Angela Dodd Hamal v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00448-CR
ANGELA DODD HAMAL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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OPINION
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I. INTRODUCTION
Appellant Angela Dodd Hamal appeals her conviction for possession of a
controlled substance in an amount of four grams or more but less than 200
grams. In three points, Hamal argues that the trial court erred by denying her
motion to suppress and her requested jury instructions. We will reverse and
remand for a new trial.
II. FACTUAL AND PROCEDURAL BACKGROUND
Texas Department of Public Safety Trooper David Riggs stopped Hamal‘s
vehicle after witnessing it travelling 79 miles per hour in a 65-miles-per-hour
zone. When he approached Hamal‘s vehicle, Trooper Riggs noticed that Hamal
was nervous, her hands were shaking, and she was looking down into a purse or
bag. After asking Hamal to get out of the car, Trooper Riggs asked her several
questions, including, ―Have you ever been in any trouble for anything?‖ Hamal
responded, ―No.‖ Hamal also responded, ―No,‖ when asked if she had anything
illegal in her car. Trooper Riggs went back to his police car and requested that
dispatch run her driver‘s license number. The criminal history check revealed
that Hamal had been arrested nine times, four of which were for possession of
controlled substances.
Believing that Hamal ―may be hiding something,‖ Trooper Riggs asked for
consent to search her vehicle, which she denied. Trooper Riggs then called
dispatch and requested a drug detection canine unit. While waiting for the
canine unit to arrive, Trooper Riggs explained to Hamal that she had ―seemed
kind of nervous‖ when she got out of her car and had lied when she told him that
she ―had never been in trouble and never been arrested.‖ Hamal replied, ―No.
No. I said that I am not in any trouble right now. I have been arrested. I do have
a past, and it was a long time ago.‖
Corporal Robert Payne of the Wise County Sherriff‘s Office arrived with his
drug dog approximately thirty-two minutes after the initial stop. Approximately
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ten minutes later, the dog began sniffing Hamal‘s car and alerted on it. A search
of her car revealed a pipe and a bag containing 4.82 grams of
methamphetamine. Hamal was arrested.
Hamal filed a motion to suppress all evidence seized as a result of her
arrest, and without holding a hearing, the trial court denied her motion. Neither
party requested findings of fact or conclusions of law.
At trial, after both parties rested, the trial court denied Hamal‘s proposed
jury instructions, including her request for a code of criminal procedure article
38.23 instruction. A jury convicted Hamal of possession of a controlled
substance and, after she pleaded ―true‖ to enhancement offenses, assessed
punishment at thirty-five years‘ confinement. After a hearing, the trial court
denied Hamal‘s motion for new trial, in which she argued that the trial court had
erred by denying her motion to suppress. This appeal followed.
III. EXPERT TESTIMONY REGARDING CANINE SNIFF
In a portion of Hamal‘s first point, she asserts that the trial court abused its
discretion by overruling her rule 702 objection to the testimony of Corporal Payne
as an expert witness regarding the canine sniff.1
1
Hamal argues that the erroneous admission of Corporal Payne‘s
testimony about the canine sniff was one reason why the trial court should have
granted her motion to suppress. She did not urge this ground as part of her
motion to suppress or in her motion for new trial based on the denial of her
motion to suppress. Because we hold that the trial court did not abuse its
discretion by overruling her rule 702 objection to this testimony, however, we
need not address whether this was a proper basis for her motion to suppress.
3
A. Standard of Review and Rule 702
We review a trial court‘s ruling on admissibility of scientific evidence under
an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542
(Tex. Crim. App. 2000). We review the trial court‘s ruling in light of the evidence
that was before the court at the time of the ruling. Id. We must uphold the ruling
if it was within the zone of reasonable disagreement. Id.
Rule of evidence 702, governing admission of expert testimony, provides
that ―[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.‖ Tex. R. Evid. 702. A
proponent of scientific evidence must show by clear and convincing proof that the
proffered evidence is sufficiently relevant and reliable to assist a factfinder in
determining a fact issue or understanding the evidence. See Weatherred, 15
S.W.3d at 542; State v. Smith, 335 S.W.3d 706, 711 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref‘d).
The court of criminal appeals has prescribed three criteria for assessing
reliability of scientific evidence and has identified seven nonexclusive factors for
consideration. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see
Winston v. State, 78 S.W.3d 522, 525 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref‘d). However, because interpretation of a dog‘s reaction to a scent is
based on training and experience rather than scientific principles, we apply the
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―less rigorous‖ test set forth in Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim.
App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.
Crim. App. 1999). See Winston, 78 S.W.3d at 525–26 (applying Nenno standard
to admissibility of dog-scent lineups); see also Smith, 335 S.W.3d at 711 (same).
Under this standard, a court considers whether (1) the field of expertise is
legitimate, (2) the subject matter of the expert‘s testimony is within the scope of
the field, and (3) the expert‘s testimony properly relies on or utilizes the principles
involved in the field. Nenno, 970 S.W.2d at 561; Winston, 78 S.W.3d at 526; see
also Smith, 335 S.W.3d at 711.
B. Corporal Payne’s Testimony
Corporal Payne testified that after completing an eighty-hour training
course, he and the dog were nationally certified in drug interdiction and that he
was also nationally certified as a handler for the dog. To obtain certification, the
dog had to prove its accuracy in locating concealed narcotics, including
methamphetamine. Corporal Payne testified that the dog had not made any
errors when it completed the national certification testing. He also testified that
he had used the dog to detect drugs on many occasions and that the dog had
successfully detected drugs or controlled substances inside vehicles. He said
that the dog alerted through ―a big head turn. You‘ll see his head, his shoulders,
his whole body turn back, and follow the odor with his nose. And then he‘ll go
into a sitting position.‖
5
Corporal Payne also testified about the events recorded by Trooper
Riggs‘s dashboard camera and about the three separate alerts that the dog
made on Hamal‘s car: (1) the alert on the passenger side door almost
immediately after approaching the vehicle, (2) the alert after the dog jumped up
and sniffed the interior of Hamal‘s car through the open passenger side window,
and (3) the alert once the dog entered the vehicle. Corporal Payne stated that as
he and Trooper Riggs searched Hamal‘s car, the dog continued to alert on the
car. Corporal Payne said that after the dog alerted, he gave the dog its reward, a
white rubber ball.
