Garza v. State

• Decision Date: 01 September 2015
• Docket Number: NO. 01–14–00076–CR,01–14–00076–CR
• Citation: 474 S.W.3d 825
• Parties: Katelynn Rose Garza, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

474 S.W.3d 825

Katelynn Rose Garza, Appellant

v.The State of Texas, Appellee

NO. 01–14–00076–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued September 1, 2015

Jose Ceja, Scheiner Law Group, P.C., Houston, TX, for Appellant.

Jeri Yenne, Brazoria County District Attorney, Trey D. Picard, Assistant District Attorney, Brazoria County, Angleton, TX, for State.

Panel consists of Justices Keyes, Bland, and Massengale.

OPINION

Michael Massengale, Justice

Appellant Katelynn Garza was charged with misdemeanor possession of marijuana. See TEX. HEALTH & SAFETY CODE § 481.121(b)(1). A jury found her guilty and imposed a $500 fine as punishment.

In this appeal, Appellant argued that the trial court erred when it denied her request for a jury instruction regarding illegally obtained evidence. See TEX. CODE CRIM. PROC. art. 38.23(a). In an opinion dated April 16, 2015, we concluded that the evidence did not demonstrate any material fact dispute implicating the legality of the traffic stop that led to the discovery of marijuana in Appellant's car, and we affirmed the trial court's judgment.

Appellant filed a motion for en banc reconsideration. We withdraw our opinion and judgment issued April 16, 2015, and we issue this opinion and judgment in their stead. Our disposition remains unchanged, but under this court's precedent, Appellant's motion for en banc reconsideration is rendered moot by our withdrawing and reissuing our opinion. See, e.g., Brookshire Bros. v. Smith, 176 S.W.3d 30, 41 n. 4 (Tex.App.–Houston [1st Dist.] 2004, pet. denied) (op. on reh'g).

We affirm.

Background

Around midnight on December 18, 2012, Pearland Police Officer N. Palomo pulled over a car because he observed that its passenger-side headlamp was not functioning properly. Appellant was driving the car. Palomo walked up to the car, and Appellant stated, "headlights." Palomo said, "yes," to which she replied, "I just got stopped for that in Friendswood." As Palomo spoke with Appellant about the car's headlamp, he smelled the odor of marijuana coming from the car.

Palomo asked Appellant to exit the car, which she did. She admitted that she had been smoking marijuana earlier that evening. A search of the vehicle uncovered several marijuana cigarettes, which Appellant admitted were hers. Palomo arrested her for possession of marijuana.

The State charged Appellant with the misdemeanor offense of possession of marijuana. At the end of trial, Appellant proffered for inclusion in the jury charge an article 38.23 instruction to the effect that evidence should not be considered if it resulted from an illegal traffic stop. Specifically, her counsel questioned whether there was reasonable suspicion to justify the traffic stop, explaining at the charge conference that a fact issue existed about "what condition [her] vehicle was in ... specifically, the headlamps and the amount of light that they were emitting...."

The court denied the requested charge, and the jury found Appellant guilty. This appeal followed.

Analysis

In a single issue, Appellant contends that the trial court erred when it denied her request for a jury instruction regarding illegally obtained evidence. She argues that the instruction was warranted by a factual dispute concerning her passenger-side headlamp: whether it was working and the amount of light it produced. We review a challenge to a jury charge using a two-step process. See Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.Crim.App.2009). First, we must determine whether the jury charge contained an error. Id. at 25. If it did, we then evaluate whether the error was harmful so as to constitute reversible error. Id. at 25–26.

"To conduct a traffic stop in compliance with the Fourth Amendment, an officer must have ‘reasonable suspicion.’ " E.g., Hamal v. State, 390 S.W.3d 302, 306 (Tex.Crim.App.2012). An officer has reasonable suspicion when he is aware of "specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity." Id. (quoting York v. State, 342 S.W.3d 528, 536 (Tex.Crim.App.2011) ). "The reasonable suspicion standard is wholly objective; the subjective intent of the officer conducting the investigation is irrelevant." Id. "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) ).

