author: SAM NUCHIA, Justice.

text:
    Charlotte Ann Kaechele MIETH; Bonnie Reznicek, Agent and Attorney-in-Fact for Royce Marie Kaechele; Bonnie Jean Kaechele Reznicek; Bonnie Jean Kaechele Reznicek, Successor Trustee of the Charles Kaechele Trust for Royce M. Kaechele and Successor Trustee of the Clara Kaechele Trust for Royce M. Kaechele, Appellants, v. RANCHQUEST, INC.; Texical Energy Corporation d/b/a Texical, Inc.; Amcas, Inc.; Robert Huckaby; Pensor Production Company; Robert Leon; and Tex-Atic Resources, Inc., Appellees.
    No. 01-02-00461-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 17, 2005.

      K. Ray Campbell, Michael D. Jones, Kil-burn, Jones, Gill & Campbell, L.L.P., Houston, for appellants.
    Michael D. Conner, Hirsch & Westheimer, P.C., Houston, for appellees.
    Panel consists of Chief Justice RADACK and Justices NUCHIA and HANKS.
   OPINION ON FURTHER REHEARING

SAM NUCHIA, Justice.

We grant appellee’s motion for further rehearing, withdraw our opinion issued May 20, 2004, and issue this opinion in its place.

In October 1997, appellants sued appel-lees to recover damages caused to their surface estate by appellees’ operations at and re-entry of an abandoned oil and gas well. The case was tried to a jury in 2001, and the jury found that Texical Energy Corporation d/b/a Texical, Inc. (Texical) was 100% hable for negligence proximately causing injury to appellants’ property. The jury awarded $200,000 as reasonable costs to repair appellants’ property, $10,000 in exemplary damages, and $88,000 in attorney’s fees, but found no diminution in the value of appellants’ property. The trial court concluded that the injury to the property was permanent and, therefore, that the correct measure of damages was the diminution in value to the land. Because the jury found no diminution in value, the trial court rendered judgment for appellees. We affirm.

I. Background

A. The Lease Operation

Appellants own the surface of a 973-acre tract of grazing land in Austin County, Texas. Appellants referred to this tract, purchased in 1952 by Charles Kaechele, appellants’ deceased father, as the “Best” tract. In 1992, appellants and the owners of the mineral estate executed an oil and gas lease to appellee Ranchquest, Inc. (Ranchquest). Sometime before March 16, 1996, drilling operations were begun on the well known as Best No. 2 well, which was located on the northern 300 + acres of the 973-acre tract.

Robert Leon and Robert Huckaby, the individual appellees, owned or controlled a group of corporations, including appellees Ranchquest, Texical, Tex-Atic Resources, Inc. (Tex-Atic), and Amcas, Inc. (Amcas). Ranchquest acquired oil and gas leases, and Texical operated the oil and gas wells on those leases. At the time of trial, Leon and Huckaby used Tex-Atic to operate oil and gas wells on the leases acquired by Ranchquest. Leon and Huckaby used Amcas as the repository for investors’ funds to be used in drilling, completing, equipping, and operating oil and gas wells drilled on behalf of Texical or Tex-Atic on leases acquired by Ranchquest. Appellee Pensor Production Company (Pensor) is a drilling contractor.

In July 1996, Pensor entered into a contract with American Cascade Energy, Inc., Texical’s predecessor, to provide the rig and crew that would take over the drilling on the Best No. 2 well. In August 1997, Pensor’s contract was amended to add the Best No. 3 well. Appellees continued operations on the Best No. 2 well through the remainder of 1996 and into 1997. Ap-pellees did not construct reserve pits or a ring levee around the Best No. 2 well surface location until after March 1997. As a result, the drilling operations discharged drilling fluids, diesel fuel, oil, and saltwater onto appellants’ pasture and raw sewage into open pits. Although appellees decided to construct a reserve pit for the Best No. 2 well in 1997, they never closed it. The Best No. 2 well produced for a few days in December 1997 and January 1998, but was no longer producing at the time of trial.

In August 1998, appellees began working on the Best No. 3 well, also located on the northern 300 + acres of the tract. Although a reserve pit and a ring levee were constructed for the Best No. 3 well, appel-lees pumped fluids out of the pit and into a ditch that had been dug to run fluids into a nearby creek.

B. Texas Railroad Commission Reports

During trial, the trial court admitted the Railroad Commission (the Commission) reports on the Best Nos. 2 and 3 wells into evidence. The Commission inspected the operations and conditions maintained on the Best No. 2 well location 24 times, and cited the Best No. 2 well on almost every inspection for violating Railroad Commission Statewide Rule 8 (Rule 8). On March 3, 1999, the Commission issued a report containing findings of fact regarding alleged violations committed at the Best No. 2 well. The report notes that the Commission conducted inspections from December 18, 1996 through August 28, 1998. The Commission found that the operator had caused or allowed the discharge of 20 to 30 gallons of lubricating oil from machinery. The Commission also found overflowing mud tanks combined with rain wash-off from the rig affecting an area approximately 100 by 150 feet on the west side of the rig. In addition, other oil discharges from around the diesel motors had flowed from a 70-by-8-foot pit into an adjacent pasture. The Commission noted that, by January 23, 1997, the affected area had increased in size to approximately 300 by 500 feet and that the inspectors had observed an oil and diesel sheen. The report noted that the operator was also using the reserve pit for disposal of raw sewage from a trailer house and that recent rainwater had caused the pit to overflow.

The Commission’s report on the Best No. 3 well showed that, in August 1998, appellees began work on this well. Before commencing drilling operations, appellees constructed a reserve pit and a ring levee at the Best No. 3 well location. However, appellees pumped fluids out of the reserve pit and into a ditch that had been dug to run the fluids into the East Little San Bernard Creek. The Commission made 22 inspection visits to the Best No. 3 well location and found numerous violations of Rule 8. Unlike the Commission’s factual findings on the Best No. 2 well, the Commission’s findings of fact on the Best No. 3 well were not included in the record. As of the time of trial, the reserve pit on the Best No. 3 well location was still open.

C. Testimony

1. Frank Roberts, Jr.

At trial, Frank Roberts, Jr., a consultant for appellees, testified that the site around the Best No. 3 well was cleaned up during the summer of 1999 and was left in as good a shape as it could have been after a drilling completion. The reserve pits on the Best Nos. 2 and 3 well sites were still in existence and were then open because appellants had threatened the contractor and told him not to close the sites. The black, cracked, thick substance shown in photographs taken by appellants in February 1999 was simply a mixture of graphite and glycerin used in conjunction with mud to get the pipe to slide free. This mixture, which was regularly used in these types of drilling operations, was non-toxic and could easily be disposed of. Pensor took over the drilling operations on the Best No. 2 well in July 1996, but did not construct a ring levee and reserve pit until early 1997. The drilling operations ended sometime in early June 1997.

Roberts, who was working with Texical on the Best No. 3 well at the time, arrived at the site shortly after the Commission had inspected the Best No. 3 well. The inspection revealed that the reserve pit had overflowed and had reached the road drainage, discharging into the creek at a rate of one gallon per minute. The inspector noted that drilling fluid had overflowed the reserve pit embankment, affecting an area of approximately 20 by 30 feet. Because there was no sewage septic tank, all sewage was discharged into earthen pits. Roberts agreed to remediate the soil contaminated by the drilling fluid, which he did a few days later.

Roberts further testified about the following inspections:

• January 26, 1999: there were no additional violations, but the drilling-fluid residue coating the bottom of the ditch still remained and needed to be cleaned.
• February 3, 1999: the drainage ditch going into the creek had not been cleaned up and was backing up with water.
• February 29,1999: Roberts agreed to have the drilling fluids in the ditch cleaned up.
• March 3, 1999: about five gallons of oil were on the ground where the drilling rig motors had been.
• June 21, 1999: the north pit contained chloride levels of 450 parts per million (ppm) and a film of oil covered 20% of the pit; the south pit contained a chloride level of 35,800 ppm and no oil.
• August 3, 1999: both pits remained open, both had a skim of oil on them, and the south pit contained saltwater chlorides of 35,000 ppm.
• Subsequent inspections revealed that heavy rains had resulted in more saltwater inside the pits. Roberts said that, when a pit is dewatered, it leaves behind some chlorides and that the chloride content is likely to rise when mixed with rainwater.

2. Michael Swetish

Appellants’ expert, environmental scientist Michael Swetish, testified that, in his opinion, both sites were heavily impacted by salt. Many of the pits remained open; the pits had high salt levels in them; the salt extended beyond the pit boundaries; and oil and hydrocarbons remained in the pits. In his opinion, the sites were in need of remediation because the contaminants that remained on the sites were elevated to levels that would impact the landowners’ property if not corrected. Should the contaminated soil not be decontaminated, the contaminants would, over time, seep into the soil deeply enough to contaminate the underground water sources.

Swetish testified that, if a pit contained high levels of contamination, the contaminated material could be removed and taken to a treatment facility and the pit could be backfilled with clean material. Swetish collected soil samples and conducted three soil surveys, at depths of from 3 to 18 feet, which revealed high levels of chlorides in the drill material, ranging from 108,000 to 57,000 ppm on the Best No. 2 well and from 48,000 to 47,000 ppm on the Best No. 3 well. Swetish concluded that the sites were contaminated with salt levels sufficient to restrict vegetative growth and to disperse salt into the surrounding environment, not only by spreading laterally, but, with time, by moving more deeply into the ground, potentially impacting deeper zones of soil and ground water. Swetish estimated that the remediation, which would include excavating, transporting, and disposing of the contaminated material and replacing that material with clean fill, would cost $288,000. On cross-examination, Swetish testified that the remediation plan that he suggested covered a total of four acres and that he had not conducted any ground-water studies to support his conclusion that the existing conditions, if left unrepaired, would result in groundwater contamination.