During cross-examination, Corporal Payne stated that he ―wouldn‘t
necessarily say [that he is] an expert witness,‖ that he is not an expert at dog
training, but that he is an expert at dog handling and could testify about what the
dog did. He also testified that he had not trained the dog but that he knew what
the dog‘s alert was, what training the dog had received, how responsive the dog
was, and the dog‘s error rate. He said that he did not keep a numeric log of the
dog‘s error rate and that determining the error rate is complicated because
lingering scents could cause the dog to alert even after contraband has been
removed.
C. Admission of Testimony Not Abuse of Discretion
In four subpoints, Hamal attacks the trial court‘s implied finding that
Corporal Payne‘s testimony satisfied the requirements of Nenno’s third prong:
6
whether the expert‘s testimony properly relies upon or utilizes the principles
involved in the field. See 970 S.W.2d at 561.
First, she alleges that Corporal Payne‘s ―admission‖ that he was not
necessarily an expert and was not present when the dog was trained required
that the trial court sustain her objection. However, a review of the record reveals
that although Corporal Payne admitted that he was not an expert in dog training,
he detailed his credentials and experience and stated that he was nationally
certified in dog handling and was an expert in that area. Corporal Payne‘s
testimony supports the trial court‘s implied finding that he was qualified to testify
as an expert witness in dog handling.
Second, Hamal asserts that Corporal Payne was disqualified as an expert
witness because he was not present when the dog was trained, did not know the
dog‘s error rate, and did not bring the dog‘s field records with him for Hamal‘s
inspection. Corporal Payne testified about his credentials, expertise, and his
experience with the dog that alerted on Hamal‘s car. Specifically, Corporal
Payne stated that he and the dog had received national certification after
completing an eighty-hour training course that included proving the dog‘s ability
to detect illegal substances, including methamphetamine. Corporal Payne
testified that the dog had detected drugs in vehicles on ―many occasions.‖ Thus,
the trial court reasonably could have found that Corporal Payne was qualified to
testify about the dog‘s actions on the night of Hamal‘s arrest.
7
Third, Hamal asserts that the trial court should have excluded Corporal
Payne‘s testimony because he contradicted himself about how the dog alerts to
the scent of narcotics and about the dog‘s reward. Hamal asserts that Corporal
Payne told her on the night of her arrest that the dog alerted by sitting down and
that this conflicted with his testimony at trial that the dog alerted by making a ―‗big
head turn‘ (basically a full body turn) and then he sits.‖ However, the trial court
could have concluded that Corporal Payne‘s testimony simply elaborated on the
dog‘s alert process as explained to Hamal on the night of her arrest. Hamal also
points to a conflict between the video recording of the canine sniff, which she
alleges shows Corporal Payne encouraging the dog with a black object, and
Corporal Payne‘s testimony that the dog‘s reward is a ―white, roundish rubber
ball.‖ Although the video does not clearly show the black object Hamal refers to,
if in fact two distinct rewards existed, Hamal did not put on conflicting expert
testimony that multiple rewards for drug dogs is improper. Consequently, the trial
court could have determined that the use of multiple rewards was a proper
principle in the field of canine-sniff testing.
Fourth, Hamal asserts that the video recording shows that Corporal Payne
―cued‖ the dog. She asserts that Corporal Payne ―led the dog directly to [her
car], ordered the dog to stick his head in the window, and finally opened the door
and ordered the dog into [her] car.‖ At trial, Hamal did not offer expert testimony
as to what constitutes ―cueing,‖ and on appeal, she does not explain how
Corporal Payne‘s actions, as seen on the video, qualify as ―cueing.‖ Thus, the
8
trial court was within its discretion to find that Corporal Payne did not ―cue‖ the
dog and utilized the principles of the field of canine-sniff testing.
Additionally, the record does not support Hamal‘s sequence of events.
The record shows that after a discussion with Hamal, Corporal Payne and his
dog approached the passenger side of Hamal‘s car from the grassy area beyond
the road‘s shoulder, walked to the front of the car, and walked along the
passenger side toward the rear of the car, and that almost immediately the dog
turned around and sat down—―alerted‖ per Corporal Payne‘s testimony—by
Hamal‘s passenger door. Corporal Payne then instructed the dog to jump onto
its hind legs and sniff the interior of Hamal‘s car through the open passenger
window, after which the dog again sat down—noted as a second alert in Corporal
Payne‘s testimony. After the dog sat down a second time, Corporal Payne
opened Hamal‘s unlocked passenger side door and ordered the dog inside.
Although not visible on the video recording, Corporal Payne testified that the dog
alerted a third time while inside Hamal‘s car.
Having addressed all of Hamal‘s complaints regarding her rule 702
objection, we conclude that Corporal Payne‘s testimony did not fail the Nenno
test and that the trial court did not abuse its discretion by admitting Corporal
Payne‘s testimony over Hamal‘s rule 702 objection. See Tex. R. Evid. 702;
Nenno, 970 S.W.2d at 561. We overrule this portion of Hamal‘s first point.
9
IV. MOTION TO SUPPRESS
In the remainder of her first point, Hamal argues that the trial court erred by
denying her motion to suppress because Trooper Riggs lacked reasonable
suspicion to continue detaining her for a canine sniff.
