Madden v. State

OPINION

delivered the opinion of the unanimous Court.

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 *506 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.

I.

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 *507 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.

*508 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 sub *509 mit any mstruction 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

Justice Keyes dissented. 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).

II.

A defendant’s right to the submission of jury instructions under Article 38.23(a) is limited to disputed issues of fact *510 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 *511 The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct. 16

A. Appellant Did Not Request an Instruction on a Disputed Fact.

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. The jury decides facts; the judge decides the application of the law to those facts. 17

In this case, the trial judge gave a jury instruction on the disputed fact issue of whether Officer Lily reasonably believed that appellant was speeding at the time he stopped appellant’s car. She gave that instruction because she heard appellant say, on Sgt. Lily’s patrol-car video recording, that he was driving 55 m.p.h., while Sgt. Lily testified that appellant was driving 61 m.p.h. Thus, appellant’s speed was a contested fact. If Officer Lily did not reasonably believe that appellant was going faster then 55 m.p.h., then, under the Fourth Amendment, he should not have stopped appellant, and all evidence obtained as a result of that stop would be inadmissible. The trial judge’s instruction correctly submitted that factual issue for the jury to decide, along with an explanation of the pertinent law.

Applicant requested a second jury instruction dealing with his continued detention after Officer Lily had decided to issue him a warning ticket for speeding. This requested instruction was wholly incorrect. 18 It did not ask the jury to decide a disputed issue of historical fact. It asked the jury to decide a question of law-whether Officer Lily had “reasonable suspicion” to continue to detain appellant. “Reasonable suspicion,” in this context, is not the type of suspicion, hunch, or notion that the ordinary person might have. Rather, it is a legal term of art. The jury, however, is not an expert on legal terms of art or the vagaries of the Fourth Amendment. It cannot be expected to decide whether the totality of certain facts do or do not constitute “reasonable suspicion” under the law. That would require a lengthy course on Fourth Amendment law. Even many experienced lawyers and judges disagree on what constitutes “reasonable suspicion” or “probable cause” in a given situation. It is the trial judge who decides what quality and quantum of facts are necessary to establish “reasonable suspicion.” Only if one or more of those necessary facts are disputed does the judge ask the jury to decide whether the officer’s belief in those facts was reasonable.

Looking just at appellant’s requested jury instruction, neither the trial judge, *512 the court of appeals, nor ourselves could have any idea of what specific fact or facts appellant believed were in dispute. In his Brief to this Court, appellant claims that all of the facts that Officer Lily relied upon to establish “reasonable suspicion” were in dispute. But when the trial judge asked appellant to tell her precisely what facts he thought were in dispute, he focused primarily on the question of appellant’s nervousness (as did the court of appeals). 19 At the end of appellant’s explanation, the trial judge stated,

I think the record is clear on what you are saying are factual disputes. I do not think that there are any factual disputes to be determined by a jury. I think all of the things that you are setting out are for an Appellate Court, if it goes there, to decide whether or not those things rise to the level of what they believe in 2002 will allow an officer to keep them there the 15 minutes it took to get the drug dog there and I do not think that there are any factual disputes.

The trial judge was correct. What appellant wanted was a jury instruction on whether the totality of facts that Officer Lily listed constituted “reasonable suspicion” under the Fourth Amendment. Appellant’s proposed instruction focused only on the law. It did not set out any specific historical fact (e.g., face trembling, hands shaking, fumbling for wallet, etc.) that the jury was to focus upon and then decide if Officer Lily was unreasonable in relying upon these indications of “nervousness” as a basis for his articulable suspicion to detain. The same was true of appellant’s argument to the trial judge concerning the wording of his proposed instruction:

[W]e just contend that pursuant to 38.23 of the Texas Code of Criminal Procedure and the Fourth Amendment and the Fourteenth Amendment that the— that the issue of reasonable suspicion to continue the detention is in dispute in this case. Whether or not the factors that were given by the officer, which we contend are just either wrong or fictitious or made up, that is reflected in the State’s Exhibit No. 1, the videotape of this, that this is an issue that the jury as fact finder must wrestle with to determine whether or not the continued detention violated the Fourth and Fourteenth Amendments to the United States Constitution and, therefore, were in violation of 38.23 and they should *513 disregard. That’s the thrust of our argument.

But the jury cannot “wrestle with” the legal determination of whether certain facts do or do not constitute “reasonable suspicion.” 20 Because appellant never presented a proposed jury instruction that asked the jury to decide disputed facts, any potential error in the charge should be reviewed only for “egregious harm” under Almanza. 21

But there was no error at all because there was no conflict in the evidence that raised a disputed fact issue material to the legal question of “reasonable suspicion” to detain him.