3. Frank Reznicek

Frank Reznicek, the husband of appellant Bonnie Reznicek, had worked on the Kaechele ranch since 1980. At the time of trial, he was the ranch manager responsible for planning and overseeing the day-today activities at the ranch. He testified that the defendants had polluted the property with diesel oil and salt water and that the chlorides about which the appellants were complaining were present on the property at all times and did not come and go with the rain. He also testified that the contamination had been basically the same since 1996.

4. Robert Moorman

Robert Moorman, a real estate appraiser and appellees’ expert witness, testified that he was able to form an opinion of the current fair market value of the Best tract after inspecting the property and researching comparable sales. In his opinion, the market value of the Best tract was $750 per acre, a total of $730,000. He testified that, if the four acres were contaminated, the maximum diminution in value of appellant’s property would be $3,000.

5. William Haley

William Haley, appellants’ real estate appraisal expert, testified that he used the sales-comparison approach in determining the fair market value of appellants’ property. He testified that this approach compares the property being appraised to similar properties that have been sold in the area, taking into account any particular features that could raise or lower the value of the property. He concluded that the fair market value of appellants’ property was $730,000 before the contamination and $430,000 after the contamination. His basis for the $300,000 diminution in value was the cost to remediate, plus management costs or administrative costs typically incurred by the owner in decontaminating the property.

II. Analysis

A. Temporary or Permanent Injury

In their first issue, appellants contend that the trial court erred in determining that the damage to their property was permanent, rather than temporary.

Permanent damage results from activity that is of such a character and that exists under such circumstances “that it will be presumed to continue indefinitely.” Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984). Permanent injuries are those that are “constant and continuous, not intermittent or recurrent.” Atlas Chem. Indus., Inc. v. Anderson, 524 S.W.2d 681, 685 (Tex.1975), overruled on other grounds, Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981). When the turf or sod is so injured as to make the land less productive in the future, the injury is permanent, even though it may not be perpetual. See Ft. Worth & N.O.R. Co. v. Wallace, 74 Tex. 581, 12 S.W. 227, 228 (1889). The proper measure of damages for permanent injury to the land is the diminution in the value of the land. Kraft v. Langford, 565 S.W.2d 223, 227 (Tex.1978).

Temporary injuries are intermittent, sporadic, or recurrent injuries to land that are contingent upon some irregular force, such as rain. Bayouth, 671 S.W.2d at 868. When an injury to land is temporary and can be remediated at reasonable expense, the proper measure of damages is the cost of restoration to its condition immediately preceding the injury. Kraft, 565 S.W.2d at 227. However, the diminution in fair market value is the measure of damages when the cost of restoration exceeds the diminution in fair market value. North Ridge Corp. v. Walraven, 957 S.W.2d 116, 119 (Tex.App.-Eastland 1997, pet. denied) (citing Atlas Chem. Indus., Inc. v. Anderson, 514 S.W.2d 309 (Tex.Civ.App.-Texarkana 1974), aff'd, 524 S.W.2d 681 (Tex.1975)).

In this case, the evidence showed that the ground was so injured as to impair the productivity of the soil and that the injury had been constant since 1996. Therefore, the trial court did not err in determining that the damage to the tract of land was permanent.

We overrule appellants’ first issue.

B. Comment on the Weight of the Evidence

In their second issue, appellants contend that the trial court erred in commenting on the weight of the evidence. A comment on the weight of the evidence is a comment by the trial court, usually in the jury charge, that suggests the trial court’s opinion concerning an issue in the case. Maddox v. Denka Chem. Corp., 930 S.W.2d 668, 671 (Tex.App.-Houston [1st Dist.] 1996, no writ); see also Tex.R. Civ. P. 277 (“The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers.... ”). Appellants’ complaint involves statements made by the trial court in discussions with the attorneys out of the presence of the jury. We decline to review such statements as comments on the weight of the evidence.

Under this same issue, appellants refer to “a ‘judicial misconduct’ complaint.” They specifically complain about the trial court’s statement, “[I]f [the injury] is temporary, how much it costs to remediate, which under some situations the court could take the position that $288,000 is excessive; therefore, I bypass that measure and go to diminished value.” Appellants claim that the trial court “intended from the beginning to award minimal damages irrespective of what the evidence demonstrated.”

We.first note that appellants have not preserved any error regarding comments the trial court made. Moreover, we interpret the trial court’s statement to be a recognition that the measure of damages to land, when the cost of remediation exceeds the diminution in fair market value, is the diminution in fair market value. See North Ridge Corp., 957 S.W.2d at 119.

We overrule appellants’ second issue.

C. Unsolicited Offer to Purchase

In their third issue, appellants contend that the trial court erred in allowing the introduction of Amcas’s unsolicited and unaccepted offer to purchase the Best tract as evidence of market value of then-property because that offer constituted an inadmissible offer of settlement. Appellants claim that the appellees used the unaccepted offer to purchase to argue that there was no diminution in value to the Best tract.

Amcas offered, in writing, to purchase appellants’ property for $730,000, which was, according to Swefish, the estimated fair market value of the property before the injury. The offer, which the trial court admitted into evidence, stated, “This letter is not an offer of settlement and is not intended in that manner.” Appellants did not accept the offer.

Texas Rule of Evidence 408 states, “Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount.” Tex.R. Evid. 408.

Amcas’s offer to purchase the property stated specifically that it was not a settlement offer and did not ask appellants to compromise their claim in any way. See Tatum v. Progressive Polymers, Inc., 881 S.W.2d 835, 837 (Tex.App.-Tyler 1994, no writ).

We hold that the unaccepted offer to purchase was not a settlement offer. Accordingly, we overrule appellants’ third issue.

D. Negligence Per Se

In their fourth issue, appellants contend that the trial court erred in refusing to submit their requested instruction on negligence per se because the evidence established Texical’s repeated violations of Rule 8.

Negligence per se is a concept in which a legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a reasonable and prudent person. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.1979). In such a case, the jury is not asked to decide whether the defendant acted as a reasonable, prudent person would have acted under the same or similar circumstances. Id. The statute itself states what a reasonable, prudent person would have done. Id. If an excuse is not raised, the only inquiry for the jury is whether the defendant violated the statute or regulation and, if so, whether the violation was a proximate cause of the accident. Id.

For an administrative rule or regulation to be a standard for negligence, a purpose of the rule must be to afford protection to the class of persons to which the injured party belongs from the hazard involved in the particular case. Cont’l Oil Co. v. Simpson, 604 S.W.2d 530, 534 (Tex.Civ.App.-Amarillo 1980, writ ref'd n.r.e.); see also Carter, 584 S.W.2d at 278. Section 91.101 of the Texas Natural Resources Code specifically provides that the Commission “shall adopt and enforce rales and orders ... to prevent pollution of surface water or subsurface water in the state.” Tex. Nat. Res.Code Ann. § 91.101 (Vernon Supp.2004-2005). Rule 8, subsection (b) states that “[n]o person conducting activities subject to regulation by the commission may cause or allow pollution of surface or subsurface water in the state.” 16 Tex. Admin. Code § 3.8 (2004) (Tex. R.R. Comm’n, Water Protection).

Rule 8 clearly affords protection to the class of persons to which appellants belong, i.e., surface owners, against the hazard involved, i.e., pollution of surface and subsurface water. Therefore, negligence per se applies to the facts of this case. Accordingly, the trial court abused its discretion by refusing to submit an instruction on negligence per se. However, because the jury found Texical negligent under the common-law definition, the trial court’s error was harmless.

We overrule appellant’s fourth issue.

E. Legal Sufficiency

In their fifth issue, appellants challenge the legal sufficiency of the evidence to support the jury findings in questions five, seven, and eight. Appellants argue that the trial court erred in denying their motion to disregard these jury findings because the jury’s answers to these three questions were not supported by the evidence.

1. Question 5 — Ranchquest

Jury question five asked, “Do you find that Ranchquest, Inc. failed to comply with paragraphs 14 and 15 of the lease?” The jury answered, “No.”

Appellants claim that the jury’s refusal to find that Ranchquest failed to comply with paragraphs 14 and 15 of the lease was not supported by the evidence. Appellants contend that “Texical and Am-cas were responsible for Ranchquest’s performance of the Best Lease and became responsible for compliance with the Best Lease.” They also argue that “Texical was the successor operator and was. responsible for compliance with the oil and gas lease as Ranchquest’s assignee and designated operator.” The lease states, “Lessee and/or his successors in interest, shall compensate the Grantee.... ” (Emphasis added.) The jury could have reasonably concluded that only Texical, as Ranchquest’s successor operator, was negligent and, thus, responsible for the damage caused to appellants’ property.

We overrule that part of appellants’ fifth issue complaining about the jury’s response to question five.