A. Standard of Review
We review a trial court‘s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court‘s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court‘s rulings on
(1) questions of historical fact, even if the trial court‘s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
10
and demeanor of the witnesses, we review the trial court‘s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53. Stated another
way, when reviewing the trial court‘s ruling on a motion to suppress, we must
view the evidence in the light most favorable to the trial court‘s ruling. Wiede,
214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
When, as here, the record is silent on the reasons for the trial court‘s
ruling, or when there are no explicit fact findings and neither party timely
requested findings and conclusions from the trial court, we imply the necessary
fact findings that would support the trial court‘s ruling if the evidence, viewed in
the light most favorable to the trial court‘s ruling, supports those findings. State
v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214
S.W.3d at 25. We then review the trial court‘s legal ruling de novo unless the
implied fact findings supported by the record are also dispositive of the legal
ruling. Kelly, 204 S.W.3d at 819.
B. Law on Reasonable Suspicion
The Fourth Amendment protects against unreasonable searches and
seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at
24. Once a defendant establishes that a search or seizure occurred without a
warrant, the State bears the burden to establish that the search or seizure was
conducted pursuant to a warrant or was reasonable. Amador, 221 S.W.3d at
11
672–73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).
A detention, as opposed to an arrest, may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
Reasonable suspicion exists when, based on the totality of the circumstances,
the officer has specific, articulable facts that when combined with rational
inferences from those facts, would lead him to reasonably conclude that a
particular person is, has been, or soon will be engaged in criminal activity. Ford,
158 S.W.3d at 492. This is an objective standard that disregards any subjective
intent of the officer making the stop and looks solely to whether an objective
basis for the stop exists. Id.
During an investigative traffic stop, an officer is entitled to request
information concerning the driver‘s license, ownership of the vehicle, the driver‘s
insurance information, the driver‘s destination, and the purpose of the trip.
Lambeth v. State, 221 S.W.3d 831, 836 (Tex. App.—Fort Worth 2007, pet. ref‘d)
(en banc) (op. on reh‘g); Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.—
Fort Worth 1998, pet. ref‘d); see also United States v. Shabazz, 993 F.2d 431,
436–37 (5th Cir. 1993); Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App.
[Panel Op.] 1979). An officer may also conduct a computer check on the driver‘s
license and registration and for outstanding warrants as long as it does not
12
unreasonably prolong the time necessary to effect the purpose of the initial stop.
See Kothe v. State, 152 S.W.3d 54, 63, 65 (Tex. Crim. App. 2004). Once an
officer concludes the investigation of the conduct that initiated the stop, continued
detention of a person is permitted only if there is reasonable suspicion to believe
that another offense has been or is being committed. Davis v. State, 947 S.W.2d
240, 245 (Tex. Crim. App. 1997).
Generally, a canine sweep does not constitute a search within the meaning
of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 103
S. Ct. 2637, 2644–45 (1983); Mohmed, 977 S.W.2d at 628; see also Crockett v.
State, 803 S.W.2d 308, 310 n.5 (Tex. Crim. App. 1991). The temporary
detention of an automobile to allow an olfactory inspection by a police dog
trained to detect the odor of illegal drugs is not offensive to the Fourth
Amendment when based on a reasonable suspicion that the automobile contains
narcotics. Mohmed, 977 S.W.2d at 628; see also Crockett, 803 S.W.2d at 311.
C. Videotape of Stop and Trooper Riggs’s Testimony
During Hamal‘s trial, the jury watched a video and audio recording of the
stop taken by Trooper Riggs‘s dashboard camera. The recording shows that
Hamal and Trooper Riggs brought their vehicles to a stop on the shoulder of the
13
highway.2 Trooper Riggs approached Hamal‘s car and initiated the following
conversation with Hamal through her open passenger window:
Trooper Riggs: I was stopping you for speed.
Hamal: I know.
Trooper Riggs: Do you have your driver‘s license?
Hamal: I have my driver‘s license and my insurance, and
I am really sorry.
Trooper Riggs: Okay, where are you headed to?
Hamal: Fort Worth.
Trooper Riggs: From where?
Hamal: Decatur.
Trooper Riggs: Coming from here. Can you step back here with
me?
Hamal: Yes.
Trooper Riggs: Back here out of the road. I will talk to you.
Hamal: Okay. Okay.[3]
Trooper Riggs: Is that your right address?
Hamal: Yes, sir. I‘m going home to Arlington. Fort
Worth, Arlington.
2
The recording shows that both cars pulled off the highway at the 2:35 time
stamp. For clarity, we treat this time as 0:00 and outline all events thereafter as
occurring at an elapsed time from this point.
3
After exiting her car, Hamal joined Trooper Riggs on the shoulder of the
highway.
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Trooper Riggs: But you were coming from Decatur.
Hamal: Yes, sir.
Trooper Riggs: What do you do here?
Hamal: I was up here visiting a friend.
Trooper Riggs: Okay, you‘re not working or anything?
Hamal: No.
Trooper Riggs: What year model is your car?
Hamal: 97.
Trooper Riggs: Okay.
Hamal: It goes too fast.
Trooper Riggs: Yeah. It does.[4]
The following exchange occurred at an elapsed time of 1:86:
Trooper Riggs: Have you ever been in any trouble for anything?
Hamal: No.
Trooper Riggs: Nothing illegal in the car or nothing?
Hamal: No. No. No.
Trooper Riggs: What‘s going to happen is there is going to be a citation
for your speed.
Hamal: Let me make it please . . . how fast was I going?
4
At that point, Trooper Riggs walked away from Hamal and looked at the
windshield of her car. Hamal and Trooper Riggs briefly discussed the location of
Hamal‘s vehicle registration sticker. Trooper Riggs shone his flashlight into the
interior of Hamal‘s vehicle as he walked back toward Hamal.
15
Trooper Riggs: 79.
