ORAL ARGUMENT REQUESTED IN THE COURT OF APPEALS FIFTH COURT OF APPEALS DISTRICT DALLAS, TEXAS NO CR

ORAL ARGUMENT REQUESTED IN THE COURT OF APPEALS ACCEPTED 225EFJ016771123 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 March 9 P5:13 Lisa Matz CLERK 5th Court of Appeals FILED: 03/12/2012 14:00 Lisa Matz, Clerk FIFTH COURT OF APPEALS DISTRICT DALLAS, TEXAS NO. 05-11-1669-CR GARRETT VOGEL, Appellant, vs. THE STATE OF TEXAS, Appellee. Appeal from the County Criminal Court No. 8 of Dallas County, Texas Hon. Tina Yoo, presiding BRIEF FOR APPELLANT Charles W. McGarry Texas Bar No. 13610650 LAW OFFICE OF CHARLES McGARRY 701 Commerce Street, Suite 400 Dallas, Texas 75202 (214) 748-0800 (214) 748-9449 fax ATTORNEY FOR APPELLANT

IDENTITY OF PARTIES AND COUNSEL Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, the following is a complete list of the parties to the trial court s final judgment, as well as the names and addresses of their trial and appellate counsel: Garrett Vogel Defendant/Appellant Charles W. McGarry 701 Commerce Street, Suite 400 Dallas, Texas 75202 Appellate Counsel for Defendant/Appellant David Burrows 4131 N. Central Expy., Suite 515 Dallas, Texas 75206 Trial Counsel for Defendant Gary McDonald Lauren A. Hudgins Assistant District Attorney 133 N Riverfront Boulevard, LB 19 Dallas, Texas 75207-4399 Trial Counsel for the State of Texas Craig Watkins District Attorney Michael R. Casillas Assistant District Attorney Appellate Division 133 N Riverfront Boulevard, LB 19 Dallas, Texas 75207-4399 Appellate Counsel for the State of Texas This list is furnished so that members of the Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case. APPELLANT S BRIEF - PAGE ii

TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL... ii INDEX OF AUTHORITIES... iv ISSUES PRESENTED... v STATEMENT OF THE CASE...... v STATEMENT REGARDING ORAL ARGUMENT... vi THE RECORD ON APPEAL...... vi STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 7. ARGUMENTS AND AUTHORITIES 1. The Trial Court Erred in Denying Vogel s Requested Jury Instruction on the Reasonable Suspicion Required to Detain and Investigate him for the Offense of Driving While Intoxicated. Such an Instruction was Required Because Vogel had Affirmatively Controverted All the Historical Facts That Could be Relied Upon in Forming Such Reasonable Suspicion... 8 PRAYER... 16 CERTIFICATE OF SERVICE... 17 APPELLANT S BRIEF - PAGE iii

INDEX OF AUTHORITIES CASES PAGE Arthur v. State, 216 S.W.3d 50 (Tex. App.--Fort Worth 2007, no pet.).. 9; 11 Garcia v. State, 43 S.W.3d 527 (Tex. Crim. App. 2001)... 10 Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. -2007).. 11, 15 Murphy v. State, 640 S.W.2d 297 (Tex. Crim. App. 1982).. 12 Poteet v. State, 2002 Tex. App. LEXIS 5539 (Tex. App. Dallas 2002, pet ref d)... 13 Reynolds v. State, 163 S.W.3d 808 (Tex. App.--Amarillo 2005), aff'd, 204 S.W.3d 386 (Tex. Crim. App. 2006)..... 9, 11 Rodriguez v. State, 191 S.W.3d 428 (Tex. App.--Corpus Christi 2006, pet. ref'd).. 11 State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004) (Holcomb, J., dissenting).. 11 State v. Rudd, 255 S.W.3d 293 (Tex. App. Waco 2008, pet ref d) 9, 10, 13 Stoutner v. State, 36 S.W.3d 716 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd) 10, 11 Stone v. State, 703 S.W.2d 652 (Tex. Crim. App. 1986).. 11 U.S. v. Matlock, 415 U.S. 164 (1974) 9 Other Authorities TEX. CODE CRIM. PROC. ART. 38.23(a).,.. passim, APPELLANT S BRIEF - PAGE iv