2. Question 7 — Damages

Appellants contend that there is no evidence to support the jury’s answers to question seven. Question seven and the jury’s answers were as follows:

What sum of money, if any, now paid in cash, would fairly and reasonably compensate Plaintiffs for their damages, if any?
Do not include any amount for any condition existing before the occurrence in question, except to the extent,- if any, that such other condition was aggravated by any injuries that resulted from the occurrence in question.
Do not include in your answer any amount that you find Plaintiffs could have avoided by the exercise of reasonable care.
Consider the following elements of damages, if any, and none other:
1) the reasonable and necessary cost to remediate the surface of Plaintiffs land.
Answer: $200,000
2) the diminution, if any, in the fair market value of the Plaintiffs land.
Answer: $0

Because part one of question seven is the measure of damages for a temporary injury to property, it is immaterial to this appeal. We therefore consider only the jury’s finding in part two of question seven. Inasmuch as appellants had the burden of proving the diminution in fair market value to their land, we construe their issue to assert that they established the diminution in value as a matter of law. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

In reviewing a challenge by the party with the burden of proof to an adverse jury finding, we must first examine the record for evidence supporting the finding, ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we must examine the entire record to see if the appellant has established the contrary proposition as a matter of law. Id.; see also Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex.App.-Houston [1st Dist.] 1987, no writ) (stating that appellate court must determine whether evidence as matter of law requires conclusion contrary to verdict).

Two witnesses testified regarding the property’s diminution in value: Haley, a real estate appraiser who testified for the appellants, and Moorman, a real estate appraiser who testified for appellees. Haley testified that the fair market value of appellants’ property was $730,000 before the contamination and $430,000 after the contamination.

Moorman testified that he had been told that real estate with a pocket of contamination could be sold by cutting the contaminated area from the sale and that the diminution in fair market value would be the number of acres times the value per acre. In this case, the number of contaminated acres was four, and Moorman valued the property at $750 per acre. Moorman testified that, although the contaminated area was a small percentage of the entire tract, he would not go so far as to say that there was no diminution in market value. He calculated that the maximum diminution in value of appellants’ property would be $3,000.

Appellees suggest that, because there had been previous oil and gas operations on the property, the jury could have reasonably determined that any diminution in value was due to those earlier operations. However, they do not direct us to any evidence of contamination that existed before drilling on the Best wells was begun. Appellees also contend that their offer to buy the property for $730,000 was proof that there was no diminution in value. In Texas, unaccepted offers to purchase property are no evidence of market value of property. Hanks v. Gulf, Colo. & Santa Fe Ry. Co., 159 Tex. 311, 320 S.W.2d 333, 336-37 (1959); Lee v. Lee, 47 S.W.3d 767, 785 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

Our examination of the record does not reveal any evidence to support the jury’s finding of $0 diminution in the fair market value of the land. Therefore, we must determine whether appellants established the amount of diminution as a matter of law.

Appellants contend that they established $300,000 diminution in value as a matter of law, arguing that Moorman’s testimony of a maximum of $3,000 diminution was not contained in a written report and was “off the cuff.” Because appellants did not object to Moorman’s testimony during trial, they have waived any objection to it on appeal. See Tex.R.App. P. 33.1.

The evidence regarding the amount of diminution in value was conflicting. Given this conflict, appellants have not established, as a matter of law, the diminution in fair market value of their land.

We overrule that part of appellants’ fifth issue complaining about the jury’s response to part two of question seven.

3. Question 8 — Attorneys’Fees

Appellants contend that the jury’s answers to question eight is not supported by the evidence. In question eight, the jury found that $88,000 was a reasonable and necessary fee for the services of appellants’ attorneys at the trial level, but made no award for appellate fees. We need not address this issue because appellants requested attorneys’ fees for their breach-of-contract claim. The jury did not find that appellees breached their contract with appellants, and the trial court did not award attorneys’ fees.

III. Conclusion

We affirm the judgment.

      . Railroad Commission Statewide Rule 8 provides rules and regulations to protect fresh water from pollution by salt water. 16 Tex. Admin. Code § 3.8 (2004) (Tex. R.R. Comm’n, Water Protection).

      . Although the Texas Railroad Commission listed American Cascade Energy as the operator during the entire period during which the violations occurred, Texical took over the Best No. 2 well on July 6, 1996 and operated it until June 1997.

      .The report noted that the operator initiated clean-up work on February 3, 1997.

      . Under their fifth issue, appellants recite the standard of review for a factual sufficiency challenge. However, in their brief, appellants argue legal sufficiency and do not argue that the evidence was factually insufficient to support the jury’s findings in questions five, seven, and eight. In their response to appellees’ further motion for rehearing, appellants use both “no evidence” and “against the great weight and preponderance of the evidence” language without distinguishing between the application of that language to legal or factual sufficiency. We decline to consider appellants’ response as raising a factual sufficiency complaint because appellants could have raised that argument on original submission, but did not. See, e.g., McGuire v. Fed. Deposit Ins. Corp., 561 S.W.2d 213, 216 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ) (op. on reh'g).

      . Paragraph 14 of the lease provided that the lessee "and/or his successors in interest” would compensate the grantee for any damage to crops or fences. Paragraph 15 of the lease provided that the lessee would pay for damage to crops or improvements caused by any oil and gas operations and, upon the abandonment of any well, would fill excavations and pits, leaving the ground in as near the same condition as it was before the drilling.

      . Appellants also argue that the jury was confused on the diminution of value issue because the cost of remediation and diminution in value were contained in the same issue, making the diminution in value appear to be a request for additional damages. Appellants did not object to the submission of question seven, although appellees expressed some concern during the charge conference that question seven might confuse the jury.


source: Caselaw Access Project

author: TIM TAFT, Justice.

license: Public Domain

text:
    Joseph Molton CHAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00203-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 17, 2005.
    Discretionary Review Refused Sept. 28, 2005.

      Jerald K. Graber, Houston, for Appellant.
    Eric Kugler, Assistant District Attorney of Harris County, Houston, for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

TIM TAFT, Justice.

A jury convicted appellant, Joseph Mol-ton Chavis, of felony assault upon an elderly person. See Tex. Pen.Code Ajstn. § 22.04(a) (Vernon 2003). The jury found true enhancement paragraphs alleging two prior convictions for aggravated assault and assessed punishment at confinement in prison for 33 years. We determine whether the trial court erred in the punishment phase of trial by granting the State’s mid-trial motion to abandon the convicting court numbers in the enhancement paragraphs of the indictment. We affirm.

Facts

On the morning of September 20, 2003, Linda Nguyen, the 69-year-old complainant in this case, was working at a Diamond Shamrock store when appellant entered. Appellant was a frequent store customer, and Nguyen knew him to cause problems in the store often.

At some point in the morning, Nguyen confronted appellant after she noticed that he had left a mess on the hotdog counter. She told him, “Next time you come do not make a mess in the store. Do not speak loud anymore.” Appellant responded by yelling, “F-ck you,” to Nguyen. Nguyen returned the same remark to appellant. Appellant responded again by cursing and spitting on Nguyen and then punched her in the face with a closed fist, causing her to fall and to hit the floor. Nguyen’s face became very swollen, and she experienced a great deal of pain from her injury. Nguyen was taken to the hospital by ambulance to be examined and treated for her injuries.

At trial, appellant denied having had problems with Nguyen and considered them relationship to be that of friends. Appellant admitted that he had spat on Nguyen, but stated that he did so only after she first spat on him. Appellant explained that he had hit Nguyen only because she was going to spit on him again and that he had never intended to hurt her.

Abandoning Portions of Enhancement Paragraphs

In his sole point of error, appellant contends that the trial court erred in granting the State’s motion to abandon the convicting court numbers in the enhancement paragraphs of the indictment. Appellant contends that, because those omitted portions were material, a fatal variance was created between the indictment and the trial court’s charge. Appellant further asserts that the trial court’s granting the abandonment lessened the State’s burden of proof.

The second enhancement paragraph of the indictment originally alleged in pertinent part:

JOSEPH MOLTON CHAVIS, hereafter styled the Defendant ... before the commission of the primary offense, and after the conviction in Cause No. 680299 was final,... committed the felony of aggravated assault and was finally convicted of that offense on August 20, 1999, in Cause No. 804308, in the 208th District Court of Harris County, Texas,

[emphasis added]. Prior to trial, on January 6, 2004, the State filed a motion to amend the indictment, requesting that the second enhancement paragraph, alleging a prior conviction in the 208th District Court, be changed to reflect that the prior conviction had occurred in the 180th District Court. The State filed a nearly identical motion on February 6, 2004. Appellant received notice of the motion, and the order was granted by the trial court on February 6, 2004. The trial court crossed out “208th,” replaced it with “180th,” and initialed and dated the physical changes on the indictment.

On February 24, 2004, appellant was arraigned outside the presence of the jury. The State read the amended enhancement paragraphs for the punishment phase. Appellant pleaded true to the first enhancement paragraph, alleging aggravated assault, but pleaded not true to the second enhancement paragraph, also alleging aggravated assault. Appellant objected to the second enhancement paragraph, stating that the convicting court number in the indictment and the conviction record did not coincide. At the commencement of the punishment phase on February 25, 2004, the State moved to abandon the court numbers on both enhancement paragraphs, arguing that they were surplusage. Defense counsel objected, arguing that the State needed to prove the enhancement allegations as set forth in the original indictment. Despite the objection, the trial court granted the State’s motion to omit the convicting court numbers from the enhancement paragraphs.

A.The Law

Article 28.10 of the Code of Criminal Procedure provides that, “after notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences.” Tex.Code CRiM. PROC. Ann. art. 28.10(a) (Vernon 2003). However, “[a]n indictment or information may not be amended over the defendant’s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.” Tex Code CRiM. Pkoc. Ann. art. 28.10(c) (Vernon 2003). A “different offense” means a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex.Crim.App.1991).

An amendment to an indictment is a change that affects the substance of the indictment, while an abandonment, even if effected by a physical change in the indictment, does not affect its substance. Eastep v. State, 941 S.W.2d 130, 132-33 (Tex.Crim.App.1997), overruled on other grounds, Riney v. State, 28 S.W.3d 561 (Tex.Crim.App.2000). An alteration to the charging instrument that constitutes abandonment, rather than amendment of the instrument, does not invoke the requirements of article 28.10(c). See id. at 133.