Hamal: 79, oh gosh. Oh my gosh, I am so sorry.
Trooper Riggs: Alright, just wait here. I will be right with you.
Hamal: Okay. Can I wait in my car?
Trooper Riggs: No, just wait right here just a second.
Hamal: Okay.
Trooper Riggs then returned to his squad car and called dispatch to check
Hamal‘s driver‘s license for outstanding warrants and her criminal history. At an
elapsed time of 3:92, he learned that Hamal had nine prior arrests for possession
of controlled substances, prostitution, and probation revocation and that Hamal‘s
most recent arrest was seven months prior, in February 2008, for possession of a
controlled substance. Trooper Riggs said to himself in his squad car, ―She said
she‘s never been arrested. Real nervous.‖ Trooper Riggs returned to Hamal,
where the following exchange took place:
Trooper Riggs: Just step back with me. My ticket printer is
running kind of slow. Come back here and talk to
me.
Hamal: Yes, sir.
Trooper Riggs: There‘s another part of my job out here; we look
for illegal weapons, drugs, marihuana. Do you
have any of that in that vehicle?
Hamal: I don‘t have any of that.
Trooper Riggs: Would you care if I take a look for those items
and search it?
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Hamal: Yes, I do, sir.
Trooper Riggs: You do. Okay, hang on just a second. I really am
having trouble with my ticket printer here so this is
going to take just a minute.
Trooper Riggs returned to his squad car and called dispatch to request a
canine unit, stating, ―I have one refusing to consent.‖ Corporal Payne responded
that he would be there in about twenty minutes with a canine unit. Trooper Riggs
again said to himself, ―Says she had never been arrested.‖ Trooper Riggs
returned to Hamal, and the following exchange took place at an elapsed time of
11:09:
Hamal: I am sorry I was speeding.
Trooper Riggs: Well alright here is the deal. I‘ll kill your car while
we wait for the canine to come real quick and
then I‘ll let you get on your way. Just wait right
here for me. Stay right there.
Hamal: What is the problem? Did I do something?
Trooper Riggs: Well, yeah, you seemed kind of nervous when
you got out and then you lied to me.
Hamal: What did I lie to you about, sir?
Trooper Riggs: You told me that you had never been in trouble
and never been arrested.
Hamal: No. No. I said that I am not in any trouble right
now. I have been arrested. I do have a past, and
it was a long time ago. I don‘t . . .
Trooper Riggs: Well, if you had told me that, it would have been a
little bit different, but . . .
17
Hamal: Well, I didn‘t know specifically what you were
asking—if I had been in any trouble recently, or
twenty years ago, or five years ago. . . . Plus,
everybody‘s nervous who gets pulled over by law
enforcement, who isn‘t?
Trooper Riggs: Well, as soon as that dog gets here, then I‘ll let
you get on your way. We‘ll run the dog around it
and if everything is good, you‘ll be good to go.
While waiting for the canine unit to arrive, Hamal again asserted that she had
misinterpreted Trooper Riggs‘s question; Trooper Riggs responded that he had
interpreted her answer as her not being honest with him.
Corporal Payne arrived approximately thirty-two minutes after Hamal‘s
initial stop and about twenty-three minutes after he was dispatched. Hamal
immediately told Corporal Payne that she had misunderstood Trooper Riggs‘s
question as asking if she was in any trouble and explained that, other than an
arrest in February 2008 that ―was thrown out by the grand jury,‖ she had not
been arrested in twenty years. There was about a nine-minute delay between
Corporal Payne‘s arrival and the beginning of the dog‘s search due to the
discussion between Hamal and Corporal Payne and a pat-down search of
Hamal. The canine began sniffing Hamal‘s car at an elapsed time of 40:98, and
it alerted on the car within seconds. After searching Hamal‘s car for fifteen
minutes, the officers found a pipe and 4.82 grams of methamphetamine in a
false-bottom spray can and arrested Hamal.
At trial, Trooper Riggs testified that when he stopped Hamal, he noticed
that her hands were shaking and that she was looking down into a purse or bag
18
as he approached. He explained that after Hamal got out of her car, he did not
notice her shaking anymore; when asked if she was still nervous while standing
and talking to him, he responded that she ―just [stood] real still.‖ Trooper Riggs
testified that he had detained Hamal because she was nervous and lied to him
about her criminal history and that, at the time, he believed that she was possibly
also lying about having something illegal in her car. On cross-examination, he
stated that he did not initially have probable cause to search Hamal‘s vehicle but
that he thought he had a right to call in a canine unit. He said that he knew
nervousness alone was not an indicator of criminal activity; that he did not clarify
his question about Hamal‘s past even though she told him that she had trouble
hearing him and did not understand his question; and that he knew that the
presence of a criminal record was not a factor that supported probable cause to
conduct a search.
D. Denial of Motion to Suppress for
Lack of Reasonable Suspicion was Not Error
Hamal does not challenge the lawfulness of Trooper Riggs‘s initial
detention of her for speeding. She contends, however, that he lacked
reasonable suspicion to continue detaining her for a canine sniff once he
concluded the investigation into speeding. The only facts that can support
reasonable suspicion for Hamal‘s continued detention are Trooper Riggs‘s
observation that she was nervous when he initially approached her vehicle;
Trooper Riggs‘s discovery of Hamal‘s criminal history after she answered, ―No,‖
19
when asked if she had ―ever been in any trouble for anything‖; and Hamal‘s
criminal history, which included multiple arrests for possession of controlled
substances.
Hamal‘s nervousness is a factor to consider in determining reasonable
suspicion, see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 676 (2000);
Haas v. State, 172 S.W.3d 42, 54 (Tex. App.—Waco 2005, pet. ref‘d), but her
nervousness alone does not support a reasonable suspicion determination, see
Davis, 947 S.W.2d at 248; Sieffert v. State, 290 S.W.3d 478, 485 (Tex. App.—
Amarillo 2009, no pet.). Likewise, Hamal‘s prior arrests cannot be the basis for
reasonable suspicion, see United States v. Jones, 234 F.3d 234, 242 (5th Cir.