ISSUES PRESENTED 1. The Trial Court Erred in Denying Vogel s Requested Jury Instruction on the Reasonable Suspicion Required to Detain and Investigate him for the Offense of Driving While Intoxicated. Such an Instruction was Required Because Vogel had Affirmatively Controverted All the Historical Facts That Could be Relied Upon in Forming Such Reasonable Suspicion. A. This case Concerns the Admissibility of Evidence Relied on to Convict Garrett Vogel of Driving a Motor Vehicle While Intoxicated, Not the Sufficiency of that Evidence. B. The Field Sobriety Testing Evidence Against Vogel was Inadmissible C. Vogel was Entitled to a Jury Instruction Under Article 38.23 that Required the Jury to Disregard The Field Sobriety Testing Evidence If they Doubted that Coffie had Reasonable Suspicion to Believe Vogel had Committed an Intoxication Offense. (1) There is an Issue of Fact Requiring Submission Under Article 38.23 (2) The Evidence on the Disputed Fact Must be Affirmatively Contested (3) The Contested Factual Issue Must be Material to the Lawfulness of the Challenged Conduct in Obtaining The Evidence STATEMENT OF THE CASE Garrett Vogel was charged by information with the offense of driving a motor vehicle while intoxicated, (CR 23). Vogel pleaded not guilty and was tried before a jury, which found him guilty. (CR 11; 2RR 67). Punishment was assessed by the court at 180 days confinement in the Dallas County Jail and a fine of $1,800.00. The sentence was suspended pending Vogel s completion of 18 months community supervision. (CR 11). APPELLANT S BRIEF - PAGE v

STATEMENT REGARDING ORAL ARGUMENT Appellant respectfully requests oral argument. Oral argument would aid the Court in its analysis of the central issue presented by this appeal, i.e., whether there was a disputed fact question on either of the facts cited by the officers in support of their claim to have a reasonable suspicion that Garrett Vogel had been driving his vehicle while intoxicated. THE RECORD ON APPEAL The record on appeal consists of a clerk s record in a single volume (cited as CR ), and a reporter s record in four volumes (cited as v. RR ), the last volume of which consist of the State s exhibits (cited as SX ). APPELLANT S BRIEF - PAGE vi

IN THE COURT OF APPEALS FIFTH COURT OF APPEALS DISTRICT DALLAS, TEXAS NO. 05-11-1669-CR GARRETT VOGEL, Appellant, vs. THE STATE OF TEXAS, Appellee. Appeal from the County Criminal Court No. 8 of Dallas County, Texas Hon. Tina Yoo, presiding BRIEF FOR APPELLANT TO THE HONORABLE COURT OF APPEALS: Appellant Garrett Vogel, defendant below in Cause No. MB 07-66820-J in the County Criminal Court No. 8 of Dallas County, Texas, the Hon. Tina Yoo, presiding, respectfully submits this brief on appeal from the trial court s final judgment of conviction. APPELLANTS BRIEF - PAGE 1

STATEMENT OF FACTS At approximately 1:00 a.m. on December 30, 2007, Officer David Coffie was patrolling downtown Dallas when he observed a vehicle with its front, left headlight out. (2RR 68). He stopped the vehicle on the 2400 block of Canton Street, near the Farmer s Market. (2RR 69). He observed the defendant Garrett Vogel operating the vehicle. The front, left headlight of the vehicle was not functioning. (2RR 70). Officer Coffie said that he could smell alcohol coming from the car the moment Vogel rolled down his window. (2RR 71). Vogel handed Coffie his driver s license, which Coffie gave to his partner to do a subject check. Coffie then engaged Vogel in conversation about his origin and destination, and then asked him to get out of the car. (2RR 71). Vogel stood outside the car, and Coffie could smell alcohol coming from both the vehicle and from Vogel. Vogel was alone in the car. Coffie then got on the radio and requested the assistance of a DWI Element, i.e., an officer who specialized in DWI offenses. (2RR 72). The DWI Element arrived about 10-15 minutes later. (2RR 74). It was the DWI officer who ultimately made the decision to arrest Vogel. (2RR 74). Coffie had observed Vogel s vehicle for a couple of minutes before pulling him over. He never saw Vogel weave in traffic. He never saw him exceed the speed limit. Vogel pulled over promptly when the officers turned on their lights. (2RR 75-76). Vogel was never observed to have slurred speech. (2RR 76). In response to questioning, Vogel stated that he might have had a glass of wine or a gin and tonic. (2RR 73). The only reason that Coffie suspected Vogel might have been driving drunk was APPELLANTS BRIEF - PAGE 2

