Madden v. State
| Decision Date | 19 December 2007 |
| Docket Number | No. PD-1243-05.,PD-1243-05. |
| Citation | 242 S.W.3d 504 |
| Parties | Ryan William MADDEN, Appellant v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Allen C. Isbell, Houston, for Appellant.
Donald Rogers, Jr., Asst. District Atty., Houston, Jeffrey L. Van Horn, State's Atty., Austin, for State.
A jury convicted appellant of possession of cocaine with intent to deliver. The cocaine had been found hidden in the trunk of appellant's rental car after appellant was stopped for speeding. During trial, the judge denied appellant's request for an Article 38.23 jury instruction regarding the legality of his continued detention after the officer completed his investigation of the traffic offense. With one justice dissenting, the court of appeals held that it was error for the trial court not to give the Article 38.23 instruction on the reasonableness of the continued detention.1 We granted the State's petition for review to determine whether the evidence raised a disputed fact issue for the jury to decide concerning whether the officer had reasonable suspicion to continue to detain appellant.2 In this case, there was insufficient evidence to raise a fact issue that placed the constitutional validity of appellant's detention in issue.3 Thus the trial court did not err in refusing to give an Article 38.23(a) instruction.
The evidence at trial showed that D.P.S. Trooper Lily saw two cars speeding through a 55 m.p.h. construction zone on Interstate 10 in Harris County. Both had Florida license plates. The lead car was a gray Dodge; the second one was a green GMC Jimmy. When the driver of the Jimmy saw Trooper Lily, he accelerated, passed the gray Dodge, and began to tailgate an 18-wheeler. From his D.P.S. training on drug convoy tactics, Trooper Lily thought that the Jimmy was trying to divert his attention from the gray Dodge. Trooper Lily thought that the gray Dodge might be ferrying drugs. He clocked the speed of the gray Dodge at 61 m.p.h. and that of the green Jimmy at 63 m.p.h. He stopped both cars and he turned on his patrol-car dashboard video camera to record the incident.
Appellant was driving the gray Dodge. He had a pit bulldog in the backseat. Trooper Lily said that appellant's hands were "shaking tremendously" and his face was trembling. He fumbled for his wallet. At first appellant couldn't answer Trooper Lily's question about where he was coming from, but then he said "Burlestine" up near Dallas. Trooper Lily stated that appellant was "pointing in a very nervous manner that he didn't really know where he was coming from." Appellant said that he was driving a rental car. When appellant gave Trooper Lily the car rental agreement, the trooper saw that the car had been rented in Orlando, Florida, and that the rental agreement had expired four days earlier. When Trooper Lily asked him who he was traveling with, appellant responded that he was by himself. Trooper Lily asked appellant if he had ever been arrested before. Appellant said that he had a prior DUI arrest. By this time, Trooper Lily was suspicious;
I felt that some crime was afoot by the way he was so nervous, the way he was answering my questions and the other vehicle trying to divert my attention from him. I felt like they were trying to hide something.
Trooper Lily asked his dispatcher to run appellant's Florida driver's license. The dispatcher said that appellant had a 1996 arrest for larceny. At this point, Trooper Lily requested backup and a Harris County K-9 unit.
When his backup arrived, Trooper Lily questioned the two men in the green Jimmy which had stopped about 100 yards away. They also had Florida driver's licenses and said that they knew appellant. They said that they had stayed in Arlington, Texas, for the last two days. Appellant had said that he had been staying with his family while in Texas, but, when confronted with his friends' statements, appellant said that he was traveling with the other men and had stayed with their family.
When the K-9 unit arrived, the dog alerted on both the trunk of appellant's Dodge and the back of the Jimmy. Lily searched the trunk of appellant's car and found a Rubbermaid container filled with both dog food and a book bag with three bricks of cocaine inside, a rifle, a shotgun, three handguns, and ammunition. Although the Jimmy did not have any drugs in it, both cars had two-way radios in them.
During trial, both the State and the defense played Trooper Lily's patrol-car video recording several times for the jury. On the tape, appellant could be heard disputing the fact that he had been speeding. He said that he was driving with his cruise control Set at 55 m.p.h. Although defense counsel vigorously cross-examined Trooper Lily, intimating that appellant's face was not trembling on the video recording and that his hands were not shaking, Trooper Lily repeatedly and consistently asserted that appellant was nervous, that his hands were shaking, and that his face trembled. When defense counsel asked Trooper Lily why he, defense counsel, couldn't see that nervousness on the videotape, Trooper Lily said that he saw it on the video, but it wasn't clear because the quality of the tape was so bad.4
Appellant did not testify, and there were no other witnesses who testified to the initial stop or the detention.
