Totten, Ruben, PD-0483-15

Background

Appellant Totten convicted of possession of ~1.2 grams of cocaine and sentenced to 25 years.
First Court of Appeals (Houston 1st) reversed and remanded for new trial, holding the trial court erred by refusing an Article 38.23 jury instruction on unlawfully obtained evidence.
State filed a petition for discretionary review asking this Court to either remand for correction of the reporter’s record or to amend the record based on a court-reporter affidavit attached to the State’s brief.
Central factual dispute on appeal: testimony suggesting the officer who observed a failure-to-signal may have described a different vehicle than the one stopped (i.e., possibility the wrong vehicle was detained).
Key procedural/analytic issues: (1) whether this Court may amend the reporter’s record at this stage or must remand to the court of appeals/trial court under Tex. R. App. P. 34.6; (2) whether the factual dispute about a mistaken-identification stop required an Article 38.23 instruction; (3) whether Totten preserved the charge error; and (4) proper harm analysis for a refused Article 38.23 instruction.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Totten)	Held / Court of Appeals' ruling
1. May this Court amend the reporter’s record now, or must the issue be remanded / denied under Rule 34.6?	Court should remand to court of appeals or this Court should amend record based on reporter affidavit attached to State brief.	Rule 34.6(e)(3) contemplates the intermediate court; affidavit was never filed with any court and is untimely; State gave no excuse for delay—deny amendment.	Court of Appeals proceeded without amendment; Totten argues amendment is improper and untimely.
2. Was an Article 38.23 instruction required because there was a disputed fact whether the officer detained the wrong vehicle?	No—record wasn’t developed to show the reasonableness of any mistake; lack of affirmative evidence about the ‘wrong’ vehicle means no disputed fact requiring instruction.	Yes—State bears burden to justify stop; testimony created a material factual dispute about whether the stopped car was the one observed, so instruction required.	Court of Appeals found the dispute sufficient to require a 38.23 instruction.
3. Did Totten preserve error by requesting a 38.23 instruction?	Trial counsel’s requests were insufficiently specific to preserve a charge error.	Repeated, specific objections and statutory citations plainly put the trial court on notice; preservation satisfied.	Court of Appeals treated the objection as preserved; Totten argues preservation was adequate.
4. What harm standard applies for failure to give an Article 38.23 instruction?	(State) Jury would have found the testimony about the stop unbelievable; issue is harmless.	Harm is measured by lost opportunity to have jury decide disputed factual issue—the omission undermined the defendant’s sole defense; harm exists.	Court of Appeals found the omission harmful because the jury was entitled to resolve the disputed factual issue.

Key Cases Cited

Bishop v. State, 85 S.W.3d 819 (Tex. Crim. App. 2002) (State bears burden to justify reasonableness of a seizure)
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012) (police officer's reasonable mistake of historical fact can support detention; disputed material facts may require an Article 38.23 instruction)
Routier v. State, 112 S.W.3d 554 (Tex. Crim. App. 2003) (appellate court's handling of reporter's-record disputes and timing under Rule 34.6)
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) (objection insufficient where trial court could not identify the disputed facts from counsel’s request)
Stone v. State, 703 S.W.2d 652 (Tex. Crim. App. 1986) (request for omitted jury instruction preserved where trial court understood the nature of the objection)
Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996) (simple request for a 38.23 instruction can preserve error)
Chase v. State, 448 S.W.3d 6 (Tex. Crim. App. 2014) (two methods to preserve charge error: objection or submitting a proposed instruction)
Reeves v. State, 420 S.W.3d 812 (Tex. Crim. App. 2013) (harm analysis where erroneous instruction undermined the defendant’s sole defense)