An abandonment is appropriate in the following situations: (1) changing the ways or means of committing the offense; (2) reducing the charge to a lesser-included offense; and (3) eliminating surplusage. Mayfield v. State, 117 S.W.3d 475, 476 (Tex.App.-Texarkana 2003, pet. denied). Surplusage is unnecessary language not legally essential to constitute the offense alleged in the charging instrument. Eastep, 941 S.W.2d at 134; see also Collins v. State, 500 S.W.2d 168, 169 (Tex.Crim.App.1973). The court in Whetstone v. State held:

The general rule is that allegations which are not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as surplusage.

Id., 786 S.W.2d 361, 364 (Tex.Crim.App.1990), overruled on other grounds, Gollihar v. State, 46 S.W.3d 243 (Tex.Crim.App.2001).

B. Abandonment Was Proper

In the present case, because the convicting court number was not necessary to describe the offense charged in the enhancement paragraph and the remaining allegations were sufficient to identify the charged offense, the trial court’s change constituted a proper abandonment. See Mayfield, 117 S.W.3d at 476.

C. No Fatal Variance Occurred

A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001). In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. Id. Sur-plusage may be responsible for a variance between the pleading and the proof. Whetstone, 786 S.W.2d at 364.

However, “only a material variance is fatal [and a] variance between the charging instrument and the proof at trial is material only if it operated to the defendant’s surprise or prejudiced his rights.” Gollihar, 46 S.W.3d at 248. The rule of surplusage is generally consistent with variance law’s materiality requirement because an allegation that is not essential to constitute the offense and the omission of which will not affect the charge against the defendant or will not be detrimental to the indictment will likely also not be “material” within the meaning of the fatal-variance doctrine. Id. at 249. Therefore, it may be disregarded as surplusage and an immaterial variance. Id.

In this case, a variance was created between the indictment and the jury charge because the convicting court numbers were abandoned in the enhancement paragraphs of the charge. However, that variance was not material. Both the enhancement paragraph and the indictment stated the same cause number, the same offense, and the same dates of judgment. The only variance was in the convicting court numbers. Abandoning the court numbers in the enhancement paragraphs would not have prevented appellant from locating the record of the prior convictions upon which the State relied, nor was the inclusion of the court numbers essential to constitute the offenses. Furthermore, appellant’s trial counsel explicitly stated that the court numbers were the reason that appellant had entered a plea of not true to the second enhancement paragraph, thereby demonstrating appellant’s awareness of the details of his prior conviction. Under these circumstances, we fail to see how the variance could be material or fatal. See Freda v. State, 704 S.W.2d 41, 43 (Tex.Crim.App.1986) (holding that variance not fatal when indictment alleged prior conviction for bank robbery, but proof showed defendant had been convicted of conspiracy to commit bank robbery); Rooks v. State, 576 S.W.2d 615, 616 (Tex.Crim.App.1978) (holding that variance between charging instrument alleging prior conviction in the “Criminal District Court of Harris County” and proof showing conviction in the “184th District Court of Harris County” was not material); Bray v. State, 531 S.W.2d 633, 635 (Tex.Crim.App.1976) (holding that variance in number of district court, when county and cause number of the conviction were correct, was not material); Barrett v. State, 900 S.W.2d 748, 752 (Tex.App.-Tyler 1995, pet. ref'd) (holding that variance not fatal when enhancement paragraph alleged burglary of building and proof showed prior conviction for attempted burglary of building).

D. State’s Burden of Proof Was Not Improperly Lessened

It is well-settled that it is unnecessary to allege prior convictions for enhancement of punishment with the same particularity that is required in charging the primary offense. Freda, 704 S.W.2d at 42. The purpose of an enhancement allegation is to provide the accused with notice of the prior conviction upon which the State relies. Bevins v. State, 422 S.W.2d 180, 181 (Tex.Crim.App.1967). The court, in Morman v. State, 127 Tex.Crim. 264, 75 S.W.2d 886 (1934) (per curiam), overruled on other grounds, Rooks v. State, 576 S.W.2d 615 (Tex.Crim.App.1978), stated that an “accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for trial of the question whether he is the convict named therein.” Id. at 887.

Courts have held that, in alleging prior convictions for enhancement of punishment, the allegations should include the court in which the conviction was obtained, the time of the conviction, and the nature of the offense. Hollins v. State, 571 S.W.2d 873, 876 (Tex.Crim.App.1978). However, enhancement-of-punishment allegations are sufficient when the prior convictions were described as felonies, the exact nature of the offenses was given, the cause numbers of the convictions were obtained, and the dates of such convictions were set. Id. (holding that, although courts were not named, allegations that all convictions occurred in Harris County and that each felony offense was committed after a final conviction in the preceding case was sufficient); Arce v. State, 552 S.W.2d 163, 164 (Tex.Crim.App.1977) (holding that enhancement paragraph was sufficient notice to enable accused to locate prior felony convictions alleged, when State gave cause number and county).

The jury charge in this instance did not require the jury to find the name or designation of the convicting court even though the convicting court had been alleged in the indictment. Nevertheless, the jury charge did require the jury to find that both prior convictions were felony offenses, namely, aggravated assault, the identity of the cause numbers in Harris County in which the convictions were obtained, the date of such convictions, and that each felony offense was committed after a final conviction in preceding case. The State’s proof of the allegations was sufficient because it proved all factors required by the jury charge, which was more than the requirements found sufficient in Arce and Bray, namely, the cause number and county of conviction. See Bray, 531 S.W.2d at 635. While appellant can argue that the State’s proof was lessened, it was not improperly lessened by the abandonment of a matter that was immaterial and, thus, surplusage.

Accordingly, we overrule appellant’s sole point of error.

Conclusion

We affirm the judgment of the trial court.


author: LAURA C. HIGLEY, Justice.

text:
    Justin GRUBBS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01322-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 17, 2005.
    Discretionary Review Refused Sept. 14, 2005.

      Josh Schaffer, The Schaffer Firm, Houston, for Appellant.
    Lori Deangelo Fix, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for Appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

LAURA C. HIGLEY, Justice.

After his pretrial motion to suppress evidence was denied, appellant, Justin Grubbs, pleaded guilty to misdemeanor possession of marihuana. The trial court deferred its finding of guilt, placed appellant on community supervision for nine months, and assessed a fine of $150.00.

In his sole issue, appellant contends that the trial court erred in denying his motion to suppress marihuana seized as a result of an unlawful entry into his university dorm room.

We affirm.

BACKGROUND

Appellant and Benjamin Marsh were students residing in Room 101 of Law Hall, a University of Houston (“U of H”) dormitory. At approximately 11:20 p.m., on September 15, 2003, Shaun Deskins, the resident assistant (“R.A.”) on duty in Law Hall, received a complaint concerning the odor of marihuana coming from Room 101.

After confirming the odor, Deskins obtained the master key to Room 101 and instructed another person to contact campus police. Officers Tinney and Roney, of the U of H Police Department, met Des-kins in the hallway outside of Room 101 and confirmed the odor of marihuana emanating from the room. One of the officers knocked on the door, but there was no response. Pursuant to U of H departmental procedure, Deskins announced through the door that he was “the R.A. on-call” and that he was “keying in.”

Deskins unlocked the door, which opened inward, and stepped into the room enough to prop the door open. The design of the room was such that a person standing in the doorway could not see the whole room. Upon stepping or leaning into the room, Deskins could then see appellant and Marsh. The officers remained in the hallway outside of the room and could not see into the room. At some point, appellant and Marsh moved to the doorway. Once the officers could see them from the hallway, Roney asked if they “minded if [the officers] came in.” One of the boys said, “No, go ahead and come on in.”

Inside the room, the officers noted a very strong odor of burned marihuana and determined that Marsh showed signs of marihuana intoxication. The officers asked appellant and Marsh if they had been smoking marihuana. Appellant and Marsh did not respond. Tinney and Marsh then went into the hallway, while Roney spoke with appellant inside the room.

Roney again asked appellant if there was marihuana in the room. Appellant pulled a clear plastic bag from underneath a blanket on Marsh’s bed. The bag contained a green, leafy substance, rolling papers, and a pipe. Appellant admitted that the contents of the bag were his. The officers then arrested appellant and Marsh.

Appellant and Marsh were charged with possession of less than two ounces of marihuana. After a hearing, the trial court denied appellant’s motion to suppress the marihuana. No formal written findings of fact were entered.

Standard of Review

A trial court’s ruling on a motion to suppress evidence will not be set aside unless an abuse of discretion is found. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); State v. Derrow, 981 S.W.2d 776, 778 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). We must afford almost total deference to the trial court’s determination of facts supported by the record, especially when the findings are based on the evaluation of the witnesses’ credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

In reviewing the trial court’s ruling, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to the trial court’s determination of the historical facts and conduct a de novo review of the trial court’s application of the law to those facts. Id. The trial court is the exclusive finder of fact in a motion to suppress hearing, and it may choose to believe or disbelieve any or all of any witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

Where, as here, the trial court does not make explicit findings of fact, we review the evidence in the light most favorable to the trial court’s ruling. Carmouche, 10 S.W.3d at 327-28. We must assume the trial court made implied findings of fact that are supported by the record. Id. Because we do not determine credibility, our review of reasonable suspicion, probable cause, consent, and mixed questions of law and facts becomes a de novo review of legal questions. Derrow, 981 S.W.2d at 778 (citing Ornelas v. United States, 517 U.S. 690, 697-99, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996)).

