. He then asked Appellant to step out of the vehicle.

1

As Appellant exited the vehicle, Officer Kelley and Tyler Police Officer Spencer McGregor, who arrived as backup, attempted to cuff Appellant. Appellant broke away, grabbed a bag, and attempted to flee. The bag went flying, along with methamphetamine, crack, cocaine, Xanax, marijuana, hydrocodone, cash, a gun, bullets, a scale, cell phones, and a pill bottle. A struggle ensued, and Appellant ultimately fled. Appellant's girlfriend, Ashley Bassett, was in the passenger seat and remained in the vehicle.

Appellant was later arrested and charged by indictment for possession of methamphetamine, in an amount of four grams or more but less than 200 grams, with intent to deliver.^[2] The indictment further alleged that Appellant used or exhibited a deadly weapon during the commission of the offense and that Appellant had been convicted of three prior felony offenses. Prior to trial, Appellant filed a motion to suppress, arguing that he was stopped, detained, and arrested without probable cause and that any evidence seized as a result should be excluded. Following a hearing, the trial court denied the motion.

Appellant pleaded "not guilty," and the matter proceeded to a jury trial. At the charge conference, Appellant requested the jury be given an instruction consistent with Article 38.23 of the Texas Code of Criminal Procedure, which the trial court denied. Ultimately, the jury found Appellant "guilty" and found that he used or exhibited a deadly weapon. After finding the habitual offender allegations to be "true," the jury assessed punishment at forty-five years imprisonment. This appeal followed.

Charge Error

In his sole issue, Appellant urges he was harmed when the trial court denied his request for an instruction under Article 38.23 of the Texas Code of Criminal Procedure.

Standard of Review

We review a trial court's refusal to give an instruction in its charge for an abuse of discretion. See Steele v. State, 490 S.W.3d 117, 130 (Tex. App.-Houston [1st Dist.] 2016, no pet.). A trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

2

We review alleged jury charge error in two steps-we first determine whether error exists, and, if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Joshua v. State, 507 S.W.3d 861, 863-64 (Tex. App.- Houston [1st Dist.] 2016, no pet). The degree of harm required for reversal depends on whether the charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth analysis for determining whether jury charge error requires reversal). If the charge error properly has been preserved by an objection or request for instruction, reversal is required if the appellant suffered "some harm" from the error. Vega v. State, 394 S.W.3d 514. 519 (Tex. Crim. App. 2013); see Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). When the defendant fails to object or states that she has no objection to the charge, we will not reverse for jury charge error unless the record shows the defendant suffered egregious harm. See Ngo, 175 S.W.3d at 743-44. Thus, in considering Appellant's issue, we first must determine if there was error in the charge. See Joshua, 507 S.W.3d at 864. Only if we find error do we address whether Appellant was harmed sufficiently to require reversal. Id.

Applicable Law

Under Texas law, the Code of Criminal Procedure requires trial courts to exclude evidence in a trial if the State obtained the evidence by violating the law. Tex. Code Crim. Proc. Ann. art. 38.23 (West 2018). But if the evidence shows that a fact issue exists about whether the police conduct was illegal, the trial court must submit an instruction to the jury that informs the jury that "if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, . . . [it must] disregard any such evidence so obtained." Id. art. 38.23(a).

There must be a genuine dispute about a material fact issue before an Article 38.23 instruction is warranted. Madden v. State, ...