"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. (citing State v. Mendoza, 365 S.W.3d 666, 669–70 (Tex.Crim.App.2012) ). "A police officer's reasonable mistake about the facts may yet legitimately justify his own conclusions that there is probable cause to arrest or reasonable suspicion to detain." Robinson v. State, 377 S.W.3d 712, 720 (Tex.Crim.App.2012).

The traffic stop in this appeal occurred at nighttime, when the use of motor-vehicle headlights was required. See TEX. TRANSP. CODE § 547.302(a). A motor vehicle must be equipped "with at least two headlamps," and "[a]t least one headlamp shall be mounted on each side of the front of the vehicle." Id. § 547.321(a) & (b). A motor-vehicle headlight must produce "an uppermost distribution of light or composite beam that is aimed and emits light sufficient to reveal a person or vehicle at a safe distance of at least 450 feet ahead during all conditions of loading." Id. § 547.333(b)(1).¹ The headlight shall produce "a lowermost distribution of light or composite beam that" must be aimed and emit light "sufficient to reveal a person or vehicle at a distance of at least 150 feet ahead." Id. § 547.333(b)(1)(A). Generally speaking, a car's headlights at night must emit light "sufficient to reveal a person or vehicle at a safe distance ahead of the vehicle." Id. § 547.333(c).

Article 38.23 of the Code of Criminal Procedure provides that evidence obtained in violation of the Constitution or laws of Texas or the United States shall not be admitted in evidence against the accused in a criminal case. TEX. CODE CRIM. PROC. art. 38.23(a). In any case in which "the legal evidence" raises such an issue, "the jury shall be instructed that if it believes, or has a reasonable doubt" that the evidence was illegally obtained, "then and in such event, the jury shall disregard any such evidence so obtained." Id. A defendant must meet three requirements before she is entitled to a jury instruction under article 38.23(a) : (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 in obtaining the evidence. Hamal, 390 S.W.3d at 306. If other undisputed facts are sufficient to establish the lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App.2007) ; Rocha v. State, 464 S.W.3d 410, 2015 WL 1122279, at *5 (Tex.App.–Houston [1st Dist.] 2015, pet. ref'd).

"The first requirement for obtaining a jury instruction under Article 38.23, is that the defendant requests an instruction on a specific historical fact or facts." Madden, 242 S.W.3d at 511. "The jury decides facts; the judge decides the application of the law to those facts." Id. To raise a disputed fact necessary for an article 38.23(a) instruction, there must be some affirmative evidence that puts the existence of that fact into question. Id. at 513. Nevertheless, 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) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex.App.–Houston [1st Dist.] 1996, pet. ref'd.) ).

At trial, the reason Palomo gave for pulling Appellant over was that her passenger-side headlamp "was not operating." Palomo explained the difference between a headlight and a parking light:

There's a set of parking lights, when you ... either click your lights over once—or however your vehicle is set up—turns on the parking lights or just turns on the taillights and the two amber lights on the outside corners of the vehicle without turning on the actual headlights themselves, the white lights that illuminate in front. Secondly is the actual headlight where ... you ... turn the dial over one more click and it actually illuminates the headlights which produces the white lights for you to be able to visually see everything at nighttime in front of your vehicle as you would need to.

He explained why he perceived one of the headlights to be malfunctioning:

I could see that the light—the actual headlight itself was not illuminated; so it was not actually shining out the white light that is necessary for the driver to be able to see everything 90 degrees from the rearview mirror to the right side of the vehicle ... or passenger's side of the vehicle, correctly. I could see that the parking light was working; it was emitting an orange light going around where the headlight should be but was obviously not ... the white headlight as it should be.

The testimony was illustrated through the use of video recorded by Palomo's car and three still images captured from the video. While viewing the first still image, admitted as State's Exhibit 1, Palomo compared the depiction of another car to Appellant's car. He showed how the other car's two headlights produced "distinct lighting" that could be seen "on the ground ... coming from the front of each headlight as that vehicle travels." While viewing the second image, admitted as State's Exhibit 2, he explained what he perceived on the night of the arrest:

You'll notice that the driver's side light is

...