ANALYSIS

Appellant brought a motion to suppress the marihuana seized from his room, all testimony concerning the events in question, and all oral or written statements made by appellant. Appellant based his motion on state and federal constitutional grounds, as well as on a state statutory ground. U.S. Const, amend. IV; Tex. Const, art. I, § 9; Tex.Code CRiM. PROC. Ann. art. 38.23 (Vernon Supp.2004-2005). On appeal, however, appellant solely raises a claim that the marihuana was seized unlawfully under the Fourth Amendment to the United States Constitution.

In this issue, appellant contends that the trial court erred in denying his motion to suppress marihuana that was seized as a result of an unlawful entry of his university dorm room. Appellant contends that Deskins was not authorized to unlock appellant’s door for campus police, nor could Deskins consent to a search by campus police. Thus, asserts appellant, the subsequent warrantless entry by police and the seizure of the marihuana were unlawful.

A. Fourth Amendment Protections

The Fourth Amendment to the United States Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The Supreme Court has held that the Fourth Amendment generally imposes a warrant requirement for searches. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); see Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). “A ‘search’ occurs when the government violates a subjective expectation of privacy that society considers objectively reasonable.” Dawson v. State, 106 S.W.3d 388, 391 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 2042-43, 150 L.Ed.2d 94 (2001)). It has been established that war-rantless searches are “per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.” Katz, 389 U.S. at 357, 88 S.Ct. at 514.

One of the established exceptions to both the requirements of a warrant and probable cause is a search conducted pursuant to consent. Corea v. State, 52 S.W.3d 311, 315-16 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973)). The State can establish the lawfulness of an illegal search through bearing the burden of proving, by clear and convincing evidence, that consent was freely and voluntarily given. Id. at 316 (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968)). Hence, the State must show that the consent was positive and unequivocal and not merely an acquiescence to a claim of lawful authority. Id. There must be no evidence of coercion. Id.

Thus, an individual may waive his rights under the Fourth Amendment by consenting to a search. Id. Whether consent was voluntary is a question of fact and must be analyzed under the totality of the circumstances. Id. (citing Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48 and Paulus v. State, 633 S.W.2d 827, 850 (Tex.Crim.App.1981)).

B. Authority to Enter

The Fourth Amendment protects people, not places. Katz, 389 U.S. at 351, 88 S.Ct. at 511. Indeed, courts have held that “a student who occupies a college dormitory room enjoys the protection of the Fourth Amendment.” Piazzola v. Watkins, 442 F.2d 284, 289 (5th Cir.1971); see Morale v. Grigel, 422 F.Supp. 988, 997 (D.N.H.1976) (considering dormitory room to be “a home away from home”); Devers v. S. Univ. and A & M Coll., 712 So.2d 199, 204-05 (La.App.1998) (finding that “[a] dormitory room is a student’s house for all practical purposes, and a student has the same interest in the privacy of his room as any adult has in the privacy of his home, dwelling, or lodging”). In the instant matter, appellant had an expectation of privacy in his dorm room and is thus afforded Fourth Amendment protection. In addition, the Court of Criminal Appeals has held that “[t]he odor of marijuana, standing alone, does not authorize a war-rantless search and seizure in a home.” State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App.2002) (analyzing warrantless entry under Code of Criminal Procedure provisions, but applying Fourth Amendment discussion in Johnson, 333 U.S. at 13-14, 68 S.Ct. at 369). However, the Court of Criminal Appeals has recently held that the odor of marihuana emanating from a home, among other things, provides police with probable cause to believe that criminal activity is occurring inside the home. Estrada v. State, 154 S.W.3d 604, 609 (Tex.Crim.App.2005).

To support his contention that the R.A. entered his room unlawfully, appellant cited a provision in the Residence Hall Contract (“Contract”) providing that, “[t]he university reserves the right ... to enter any room for the purpose of inspection, repair, cleaning, inventory, health and safety hazards, or other emergencies,” and argued that there was no evidence that the R.A. entered his room for any of these purposes. The record supports appellant’s assertion that the R.A. entered his room to investigate evidence of criminal activity, and not a fire.

However, the State provided other justification for the entry. The Contract also provides the following:

The student agrees as a condition of this agreement to comply with all University and Student Housing rules, regulations, policies and procedural information, incorporated herein by reference to the “University Student Handbook,” which are now in effect or are amended, or enacted during this term of agreement.

Thus, appellant’s conduct in his dorm room was not only governed by the Contract, but also by the provisions in the Student Handbook (“Handbook”). Appellant concedes on appeal that he was subject to these provisions.

The Handbook provides, under its Residential Life and Housing section, that “[a]ll University of Houston residents are expected to observe local, state, and federal laws.... The Handbook outlines the residents’ responsibilities as members of the educational community.” The following behaviors are prohibited in the residential community and are considered a violation of policy:

I. Alcohol/Drugs
1.1 Being present during or participating in the illegal use, [or] possession, ... of drugs prohibited under the Controlled Substances Act of Texas.

(Marihuana is a controlled substance. Tex. Health & Safety Code Ann. § 481.032 (Vernon 2003)).

In addition, the Handbook includes University Policies (“Policies”) under which “[sjtudents may be subjected to searches and seizures as authorized by university policies and federal, state, and local laws.” Further, the Policies provide that,

[i]n all cases involving public law, statutes, ordinances, student life policies, or university regulations, university action may be taken.... Violations occurring within the residence halls may be resolved by the appropriate residence halls staff and/or referred to the Dean of Students Office.

An R.A. is a trained resident-hall staff member who is charged with resolving such violations in keeping with his duty to maintain community standards of behavior.

In maintaining such standards, the Handbook, Residential Life and Housing, Room Inspection Procedure, states: .

1. University officials, including residence halls staff, ... may enter rooms to fulfill their daily duties, in cases of emergencies, or in cases of reasonable suspicion of activity endangering the individual or the community.

(Emphasis added.) Appellant concedes on appeal that he was subject to this provision.

In sum, the Handbook provides ample authority for the R.A.’s entry. Appellant agreed to abide by university policies outlined in the Handbook when he signed the housing Contract. The evidence supports the State’s argument that the R.A. investigated the marihuana odor in accordance with his duties as an R.A. to monitor the safety of the people in the dorm rooms and to investigate possible disciplinary violations. As discussed above, appellant contracted this investigatory right to the university. Hence, he waived any Fourth Amendment objections to the university’s reasonable exercise of that right. See Utah v. Hunter, 831 P.2d 1033, 1037 (Utah Ct.App.1992) (concluding that by signing residence hall contract prohibiting the possession or consumption of alcohol and reserving the right to enter and inspect in order to enforce the regulations at any time “to protect and maintain the property of the University, the health and safety of its students, or whenever necessary to aid in the basic responsibility of the University regarding discipline and maintenance of an educational atmosphere,” the student waived any Fourth Amendment objections to university’s exercise of that right). The constitutionality of the policy on its face is not at issue.

2. Execution of Entry Policy

Appellant argues that, even if the R.A. was authorized under university policy to enter the room, he failed to follow that policy when he called police prior to entering the room and prior to actually seeing illegal drugs. However, as explained previously, it is the provisions in the Handbook that are incorporated into the housing Contract, signed by appellant, that authorize residence hall staff to enter a student’s room to investigate “any activity endangering the individual or the community.” The Paraprofessional Staff Guide (the “Guide”) is not incorporated into the Contract. Hence, any violation of the Guide is an issue properly handled by the R.A.’s supervisor and has no effect on the legality of the entry.

In addition, appellant asserts,

[ajssuming arguendo that [the R.A.] had the right to enter the room without the police to enforce university policy, he could not give that right to police when the primary purpose of the entry was to investigate the odor of marihuana and to search for evidence of criminal activity. Because [the R.A.] contacted the police once he smelled the marihuana, entered the room with them by his side, and immediately turned over the investigation to them, he acted in concert with the police and unlawfully delegated to them the university’s limited right to enter and inspect dorm rooms.

There is no support in the record for appellant’s argument that the R.A. opened the door “for police,” entered the room with them “by his side,” or “immediately turned over the investigation to them.” To the contrary, the testimony showed that the R.A. opened the door himself and stepped into the room, while the officers waited in the hallway. Neither the R.A. nor the officers could see appellant or his roommate when the door was opened. At some point, appellant and his roommate moved to the doorway and officers could then see them. The testimony showed that the officers then asked if they could come in. Appellant concedes that appellant or his roommate invited the officers in. Hence, the officers did not “immediately take over” the investigation; rather, the evidence showed that the officers were there “basically at the beginning for the safety of the R.A.” and did not become involved until they were invited in by appellant or his roommate.

In this question of first impression in Texas, appellant heavily relies upon Piazzola v. Watkins, 442 F.2d 284 (5th Cir.1971), to support his argument that the conduct of the R.A. was unlawful. Appellant argues that searching for evidence of a crime is unconstitutional. However, Piazzola is clearly distinguishable and is not persuasive. There, state narcotics agents and city police requested the cooperation of university officials in searching 6 to 7 dorm rooms in 2 different dormitories during final exams and over a holiday break. Id. at 286. Some of the rooms were searched more than once. Id. In each instance, there was neither a search warrant nor consent by a resident of the room. Id. The court reasoned that it was, in essence, “a fishing expedition.” Id. at 287. The court found that the university indeed had “broad supervisory powers” to maintain the educational community; however, the second search of the defendant’s room involved a greater invasion of privacy than could be justified by the university’s supervisory interests. Id. at 289-90. Thus, the unconstitutionality derived from the nature of the search. This was a blanket sweep initiated by police and is distinguishable from the case at hand.