B. There Was No Conflict in the Evidence.

To raise a disputed fact issue warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question. 22 In this context, a cross-examiner’s questions do not create a conflict in the evidence, although the witnesses’s answers to those questions might. 23

Here, for example, one issue was whether appellant exceeded the speed limit of 55 m.p.h. through a construction site, giving Officer Lily a reasonable suspicion to stop him. If Officer Lily testifies that appellant did speed and Witness Two (or appellant) testifies that he did not speed, this disputed factual issue must be submitted to the jury. If the jury finds that appellant did obey the speed limit and that Officer Lily was unreasonable in believing that he did not, then they may not consider the evidence obtained as a result of this unlawful detention. If, however, Officer Lily says that appellant did speed, and Witness Two (or appellant) says that he doesn’t remember or doesn’t know, there is no disputed fact to submit because there is no affirmative evidence of a factual conflict. Similarly, if Officer Lily testifies that appellant did speed, but the cross-examiner grills him, “Isn’t it true that he really did obey the speed limit, you’re wrong or you’re lying?” there is no factual dispute unless *514 Officer Lily admits, “Yes, that is true.” 24 The cross-examiner cannot create a factual dispute for purposes of an Article 38.23(a) instruction merely by his questions. 25 It is only the answers that are evidence and may create a dispute. Even the most vigorous cross-examination implying that Officer Lily is the Cretan Liar does not raise a disputed issue. 26 There must be some affirmative evidence of “did not speed” in the record before there is a disputed fact issue. 27 Because there was such evidence in this record, the trial judge properly gave a jury instruction on this disputed fact.

But appellant also claimed that Officer Lily did not have reasonable suspicion to detain him once he decided to give appellant a speeding ticket. At trial, he argued that he had raised a disputed fact issue on appellant’s nervousness, and a majority of the court of appeals agreed with him. 28 At trial, Officer Lily repeatedly listed the facts that he relied upon in concluding that he had reasonable suspicion to detain appellant until the drug dog arrived:

(1) Appellant’s gray Dodge and the following green GMC Jimmy, both of which had Florida license plates, appeared to be traveling in a “convoy” as many drug dealers do;

(2) When the driver of the green Jimmy saw Officer Lily, he sped up, passed the gray Dodge, and began tailgating an 18-wheeler as a “diversionary” tactic so that Officer Lily would stop the green Jimmy, not the gray Dodge; this, too, according to Officer Lily, is a common tactic of drug transporters;

(3) When Officer Lily approached appellant, appellant’s hands were “shaking tremendously”; his face was “trembling”;

*515 (4) Appellant fumbled in pulling out his wallet, again exhibiting nervousness;

(5) At first appellant was uncertain of where he came from, then he said “Burlestine” up near Dallas; his explanations of where he had come from, how long he had been there, and where he was going were internally inconsistent;

(6) Appellant said the gray Dodge was a rental car; Officer Lily knew that rental cars are frequently used by drug dealers, and when Officer Lily looked at the rental agreement papers, he saw that the car should have been returned in Florida four days earlier;

(7) When Officer Lily asked him about any prior arrests, appellant responded that he had a prior DUI, but when Officer Lily checked, his dispatcher told him that appellant had been arrested in 1996 for larceny.

The trial judge implicitly found that the totality of these facts was sufficient to support a finding of “reasonable suspicion,” and she denied appellant’s motion to suppress the evidence of drugs and guns found in the trunk of the gray Dodge appellant was driving. 29

Appellant argues that his cross-examination of Officer Lily, coupled with the contents of Officer Lily’s dashboard-mounted video recorder, raised a disputed issue of fact that appellant’s hand were not really shaking with nervousness and that his face was not trembling. Appellant extensively cross-examined Officer Lily on these facts, but the officer never admitted that he was wrong about appellant’s nervous behavior. 30 Appellant’s questions on cross-examination cannot, by themselves, raise a disputed fact issue. There must be some affirmative evidence to raise a fact issue.