2000) (noting that prior arrest alone does not amount to reasonable suspicion),
but, in certain cases, they can be a factor to consider in determining reasonable
suspicion when combined with other factors and especially when those arrests
are drug related.5 See Parker v. State, 297 S.W.3d 803, 811 (Tex. App.—
Eastland 2009, pet. ref‘d) (considering lengthy criminal history, including
numerous drug offenses, as part of totality of circumstances in reasonable
5
Although Trooper Riggs testified that he did not consider Hamal‘s criminal
record, reasonable suspicion is an objective standard that disregards any
subjective intent of the officer making the stop and looks solely to whether an
objective basis for the stop exists. See Ford, 158 S.W.3d at 492; Fernandez v.
State, 306 S.W.3d 354, 357 (Tex. App.—Fort Worth 2010, no pet.); State v.
Patterson, 291 S.W.3d 121, 123 (Tex. App.—Amarillo 2009, no pet.) (―[T]he
subjective reasons uttered by the officer to legitimize the stop have no bearing on
the outcome if the totality of the circumstances nonetheless would lead a police
officer to reasonably suspect that crime is afoot.‖) (citing Garcia v. State, 43
S.W.3d 527, 530 (Tex. Crim. App. 2001)).
20
suspicion determination); Coleman v. State, 188 S.W.3d 708, 718–19 (Tex.
App.—Tyler 2005, pet. ref‘d) (same), cert. denied, 549 U.S. 999 (2006); Powell v.
State, 5 S.W.3d 369, 378 (Tex. App.—Texarkana 1999, pet. ref‘d) (same), cert.
denied, 529 U.S. 1116 (2000); see also Morris v. State, No. 07-06-00141-CR,
2006 WL 3193724, at *3 (Tex. App.—Amarillo Nov. 6, 2006, no pet.) (mem. op.,
not designated for publication) (same). And regarding Hamal‘s denial of having
―ever been in any trouble for anything,‖ if Trooper Riggs could have reasonably
interpreted her answer as a denial of having ever been arrested, the fact that
Trooper Riggs discovered that she, in fact, had multiple prior arrests, including
four drug-related arrests, is also a factor to consider in determining reasonable
suspicion. See, e.g., United States v. Copeland, 102 Fed. Appx. 855, 857–58
(5th Cir. 2004) (considering fact that officer discovered that passenger had lied
when asked if he had ever been arrested as support for reasonable suspicion
determination); Coleman, 188 S.W.3d at 718–19 (same); Simpson v. State, 29
S.W.3d 324, 328–29 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d) (same);
Powell, 5 S.W.3d at 378 (same); cf. McQuarters v. State, 58 S.W.3d 250, 260
(Tex. App.—Fort Worth 2001, pet. ref‘d) (concluding that officer lacked
reasonable suspicion to detain defendant in order to conduct a canine search
after lawful traffic stop and distinguishing Powell because, at the time of the
McQuarters detention, the officer had dismissed his suspicions related to the
initial traffic stop‘s purposes, had issued two warnings, and ―did not catch
appellant lying or discover any prior drug offenses‖).
21
Hamal argues that Trooper Riggs‘s questions regarding her past trouble
and whether her car contained anything illegal were ―not question[s]
contemplated by the relevant case law,‖ but a police officer‘s questioning, even
on a subject unrelated to the stop, cannot be the basis for a Fourth Amendment
violation. See Shabazz, 993 F.2d at 436 (―Mere questioning, however, is neither
a search nor a seizure.‖); see also Florida v. Bostick, 501 U.S. 429, 434, 111 S.
Ct. 2382, 2386 (1991) (noting same); St. George v. State, 197 S.W.3d 806, 819
(Tex. App.—Fort Worth 2006) (―‗[D]etention, not questioning, is the evil at which
Terry‘s second prong is aimed.‘‖ (quoting Shabazz, 993 F.2d at 436)), aff’d, 237
S.W.3d 720 (Tex. Crim. App. 2007). The questioning at issue here did not
extend the duration of the initial, valid stop; the questions were asked less than
two minutes after Trooper Riggs stopped Hamal, during the course of his
investigation of the original purpose of the stop, and prior to informing her that he
was giving her a citation for speeding. See Shabazz, 993 F.2d at 436–37
(dismissing notion that a police officer‘s comments on an unrelated subject
constitute a per se Fourth Amendment violation and holding as lawful an officer‘s
questioning that did not extend the duration of the initial valid seizure); see also
Edmond v. State, 116 S.W.3d 110, 114 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref‘d) (concluding that questioning about drugs during a traffic stop was
permissible when it did not unreasonably prolong the detention).
