Opinion
NO. 01-10-01044-CR
10-13-2011
STEPHEN CHARLES KNAPP, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 1
Harris County, Texas
Trial Court Case No. 1648399
MEMORANDUM OPINION
A jury convicted Stephen Charles Knapp of the misdemeanor offense of driving while intoxicated, and the trial court sentenced Knapp to 180 days' confinement, suspended the sentence, placed Knapp on one year of community supervision, and assessed a $300 fine. In one issue, Knapp contends that the trial court erred in not submitting to the jury an instruction that it not consider any illegally obtained evidence.
See TEX. PENAL CODE ANN. § 49.04 (West 2011).
See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
We affirm the trial court's judgment.
Background
In the early morning hours of December 17, 2009, Harris County Sheriff's Deputy Sternberg was on patrol when he noticed the driver of a pickup truck "squeal" his tires and speed out of a parking lot. Sternberg pursued the pickup truck, and, as he approached, he observed the driver make a U-turn, speed into another parking lot, cross over a side street without stopping, and return to the parking lot from which the pickup truck first exited.
Sternberg conducted a traffic stop and identified Knapp as the driver of the pickup truck. While speaking with Knapp, Sternberg detected a strong odor of alcohol on Knapp's breath and person. Sternberg asked Knapp if he had consumed any alcohol, and Knapp admitted to having split a pitcher of beer with a friend at a bar. Knapp's admission, combined with the odor of alcohol emanating from him, motivated Sternberg to contact Deputy Musil, an officer with the DWI-Selected Traffic Enforcement Program, for field sobriety testing at the scene.
When Musil arrived at the scene, Knapp was standing outside of the pickup truck. Musil, like Sternberg, smelled the odor of alcohol on Knapp's breath and person. He also observed that Knapp's eyes were watery. Knapp again admitted to having consumed some beer. Musil conducted several field sobriety tests. After Knapp exhibited signs of intoxication during his performance of the tests, Musil transported him to a Harris County Sheriff's Department substation. Knapp performed the field sobriety tests a second time at the substation. Although he exhibited fewer signs of intoxication during the second round of testing, a breath test measured Knapp's blood alcohol content above Texas's legal limit of 0.08.
The jury heard the testimony of a number of witnesses at trial, including Sternberg and Musil. Sternberg testified that he stopped Knapp for violating traffic laws prohibiting a driver from cutting through a parking lot to avoid a stop sign or disregard a traffic control device; however, Sternberg did not write Knapp a citation for that offense. Musil was not present at the time Sternberg stopped Knapp, but Knapp's counsel cross-examined Musil about whether Sternberg had conveyed his reasons for the traffic stop to Musil. Musil did not remember Sternberg's specific words, but he recalled that Sternberg "observed a traffic violation, made a traffic stop, and observed a strong odor of alcoholic beverage on the driver . . . ." Sternberg and Musil discussed the following series of events as establishing probable cause for the traffic stop: (1) Sternberg heard Knapp "squeal" his tires upon leaving a parking lot, (2) Sternberg witnessed Knapp drive through one parking lot, and (3) Sternberg then observed Knapp cross a side street and enter a second parking lot. Both Sternberg and Musil acknowledged that any one of these three events, when considered alone, was not a traffic violation.
After the close of testimony, Knapp requested an article 38.23 instruction pertaining to the legality of the traffic stop. Knapp's counsel did not tender a proposed instruction, but he articulated the following reason for the request:
The officers did testify that none of the individual driving factors that were observed were traffic violations in and of themselves. And although the officer did suspect that my client may have been trying to evade a traffic control device, he never asked him that question and never issued a citation for that. Don't believe that there's been enough evidence presented to show that this stop was justified. So, we're asking for a 38.23 charge regarding the stop in this case.The trial court initially indicated it would allow the instruction, but it later reconsidered the request upon review of Sternberg's testimony and the traffic laws prohibiting drivers from cutting through private drives.See TEX. TRANSP. CODE ANN. § 545.423 (West 2011). The trial court ultimately declined to instruct the jury as to the legality of the traffic stop under article 38.23, and Knapp challenges that ruling on appeal.
Section 545.423 of the Transportation Code provides:
(a) An operator may not cross a sidewalk or drive through a driveway, parking lot, or business or residential entrance without stopping the vehicle.