Here, we have a single entry by an R.A., into a specific room, based on reasonable suspicion that a violation of university policies was in progress, and pursuant to a specific set of policies that appellant had notice of and consented to, that charge the R.A. with maintaining community standards and resolving violations of university policy. While the court held in Piazzola that the university clearly had no authority to consent to or join the police in a search for evidence of a crime, here there is no evidence that the R.A. consented to an entry or search by the officers, or that the R.A. joined in any such search.

Appellant cites several cases to support his position that an R.A. may not consent to an entry by police into a dorm room. However, because there is no evidence here that the R.A. consented to allow police into the room or consented to any form of search of the room, these cases are not dispositive.

Moreover, there is no evidence that the officers used coercion to gain entry to the room. Cf. Mitchell v. State, 831 S.W.2d 829, 832 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). No seizure occurs when police officers simply ask questions. Id. at 832 & n. 3 (citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)). Further, the State need not prove that the one giving permission knew he had a right to withhold his consent. Schneckloth, 412 U.S. at 226-27, 93 S.Ct. at 2047; Zepeda v. State, 638 S.W.2d 542, 545-46 (Tex.App.-Houston [1st Dist.] 1982, no pet.).

We hold that campus police officers did not violate appellant’s constitutional rights when they entered appellant’s dorm room upon invitation.

C. Seizure of Marihuana

“No evidence obtained by an officer or other person in violation of any provisions ... of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex. Code CRiM. PRO. Ann. art. 38.23(a) (Vernon Supp.2004-2005). Furthermore, “all evidence obtained by searches and seizures in violation of the [United States] Constitution is ... inadmissible in a state court” via the federal exclusionary rule. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961).

Here, appellant not only consented to entry by campus police, but he voluntarily consented to give the officers the marihuana. There is no evidence that either officer engaged in a search of the room. Rather, Roney simply asked appellant if there was marihuana in the room. Appellant voluntarily reached under a blanket on Marsh’s bed and pulled out a bag containing green, leafy substance, rolling papers, and a pipe. Appellant admitted that he owned the contents. A defendant who voluntarily delivers something to police cannot later complain of an illegal search and seizure. Weaver v. State, 159 Tex.Crim. 225, 262 S.W.2d 510, 510 (1953).

We hold that appellant’s constitutional rights were not violated when campus police received marihuana that appellant voluntarily relinquished. The marihuana was lawfully obtained and appellant’s motion to suppress was properly denied.

Appellant’s sole issue is overruled.

CONCLUSION

We affirm the judgment of the trial court.

      . The university's Paraprofessional Staff Guide outlines its Operating Procedures and Policies. Included, in its Incident Response Procedures, is a "guideline" for R.A.S in dealing with violations of the university's policy prohibiting marihuana use.
      Marijuana

        Should you come across the odor or have it reported to you,
      1. Try to determine which room the smell is coming from.
      2. Try to get SSOC back-up very quickly with floor master keys.
      3. Upon arrival of the back-up, knock on the door and announce yourself.
      4. If there is no response, or if there is a delay, repeat yourself and indicate that you are keying in.
      5. Once you are in the room, take in as much information as you can: what you smell, what you see (window open, fan, towels under the door, paraphernalia).
      6. If you see drugs, then call police.

      . Specifically, appellant cites Commonwealth v. McCloskey, 217 Pa.Super. 432, 272 A.2d 271, 273 (1970); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); United States v. Poole, 307 F.Supp. 1185, 1188-89 (E.D.La.1969).


author: SAM NUCHIA, Justice. EVELYN KEYES, Justice,

text:
    Ryan William MADDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-02-01243-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 17, 2005.
    Rehearing Overruled June 30, 2005.
    Discretionary Review Granted Dec. 7, 2005.

      Allen C. Isbell, Houston, for Appellant.
    Donald W. Rogers Jr., Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, for Appellee.
    Panel consists of Justices TAFT, NUCHIA, and KEYES.
   OPINION

SAM NUCHIA, Justice.

Appellant, Ryan William Madden, was charged by indictment with two paragraphs of felony possession of cocaine with intent to deliver. The State proceeded on the first paragraph alleging cocaine weighing at least 400 grams; the State abandoned the second count involving cocaine weighing 2.9 kilograms. A jury found appellant guilty and sentenced him to 30 years in prison. Appellant, in three points of error, contends that the trial court erred as follows: (1) in denying appellant’s motion to suppress the evidence collected from the trunk of the rental car he was driving because he was detained after the traffic offense investigation should have been completed to allow for a narcotics-sniffing dog to arrive; (2) in denying his motion for a mistrial after it became known that the videotape furnished to appellant by the State was misleading and adversely affected appellant’s theory, preparation, and presentation of his case; and (8) in denying his request for an article 88.23 instruction regarding the legality of appellant’s continued detention after the investigation on the traffic offense had concluded. We reverse and remand.

BACKGROUND

On July 10, 2002, Trooper Lawrence Lily of the Texas Department of Public Safety observed appellant exceeding the speed limit by driving 61 miles per hour in a 55-miles-per-hour construction zone on Interstate 10. He also observed another vehicle, a GMC Jimmy, pass appellant’s car and begin “riding the bumper” of an 18 wheeler at a speed of 63 miles per hour. Both vehicles had Florida license plates. Lily had received training regarding the tactics of drug convoys and felt that the driver of the GMC Jimmy was seeking to divert his attention from appellant’s car by performing an illegal activity. He proceeded to stop both vehicles for speeding.

After both vehicles were stopped, Lily identified himself and asked appellant to step to the rear of his car with his driver’s license. Lily testified that appellant’s hands were shaking tremendously as he handed Lily his Florida driver’s license. Lily further noted that appellant’s face was trembling. Lily proceeded to question appellant on where he was coming from and who owned the car. Appellant indicated that he was coming from Burlestine [sic] and that the car was a rental. The direction appellant pointed, according to Lily, did not coincide with the direction appellant said he was coming from. Lily looked at the rental papers for the vehicle. He found that the car was rented in Orlando, Florida and that the rental agreement had expired four days before. Appellant told Lily that he had dealt with the overdue return of the rental car over the phone. When Lily asked him who he was traveling with, appellant answered that he was traveling by himself.

When asked if he had been arrested for anything previously, appellant responded that he had been arrested for driving while intoxicated. Lily ran a driver’s license and criminal history check on appellant and was informed that he had been arrested for larceny in 1996. Lily then requested backup and a Harris County K-9 unit.

When his backup, Trooper Kunz, arrived, Lily questioned the people in the GMC Jimmy. Both of the people in the GMC Jimmy, Michael Johnson and Joseph Watt, also had Florida driver’s licenses and said that they knew appellant. This, Lily believed, contradicted appellant’s statement that he was traveling by himself. Appellant then told Lily that he misunderstood the question at the time and that he was traveling with Johnson and Watt. Johnson and Watt claimed that they were coming from Arlington, Texas and that they had been there for two days. Appellant told Lily that he stayed with his family while in Texas. However, when confronted with Johnson’s and Watt’s statements, that they were visiting their family, appellant changed his story, saying that he was traveling with Johnson and Watt and had stayed with their family.

When the K-9 unit arrived, approximately 25 minutes after the request, Lily asked the K-9 handler, Deputy Peterson, to run his dog around the exteriors of the vehicles. Peterson did so and informed Lily that the dog positively alerted for some form of narcotics located both in the trunk of appellant’s rental car and in the back of the GMC Jimmy. Lily searched the rental car’s trunk and found a container filled with dog food and a sack containing three bricks of cocaine, a rifle, a shotgun, three handguns, and ammunition. Two-way radios were also found in both cars. No drugs were found in the GMC Jimmy.

DISCUSSION

In his third point of error, appellant contends that the trial court erred by denying his request for a jury instruction regarding the legality of appellant’s continued detention after the investigation of his speeding offense should have ended. Appellant argues that there are disputed facts regarding the basis for his detention after the investigation for the speeding offense should have been concluded.

Lily testified that one of the six facts that led to his suspicion that appellant’s vehicle contained contraband, and to his continued detention of appellant, was appellant’s nervousness, demonstrated by his hands shaking, his fumbling with his wallet, and his face trembling. Appellant claims that a videotape in evidence does not show the shaking, fumbling, and trembling that Lily described.

After the State and appellant rested, the trial court held a charge conference, at which appellant proffered two article 38.23 instructions and requested that they be included in the jury charge. His first requested instruction regarded Lily’s reasonable suspicion for the initial stop to investigate the traffic offense, and the second regarded Lily’s reasonable suspicion to continue detaining appellant after the investigation of the traffic offense ended. The trial court granted appellant’s request for the article 38.23 instruction regarding the initial traffic stop, noting that the videotape showed that appellant had told Lily that he was only going 55 miles per hour, which created a fact issue as to Lily’s reasonable suspicion to initiate the traffic stop.

However, the trial court denied appellant’s request that the jury charge include the second article 38.23 regarding his continued detention. At the charge conference, appellant’s counsel argued that the videotape rebutted Lily’s testimony that he observed appellant’s hands shaking, appellant fumbling with his wallet, and appellant’s face contorting. The trial court responded to appellant’s argument as follows:

I think the record is clear on what you are saying are factual disputes. I do not think that there are factual disputes to be determined by a jury. I think all the things that you are setting out are for an Appellate Court, if it goes there, to decide whether or not those things rise to the level of what they believe in 2002 will allow an officer to keep them there the 15 minutes it took to get the drug dog there and I do not think that there are any factual disputes. I am not going to give you a charge on that....