The crux of Hamal‘s suppression issue hinges on whether Trooper Riggs
could have reasonably believed that Hamal was lying about having ever been
22
arrested when she denied having ―ever been in any trouble for anything,‖ even
after she explained that she had misunderstood his question. If Trooper Riggs
did not act reasonably in so believing, her nervousness at the beginning of the
stop and her past criminal history, without more, could not provide the basis for
her continued detention. See Davis, 947 S.W.2d at 248; Parker, 297 S.W.3d at
811; Sieffert, 290 S.W.3d at 485. If, on the other hand, Trooper Riggs was
reasonable in believing that Hamal had understood his question and had lied,
then case law supports the trial court‘s implied finding of reasonable suspicion for
her continued detention based on her nervousness, her lying about her criminal
history, and her lengthy criminal history, which included a very recent drug-
possession arrest and three other drug-possession arrests.6 See Copeland, 102
Fed. Appx. at 857–58 (―Copeland had lied to the officer about his prior
convictions, and thus, the officer was justified in investigating further.‖); Morris,
2006 WL 3193724, at *3 (nervousness, history of multiple drug-related offenses,
and lying about prior arrests supported reasonable suspicion determination);
Coleman, 188 S.W.3d at 718–19 (reasonable suspicion existed based on
suspect‘s prior drug-related arrests, lying about prior arrests, and possession of
6
Hamal argues that the reason for the initial detention had concluded when
Trooper Riggs told her that his ticket machine was ―running kind of slow‖; she
asserts that her continued detention after that point was not warranted because it
was not based on reasonable suspicion. But because Trooper Riggs learned of
Hamal‘s criminal history prior to this point, and because we hold that the trial
court did not err by finding that the trooper possessed reasonable suspicion to
continue the detention at that point, this reasonable suspicion provided the basis
for her continued detention. See Mohmed, 977 S.W.2d at 628.
23
small jeweler‘s bags commonly used in drug trafficking); Simpson, 29 S.W.3d at
328–29 (reasonable suspicion existed based on suspect‘s immediate exit from
his vehicle, nervousness, blurted responses to officer‘s questions, and lying
about prior arrests); Powell, 5 S.W.3d at 378 (nervousness, conflicting
information, prior drug offenses, and lying when asked about prior arrests
constituted sufficient facts to support reasonable suspicion).
Certainly, Trooper Riggs could have asked a clearer question—i.e., ―Have
you ever been arrested before?‖ or ―Do you have a criminal history?‖ And
evidence exists, via the videotape, that Hamal did not understand his question as
asked and thought he was asking if she was currently ―in trouble.‖ But for
purposes of a motion to suppress, we must view the evidence in the light most
favorable to the trial court‘s ruling and give almost total deference to the trial
court‘s rulings on questions of historical fact, even if the trial court‘s determination
of those facts was not based on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez, 195 S.W.3d at 108–09; Johnson, 68
S.W.3d at 652–53; see Garcia-Cantu, 253 S.W.3d at 241. And the relevant
inquiry is the reasonableness of Trooper Riggs‘s belief that Hamal was lying
about her prior arrests. See Madden v. State, 242 S.W.3d 504, 508 n.7 (Tex.
Crim. App. 2007) (noting factual issue was not whether defendant was actually
speeding, but whether officer had reasonable belief that defendant was
speeding). The trial court could have determined, based on the videotape of the
stop and Trooper Riggs‘s testimony, that a reasonable officer would have
24
reasonably believed that Hamal clearly heard the trooper‘s question; on the
videotape of the stop, Hamal did not seek clarification of the question, she
answered almost it immediately, and nothing suggests that she had trouble
hearing anything else the trooper said. The trial court could have also
determined from the video and testimony that a reasonable officer would have
reasonably believed that Hamal understood the trooper‘s question as asking if
she had ever been arrested and that she denied it. As we will explain in more
detail in addressing Hamal‘s second and third points below, the record does
contain evidence to dispute the trooper‘s belief that she was lying, but under the
applicable standard of review and affording almost total deference to the trial
court‘s determination of historical facts, the evidence does not conclusively
establish that a reasonable officer would have concluded that Hamal
misunderstood or did not hear the question asked. See Amador, 221 S.W.3d at
673; Montanez, 195 S.W.3d at 108–09; Johnson, 68 S.W.3d at 652–53; see also
Garcia-Cantu, 253 S.W.3d at 241.
Consequently, we hold that the trial court did not err by finding that Trooper
Riggs had reasonable suspicion to continue detaining Hamal based on his
observation of her nervousness when stopped, his belief that she had
misrepresented that she had never been arrested when, in fact, she had nine
prior arrests, including four drug-related arrests, and her lengthy criminal history,
25
including several (and one very recent) drug-related arrests.7 See Morris, 2006
WL 3193724, at *3; Coleman, 188 S.W.3d at 718–19; Simpson, 29 S.W.3d at
329; Powell, 5 S.W.3d at 378–79. Because the trial court did not err by denying
Hamal‘s motion to suppress on this basis, we overrule the remainder of her first
point.
V. REQUESTED JURY INSTRUCTIONS
Hamal consolidates her second and third points, stating that the trial court
erred by failing to include her fourth and sixth requested jury instructions and an
article 38.23 instruction in the jury charge. She asserts that she was entitled to
these instructions because the evidence showed that Trooper Riggs thought she
had lied about her criminal history but that she thought she had truthfully
answered the question as she had heard it, thus creating a disputed issue of fact.
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v.
7
Hamal also argues that Trooper Riggs‘s ―inarticulate hunch that [she] ‗may
be hiding something‘‖ was insufficient to support reasonable suspicion that she
was engaged in illegal activity. However, unlike in the cases cited by Hamal, see
Davis, 947 S.W.2d at 245; Sieffert, 290 S.W.3d at 487 (driving in high crime area
and nervousness supported nothing more than hunch); Wolf v. State, 137
S.W.3d 797, 804 (Tex. App.—Waco 2004, no pet.) (nervousness and being
overly cooperative did not support inference of illegal activity), when the evidence
in this case is viewed in an objective fashion, Hamal‘s nervousness, her lying
about her criminal history, and the revelation that she had four drug-related
arrests, one of which occurred just seven months prior, supplied the articulable
facts to support reasonable suspicion that she may be hiding drugs. See Morris,
2006 WL 3193724, at *3; Powell, 5 S.W.3d at 378.
26
State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must
determine whether error occurred, and if it did, we must then evaluate whether
sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at
732.
B. Law on Article 38.23 Instructions
Article 38.23(a) of the code of criminal procedure prohibits the admission
of evidence against an accused in a criminal trial if the evidence was obtained in
violation of the Texas or United States constitutions or laws. Tex. Code Crim.
