Reynolds v. State, 01-96-00779-CR

• Citation: 967 S.W.2d 493
• Decision Date: 09 April 1998
• Docket Number: No. 01-96-00779-CR,01-96-00779-CR
• Parties: Calvin Joseph REYNOLDS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 493

967 S.W.2d 493

Calvin Joseph REYNOLDS, Appellant, v. The STATE of Texas, Appellee.

No. 01-96-00779-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

April 9, 1998.

Robert G. Tanner, Houston, for Appellant.

John B. Holmes, Dan McCrory, Houston, for Appellee.

Before COHEN, WILSON and HEDGES, JJ.

OPINION

HEDGES, Justice.

A jury found appellant guilty of driving while intoxicated (DWI) and assessed punishment at a fine of $300 and 180 days in jail, probated for one year. On appeal, appellant contends that the trial court erred (1) in denying his motion to suppress, (2) in giving an incomplete charge, and (3) in including an extraneous instruction in the charge. We affirm.

FACTS

On December 22, 1995, Houston Police Department (HPD) Officer Walsh stopped appellant after noticing that appellant was speeding and was unable to maintain a single lane of traffic. Walsh smelled alcohol on appellant, noticed that his eyes were bloodshot, his speech was slurred, and his balance was unstable. After appellant failed the standard field sobriety tests, Walsh arrested him. Appellant refused a breath test.

At an administrative license revocation hearing, the administrative law judge entered a finding of fact that the Department of Public Safety did not prove that there was a reasonable suspicion to stop appellant and declined to suspend appellant's license. At his trial for DWI, appellant filed a motion to suppress based on the administrative law judge's determination. The trial court denied the motion.

WAIVER

At the outset, we note that the State contends that appellant has waived all of his points of error because the record on appeal does not include the reporter's record of the closing arguments during the guilt innocence phase and the reporter's record of the punishment phase. We hold that the record is sufficient for us to address the merits of appellant's points of error.

MOTION TO SUPPRESS

In point of error one, appellant contends that the trial court erred in denying his motion to suppress, based on the administrative law judge's finding that the police had no reasonable suspicion to stop him. He argues that the doctrine of collateral estoppel barred the trial judge from relitigating the issue decided by the administrative law judge: that the officer had no legal basis to stop appellant. He contends that based on that finding, the trial judge had no choice but to grant the motion to suppress. We disagree.

We hold that the State is not collaterally estopped from relitigating the issue of reasonable suspicion to stop at the suppression hearing in the criminal prosecution. State v. Brabson, 966 S.W.2d 493 (Tex.Crim.App.1998).

We overrule point of error one.

INCOMPLETE CHARGE

In point of error two, appellant contends that the trial court erred in giving an incomplete charge under TEX.CODE CRIM. P. ANN. art. 38.23 (Vernon Supp.1998). Appellant concedes that the trial court correctly charged the jury that it should not consider evidence obtained from appellant's stop if no reasonable suspicion existed. His complaint is that the charge was incomplete because it did not include certain introductory language from article 38.23.

Review of alleged jury charge error requires that an appellate court make a two-fold inquiry: (1) whether error exists in the jury charge, and (2) whether sufficient harm was caused by the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994).

Appellant requested the following instruction based on article 38.23(a):

You are instructed that no evidence obtained by an officer or other persons in violation of any provisions 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.

The trial court denied his request and instead included the following instruction in the charge:

You are further instructed that 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 occurring 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 these instructions, if you find from the evidence that on the occasion in question police officer J.P. WALSH did not have a reasonable suspicion to believe that the defendant, CALVIN JOSEPH REYNOLDS, was either driving at a speed greater than thirty-five (35) miles per hour on a portion of roadway with a posted speed limit of thirty-five (35) miles per hour or had failed to drive as nearly as practical entirely within a single lane immediately preceding the Defendant's stop and detention by the officer, or if you have a reasonable doubt thereof, you will disregard any and all evidence obtained as a result of the defendant's arrest by Officer J.P. WALSH and you will not consider such evidence for any purpose whatsoever. Further, since you will have no further evidence to consider, you shall return a verdicr [sic] of "Not Guilty."