the smell of alcohol. He admitted that none of the other common indicia were present, such as slurred speech, weaving on the road, or being slow to respond to the police lights. (2RR 77). When Coffie was asked if he had a chance to make a determination whether or not the defendant had lost the normal use of his mental or physical faculties that evening, he said yes, but it was only after performing the test. (2RR 74). At the conclusion of Coffie s testimony, Vogel moved for a directed verdict that Officer Coffie lacked reasonable suspicion to detain Vogel and investigate him for driving while intoxicated. The trial court denied the motion. (2RR 80). The trial court reviewed the case of State v. Rudd, 255 S.W.3d 293, 300 (Tex. App. Waco 2008, pet. ref d.). The trial court concluded that the facts in Rudd were analogous to the present case, and supported a finding that Officer Coffie had articulated a reasonable suspicion to detain Vogel for further investigation into whether he had driven his vehicle while intoxicated. (2RR 83-84). Officer Mike Bryan teaches standardized field sobriety testing, drug recognition, intoxilyzer operation and advanced accident investigation at the Dallas Police Academy. (2RR 85). He had previously served on the DWI Squad for several years. (2RR 86). Standardized field sobriety testing involves three batteries of tests. Bryan also conducts a drinking clinic, in which the students would watch various people drink, and observe how different individuals act at the same blood alcohol levels. (2RR 87-88). He holds the title of DWI Coordinator. In this position he reviews every DWI arrest and handles all of the DWI evidence. He also occasionally approves individual arrests for DWI. (2RR 90-91). APPELLANTS BRIEF - PAGE 3

He must review all DWI paperwork before it is sent to Austin to make sure it is completed correctly. (2RR 91). Bryan responded to Coffie s request for a DWI squad-member on December 30, 2007. He observed Vogel to have bloodshot eyes and he had a strong smell of alcohol. Bryan admitted that bloodshot eyes could have multiple causes, but said the smell of alcohol was strong enough for him to consider significant. (2RR 94). Vogel had thick speech, not slurred speech. Thick speech indicates a dry mouth from dehydration. (2RR 94). Bryan asked Vogel what he had to drink, and Vogel said a gin and tonic and a glass of wine. (2RR 95). Bryan then conducted a field sobriety test. This includes three batteries of tests; the first being a battery of divided attention tests, which measure the suspect s ability to perform other tasks while driving a motor vehicle. He asked Vogel if he had any physical or mental problems that would prevent him from performing the were taking any medications. (2RR 95-96). The first standardized field sobriety test that Bryan administered was the horizontal gaze nystagmus test. Horizontal gaze nystagmus is an involuntary jerking of the eyes as they move from side to side. The test looks for six visible signs indicating intoxication, which makes the involuntary eye movements more pronounced. The presence of four out of six signs supports a conclusion that the person is intoxicated. Vogel had all six. (2RR 99-102).. The next battery of tests I known as the walk and turn, which tests a person s APPELLANTS BRIEF - PAGE 4

