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Date: 03-07-2021
Case Style:
Julia Elizabeth Kuhns v. The State of Texas
Case Number: 14-18-00323-CR
Judge: Ken Wise
Court: Fourteenth Court of Appeals
Plaintiff's Attorney: Bridget Holloway
Kim K. Ogg
Eric Kugler
Defendant's Attorney:
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Description:
Houston, TX - Criminal defense attorney represented Julia Elizabeth Kuhns with a DWI charge.
Officer Margarito Perales, Jr. of the Houston Police Department testified
that at approximately 1:00 am on November 2, 2016, he observed appellant driving
on interstate I-59 over a hill, halfway in the exit lane and halfway in the emergency
lane. Appellant eventually moved back into the exit lane without using a turn
signal. Next, appellant exited the interstate using a turn signal, came to a stop at a
lighted intersection, did not turn off her turn signal until after the light turned
green, and drove forward without turning. At this point, Officer Perales testified,
he had observed sufficient “clues” to develop a reasonable suspicion that appellant
was driving while intoxicated and decided to pull appellant over.
Upon encountering appellant in her vehicle, Officer Perales noticed a
distinct odor of alcohol emanating from appellant’s vehicle. Officer Perales further
observed appellant’s eyes to be bloodshot and glassy and her speech to be slightly
slurred. Officer Perales testified that he asked appellant whether she had been
drinking, to which she replied that she had two drinks. Perales administered the
standardized field sobriety tests and ultimately concluded, based on the totality of
the circumstances, including the operation of appellant’s vehicle, that appellant had
lost the normal use of her mental and physical faculties due to alcohol intoxication.
Officer Perales arrested appellant and took her to jail.
Appellant testified that she was not intoxicated and only had two drinks.
Appellant explained that she had driven her vehicle into a pothole earlier that week
damaging the vehicle’s suspension and causing it to veer right, into the emergency
lane. Appellant did not dispute that she was driving in the emergency lane.
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At the close of testimony, counsel for appellant requested that the jury
charge include an article 38.23 instruction based on Officer Perales’s testimony.
The trial court denied this request. The jury found appellant guilty and this appeal
followed.
II. ISSUES AND ANALYSIS
1. Did the Trial Court Err in Refusing Appellant’s Request for an Article
38.23 Jury Instruction?
A. Standard of review
We review a complaint about jury-charge error in two steps. We first
determine whether an error occurred. Kirsch v. State, 357 S.W.3d 546, 649 (Tex.
Crim. App. 2012). If so, we then analyze the error for harm. Id. There are separate
standards for the harm analysis, depending on whether the defendant preserved
error by timely raising the complaint. Marshall v. State, 479 S.W.3d 840, 843
(Tex. Crim. App. 2016); see also Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim.
App. 2013) (party may preserve error in jury charge by objection or request for
instruction); Jenkins v. State, 468 S.W.3d 656, 671 & n.9 (Tex. App.—Houston
[14th Dist.] 2015, pet. dism’d). If the defendant timely preserved error, then
reversal is required if there was some harm to the defendant. Marshall, 479 S.W.3d
at 843. If the defendant failed to preserve error in the trial court, then reversal is
required only if the error was so egregious and created such harm that the
defendant did not have a fair and impartial trial. Id.
B. Code of Criminal Procedure Article 38.23(a)
Article 38.23 provides that no evidence unlawfully obtained may be
admitted against the accused in the trial of a criminal case. See Tex. Code. Crim.
Proc. art. 38.23(a). An instruction pursuant to article 38.23 instructs the jury that it
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must disregard the evidence if the jury believes, or has reasonable doubt, that the
evidence was unlawfully obtained. Id.
A defendant’s right to an instruction under article 38.23 “is limited to
disputed issues of fact that are material to his claim of a constitutional or statutory
violation that would render evidence inadmissible.” See Madden v. State, 242
S.W.3d 504, 509–10 (Tex. Crim. App. 2007). The defendant must satisfy three
requirements before he may be entitled to the instruction:
(1) the evidence heard by the jury must raise an issue of fact;
(2) the evidence of that fact must be affirmatively contested; and
(3) the contested factual issue must be material to the lawfulness of the
challenged conduct in obtaining the evidence.
