Gerald Allen Graham v. State
09-16-00060-CR
| Tex. App. | Dec 14, 2016Background
- On April 12, 2013, Texas Ranger Wesley Dolittle stopped Gerald Graham for driving recklessly; Graham pleaded guilty to reckless driving.
- During the stop Dolittle arrested Graham, handcuffed him, placed him in the front passenger seat of the ranger’s truck, and later observed his department radio dislodged and hanging by wires.
- Dolittle charged Graham with misdemeanor criminal mischief for damaging the radio after the arrest.
- At trial Graham pleaded guilty to reckless driving but contested criminal mischief; his wife Karen testified that Graham’s driving was not clearly reckless, suggesting conflicting evidence about probable cause for the arrest.
- Graham requested an Article 38.23 jury instruction (that evidence obtained in violation of law must be disregarded) regarding the reckless-driving arrest; the trial court refused because Graham had pleaded guilty to reckless driving.
- The jury convicted Graham of criminal mischief; Graham appealed arguing the trial court erred by denying the Article 38.23 instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying an Article 38.23 jury instruction about evidence obtained after an allegedly illegal arrest | Graham: Karen’s testimony created a fact issue about probable cause for reckless-driving arrest, so Article 38.23 required a jury instruction to exclude evidence if arrest was unlawful | State: Article 38.23 does not apply because the alleged unlawful conduct (stop/arrest) preceded commission of the mischief offense; exclusionary rule inapplicable | Court: Denial was not error; Article 38.23 does not apply when alleged illegal police action precedes the defendant’s subsequent offense; conviction affirmed |
Key Cases Cited
- Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) (two-step review for jury-charge error)
- State v. Iduarte, 268 S.W.3d 544 (Tex. Crim. App. 2008) (Article 38.23 exclusion applies only when officers illegally obtain existing evidence of an offense)
- State v. Mayorga, 901 S.W.2d 943 (Tex. Crim. App. 1995) (definition of evidence “obtained in violation of the law” under Article 38.23)
- Bryant v. State, 253 S.W.3d 810 (Tex. App.—Amarillo 2008) (exclusionary rule inapplicable when alleged illegal detention preceded defendant’s later offense)
- Donoho v. State, 39 S.W.3d 324 (Tex. App.—Fort Worth 2001) (same principle: alleged illegal arrest preceding later offense does not trigger exclusionary rule)