balance and physical coordination. (2RR 105). This test requires the person to walk heelto-toe along a straight line, make a turn, and walk back. (2RR 105-06). This test yielded five more signs that Vogel was intoxicated.(2rr 108). Vogel was unable to perform the final test, a one-legged stand. (2RR 109). Bryan came to the opinion Vogel had lost the normal use of his mental and physical faculties due to alcohol consumption, and that he could not safely operate a motor vehicle that evening. (2RR 110-11). Bryan admits that driving home after consuming one alcoholic drink is not criminal. (2RR 114). The State rested and Vogel again moved for a directed verdict that the police lacked reasonable suspicion to detain Vogel and investigate him for driving while intoxicated. The trial court denied the motion. (2RR 123). The State requested a jury instruction on the law regarding what constitutes reasonable suspicion to detain a defendant for investigation. (2RR 123). Garrett Vogel then testified in his own defense. Vogel has an economics degree from SMU and a master s degree in accounting and finance from the University of California at Berkeley. (2RR 126). He testified that on December 29, 2007, he had been feeling sick and nauseous all day, and it had caused him to hyperventilate. (2RR 125). He said he had a total of two drinks all night one at 7:00 p.m. and one at 8:00 p.m. He testified that the officers could not have smelled alcohol on his breath at 1:00 a.m. because he had eaten a meal after having those two drinks. (2RR 125-26). There was also no alcohol in the car. (2RR 129). Hours after having those two drinks and a meal, he had APPELLANTS BRIEF - PAGE 5

driven twelve miles from his home in north Dallas, through downtown and was stopped just 200 feet short of his destination. (2RR 127-28). Vogel also testified that in addition to his usual blood pressure and cholesterol medications, he was taking several anti-rejection medications in conjunction with a cornea transplant operation from which he was still recovering. (2RR 130-31). He still had the stitches in his eye from the surgery. (2RR 131). Vogel attributed his physical performance in the field sobriety tests to his illness, the cold weather, an uneven ground surface and to his being scared from being surrounded by police. (2RR 141). After both sides rested and closed, Vogel requested a jury instruction requiring reasonable suspicion before the police could detain and investigate Vogel for the offense of driving while intoxicated. His requested instruction included the correct legal standard: Reasonable suspicion' exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged or is (or soon will be) engaging in criminal activity." Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)(Compare 2RR 147). The State argued that the Vogel s requested instruction under Article 38.23 should be denied because (1) the facts of this case were indistinguishable from those in State v. Rudd, which had denied the instruction; and (2) the court could deny the charge by determining that Vogel s testimony controverting that of the arresting officers lacked credibility. (2RR 148, 149). The trial court denied Vogel s requested instruction on APPELLANTS BRIEF - PAGE 6

reasonable suspicion under Article 38.23, and in doing so cited Poteet v. State; Madden v. State and State v. Rudd. (2RR 146-47). The jury found Vogel guilty. The trial court assessed punishment at 180 days confinement in the Dallas County Jail and a fine of $1,800.00. The sentence was suspended pending Vogel s completion of 18 months community supervision. (CR 11). SUMMARY OF ARGUMENT The trial court erred in denying the defendant s requested jury instruction that Vogel was entitled to a jury charge under Article 38.23 instructing the jury to disregard all of the field sobriety testing evidence if they disbelieved Coffie s testimony that (a) he reasonably suspected Vogel of having driven while intoxicated because he smelled of alcohol; or (b) he reasonably suspected Vogel of having driven while intoxicated because he admitted that he might have had a glass of wine or a gin and tonic; or (c) if they had a reasonable doubt as to the truthfulness of either of the prior statements. The totality of the circumstances from which Officer Coffie could have formed a suspicion that Vogel had driven while intoxicated consisted of Coffie s claim that Vogel smelled of alcohol and Vogel s admission that he might have had a glass of wine or a gin and tonic. The latter statement, even if true, could not justify a reasonable suspicion of intoxication, because having one drink is insufficient to cause intoxication, Vogel affirmatively contested Coffie s claim to have smelled alcohol on Vogel, by testifying to facts which, if believed, would negate Coffie s claim. This irreconcilable conflict between the defendant s testimony and the officer s is what distinguishes this case from APPELLANTS BRIEF - PAGE 7