Appellant also relies upon the contents of State’s Exhibit No. 1, the patrol-car videotape. We have not seen that videotape because it is not in the appellate record. We cannot rely upon the purported contents of some exhibit that is not before us. The trial judge, however, did view the videotape several times during trial. She concluded that it did not raise *516 any disputed fact concerning appellant’s nervousness. That is, she did not see anything on the video that affirmatively disputed Trooper Lily’s testimony concerning that fact. But this is not a dispute about the historical facts, nor is it a dispute about whether the videotape shows some of the facts about which Trooper Lily testified. The real factual issue is whether Trooper Lily reasonably believed that appellant was acting in a nervous manner, not whether the videotape shows appellant acting in a nervous manner. 31 Only if the video clearly showed that appellant affirmatively did not do something that Trooper Lily said that he did do, and the video clearly would have shown that conduct if it had occurred, would there be some affirmative evidence of a disputed historical fact. But the video recording in this case apparently does not show much of anything with clarity.

The attorneys and witnesses agreed that the quality of the video recording was very poor. It was so poor, in fact, that from appellant’s copy, it appeared that the drug dog had not alerted on appellant’s car. It was only when the defense drug-dog expert viewed the State’s copy that he could discern that the dog physically alerted and he could hear the dog’s scratching. He blamed the quality of the video recording itself for his mistake in thinking that the drug dog had not alerted.

Trooper Lily forthrightly admitted that the video was of poor quality and that is why he narrated his observations (including his observations of appellant’s nervous behavior) into his shoulder microphone at the same time that he observed them. 32 Trooper Lily explained why appellant’s attorney could not see appellant’s nervous behavior on the tape, “I guess it’s a dark tape. The State, they get low-budget tapes. Maybe that’s why. I don’t know. I mean, you can’t even see my face on this videotape, so — .” This lack of visual clarity is not surprising. Dashboard-mounted video cameras do not create Cecil B. De-Mille productions. The question for the trial judge, who actually saw the videotape, is whether, given the quality of the recording and the distance between the camera and appellant, the video would have shown appellant’s nervous gestures and appearance had they occurred. She decided that what she saw did not raise a contested fact issue. We will defer to her assessment of the exhibit, especially as we do not have that exhibit before us.

C. Trooper Lily’s Reasonable Suspicion Did Not Depend on Appellant’s Nervousness or Lack Thereof.

Even if the videotape or a witness had provided affirmative evidence that appellant did not, in fact, appear to be nervous when Trooper Lily encountered and questioned him, the officer still had ample basis for his reasonable suspicion to detain appellant for the arrival of the drug dog. *517 The totality of the other facts listed above was legally sufficient to support further detention. 33 Indeed, the facts of the two Florida “drug convoy” cars, the diversionary tactics of the Jimmy, the overdue rental car, and the inconsistent stories about where appellant had been, for how long, and why, provided sufficient reasonable suspicion to detain appellant for the 25 minutes that it took for the drug dog to arrive. 34 Appellant’s purported nervousness is lagniappe-ieing-on-the-cake-to the determination of reasonable suspicion. It is not crucial.

We review the legal question of whether the totality of circumstances is sufficient to support an officer’s reasonable suspicion de novo, 35 Thus, it is a question of law, not of fact, as to whether the evidence is sufficient to support a finding of reasonable suspicion even if Trooper Lily did not reasonably believe that appellant was visibly nervous. 36

But to obtain a jury instruction under Article 38.23(a), the disputed fact must be one that affects the determination of the legal issue. If Trooper Lily did not have reasonable suspicion to detain appellant unless he acted nervously, then a dispute about that fact would require a jury instruction. If, however, appellant’s purported nervousness is not a fact that is crucial to a legal finding of reasonable suspicion, then that disputed fact issue need not be submitted to the jury. 37

Of course, a trial judge might err on the side of caution and submit a jury instruction even when the disputed fact does not appear to be outcome-determinative, because appellate courts might disagree on the legal question of sufficient facts to support reasonable suspicion. But it would be absurd to say that a factual *518 dispute about whether the defendant was wearing green socks or red socks, or whether he was going 61 m.p.h. or 65 m.p.h. in a 55 m.p.h. zone, requires a jury instruction. Neither of these disputed facts are material, much less crucial, to the determination of the legal question. 38

In the present case, therefore, even if there had been affirmative evidence to raise a disputed fact issue about whether Trooper Lily reasonably believed that appellant was or was not nervous, the trial judge did not err in declining to submit any jury instruction on that immaterial fact, much less the instruction on a legal conclusion that appellant requested.

We therefore hold that appellant was not entitled to an Article 38.23(a) jury instruction concerning whether Trooper Lily had reasonable suspicion to continue appellant’s detention because no evidence raised a disputed fact issue material to the admissibility of the challenged evidence.

We vacate the judgment of the court of appeals and remand the case to that court to address appellant’s remaining claims.