(b) An operator may not cross or drive in or on a sidewalk, driveway, parking lot, or business or residential entrance at an intersection to turn right or left from one highway to another highway.
Article 38.23 Instruction
In his sole issue, Knapp contends that the trial court erred in denying his request for an instruction to the jury that it not consider any illegally obtained evidence. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). Knapp argues that he was entitled to the instruction because Sternberg and Musil gave conflicting testimony that created a fact issue as to the reasons for and the lawfulness of the traffic stop that preceded his arrest. The State responds that the trial court did not err in refusing the requested instruction because there was no dispute as to any factual issue and probable cause existed for the traffic stop. We review the trial court's charge to determine whether error exists and, if so, whether the error is harmful. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
A trial court must deliver to the jury a written charge "distinctly setting forth the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). In any case where the evidence raises a fact issue as to whether it was obtained in violation of any provisions of the Constitutions or laws of the United States or the State of Texas, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of [the] Article, then . . . the jury shall disregard any such evidence so obtained." TEX. CODE. CRIM. PROC. ANN. art. 38.23(a). There must be a genuine dispute about a material issue of fact before an article 38.23 instruction is warranted. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). A defendant must demonstrate that: (1) the evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is affirmatively contested, and (3) the contested factual issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Madden, 242 S.W.3d at 510; Mbugua v. State, 312 S.W.3d 657, 669 (Tex. App.— Houston [1st Dist.] 2009, pet. ref'd). Evidence that controverts the facts relied upon to establish probable cause is evidence that creates a material factual dispute. See Garza v. State, 126 S.W.3d 79, 85-88 (Tex. Crim. App. 2004). If there is no disputed issue of material fact, however, the legality of the challenged conduct is a question of law for the trial court. Madden, 242 S.W.3d at 510; Mbugua, 312 S.W.3d at 669.
Knapp argues that he was entitled to an article 38.23 instruction in this case because the jurors were presented with "two distinct versions of the facts giving rise to the stop: Sternberg's version which, if believed, constituted a valid legal basis for the traffic stop and Musil's version of what Sternberg told him, which if believed, assuredly did not." We disagree.
Sternberg testified that he conducted the traffic stop after witnessing Knapp "squeal" his tires and speed from one parking lot, across a side street, and into a second parking lot without stopping. Based on this observation, Sternberg believed Knapp had committed a traffic offense. See TEX. TRANSP. CODE ANN. § 545.423. He called Musil to the scene after smelling alcohol. Musil testified that, at the scene, Sternberg stated that he had observed a traffic violation and the strong odor of alcohol. As to the facts establishing probable cause for the traffic stop, Musil recalled that Sternberg heard "squealing" tires and witnessed Knapp travel from one parking lot, across a side street, and into a second parking lot. Sternberg and Musil thus articulated the same series of events giving rise to the traffic stop, not "two distinct versions of the facts," and there is no affirmative evidence demonstrating that Knapp did not commit the acts testified to by Sternberg and Musil. The absence of any affirmative evidence of a factual dispute makes this case different from the cases on which Knapp relies. See, e.g., Mills v. State, 296 S.W.3d 843, 848 (Tex. App.—Austin 2009, pet. ref'd) (holding that article 38.23 instruction was required because officer testified defendant's failure to signal a turn less than 100 feet before intersection was basis for traffic stop, but defendant presented video evidence showing officer's view of defendant's vehicle was impeded); Rodriguez v. State, 239 S.W.3d 277, 281 (Tex. App.—Amarillo 2007, pet. ref'd) (holding that article 38.23 instruction was warranted because officer testified he arrested defendant after observing defendant grab complainant's arm and struggle with her, whereas complainant testified that defendant did not grab her arm).
Because the record does not establish any genuine dispute as to the facts relied upon by Sternberg in stopping Knapp, the legality of the traffic stop was a question of law for the trial court and Knapp was not entitled to an article 38.23 instruction. See Wesbrook v. State, 29 S.W.3d 103, 121 (Tex. Crim. App. 2000). Accordingly, we overrule Knapp's sole issue.
Conclusion
We hold that the trial court did not err in denying Knapp's request for an article 38.23 instruction, and we affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
TEX. TRANSP. CODE ANN. § 543.423 (West 2011).