those relied upon by the trial court and the State, This disputed fact question made the submission of an instruction under Article 38.23 mandatory, and the trial court s refusal to submit the instruction reversible error. ARGUMENTS AND AUTHORITIES 1. The Trial Court Erred in Denying Vogel s Requested Jury Instruction on the Reasonable Suspicion Required to Detain and Investigate him for the Offense of Driving While Intoxicated. Such an Instruction was Required Because Vogel had Affirmatively Controverted All the Historical Facts That Could be Relied Upon in Forming Such Reasonable Suspicion. I. This case Concerns the Admissibility of Evidence Relied on to Convict Garrett Vogel of Driving a Motor Vehicle While Intoxicated, Not the Sufficiency of that Evidence. All of the evidence relied on by the State to support Garrett Vogel s DWI conviction came from Vogel s field sobriety tests. Officer Coffie testified that his determination whether or not Vogel had operated his vehicle while intoxicated came only after performing the field sobriety tests. (2RR 74). Officer Bryan s likewise came to the same opinion solely on the basis of the field sobriety tests, (2RR 110-11), as Bryan was not even present for the initial stop. (2RR 110-11; see also CR 26). Vogel is neither challenging nor conceding the sufficiency of this evidence. Rather, he challenges the admissibility of this evidence, and contends that, but for its erroneous admission and the trial court s erroneous refusal to grant an instruction to disregard the evidence under Article 38.23, there would clearly be legally insufficient evidence to support his conviction. APPELLANTS BRIEF - PAGE 8

II. The Field Sobriety Testing Evidence Against Vogel was Inadmissible Evidence obtained by an officer in violation of any provision of the Constitution or laws of the State of Texas, or in violation of any provision of the Constitution or laws of the United States of America, shall be inadmissible in evidence against the accused on the trial of any criminal case. TEX. CODE CRIM. PROC. ART. 38.23(a). The field sobriety testing evidence was obtained against Vogel in violation of his constitutional right against unlawful search and seizure. Specifically, the constitution requires the government to prove by a preponderance of the evidence that the officer conducting the stop had a reasonable and articulable suspicion that the defendant was engaged in criminal activity." U.S. v. Matlock, 415 U.S. 164 (1974). While the officers clearly had authority to perform the traffic stop because they could plainly see that the vehicle was being operated without a headlight, in violation of the traffic laws. However, unrelated to that violation, they also required Vogel to stay and wait for Officer Bryan so that he could investigate whether Vogel had been operating the vehicle while intoxicated. Under these circumstances, the Waco court of appeals held in State v. Rudd that an officer may not require a person to undergo field sobriety tests without reasonable suspicion that the person has committed an intoxication offense. State v. Rudd, 255 S.W.3d 293, 298-99 (Tex. App. Waco 2008, pet ref d); see also Arthur v. State, 216 S.W.3d 50, 55 (Tex. App.--Fort Worth 2007, no pet.); Reynolds v. State, 163 S.W.3d 808, 810-11 (Tex. App.--Amarillo 2005), aff'd, 204 S.W.3d 386 (Tex. APPELLANTS BRIEF - PAGE 9

Crim. App. 2006); Stoutner v. State, 36 S.W.3d 716, 719-20 (Tex. App.--Houston [1st Dist.] 2001, pet. ref'd). The trial court correctly relied on Rudd and the other cases cited to require that Officer Coffie show reasonable suspicion that Garrett Vogel had committed an intoxication offense. The showing of reasonable suspicion is required to justify Vogel's detention for field sobriety tests. Without the showing, the jury must be instructed to disregard all of the evidence obtained from the field sobriety tests. TEX. CODE CRIM. PROC. ART. 38.23(a). 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. Reasonable suspicion exists if the officer has specific articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person Vogel -- has engaged in an intoxication offense. See, Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Reasonable suspicion is determined from the totality of the circumstances. Id. The totality of the circumstances in this case includes Vogel s answers to the Officer Coffie's questions, and other observations by Officer Coffie prior to making the decision to detain Vogel. These circumstances must be shown to provide reasonable suspicion to believe that Vogel had committed the offense of DWI. Rudd, 255 S.W.3d at 298-99; Stoutner, 36 S.W.3d at 719-20. If so, the encounter escalates to an investigatory detention during which the officer conducts field sobriety tests. See Arthur v. State, 216 APPELLANTS BRIEF - PAGE 10

