Court of Appeals
Tenth Appellate District of Texas
10-25-00065-CR
Tatiana Hightower,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
County Court at Law No. 1 of McLennan County, Texas
Judge Vik Deivanayagam, presiding
Trial Court Cause No. 20230431CR1
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
A jury found Appellant Tatiana Hightower guilty of the offense of driving
while intoxicated with a blood alcohol content of 0.15 grams of alcohol per one
hundred milliliters of blood or greater. TEX. PENAL CODE ANN. § 49.04(d). The
State and Hightower entered into an agreement on punishment, the trial court
accepted the agreement and assessed Hightower’s punishment at 365 days in
jail. The trial court further suspended imposition of the sentence and placed Hightower on community supervision for 24 months. Hightower now brings
this appeal. We affirm.
A. Background
While on patrol, Officers Jeremy Schwindt and Antonio Moreno observed
Hightower drive into a gas station parking lot after midnight when they
noticed that Hightower’s car had a defective right brake light. Later, the
officers saw Hightower’s car again while she was stopped at a green light in an
intersection. Schwindt noticed that Hightower’s right brake light was “still
out.” Based on this observation at the intersection, the officers initiated a
traffic stop for the suspected equipment violation.
During the stop, the officers noticed signs of intoxication such as the odor
of alcohol and Hightower’s slurred speech. They also noticed a cup in the
center console that appeared to contain an alcoholic beverage. As a result,
Schwindt initiated a DWI investigation. Hightower consented to complete
three standard field sobriety tests. Schwindt identified multiple “clues” of
intoxication based on Hightower’s performance of the tests. Based on those
indicators, the officers arrested Hightower for driving while intoxicated.
The officers took Hightower to jail where a nurse drew her blood
pursuant to a search warrant. Hightower’s blood alcohol content was 0.175
grams of alcohol per one hundred milliliters of blood.
Hightower v. State Page 2
B. Issue One
In her sole issue, Hightower argues that the trial court erred in refusing
to include an article 38.23(a) instruction in the trial court’s charge to the jury.
See TEX. CODE CRIM. PROC. ANN. art. 38.23(a).
C. Authority
When reviewing a claim that the trial court failed to properly instruct
the jury, we first ask whether any error occurred; if none did, our analysis ends.
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The purpose of
the trial court’s charge is to instruct the jurors on “all of the law that is
applicable to the case.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App.
2012). When a factual dispute is material to a defendant’s claim that evidence
was obtained in violation of a constitutional or statutory provision, article
38.23(a) requires an exclusionary-rule instruction. Madden v. State, 242
S.W.3d 504, 509–10 (Tex. Crim. App. 2007). The defendant is entitled to the
submission of such a jury instruction under article 38.23(a) only if:
(1) the evidence heard by the jury raises an issue of fact,
(2) the evidence on that fact is affirmatively contested, and
(3) that contested fact issue is material to the lawfulness of
the challenged conduct employed in the acquisition of the
evidence.
Madden, 242 S.W.3d at 510.
Hightower v. State Page 3
D. Analysis
Hightower contends that the trial court abused its discretion in denying
her request to include an article 38.23(a) jury instruction on the grounds that
she raised a fact issue regarding the lawfulness of the traffic stop. She argues
that (1) the arresting officer’s inconsistent testimony raised an issue of fact and
(2) the dash camera footage of the traffic stop raised an issue of fact.
To raise a fact issue a defendant must provide affirmative evidence of
facts that contests the other evidence of that fact. Hinds v. State, No. 10-09-00353-CR, 2011 WL 104518, at *2 (Tex. App.—Waco Jan. 12, 2011, no pet.)
(mem. op., not designated for publication); see also Madden, 242 S.W.3d at 514;
Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008).
The evidence raising a fact issue may be strong, weak, contradicted,
unimpeached, or unbelievable, but it still must affirmatively conflict with the
State’s assertion of a material fact to warrant an article 38.23(a) instruction.
Johnson v. State, 692 S.W.3d 660, 664 (Tex. App.—Fort Worth 2023, pet. ref’d).
For example, to contest evidence that a defendant was speeding, the
defendant’s evidence must affirmatively show that he was not speeding. See
Madden, 242 S.W.3d at 513.
First, Hightower argues that Schwindt’s testimony raised a disputed
factual issue regarding the functionality of the brake light because the words
Hightower v. State Page 4 he used to describe the brake light—“out” and “dimmer”—conflicted with each
other. However, this inconsistency did not raise a disputed factual issue
because describing the right brake light as “dimmer” than the left brake light
does not affirmatively conflict with Schwindt’s general assertion that the right
brake light was not functioning properly. See Johnson, 692 S.W.3d at 664.
Thus, we conclude that the trial court did not abuse its discretion because it
reasonably could have determined that this minor inconsistency did not
affirmatively contest Schwindt’s testimony that the brake light was
malfunctioning.
Second, Hightower argues that the dash camera footage disputes
Schwindt’s testimony that the brake light was out. Having reviewed the record
before us, we conclude that the dash camera footage of the traffic stop does not
affirmatively conflict with Schwindt’s testimony. Thus, the trial court did not
abuse its discretion in finding that the dash camera footage evidence did not
raise a disputed fact issue because the footage failed to clearly show that the
right brake light was not “malfunctioning,” as Schwindt had testified. See
Thomas v. State, No. 10-11-00250-CR, 2013 WL 2639168, at *6 (Tex. App.—
Waco June 6, 2013, no pet.) (video evidence does not raise a disputed fact issue
when it fails to clearly show that appellant affirmatively did not do something
that the officer said that the appellant did do).
Hightower v. State Page 5
We conclude that article 38.23(a) did not apply and that the trial court
did not err in refusing Hightower’s requested instruction. Because there was
no error, our analysis ends, and we overrule Hightower’s sole issue.
E. Conclusion
We affirm the trial court’s judgment.
MATT JOHNSON
Chief Justice
OPINION DELIVERED and FILED: October 15, 2026
Before Chief Justice Johnson,
Justice Harris, and
Justice Westerfeld
Affirmed
Do Not Publish
CR25
Hightower v. State Page 6