Proc. Ann. art. 38.23(a) (West 2005). The statute further provides,
In any case where the legal evidence raises an issue
hereunder, 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 this Article, then and in such event, the jury shall
disregard any such evidence so obtained.
Id.
If a defendant successfully raises a factual dispute over whether evidence
was illegally obtained, inclusion of a properly worded article 38.23 instruction is
mandatory. Madden, 242 S.W.3d at 510. To be entitled to the submission of a
jury instruction under article 38.23(a), a defendant must establish 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. Id.; cf.
Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008). If there is no
dispute regarding the factual basis for the challenged search or seizure, then the
27
legality of the conduct is determined by the trial judge alone—as a question of
law—and a jury instruction is inappropriate. Madden, 242 S.W.3d at 510. ―A fact
issue about whether evidence was legally obtained may be raised ‗from any
source, and the evidence may be strong, weak, contradicted, unimpeached, or
unbelievable.‘‖ Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)
(quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.]
1996, pet. ref‘d)).
C. Disputed Issue of Material Fact Warranted Article 38.23 Instruction
In this case, whether a disputed issue of fact existed warranting an article
38.23 instruction centers around Trooper Riggs‘s question, ―Have you ever been
in any trouble for anything?‖ and whether he was reasonable in believing that
Hamal correctly heard his question and understood it as asking whether she had
ever been arrested. As we stated above, the trooper‘s question was not a model
of clarity. Not only is it vaguely and broadly worded—using the term ―in trouble‖
instead of ―arrested‖ or ―convicted‖—but the videotape of the stop and Trooper
Riggs‘s testimony establish that Hamal disputed that she understood what he
was asking her. When Trooper Riggs informed Hamal that she had lied about
having ―never been in trouble and never been arrested,‖ she immediately
responded, ―No. No. I said that I am not in any trouble right now. I have been
arrested.‖ She further explained, ―Well, I didn‘t know specifically what you were
asking—if I had been in any trouble recently, or twenty years ago, or five years
ago.‖ And she immediately told Corporal Payne upon his arrival that she had
28
misunderstood Trooper Riggs‘s question as asking if she was currently in trouble.
On the other hand, the videotape shows Trooper Riggs telling her that he thought
she was lying about having ever been arrested, and he also testified at trial that
he thought she was lying: ―The question was clearly asked, and I just felt like
she was avoiding the question.‖ Trooper Riggs further testified that Hamal had
told him at the scene that she misunderstood his question.
In Madden, the court of criminal appeals discussed the circumstances in
which an article 38.23 instruction is and is not required. See 242 S.W.3d at 511–
14. The court held that a disputed issue of fact existed about whether the
appellant was speeding—the officer‘s reason for stopping the appellant—
because the videotape of the stop showed the appellant claiming that he had not
been speeding. Id. at 508, 511. Regarding this disputed issue of fact, the court
of criminal appeals approved of an instruction that informed the jurors that no
evidence obtained in violation of the constitutions or laws of the United States or
Texas shall be considered and continued by stating:
You are further instructed that our law permits the stop and
detention of a motorist by a peace officer without a warrant when the
officer has reasonable suspicion to believe that a traffic offense has
been committed.
....
. . . [I]f you find from the evidence that, on the occasion in question,
Officer Lily did have a reasonable suspicion to believe that
[appellant] was driving at a speed greater than 55 miles per hour on
a portion of the highway with a posted speed limit of 55 miles per
hour immediately prior to the stop, then you may consider the
evidence obtained by the officer as a result of the detention.
29
Id. at 508 n.7. The court of criminal appeals found this instruction ―admirable‖
because it directed the ―jury‘s attention to the one historical fact—Officer Lily‘s
reasonable belief or ‗suspicion‘ that appellant was going faster than 55 m.p.h.—in
dispute and tells the jury to decide this fact.‖ Id.
In this case, the factual issue for the jury is not whether Hamal
misunderstood Trooper Riggs‘s question as asking whether she was currently in
trouble; rather, the issue is whether Trooper Riggs was reasonable in believing—
after Hamal answered his question and also after she informed him that she had
misunderstood the question—that Hamal had heard and understood what he was
asking and had lied about having ever been arrested. See id. (―Even police
officers may be mistaken about an [sic] historical fact such as ―speeding,‖ as long
as that mistake was not unreasonable.‖). We believe this is similar to the
disputed issue of fact about whether the appellant was speeding in Madden. See
id. at 511. The videotape of the stop, as well as Trooper Riggs‘s testimony,
raised this issue of fact, and the evidence on that fact was affirmatively
contested.8 See id.
8
The State argues that no evidence was presented at trial that Hamal
misunderstood the question to raise a disputed issue of fact—―[t]here was a
dispute as to [Hamal]‘s interpretation of the question only at the scene and not in
any evidence presented at trial.‖ [Emphasis added.] But the videotape of the
stop was admitted at trial and played for the jury. Both the videotape of the stop
and Trooper Riggs‘s testimony raised the disputed issue of fact. See id. at 513
(explaining that cross-examiner‘s questions do not create conflicts in the
evidence but witness‘s answers to those questions might, and relying on
videotape of stop as creating an issue of fact).
30
Furthermore, the contested fact issue—whether Trooper Riggs reasonably
believed that Hamal had lied to him about her prior arrests—was material to the
lawfulness of the continued detention. See id. at 510–11. As we stated above in
our suppression analysis, Hamal‘s nervousness at the beginning of the stop and
her past criminal history, without more, could not provide the basis for her
continued detention, and consequently, Trooper Riggs‘s reasonable belief that
she was lying about her prior arrests was a necessary fact as part of the totality
of the circumstances to support a reasonable suspicion determination. See
Jones, 234 F.3d at 242; Davis, 947 S.W.2d at 248; Parker, 297 S.W.3d at 811;
Sieffert, 290 S.W.3d at 485. Had the jury believed the contrary evidence—that
Hamal had misunderstood Trooper Riggs‘s question and had not lied to him
about her prior arrests—and believed that Trooper Riggs was not credible in his
testimony—that he thought Hamal was lying, even after she explained to him that
she had misunderstood his question—then the continued detention would not
have been justified. See Reynolds v. State, 848 S.W.2d 148, 148–49 (Tex. Crim.
