Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00065-CR Tatiana Hightower, Appellant v. The State of Texas, Appellee On appeal from the County Court at Law No. 1 of McLennan County, Texas Judge Vik Deivanayagam, presiding Trial Court Cause No. 20230431CR1 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION A jury found Appellant Tatiana Hightower guilty of the offense of driving while intoxicated with a blood alcohol content of 0.15 grams of alcohol per one hundred milliliters of blood or greater. TEX. PENAL CODE ANN. § 49.04(d). The State and Hightower entered into an agreement on punishment, the trial court accepted the agreement and assessed Hightower’s punishment at 365 days in jail. The trial court further suspended imposition of the sentence and placed Hightower on community supervision for 24 months. Hightower now brings this appeal. We affirm. A. Background While on patrol, Officers Jeremy Schwindt and Antonio Moreno observed Hightower drive into a gas station parking lot after midnight when they noticed that Hightower’s car had a defective right brake light. Later, the officers saw Hightower’s car again while she was stopped at a green light in an intersection. Schwindt noticed that Hightower’s right brake light was “still out.” Based on this observation at the intersection, the officers initiated a traffic stop for the suspected equipment violation. During the stop, the officers noticed signs of intoxication such as the odor of alcohol and Hightower’s slurred speech. They also noticed a cup in the center console that appeared to contain an alcoholic beverage. As a result, Schwindt initiated a DWI investigation. Hightower consented to complete three standard field sobriety tests. Schwindt identified multiple “clues” of intoxication based on Hightower’s performance of the tests. Based on those indicators, the officers arrested Hightower for driving while intoxicated. The officers took Hightower to jail where a nurse drew her blood pursuant to a search warrant. Hightower’s blood alcohol content was 0.175 grams of alcohol per one hundred milliliters of blood. Hightower v. State Page 2 B. Issue One In her sole issue, Hightower argues that the trial court erred in refusing to include an article 38.23(a) instruction in the trial court’s charge to the jury. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a). C. Authority When reviewing a claim that the trial court failed to properly instruct the jury, we first ask whether any error occurred; if none did, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The purpose of the trial court’s charge is to instruct the jurors on “all of the law that is applicable to the case.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). When a factual dispute is material to a defendant’s claim that evidence was obtained in violation of a constitutional or statutory provision, article 38.23(a) requires an exclusionary-rule instruction. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). The defendant is entitled to the submission of such a jury instruction under article 38.23(a) only if: (1) the evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is affirmatively contested, and (3) that contested fact issue is material to the lawfulness of the challenged conduct employed in the acquisition of the evidence. Madden, 242 S.W.3d at 510. Hightower v. State Page 3 D. Analysis Hightower contends that the trial court abused its discretion in denying her request to include an article 38.23(a) jury instruction on the grounds that she raised a fact issue regarding the lawfulness of the traffic stop. She argues that (1) the arresting officer’s inconsistent testimony raised an issue of fact and (2) the dash camera footage of the traffic stop raised an issue of fact. To raise a fact issue a defendant must provide affirmative evidence of facts that contests the other evidence of that fact. Hinds v. State, No. 10-09- 00353-CR, 2011 WL 104518, at *2 (Tex. App.—Waco Jan. 12, 2011, no pet.) (mem. op., not designated for publication); see also Madden, 242 S.W.3d at 514; Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008). The evidence raising a fact issue may be strong, weak, contradicted, unimpeached, or unbelievable, but it still must affirmatively conflict with the State’s assertion of a material fact to warrant an article 38.23(a) instruction. Johnson v. State, 692 S.W.3d 660, 664 (Tex. App.—Fort Worth 2023, pet. ref’d). For example, to contest evidence that a defendant was speeding, the defendant’s evidence must affirmatively show that he was not speeding. See Madden, 242 S.W.3d at 513. First, Hightower argues that Schwindt’s testimony raised a disputed factual issue regarding the functionality of the brake light because the words Hightower v. State Page 4 he used to describe the brake light—“out” and “dimmer”—conflicted with each other. However, this inconsistency did not raise a disputed factual issue because describing the right brake light as “dimmer” than the left brake light does not affirmatively conflict with Schwindt’s general assertion that the right brake light was not functioning properly. See Johnson, 692 S.W.3d at 664. Thus, we conclude that the trial court did not abuse its discretion because it reasonably could have determined that this minor inconsistency did not affirmatively contest Schwindt’s testimony that the brake light was malfunctioning. Second, Hightower argues that the dash camera footage disputes Schwindt’s testimony that the brake light was out. Having reviewed the record before us, we conclude that the dash camera footage of the traffic stop does not affirmatively conflict with Schwindt’s testimony. Thus, the trial court did not abuse its discretion in finding that the dash camera footage evidence did not raise a disputed fact issue because the footage failed to clearly show that the right brake light was not “malfunctioning,” as Schwindt had testified. See Thomas v. State, No. 10-11-00250-CR, 2013 WL 2639168, at *6 (Tex. App.— Waco June 6, 2013, no pet.) (video evidence does not raise a disputed fact issue when it fails to clearly show that appellant affirmatively did not do something that the officer said that the appellant did do). Hightower v. State Page 5 We conclude that article 38.23(a) did not apply and that the trial court did not err in refusing Hightower’s requested instruction. Because there was no error, our analysis ends, and we overrule Hightower’s sole issue. E. Conclusion We affirm the trial court’s judgment. MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: October 15, 2026 Before Chief Justice Johnson, Justice Harris, and Justice Westerfeld Affirmed Do Not Publish CR25 Hightower v. State Page 6