S.W.3d 50, 55 (Tex. App.--Fort Worth 2007, no pet.); Reynolds v. State, 163 S.W.3d 808, 810-11 (Tex. App.--Amarillo 2005), aff'd, 204 S.W.3d 386 (Tex. Crim. App. 2006); Stoutner, 36 S.W.3d at 719-20. The results of the sobriety testing may then lead to probable cause for an arrest. See Rodriguez v. State, 191 S.W.3d 428, 444-45 (Tex. App.-- Corpus Christi 2006, pet. ref'd); see also State v. Kurtz, 152 S.W.3d 72, 85 (Tex. Crim. App. 2004) (Holcomb, J., dissenting) (citing Stone v. State, 703 S.W.2d 652, 654-55 (Tex. Crim. App. 1986)). III. Vogel was Entitled to a Jury Instruction Under Article 38.23 that Required the Jury to Disregard The Field Sobriety Testing Evidence If they Doubted that Coffie had Reasonable Suspicion to Believe Vogel had Committed an Intoxication Offense. If there is no disputed fact issue as to any of the specific articulable facts that are claimed to support a reasonable suspicion that Vogel had engaged in an intoxication offense, the legality of the conduct is determined by the trial judge alone, as a question of law. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. -2007), In that case, Vogel s motion for instructed verdict should have been granted. A defendant's right to the submission of jury instructions under Article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. 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. Madden APPELLANTS BRIEF - PAGE 11

v. State, 242 S.W.3d at 510, citing Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982). TEX. CODE CRIM. PROC. ART. 38.23(a). The Court of Criminal Appeals has formulated a three-part test to determine whether an instruction under Article 38.23 is mandatory: (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. Madden v. State, 242 S.W.3d 504, 510 The only specific articulable facts offered by Coffie in support of his suspicion that Vogel might have been driving drunk was the smell of alcohol. He admitted that none of the other common indicia were present, such as slurred speech, weaving on the road, or being slow to respond to the police lights. (2RR 77). The court could also consider Vogel s statement to Coffie that he might have had a glass of wine or a gin and tonic. (2RR 73). (1) There is an Issue of Fact Requiring Submission Under Article 38.23 Vogel submits that there is an issue of fact as to whether these two allegations (smell of alcohol and admission that defendant may have had a single drink) establish a reasonable suspicion that Vogel had committed an intoxication offense. The trial court held that no fact issue was presented because the specific articulable facts in this case were no different from those in State v. Rudd, in which the Waco court had held that no fact issue was created. However, Rudd is clearly distinguishable. APPELLANTS BRIEF - PAGE 12

In Rudd, the totality of relevant circumstances known to the officer at the time he detained the defendant for field sobriety testing were: (1) the defendant had recently been driving his pickup; (2) the defendant had the odor of an alcoholic beverage about his person; and (3) the defendant told the officer that he had consumed several alcoholic beverages earlier in the day. State v. Rudd, 255 S.W.3d at 300. One clear distinction between Rudd and the present case is that Rudd admitted having consumed several alcoholic beverages, while Vogel in this case admitted only that he might have had a single drink. Fundamentally, there was nothing inconsistent between the State s suspicion that Rudd had been driving while intoxicated, and Rudd s own admission that he had consumed several alcoholic beverages prior to driving. If there s no inherent inconsistency, then there is no fact issue for a jury to decide. An unpublished case cited by the trial court, Poteet v. State, 2002 Tex. App. LEXIS 5539 (Tex. App. Dallas 2002, pet ref d), involved the question of whether there was reasonable suspicion for the initial stop, rather than a subsequent detention. But the defendant in Poteet failed to create a fact issue in the same way Rudd had. The State s claim of reasonable suspicion was based on observing multiple traffic offenses, including driving across lanes of traffic and through a parking lot to avoid a light. The defendant countered that his truck had possibly bounced out of its lane when he hit a curb or a piece of roadway in a construction area. This court concluded that there was nothing inconsistent between the State s suspicion that the defendant had been driving while APPELLANTS BRIEF - PAGE 13