These instructions are sufficient to comport with the requirements of article 38.23(a).

The jury was clearly instructed that it had to find that the officer had reasonable suspicion to stop appellant before it could consider any evidence obtained as a result of the stop. The trial court did not err in charging the jury.

Appellant erroneously relies on Hutch v. State, 922 S.W.2d 166, 169 (Tex.Crim.App.1996), for the proposition that the trial court should have included in the charge the statutory language contained in article 38.23. In Hutch, the Court of Criminal Appeals held that the application paragraph in the charge included a clearly erroneous statement of the law. Hutch, 922 S.W.2d at 172. The erroneous charge happened to include the article 38.23(a) language that appellant requested and did not obtain. Nowhere in Hutch, however, does the court require that the specific article 38.23 language appellant requested be mandatorily included in the charge.

We overrule point of error two.

EXTRANEOUS INSTRUCTION

In point of error three, appellant contends that the trial court erred in instructing the jury that appellant's failure "to drive as nearly as practical within a single lane" could constitute possible grounds for reasonable suspicion to stop him. He argues that this instruction is not supported by the evidence because Officer Walsh limited his basis for the stop to appellant's "traveling over the posted speed limit." Appellant ignores Walsh's earlier testimony, in which he states that in addition to observing appellant speeding, he also observed appellant crossing into other lanes at times. Based on this evidence, the trial court properly included the instruction on maintaining a single lane of traffic.

We overrule point of error three.

We affirm the judgment of the trial court.

WILSON, J., concurring.

COHEN, J., dissenting.

WILSON, Justice, concurring.

The United States Supreme Court defined collateral estoppel in Ashe v. Swenson: "It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) (emphasis added). While probable cause to arrest is an issue of ultimate fact in a license revocation case, it is not an issue of ultimate fact in a driving while intoxicated (DWI) case. Neaves v. State, 767 S.W.2d 784, 786-87 (Tex.Crim.App.1989). We followed Neaves in Holmberg v. State, 931 S.W.2d 3, 4-5 (Tex.App.--Houston [1st Dist.] 1996, no pet.). In Holmberg, we observed that probable cause to arrest is not an element of DWI; rather, it is part of a suppression hearing. Id. at 5. We reasoned that because a motion to suppress evidence is merely a specialized objection to the admissibility of evidence, there are no double jeopardy consequences to such a ruling. Id. Our holding was that collateral estoppel did not preclude a DWI prosecution after a finding against the State on the ultimate fact issue of probable cause in a license revocation hearing because probable cause is not an ultimate fact issue in a DWI prosecution. Id.

The dissenting opinion's position in this case is based on the concept that probable cause is an ultimate fact issue in a motion to suppress hearing. This position conflicts with the notion that a motion to suppress is merely a specialized objection to the admissibility of evidence. See Galitz v. State, 617 S.W.2d 949, 952 n. 10 (Tex.Crim.App.1981); Montalvo v. State, 846 S.W.2d 133, 137-38 (Tex.App.--Austin 1993, no pet.). A ruling on the admissibility of evidence is a preliminary question, not an issue of ultimate fact. See TEX. R. CRIM. EVID. 104 (entitled "Preliminary Questions" and dealing with questions of admissibility).

As in Neaves, the fact that probable cause is not an issue of ultimate fact in a DWI prosecution is dispositive of appellant's collateral estoppel claim without examining matters such as whether the State had a full and fair opportunity to litigate the issue in the first proceeding. 767 S.W.2d at 786. Accordingly, I would hold that appellant's collateral estoppel claim fails because even though probable cause is a determinative issue in a suppression hearing, it is not an ultimate issue of fact.

Therefore, while I join the majority opinion's reliance on State v. Brabson, 966 S.W.2d 493 (Tex.Crim.App.1998), this concurring opinion expresses an additional reason for overruling point of error one.

COHEN, Justice, dissenting.

I disagree with the majority concerning point of error one. I would sustain it and hold that the trial judge erred by not granting appellant's motion to suppress based on collateral estoppel.

For several reasons, I believe that this...