Gerald Allen Graham v. State ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-16-00060-CR
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GERALD ALLEN GRAHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 14-302572
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MEMORANDUM OPINION
Appellant Gerald Allen Graham appeals his conviction for criminal
mischief. In his sole issue on appeal, Graham complains the trial court erred by
denying his request to provide a jury instruction pursuant to article 38.23 of the
Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23
(West 2005). Graham argues that because there is an issue of fact concerning
whether he was driving recklessly, the trial court should have included an article
38.23 instruction informing the jury that it must disregard the evidence concerning
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criminal mischief if it has a reasonable doubt that Graham was driving recklessly.
We overrule Graham’s sole issue and affirm the trial court’s judgment.
Background
On April 12, 2013, Texas Ranger Wesley Dolittle was driving to work when
he observed a vehicle being driven in a reckless manner. Dolittle testified that he
felt obligated to stop the vehicle so that it would not cause an accident. During the
stop, Graham told Dolittle that he was on the way to the hospital, and he gave
Dolittle the name of the person he was going to see. When Dolittle checked to see
if there had been any accidents, he learned that no person by that name had gone
by ambulance to the emergency room. At that point, Dolittle observed Graham’s
behavior, and he explained that Graham appeared to be yelling something at him
and was pacing back and forth. Dolittle felt that Graham might flee, so he re-
approached and placed Graham under arrest for reckless driving. Dolittle
handcuffed Graham, placed him in the front passenger seat of his truck, and went
to speak with Graham’s passenger, Karen Graham.
While speaking with Karen, Dolittle observed that Graham was fidgeting in
the truck. Dolittle checked on Graham and noticed that Graham had turned his
wrists in the handcuffs, so Dolittle re-secured the handcuffs. Dolittle also turned on
a pocket audio recorder to document his contact with Graham because Graham was
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angry and yelling at him. Dolittle went back to speak with Karen, and upon
returning to his truck, Dolittle observed that his department issued radio had been
dislodged from the dashboard and was in the floorboard hanging from the wires. In
addition to the reckless driving charge, Dolittle charged Graham with felony
criminal mischief.
Graham entered a plea of guilty to the reckless driving charge, but proceeded
to trial on a misdemeanor criminal mischief charge. During the trial, Karen
testified that she was Graham’s wife and she was with Graham when Dolittle
pulled him over and arrested him for speeding. According to Karen, they were on
their way to the hospital and Graham was speeding, but she did not recall Graham
making any quick lane changes or nearly sideswiping a car. Karen testified that a
vehicle had cut in front of them, causing Graham to slow down, but Graham did
not have to slam on the brakes. Karen testified that Dolittle approached their
vehicle and Graham calmly handed Dolittle his driver’s license and information.
According to Karen, when Dolittle returned, he told Graham to get out of the car
because he was under arrest. Karen stated that Dolittle was very aggressive
towards Graham, and after being arrested, Graham became very angry.
During the jury charge conference, Graham’s counsel requested that the trial
court include an article 38.23 instruction on reckless driving in the jury charge,
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because Karen’s testimony brought up some evidence that Graham was not driving
recklessly. Graham’s counsel argued that because the State had failed to properly
rebut Karen’s testimony, the State could not bring up the reckless driving
conviction because it was not in evidence. The trial court denied Graham’s article
38.23 request, noting that Graham had pleaded guilty to reckless driving. The jury
found Graham guilty of criminal mischief and sentenced Graham to 180 days in
jail and assessed a $2000 fine. Graham appealed.
Analysis
Graham argues that the trial court erred by denying his request to provide an
article 38.23 instruction because Karen’s testimony created a fact issue as to
whether there was probable cause to arrest Graham for reckless driving. The State
argues that article 38.23 does not apply because Graham committed the offense of
criminal mischief after he was stopped and arrested for reckless driving. In
reviewing jury charge error, we must undertake a two-step review: first, we must
determine whether error actually exists in the charge; and second, if error exists,
we must determine whether sufficient harm resulted from the error to require
reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994).
We note that the phrase “obtained in violation of the law,” as used in Article
38.23, “contemplates that a crime has been committed; that evidence of that crime
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exists; and that officers violated the law in attempting to obtain evidence of the
previously committed crime.” State v. Iduarte, 268 S.W.3d 544, 550 (Tex. Crim.
App. 2008) (quoting State v. Mayorga, 901 S.W.2d 943, 945-46 (Tex. Crim. App.
1995)). To trigger the application of article 38.23, “the officers must act illegally in
obtaining existing evidence of an offense.” Id. Several Texas courts have held that
the exclusionary rule is not applicable when a police officer’s alleged violation of
the law precedes the commission of an offense by the defendant. See id. at 551
(exclusionary rule held inapplicable when officer’s alleged illegal entry preceded
offense of assault on a public servant); Bryant v. State, 253 S.W.3d 810, 812-13
(Tex. App.—Amarillo 2008, pet. ref’d) (exclusionary rule held inapplicable when
alleged illegal detention preceded offense of tampering with physical evidence);
Donoho v. State, 39 S.W.3d 324, 327 (Tex. App.—Fort Worth 2001, pet. ref’d)
(exclusionary rule held inapplicable when alleged illegal arrest preceded offense of
assault on a public servant). Here, because Dolittle’s alleged violation of the law
occurred prior to Graham committing the offense of criminal mischief, the article
38.23 exclusionary rule did not apply.
We conclude that the trial court did not err by denying Graham’s request for
a jury charge instruction under Article 38.23(a). We overrule Graham’s sole issue
and affirm the trial court’s judgment.
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AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on November 21, 2016
Opinion Delivered December 14, 2016
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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