intoxicated, and the defendants admission that he had left his lane of traffic; both justified the traffic stop, so there was nothing for the jury to decide. In the present case, however, Vogel s admitted only that he might have had a single drink, and this admission is fundamentally inconsistent with a reasonable suspicion that Vogel had been driving while intoxicated. Officer Bryan admitted that there was nothing criminal about driving after consuming one alcoholic drink. (2RR 114). The inconsistency between Vogel s testimony and the inference of intoxication drawn by Officer Coffie was underscored by Vogel s further testimony that the officers could not have smelled alcohol on his breath at 1:00 a.m. because he had consumed only two drinks four and five hours earlier, and had eaten a meal after having those two drinks. (2RR 125-26). This testimony presented a conflict as to whether the officers really had smelled alcohol, which was the only specific articulable fact that Officer Coffie had upon which to base any suspicion of an intoxication offense. In Rudd, the defendant did not dispute that he smelled like alcohol. In the present case, that issue was hotly contested and a jury was required to resolve this dispute. The State s argument that a charge under Article 38.23 should be denied because the trial court could disregard Vogel s testimony because it lacked credibility (2RR 148, 149) is fundamentally inconsistent with Article 38.23(a), which makes this very credibility determination the exclusive province of the jury. APPELLANTS BRIEF - PAGE 14

(2) The Evidence on the Disputed Fact Must be Affirmatively Contested The Court of Criminal Appeals three-part test under Madden goes further than merely requiring that a disputed fact issue exist as to reasonable suspicion. It also requires that a witness affirmatively controvert the State s evidence supporting reasonable suspicion. Thus, for purposes of determining whether an instruction under Article 38.23 is mandatory, a disputed fact issue cannot be created by cross-examining or impeaching the State s witness. Madden v. State, 242 S.W.3d at 513-14. Unlike any of the cases relied on by the State or the trial court, the defendant in this case affirmatively contested Officer Coffie s claim that Vogel and his car smelled of alcohol. Vogel s testimony, if believed by the trier of fact, is in irreconcilable conflict with Coffie s testimony. Vogel was entitled to a charge under Article 38.23 instructing the jury to disregard all of the field sobriety testing evidence if they disbelieved Coffie s testimony that Vogel smelled of alcohol, or if they had a reasonable doubt as to the truthfulness of that testimony. (3) The Contested Factual Issue Must be Material to the Lawfulness of the Challenged Conduct in Obtaining The Evidence The final requirement for determining whether an instruction under Article 38.23 is mandatory is that the contested fact issue be material to the lawfulness of the challenged conduct. Madden v. State, 242 S.W.3d at 510. This means that in the present case the disputed fact issue must be relevant to whether Officer Coffie reasonably suspected Garrett Vogel of having driven while intoxicated. The relevance is obvious here because Vogel contested Coffie s claim that he smelled alcohol, which was the only APPELLANTS BRIEF - PAGE 15

specific articulable fact cited by Officer Coffie to support his suspicion that Vogel had committed an intoxication offense. All three of the requirements set forth by the Court of Criminal Appeals in Madden were satisfied in this case, making the submission of an instruction under Article 38.23 mandatory, and the trial court s refusal to submit it reversible error. PRAYER WHEREFORE, PREMISES CONSIDERED, appellant prays that this Court reverse the judgment of conviction, and either render a judgment of not guilty, or remanding this case for a new trial, and granting appellant his costs of court and all further relief, at law or in equity, to which he may be justly entitled. Respectfully submitted, LAW OFFICE OF CHARLES McGarry /s/ Charles W. McGarry Charles W. McGarry Texas Bar No. 13610650 701 Commerce Street, Suite 400 Dallas, Texas 75202 (214) 748-0800 (214) 748-9449 fax ATTORNEY FOR APPELLANT APPELLANTS BRIEF - PAGE 16

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing brief was delivered to the following counsel of record in accordance with the Texas Rules of Appellate Procedure, or other local rule or court order providing for electronic service, on this 9 th day of March, 2012: Craig Watkins District Attorney Michael R. Casillas Assistant District Attorney Appellate Division 133 N Riverfront Boulevard, LB 19 Dallas, Texas 75207-4399 /s/ Charles W. McGarry Charles W. McGarry APPELLANTS BRIEF - PAGE 17