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Click here for the full text of this decision FACTS:Trooper Lily of the Texas Department of Public Safety saw two cars speeding through a 55 mph construction zone on Interstate 10 in Harris County. Both had Florida license plates. The lead car was a gray Dodge; the second one was a green GMC Jimmy. When the driver of the Jimmy saw Lily, he accelerated, passed the gray Dodge and began to tailgate an 18-wheeler. From his DPS training on drug convoy tactics, Lily thought that the Jimmy was trying to divert his attention from the gray Dodge. Lily thought that the gray Dodge might be ferrying drugs. He clocked the speed of the gray Dodge at 61 mph and that of the green Jimmy at 63 mph. He stopped both cars, and he turned on his patrol-car dashboard video camera to record the incident. Ryan William Madden was driving the gray Dodge. He had a pit bulldog in the backseat. Lily said that Madden’s hands were “shaking tremendously” and his face was trembling. He fumbled for his wallet. At first, Madden couldn’t answer Lily’s question about where he was coming from, but then he said “Burlestine” up near Dallas. Lily stated that Madden was “pointing in a very nervous manner that he didn’t really know where he was coming from.” Madden said that he was driving a rental car. When Madden gave Lily the car rental agreement, the trooper saw that the car had been rented in Orlando, Fla., and that the rental agreement had expired four days earlier. When Lily asked him who he was traveling with, Madden responded that he was by himself. Lily asked Madden if he had ever been arrested before. Madden said that he had a previous arrest for driving under the influence. By this time, Lily was suspicious: “I felt that some crime was afoot by the way he was so nervous, the way he was answering my questions and the other vehicle trying to divert my attention from him. I felt like they were trying to hide something.” Lily asked his dispatcher to run Madden’s Florida driver’s license. The dispatcher said that Madden had a 1996 arrest for larceny. At this point, Lily requested backup and a Harris County K-9 unit. When his backup arrived, Lily questioned the two men in the green Jimmy which had stopped about 100 yards away. They also had Florida driver’s licenses and said that they knew Madden. They said that they had stayed in Arlington for the last two days. Madden had said that he had been staying with his family while in Texas, but, when confronted with his friends’ statements, Madden said that he was traveling with the other men and had stayed with their family. When the K-9 unit arrived, the dog alerted on both the trunk of Madden’s Dodge and the back of the Jimmy. Lily searched the trunk of Madden’s car and found a Rubbermaid container filled with dog food and a book bag with three bricks of cocaine inside, a rifle, a shotgun, three handguns and ammunition. Although the Jimmy did not have any drugs in it, both cars had two-way radios in them. During trial, both the state and the defense played Lily’s patrol-car video recording several times for the jury. On the tape, Madden could be heard disputing the fact that he had been speeding. He said that he was driving with his cruise control set at 55 mph Although defense counsel vigorously cross-examined Lily, intimating that Madden’s face was not trembling on the video recording and that his hands were not shaking, Lily repeatedly and consistently asserted that Madden was nervous, that his hands were shaking and that his face trembled. When the defense attorney asked Lily why he, the defense attorney, could not see that nervousness on the videotape, Lily said that he saw it on the video, but it wasn’t clear because the quality of the tape was so bad. Madden did not testify, and there were no other witnesses who testified to the initial stop or the detention. During the jury-charge conference, the trial judge told the attorneys: “[I]t seems to me that the only contested fact issue is concerning the original stop of the car.” Madden’s attorney claimed that the videotape disputed Lily’s testimony that Madden “was nervous, he lied about his criminal history and all those other matters.” He submitted a written requested instruction about the legality of Lily’s continued detention. The trial judge responded: “Let’s pause there. I see from the tape that there is a disputed fact issue because I think the defendant’s saying on the tape, “I was only going 55,” makes a disputed fact issue on whether or not there was probable cause to pull the defendant over. So, I agree that there should be a charge on that issue. “So, let’s just look at that for one moment and talk about the appropriate language to go in that charge and then I don’t think there are any disputed fact issues from that point on. The tape is in evidence. There is no disputed fact issue. The only testimony is the tape and the officer’s testimony concerning things he saw and there is no disputed issue, fact issue, I don’t think that anything beyond that properly goes to a jury.” Therefore, the trial judge submitted an instruction on the disputed fact issue of whether Lily reasonably believed that Madden was speeding at the time he made the traffic stop but declined to submit any instruction concerning Lily’s continued detention of Madden. The jury convicted Madden and sentenced him to 30 years of imprisonment. A majority of the 1st Court of Appeals panel disagreed with the trial judge, holding that it was error for the trial court not to give an instruction under Texas Code of Criminal Practice Art. 38.23 on the reasonableness of the continued detention. It concluded: “The question of whether Lily’s testimony about appellant’s conduct is contradicted by what the videotape shows is a fact issue for the jury to decide; that is, the jury had to decide whether appellant was shaking, trembling, and fumbling with his wallet, based on Lily’s testimony and the videotape.” Justice Evelyn Keyes dissented, stating: “Even if there is a dispute over appellant’s visible nervousness, hence over Officer Lily’s credibility in this regard, this dispute is not enough to raise a fact issue as to the legality of the search.” The Court of Criminal Appeals granted review to clarify what type of evidence sufficed to raise a disputed material fact issue that requires the submission of a jury instruction under Art. 38.23(a). HOLDING:Vacated and remanded. A defendant’s right to the submission of jury instructions under Art. 38.23(a), the CCA stated, is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Specifically, there are three requirements that a defendant must meet before he is entitled to the submission of a jury instruction under Art. 38.23(a): 1. the evidence heard by the jury must raise an issue of fact; 2. the evidence on that fact must be affirmatively contested; and 3. that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Madden requested a second jury instruction dealing with his continued detention after Lily had decided to issue him a warning ticket for speeding. This requested instruction, the CCA stated, was wholly incorrect. The instruction, the CCA stated, did not ask the jury to decide a disputed issue of historical fact. It asked the jury to decide a question of law: whether Lily had “reasonable suspicion” to continue to detain Madden. “Reasonable suspicion” is a legal term of art, the CCA stated. The jury cannot be expected to decide whether the totality of certain facts do or do not constitute reasonable suspicion under the law, the CCA stated, which would “require a lengthy course on Fourth Amendment law.” Madden’s proposed instruction, the CCA stated, focused only on the law. It did not set out any specific historical fact (i.e. face trembling, hands shaking, fumbling for wallet, etc.) that the jury was to focus upon and then decide if Lily was unreasonable in relying upon those indications of nervousness as a basis for his articulable suspicion to detain. Thus, the CCA stated that because Madden never presented a proposed jury instruction that asked the jury to decide disputed facts, any potential error in the charge should be reviewed only for egregious harm. But the CCA found no error, because there was no conflict in the evidence that raised a disputed fact issue material to the legal question of reasonable suspicion. OPINION:Cochran, J., delivered the opinion of the unanimous court.

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