Once investigation of conduct that initiated a traffic stop is concluded, continued detention is permitted only if there is reasonable suspicion to do so. Woods v. State, 956 S.W.2d 33, 35, 38 (Tex.Crim.App.1997). To demonstrate reasonable suspicion in this case, the State had to present to the trial court specific articulable facts, which, when combined with rational inferences from those facts, led Lily to reasonably suspect that appellant “had engaged, was engaging, or was soon to engage in criminal activity.” Id. (applying totality of circumstances test for reasonableness of temporary detention and requiring detaining officer to have specific articulable facts and rational inferences from those facts, leading him to reasonable suspicion of criminal activity). See also $217,590.00 in United States Currency v. State, 54 S.W.3d 918, 924 (Tex.App.-Corpus Christi 2001, no pet.) (“A stop based on a violation of a traffic regulation will not justify detention to await the arrival of a drug detection dog ... [which] is necessarily a greater imposition on a motorist than conducting a search immediately upon the arousal of a reasonable suspicion.”).

A defendant is entitled to a jury instruction under article 38.23(a) when a fact issue exists regarding the basis for an officer’s seizure of evidence. Davy v. State, 67 S.W.3d 382, 388 (Tex.App.-Waco 2001, no pet.) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App.2000)). When a fact issue is raised, regardless of the level it rises to, the trial court is statutorily bound to submit an instruction to the jury. See Jordan v. State, 562 S.W.2d 472, 473 (Tex.Crim.App.1978) (“The terms of Article 38.23 are clearly mandatory, the only issue being whether under the facts of a particular case an issue concerning the validity of the search is raised by the evidence.”); Reece v. State, 878 S.W.2d 320, 324, (Tex.App.-Houston [1st Dist.] 1994, no pet.) (same).

Lily testified that he did not think the videotape conclusively showed that appellant was shaking, trembling, and fumbling with his wallet. Lily speculated that this was due to the low quality of the videotape and was not necessarily evidence contradicting his testimony as to one of the six facts upon which he based his reasonable suspicion.

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.

Therefore, we hold that it was error for the trial court not to give the article 38.23 instruction on the reasonableness of the continued detention. We next apply the harmless error rule of article 36.19 to the failure to give the article 38.23 instruction. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003).

Under this standard, when, as here, a defendant has made a timely objection and there is error, reversal is required if there is “some harm to the accused from the error.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g). Thus, we must reverse provided the error is not harmless. Id. To determine whether there is harm, we must evaluate “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.” Id. Some harm means any actual harm, regardless of degree. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986). We may affirm cases involving preserved charging error only if no harm has occurred. Id. But we must measure the error’s harmfulness at least in part against the likelihood that the verdict was actually based on another theory of culpability unaffected by the erroneous charge. Govan v. State, 682 S.W.2d 567, 570-71 (Tex.Crim.App.1985), overruled on other grounds by Brown v. State, 716 S.W.2d 939, 945 (Tex.Crim.App.1986); see also Atkinson, 934 S.W.2d 896, 897 (Tex.App.-Fort Worth 1996) (analyzing harm after remand by Court of Criminal Appeals in Atkinson v. State, 923 S.W.2d 21, 27 (Tex.Crim.App.1996), overruled on other grounds by Motilla v. State, 78 S.W.3d 352, 356 (Tex.Crim.App.2002)).

We begin our harm analysis by analyzing the jury charge itself. See Almanza, 686 S.W.2d at 171. The jury was given an article 38.23 instruction regarding the initial stop for speeding. The jury charge allowed the jury to resolve that factual issue in appellant’s favor and not to consider the evidence from the search of the rental car. However, the jury here resolved the factual issue regarding the initial stop for speeding in favor of the State, and the jury charge did not allow resolution of the factual issue of whether Lily had reasonable suspicion to warrant continued detention. Had the jury resolved this second factual issue in favor of appellant, then it would have been instructed not to consider the tainted evidence.

We next examine the state of the evidence, including contested issues and the weight of the probative evidence. See id. The evidence in this case bearing on the seizure of the drugs consists of, as previously stated, Lily’s testimony, the videotape, and the drugs.

We next examine the arguments of counsel. See id. Appellant’s counsel told the jury, in opening arguments, that the evidence would show that there was no reasonable suspicion that would justify appellant’s continued detention. In closing arguments, appellant’s counsel re-asserted the conflict between the videotape and Lily’s testimony regarding the signs of nervousness Lily alleged that appellant displayed. But, as the charge was worded, the jury was not allowed to give effect to appellant’s counsel’s argument regarding the reasonableness of the suspicion leading to appellant’s continued detention. The trial court’s denial of appellant’s requested instruction undermined appellant’s best opportunity to get the jury to conclude that the cocaine was illegally seized. Moreover, there is no other theory of culpability that would be unaffected by an erroneous charge. See Govan, 682 S.W.2d at 570-71. The prosecutor, of course, highlighted the evidence that appellant “was lying and he was shaking.”

After examining the entire jury charge, the jury verdict, the disputed and undisputed evidence, the weight of the probative issues, and the arguments of counsel, we conclude that the failure to provide an article 38.23 instruction regarding appellant’s continued detention produced at least some actual harm to appellant. See Almanza, 686 S.W.2d at 172. Because this issue is determinative, we need not address appellant’s other points of error.

CONCLUSION

We reverse the judgment of the trial court and remand the cause to the court below for further proceedings consistent with this opinion.

EVELYN KEYES, Justice,

dissenting.

I respectfully dissent. I would hold that there was insufficient evidence to raise a fact issue as to the illegality of the search; thus the trial court did not err in refusing to grant an Article 38.23(a) instruction. I would affirm the judgment of the trial court.

Introduction

Appellant’s theory of the case, as explained in the defense’s opening argument at trial, was not that appellant was not guilty, but that the evidence of his guilt was illegally obtained. Although appellant filed a pre-trial motion to suppress the evidence of narcotics, he failed to set the motion for hearing prior to trial. Instead, he waited until the officers had testified at trial about the traffic stop, the facts giving rise to Officer Lily’s suspicion that appellant was engaged in illegal activities, appellant’s detention to permit a drug-sniffing dog to be brought to the scene, the dog’s alerting to the trunk of appellant’s rental car, the search of the trunk, and the discovery of the cocaine. A videotape of appellant’s behavior at the scene had been admitted into evidence, and testimony had been received regarding the seizure, chain of custody, and composition of the three kilograms of cocaine found in appellant’s trunk.

Only when the State sought to admit the cocaine into evidence did appellant’s counsel object and request that the jury be excused before he stated the grounds of his objection. The court immediately recessed the jury and held a hearing on appellant’s motion to suppress the cocaine on the ground that “this is the fruits of an illegal search based upon without [sic] probable cause, without reasonable suspicion and in the excessive detention and we object to it and we assert that it should be suppressed.” After hearing the arguments of counsel, the court denied the motion to suppress and admitted the cocaine into evidence.

The defendant requested that the trial court instruct the jury both as to (1) its right to disregard evidence obtained without probable cause to stop appellant’s vehicle for a traffic violation and (2) its right to disregard the narcotics evidence if they found that Officer Lily lacked reasonable suspicion to continue the detention beyond the traffic stop for a narcotics search. The trial court denied appellant’s proffered instruction regarding reasonable suspicion to continue detention, which would have instructed the jury that if they found that the vehicle appellant was driving had been “stopped by a police officer in a bona fide stop or arrest for the traffic offense of speeding, and that the officer, while questioning the driver of the said vehicle concerning the traffic offense, acquired reasonable suspicion to believe and did believe that a narcotics offense was being committed, whereupon he continued the detention of [appellant] and the vehicle beyond the time necessary to effect the investigation for speeding,” they could “consider the evidence obtained by the search of the suspect vehicle,” and, if they did “not so find beyond a reasonable doubt,” or if they had “a reasonable doubt thereof,” they should “wholly disregard such evidence recovered in the search of the vehicle, and not consider it as any evidence whatsoever.” The jury convicted appellant, and this appeal ensued.

Jury Charge

In his third point of error, appellant contends that the trial court erred by denying his request for an Article 38.23(a) instruction regarding the legality of appellant’s continued detention after Lily had ended his investigation of appellant’s speeding.

Article 38.23(a) provides as follows:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. 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 that event, the jury shall disregard any such evidence so obtained.

Tex.Code Ckim. PR0C. Ann. art. 38.23(a) (Vernon Supp.2004) (emphasis added). The question, therefore, is whether the legal evidence raises an issue as to whether the cocaine was obtained in violation of law, specifically through an illegal detention to search for narcotics. Appellant argues that because there were disputed facts regarding his detention, an Article 38.23(a) instruction was required to inform the jury of their right to disregard the evidence of the fruits of the search if they found the detention unreasonable. I disagree with appellant and with the majority that the disputed evidence raises a fact issue as to whether Officer Lily had reasonable suspicion to prolong the detention, warranting an Article 38.23(a) instruction.

Garza v. State, 126 S.W.3d 79, 84-85 (Tex.Crim.App.2004), and Thomas v. State, 884 S.W.2d 215, 216-17 (Tex.App.-El Paso 1994, pet. ref'd) (discussed in Garza, 126 S.W.3d at 84), are both strikingly similar to this case. In Garza, the petitioner argued to the Court of Criminal Appeals that the trial court had erred in denying his request for an Article 38.23 jury instruction regarding the legality of the search of his van, in which cocaine was found. Garza, 126 S.W.3d at 85. The Court of Criminal Appeals disagreed. While acknowledging that “[a] fact issue about whether evidence was illegally obtained may be raised ‘from any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable,’ ” — as the majority in this case observes — the court nonetheless specifically noted “that an Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained.” Id. (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd)).