During the jury-charge conference, the trial judge told the attorneys, "it seems to me that the only contested fact issue is concerning the original stop of the car." Appellant's attorney claimed that the videotape disputed Trooper Lily's testimony that appellant "was nervous, he lied about his criminal history and all those other matters." He submitted a written requested instruction about the legality of Trooper Lily's continued detention.5 The trial judge responded,
Let's pause there. I see from the tape that there is a disputed fact issue because I think the defendant's saying on the tape: I was only going 55-makes a disputed fact issue on whether or not there was probable cause to pull the defendant over. So, I agree that there should be a charge on that issue.
So, let's just look at that for one moment and talk about the appropriate language to go in that charge and then-I don't think there are any disputed fact issues from that point on.
The tape is in evidence.6 There is no disputed fact issue. The only testimony is the tape and the officer's testimony concerning things he saw and there is no disputed issue, fact issue, I don't think that anything beyond that properly goes to a jury.
Therefore, the trial judge submitted an instruction on the disputed fact issue of whether Trooper Lily reasonably believed that appellant was speeding at the time he made the traffic stop,7 but declined to submit any instruction concerning Trooper Lily's continued detention of appellant.
The jury convicted appellant and sentenced him to thirty years' imprisonment.
A majority of the court of appeals panel disagreed with the trial judge. It concluded,
The question of whether Lily's testimony about appellant's conduct is contradicted by what the videotape shows is a fact issue for the jury to decide; that is, the jury had to decide whether appellant was shaking, trembling, and fumbling with his wallet, based on Lily's testimony and the videotape.8
She noted that
there is no factual dispute sufficient to raise an issue for the jury as to whether Officer Lily had reasonable suspicion to continue appellant's detention. There is only a dispute over whether the videotape is sufficiently clear in showing that appellant's hands were not shaking to refute Officer Lily's testimony that [appellant] was nervous and his hands were shaking. As the Court of Criminal Appeals observed in Garza, "That appellant disagrees with the conclusion that probable cause was shown as a matter of law" is not the same as appellant's controverting the facts of the search. Even if there is a dispute over appellant's visible nervousness, hence over Officer Lily's credibility in this regard, this dispute is not enough to raise a fact issue as to the legality of the search.9
We granted review to clarify what type of evidence suffices to raise a disputed material fact issue that requires the submission of a jury instruction under Article 38.23(a).
A defendant's right to the submission of jury instructions under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.10 We have previously explained:
The terms of the statute are mandatory, and when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly. The only question is whether under the facts of a particular case an issue has been raised by the evidence so as to require a jury instruction. Where no issue is raised by the evidence, the trial court acts properly in refusing a request to charge the jury.11
There are three requirements that a defendant must meet before he is entitled to the submission of 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) That contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.12
There must be a genuine dispute about a material fact.13 If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law.14 And if other facts, not in dispute, are sufficient to support 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.15 The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct.16
To continue reading
Request your trial
-
Jones v. State
...are material to his 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). Before a defendant is entitled to the submission of a jury instruction under article 38.23(a), he must meet three requi......
-
Lampkin v. State
...An Article 38.23 instruction is only required when there is a factual dispute regarding the legality of a search. Madden v. State, 242 S.W.3d 504, 509–10 (Tex.Crim.App.2007) ; Brooks v. State, 642 S.W.2d 791, 799 (Tex.Crim.App. [Panel Op.] 1982) ; Malone v. State, 163 S.W.3d 785, 802 (Tex.A......
-
Bates v. State
...id . at 176–77. However, “[t]he jury decides facts; the judge decides the application of the law to those facts.” Madden v. State, 242 S.W.3d 504, 511 (Tex.Crim.App.2007) ; see also Tex.Code Crim. Proc. Ann.art. 36.13 (West 2007) (“Unless otherwise provided in this Code, the jury is the exc......
-
Wade v. State
...(plurality op.). 32.See Davis v. State, 947 S.W.2d 240, 249 (Tex.Crim.App.1997) (Keller, J., concurring); see also Madden v. State, 242 S.W.3d 504, 517 (Tex.Crim.App.2007) (whether the totality of the circumstances is sufficient to support an officer's reasonable suspicion is a legal questi......
-
Arrests
...fact or facts into question; and 3) the disputed fact must be one that affects the determination of the legal issue. Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). Under CCP Art. 38.23, the defendant is entitled to a jury charge where there has been a factual issue raised as to whe......
-
Search and seizure: property
...fact or facts into question; and (3) the disputed fact must be one that affects the determination of the legal issue. Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). Under CCP Art. 38.23, the defendant is entitled to a jury charge where there has been a factual issue raised as to wh......
-
Arrests
...fact or facts into question; and 3) the disputed fact must be one that affects the determination of the legal issue. Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). Under CCP Art. 38.23, the defendant is entitled to a jury charge where there has been a factual issue raised as to whe......
-
Search and Seizure: Property
...fact or facts into question; and (3) the disputed fact must be one that affects the determination of the legal issue. Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). Under CCP Art. 38.23, the defendant is entitled to a jury charge where there has been a factual issue raised as to wh......