App. 1993) (―[A]lthough a conclusion that the officer was mistaken would not
affect the legitimacy of his stopping appellant, a conclusion that [the officer] was
lying would.‖).
Consequently, because the evidence at trial showed a factual dispute as to
whether Trooper Riggs‘s belief that Hamal had understood his question and was
lying about having been arrested in the past was reasonable, and because this
factual dispute was material to the determination of reasonable suspicion to
31
continue detaining Hamal for a canine sniff, we hold that she was entitled to a
jury instruction on article 38.23 and that the trial court erred by denying her
request for that instruction. See Tex. Code Crim. Proc. Ann. art. 38.23; Madden,
242 S.W.3d at 513.
D. Harm
Having found error, we must now determine whether Hamal was harmed
by the trial court‘s failure to include an article 38.23 instruction in the jury charge.
Hamal objected to the charge and provided the trial court with several proposed
charges, the fourth and sixth of which are relevant here. Her fourth proposed
charge begins by restating the first paragraph of article 38.23(a), but the
remainder of the proposed charge discusses probable cause and does not set
out the factual issue for the jury to decide. See Tex. Code Crim. Proc. Ann. art.
38.23(a); Madden, 242 S.W.3d at 508 n.7; see also Holmes v. State, 248 S.W.3d
194, 199–200 (Tex. Crim. App. 2008) (explaining that if contested fact issue
exists, jury should be instructed about the conflict considering the specific
historical fact that is material to the legality of obtaining the evidence). Hamal‘s
sixth proposed charge instructs that the factual dispute is
whether the accused intentionally made a false response to Officer
Payne‘s[9] question, ―Have you ever been in trouble[.]‖ . . .
Now therefore, bearing in mind the foregoing instruction, if you
find from the evidence beyond a reasonable doubt that the
9
Hamal points out on appeal that the jury instruction incorrectly stated that
Corporal Payne, rather than Trooper Riggs, asked the question.
32
accused‘s response to the question, ―Have you ever been in
trouble[,]‖ was an intentional attempt by the accused to mislead the
officer as to her prior criminal record so as to raise a reasonable
suspicion of contraband being in the accused‘s vehicle, then you
may consider the evidence obtained by the search of accused‘s
vehicle.
The proposed instruction did not include the legal background for the issue, and
it did not correctly set out the factual issue for the jury to decide. See Tex. Code
Crim. Proc. Ann. art. 38.23; Riley v. State, 830 S.W.2d 584, 586–87 (Tex. Crim.
App. 1992) (―[Article] 36.14 requires the judge to provide the jury with both an
abstract statement of the law and an application of that abstract statement to the
evidence in the case.‖). Consequently, Hamal failed to present a proper
requested instruction.
When a defendant fails to present a proper requested instruction, any error
in the charge ―should be reviewed only for ‗egregious harm‘ under Almanza.‖
Madden, 242 S.W.3d at 513; see Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh=g); see also Tex. Code Crim. Proc. Ann. art. 36.19
(West 2006); Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch
v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm is the
type and level of harm that affects the very basis of the case, deprives the
defendant of a valuable right, or vitally affects a defensive theory. Allen, 253
S.W.3d at 264 & n.15; Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim.
App. 2006); Almanza, 686 S.W.2d at 172.
33
In making an egregious harm determination, Athe actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.@ Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at
172B74. The purpose of this review is to illuminate the actual, not just
theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm
is a difficult standard that must be determined on a case-by-case basis. Ellison
v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171.
Here, regarding the jury instructions, because the jury was not provided an
article 38.23 instruction, it was allowed to consider evidence obtained as a result
of Hamal‘s continued detention without first determining a fact issue related to
that detention. If properly instructed, the jury would have been required to
disregard the evidence obtained from the continued detention if it believed that
Trooper Riggs was not reasonable in believing that Hamal correctly heard his
question and interpreted it as asking whether she had ever been arrested. See
Hutch, 922 S.W.2d at 172–73; Reynolds, 848 S.W.2d at 149.
Regarding the state of the evidence, whether Hamal understood Trooper
Riggs‘s question and lied about having been arrested was a contested issue at
trial. And as we have stated, if Trooper Riggs was unreasonable in believing that
Hamal had lied about her prior arrests, then he could not have had reasonable
34
suspicion to continue the detention. See Davis, 947 S.W.2d at 248; Parker, 297
S.W.3d at 811; Sieffert, 290 S.W.3d at 485.
Turning to the arguments of counsel, the State argued during opening
arguments that Trooper Riggs‘s question was clear and simple, allowing him to
determine that Hamal had lied to him; defense counsel argued in both opening
and closing arguments that the question asked was ambiguous and open-ended
and that Hamal did not understand it.
Given this record, we conclude that the trial court‘s failure to provide an
article 38.23 instruction created such harm that Hamal did not have a fair and
impartial trial. See Almanza, 686 S.W.2d at 171; see also Tex. Code Crim. Proc.
Ann. art. 36.19; Allen, 253 S.W.3d at 264; Hutch, 922 S.W.2d at 171. We sustain
Hamal‘s second and third points.
VI. CONCLUSION
Having sustained Hamal‘s second and third points, we reverse the trial
court‘s judgment and remand to the trial court for a new trial.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
MCCOY, J. concurs without opinion.
PUBLISH
DELIVERED: September 22, 2011
35