The Garza court held that since the defendant’s testimony did not “ ‘differ significantly’ from that of the officers” as to “how the officers discovered the drugs and the paraphernalia,” suggestions by the defendant’s counsel that the officers were on a fishing expedition did not “rise to the level of creating a fact issue.” Id. at 86. It stated, “That appellant ‘disagrees with the conclusion that probable cause was shown as a matter of law3 ” is not the same as appellant controverting the facts. ... “The question of whether the search was legal is a question of law, as none of the circumstances surrounding the search were controverted by appellant.” Id. (emphasis in original).

Similarly, in Thomas, the defendant was arrested after a weapons search of his body resulted in the discovery of contraband; the facts of the case showed that, in the process of searching the defendant’s outer clothing for a weapon, the officer had developed probable cause to search defendant’s pockets for contraband. Therefore, the court held that the defendant’s request for an Article 38.23(a) instruction on grounds that the search went, beyond the legal scope of the detention was properly denied. Thomas, 884 S.W.2d at 215(cited favorably in Garza, 126 at 86-87).

In this case, likewise, there is no factual dispute sufficient to raise an issue for the jury as to whether Officer Lilly had reasonable suspicion to continue appellant’s detention. There is only a dispute over whether the videotape is sufficiently clear in showing that appellant’s hands were not shaking to refute Officer Lily’s testimony that appellate was nervous and his hands were shaking. As the Court of Criminal Appeals observed in Garza, “That appellant ‘disagrees with the conclusion that probable cause was shown as a matter of law” is not the same as appellant’s controverting the facts of the search. See 26 S.W.3d at 86. 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.

A routine traffic stop is a detention and must be reasonable under both the United States and Texas constitutions. See Davis v. State, 947 S.W.2d 240, 245 (Tex.Crim.App.1997). To be reasonable, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); Davis, 947 S.W.2d at 243, 245. In making an investigatory detention that stops short of an arrest, the officer’s action must be supported by reasonable suspicion to believe that the person or is about to be engaged in criminal activity. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750 (2002). To make a reasonable-suspicion determination, the court must look at the “totality of the circumstances” of the case to see whether the detaining offer had a “particularized and objective basis” for suspecting legal wrongdoing. Id. at 273, 122 S.Ct. at 750; see also $217,590.00 In United States Currency v. State, 54 S.W.3d 918, 924 (Tex.App.-Corpus Christi 2001, no pet.) (stop based on traffic violation will not justify continued detention to await arrival of drug-detection dog unless officer has specific articulable facts which, under totality of circumstances, raise reasonable suspicion that vehicle contains contraband); Veal v. State, 28 S.W.3d 832, 835 (Tex.App.-Beaumont 2000, pet. ref'd). Although an officer’s reliance on a mere “hunch” is insufficient to justify an investigatory detention, the likelihood of criminal activity need not rise to the level required for probable cause and falls considerably short of the preponderance of the evidence standard. Arvizu, 534 U.S. at 274, 122 S.Ct. at 751. The standard of review of reasonable suspicion determinations is de novo. Id. at 276, 122 S.Ct. at 751.

In Arvizu, the Supreme Court held that a border patrol agent had reasonable suspicion for an investigatory stop of the defendant’s minivan where (1) the stop occurred in a remote area of rural Arizona; (2) it was reasonable for the agent to infer from his observations, his registration check, and his experience that the defendant had set out from a border town along a little-traveled road used by smugglers to avoid a border patrol checkpoint; (3) the vehicle had turned away from known recreational areas, diminishing the chance that the defendant and his family were on a picnic; (4) the children’s elevated knees suggested concealed cargo; and (5) the children’s prolonged mechanical waving was odd. Id. at 277, 122 S.Ct. at 752-53.

Here, Lily testified to six facts that led to his suspicion that appellant’s vehicle contained contraband: (1) the diversionary tactics taken by the GMC Jimmy, which were consistent with the tactics used by drug convoys; (2) appellant’s nervousness, including his hands shaking and his face trembling; (3) appellant’s uncertainty about his whereabouts while in the state; (4) appellant’s statement that he had only been arrested for DWI when he had also been arrested for larceny; (5) the fact that the rental agreement for the vehicle had expired; and (6) the conflicts among appellant’s statement that he was traveling alone and had stayed with his family, the statements of the two men in the GMC Jimmy, and appellant’s revised statement regarding his stay in the State. The only one of these factors as to which there was conflicting evidence was Officer Lily’s testimony regarding appellant’s nervousness, which appellant contends was refuted by the videotape of his arrest.

The facts in this case are very similar to those in Arvizu and almost identical to those this court found to be sufficient to establish reasonable suspicion in Sims v. State, 98 S.W.3d 292, 296-97 (Tex.App.-Houston [1st Dist] 2003, pet. ref'd). In Sims, we found that a reasonable suspicion of criminal behavior was justified when (1) another car was traveling in an erratic manner in front of the officer in an apparent attempt to distract the officer; (2) the car contained a “large amount” of air fresheners; (3) the driver of the car was “extremely nervous”; (4) the driver hesitated before she spoke, and the trooper believed that her explanation of where she had come from was internally inconsistent; (5) when the trooper asked the driver to step out from between the cars, she put her hands up as if she were being placed under arrest; and (6) the driver was driving a rental van and was unable to provide the rental agreement paperwork. In both Arvizu and Sims, applying the totality of the circumstances test, the court found that the officer had reasonable suspicion to detain the driver and the vehicle for a narcotics search.

Appellant relies upon Veal v. State to support his argument that Lily lacked reasonable suspicion to detain him long enough for a narcotics dog to sniff the vehicle. Veal v. State, 28 S.W.3d at 836-37. Veal, however, is distinguishable. In Veal, the court held that, although the officer’s testimony that he observed the defendant’s vehicle abruptly change lanes without signaling and then stop while still in the lane of travel on an interstate highway demonstrated an objectively valid reason for stopping him, despite evidence of a somewhat pretextual nature of the stop, the defendant’s wearing a dress shirt and tie late at night, driving from Houston, and taking several seconds to answer where he had eaten that night did not give rise to a reasonable suspicion of criminal activity justifying an investigatory detention. Id, at 837.

As in Arvizu and Sims, while each of the facts Lily testified to here, standing alone, might not give him reasonable suspicion that appellant was involved in some form of criminal activity, the totality of the circumstances plainly supports a finding of reasonable suspicion of such activity, even if the jury were to decide that the videotape refuted Officer Lily’s testimony that appellant was nervous.

An Article 38.23(a) instruction is given only when the legal evidence raises an issue as to whether evidence was obtained by an officer or other person in violation of a provision of law. See Tex.Code Crim. Proc. Ann. art. 38.23(a). Here, even the jury’s determination that the videotape did not show appellant’s nervousness would not be enough to show that Officer Lilly lacked reasonable suspicion to continue to detain appellant after the traffic stop ended. Since appellant did not raise an issue as to the legality of his continued detention for a narcotics search, the proffered instruction to the jury to disregard evidence obtained if they found Officer Lily lacked reasonable suspicion to continue the detention would have been improper.

I would hold that the trial court did not err in denying an Article 38.23(a) instruction regarding reasonable suspicion to continue detention. If, however, it was error to fail to charge the jury under Article 38.23(a), I would hold that the error was harmless because five of the six reasons the trooper gave justifying the detention were sufficient as a matter of law.

Conclusion

I would overrule appellant’s third point of error.

I would affirm the judgment of the trial court.

      . The jury instruction denied by the trial court reads as follows:
      You are instructed that once a bona fide stop or arrest has been made for a traffic offense, and the police officer, while questioning the motorist regarding the traffic offense, acquires a reasonable suspicion to believe and does believe, that the vehicle contains narcotics possessed contrary to law, he may thereupon continue to detain the vehicle until probable cause arises to search such vehicle.
      By the term "reasonable suspicion” as used herein is meant specific articulable facts which, when taken together with rational inferences from those facts, would warrant a man of reasonable caution to believe that an offense has been or is being committed and the continued detention justified.
      Now, therefore, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that the vehicle driven by RYAN WILLIAM MADDEN was stopped by a police officer in a bona fide stop or arrest for the traffic offense of speeding, and that the officer, while questioning the driver of the said vehicle concerning the traffic offense, acquired reasonable suspicion to believe and did believe that a narcotics offense was being committed, whereupon he continued the detention of RYAN WILLIAM MADDEN and the vehicle beyond the time necessary to effect the investigation for speeding, then you may consider the evidence obtained by the search of the suspect vehicle.
      If you do not so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, then you will wholly disregard such evidence recovered in the search of the vehicle, and not consider it as any evidence whatsoever.

      . Article 36.19 provides as follows:
      Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not.be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.
      Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981).

      . Officer Lily spoke to the occupants of the GMC after his backup had arrived and after he had made the request for a drug-sniffing dog.

      . The standard of proof of reasonable suspicion under the totality of the circumstances test “need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274, 122 S.Ct. at 751. The instruction requested by appellant and denied by the trial court would have informed the jury that "if you find, from the evidence beyond a reasonable doubt that the vehicle driven by [appellant] was stopped by a police officer in a bona fide stop or arrest for the traffic offense of speeding, and the officer, while questioning the driver of the said vehicle concerning the traffic offense, acquired reasonable suspicion to believe and did believe that a narcotics offense was being committed, whereupon the continued the detention of [appellant] and that the vehicle beyond the time necessary to effect the investigation for speeding, then you may consider the evidence obtained by the search of the suspect vehicle.” The proffered instruction misstates the law by establishing a much higher standard for the jury’s finding reasonable suspicion than the law requires and is erroneous.