Id. at 510.
When these elements are not met, a trial court is not required to include an
article 38.23(a) instruction. Id. at 510; see Doremus v. State, 530 S.W.3d 277, 286
(Tex. App.—Houston [14th Dist.] 2017, pet.ref’d) (finding appellant failed to
affirmatively contest the officer’s trial testimony that appellant drove the wrong
way down a one-way street, thus appellant was not entitled to a 38.23 instruction
as to the legality of the stop); Broussard v. State, 434 S.W.3d 828, 835 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d) (holding trial court did not err in
refusing article 38.23(a) instruction where there was no affirmative evidence
before jury that the officers did not smell marijuana).
“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.” Madden, 242 S.W.3d at 513. In other words, a cross examiner cannot
create a factual dispute for purposes of an article 38.23(a) instruction merely by his
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questions or argument. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App.
2008); Madden, 242 S.W.3d at 514. It is only the answers that are evidence and
may create a dispute. Madden, 242 S.W.3d at 514; Cadoree v. State, 331 S.W.3d
514, 521 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Further, the jury’s
right to disbelieve a witness’s testimony in whole or part does not create a factual
dispute as to article 38.23. See Cadoree, 331 S.W.3d at 521.
C. There was no Conflict in the Evidence
Officer Perales testified he stopped appellant’s vehicle because:
1. She was straddling the emergency lane and the exit lane while
driving over a hill for no apparent reason.
2. When she moved back into the exit lane, she did not use her turn
signal.
3. Once she exited the freeway, she was delayed in turning off her
turn signal.
None of these facts are disputed. Appellant herself confirms that she was
driving in the emergency lane. Although appellant provides an alternative
explanation to intoxication for her vehicle veering to the right, Officer Perales’s
could not have known this at the time. On cross-examination, appellant’s counsel
attempts to discredit these facts by arguing they are not clear traffic violations, but
the facts are still not disputed. These undisputed facts were the “clues” that gave
Officer Perales reasonable suspicion to stop appellant’s vehicle.
Because there was no disputed fact issue, appellant was not entitled to an
article 38.23(a) jury instruction and, thus the trial court did not err by refusing to
include the instruction. See Madden, 242, S.W.3d at 510. We overrule appellant’s
first issue.
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2. Constitutional Challenges
A. EMS Trauma Fund Fee
Appellant argues that the $100 EMS trauma fee collected pursuant to article
102.0185 of the Code of Criminal Procedure is facially unconstitutional. See Tex.
Code Crim. Proc. art. 102.0185. Appellant’s arguments are supported by a recent
decision by the Court of Criminal Appeals and the Fort Worth Court of Appeals.
See Allen v. State, No. PD-1042-18, —S.W.3d —-,—-, 2019 WL 6139077, at *6
(Tex. Crim. App. Nov. 20, 2019); Casas v. State, 524, S.W.3d 921, 925-27 (Tex.
App.—Fort Worth 2017, no pet.).
Following Allen and Casas, we hold that the statue is facially
unconstitutional, which means that the $100 EMS trauma fund fee must be deleted
from the bill of costs.
B. Time Payment Fee
Additionally, appellant argues that sections (b) and (d) of section 133.103 of
the Local Government Code are facially unconstitutional. See Tex. Loc. Gov’t.
Code § 133.103. Appellant requests that we reduce the $25 time payment fee
assessed against her by 90%. This court has held those sections to be
unconstitutional in Johnson v. State. 573 S.W.3d 328, 340 (Tex. App.—Houston
[14th Dist.] 2019, pet. filed). Accordingly, we apply our own precedent and reduce
the time payment fee assessed against appellant by $22.50 to $2.50.
Outcome: We overrule appellant’s first issue and hold the trial court did not err in
refusing the article 38.23 instruction. We sustain appellant’s second and third
issues and modify the judgment by deleting the $100 EMS trauma fee and
changing the time payment fee from $25 to $2.50. The trial court’s judgment is
affirmed as modified.
Plaintiff's Experts:
Defendant's Experts:
Comments: