HERNANDEZ, ISRAEL GARCIA v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0176-25

ISRAEL GARCIA HERNANDEZ, Appellant

v.

THE STATE OF TEXAS, Appellee

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
WILLACY COUNTY

MCCLURE, J., filed a concurring opinion.

CONCURRING OPINION

I join the Court’s opinion and write separately to discuss the unique nature of

the statute in this case, which effectively requires the jury to make a legal

determination. See TEX. PENAL CODE § 38.04 (Evading Arrest or Detention).
HERNANDEZ CONCURRENCE — 2

To prove that a defendant is guilty of evading arrest or detention, the State

must prove, beyond a reasonable doubt, that the attempted arrest or detention was

lawful. See TEX. PENAL CODE § 38.04(a) (“A person commits an offense if he

intentionally flees from a person he knows is a peace officer . . . attempting lawfully

to arrest or detain him.”). As the Court discussed, the lawfulness of the detention in

this case turns on whether Officer Garcia had reasonable suspicion to execute a

traffic stop.

I. The Jury is Asked Even More than Usual in Evading Cases

It is exceedingly rare that the question of whether reasonable suspicion exists

is decided by the jury. This is one of those rare cases because the lawfulness of the

detention was an element of the charged offense. Most of the time, the lawfulness of

a detention is not an element but an evidentiary issue that can be raised pretrial

through a motion to suppress and resolved by the trial court. But even if the trial

court resolves the question pretrial, the jury might still be asked to make a reasonable

suspicion determination at trial, pursuant to an Article 38.23 instruction. TEX. CODE

CRIM. PROC. art. 38.23(a); see Chambers v. State, 663 S.W.3d 1, 5 (Tex. Crim. App.

2022).
HERNANDEZ CONCURRENCE — 3

An Article 38.23 instruction tells the jury to disregard any evidence that the

jury “finds was unconstitutionally or illegally obtained.” Chambers, 663 S.W.3d at 4.

Such an instruction is only proper if there is a contested issue of “specific historical

fact” for the jury to decide “that is material to the legality of obtaining the

evidence.” Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008). An Article

38.23 instruction must provide the jury with guidance as to what facts to consider in

making a reasonable suspicion determination. 1 See id. at 200. In other words, in a

proper 38.23 instruction, the trial court tells the jury which facts to consider, and

what the outcome must be if the jury believes those facts to be true.

In making such a determination, the jury cannot be asked to apply the law to

the facts—rather, “the jury decides facts” and “the judge decides the application of

the law to those facts.” Madden v. State, 242 S.W.3d 504, 511 (Tex. Crim. App.

2007). This is because a jury is ill-equipped to “‘wrestle with’ the legal

determination of whether certain facts do or do not constitute ‘reasonable

suspicion.’” Id. at 513 (citing Garza v. State, 126 S.W.3d 79, 86 (Tex. Crim. App.

2004)).

1
In Holmes, the Court explained that a 38.23 instruction should sound something like this: “If
the jury believes ‘X’ fact (e.g., that [the officer] did not reasonably believe that the defendant was
holding a garden hoe) . . . then it should disregard any evidence (such as the crack pipe) obtained
by [the officer] as a result of the defendant’s arrest and search.” Holmes, 248 S.W.3d at 200.
HERNANDEZ CONCURRENCE — 4

For example, the appellant in Madden wanted a jury instruction on whether

the “totality of the facts that [the officer] listed constituted ‘reasonable suspicion.’”

Madden, 242 S.W.3d at 512. This Court found the proposed instruction improper

because it “focused only on the law” and “did not set out any specific historical fact

that the jury was to focus upon” in determining whether the officer had reasonable

suspicion. Id. at 512 (explaining proposed instruction failed to point to observations

listed by officer, such as trembling face, shaking hands, fumbling for wallet, etc.). A

jury “cannot be expected to decide whether the totality of certain facts do or do not

constitute ‘reasonable suspicion’ under the law.” Id. at 511.

In this case, the jury was instructed to determine whether the State proved,

beyond a reasonable doubt, that “the attempted arrest or detention was lawful.” The

only guidance the trial court provided on how to assess the lawfulness of the

detention was the following, included in the “Definitions” section of the jury charge:

Lawful Attempted Detention

A brief detention of a person by a peace officer is lawful if the officer has

“reasonable suspicion.” “Reasonable suspicion” means facts known to

the officer that would lead a reasonable law enforcement officer to

reasonably suspect that a specific person has engaged in criminal
HERNANDEZ CONCURRENCE — 5

activity, is engaging in criminal activity, or is about to engage in such

activity.

Although this was not an Article 38.23 instruction but rather part of the

definitions section of the jury charge, it would not withstand scrutiny had it been

offered as an Article 38.23 instruction. This is because it asks the jury to do precisely

what this Court held impermissible in Madden—to determine whether the totality of

the facts gave rise to reasonable suspicion. See Madden, 242 S.W.3d at 511. If the jury

is not equipped to make such a determination in the context of an Article 38.23

instruction, I do not see how a jury can be expected to make such a determination

when deciding whether the State has met its burden in proving an essential element

of an offense.

To submit the “lawful detention” element to the jury was not error of course,

as the jury was required to determine whether the State had met its burden on each

element. See United States v. Gaudin, 515 U.S. 506, 522–23 (1995) (explaining a

criminal defendant’s right to have a jury determine, beyond a reasonable doubt, his

or her guilt of every element of the crime charged). Nor do I mean to suggest that

the Legislature should eliminate the requirement that a detention or arrest be lawful

for someone to be convicted of evading. The requirement is a vital constitutional
HERNANDEZ CONCURRENCE — 6

safeguard. By requiring that the detention or arrest be lawful, the Legislature

commendably seeks to eliminate the possibility that a person might be convicted for

evading an arrest or detention that violates the person’s constitutional rights.

Moreover, conducting traffic stops is one of the most dangerous activities in

which law enforcement engages. To require officers to have at least reasonable

suspicion to detain fellow citizens is not merely a matter of liberty—it promotes the

safety of officer and motorist alike.

While I believe that determining the lawfulness of a detention or arrest is a

task best left to judges, the fact remains that it is an element of the offense. The

detention’s lawfulness therefore must be submitted to the jury.

II. Going Forward

When the lawfulness of a detention is an element of the offense itself, there is

no pretrial opportunity for the trial court to weigh in on the reasonable suspicion

determination. This is because the lawfulness of a detention cannot be brought up in

a pretrial suppression motion when the detention’s lawfulness is an element of the

offense. Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005). A defendant

charged with evading will also never be entitled to an Article 38.23 instruction

regarding the lawfulness of the arrest or detention, as the lawfulness is no mere
HERNANDEZ CONCURRENCE — 7

evidentiary issue but an element of the offense itself. For the trial court to include a

38.23-style instruction in the jury charge in an evading case would infringe upon the

jury’s exclusive province as factfinder. 2

When the lawfulness of a detention is an element of the offense, there is only

one instance when the judge can intervene and find that the State has not met its

burden in proving the element. That moment is after the State rests, assuming the

defendant moves for a directed verdict. So to the chorus of trial judges in this state

who ask, “Now what?” I say, “Ask yourself at the close of evidence, when the

defendant moves for a directed verdict: Could a juror armed with an accurate

understanding of the meaning of ‘reasonable suspicion’ find, beyond a reasonable

doubt, that the officer in this case had reasonable suspicion to arrest or detain the

defendant?”

In other words, I would encourage trial judges to take extra care when

determining the sufficiency of the evidence regarding the “lawful detention”

2
Even if it were appropriate to provide the jury with a 38.23-style instruction in this case, it is
unclear what specific facts the judge could point to, as the facts which the State alleged gave rise
to reasonable suspicion were uncontested (e.g., about 30 minutes passed between the 911 call and
the stop, Mr. Hernandez was driving slowly, etc.). See Robinson v. State, 377 S.W.3d 712, 719
(Tex. Crim. App. 2012) (“Where the issue . . . [is] only the proper application of the law to
undisputed facts, that issue is properly left to the determination of the trial court.”).
HERNANDEZ CONCURRENCE — 8

element, and to define the “rational juror” as someone with a basic understanding

of the applicable law. This is not an ideal remedy, but it is the most workable option.

Whether reasonable suspicion exists is a question that even lawyers who pass the bar

exam fail to get right (and maybe some judges). A jury’s answer to that same question

therefore calls for a more exacting review than would, say, a jury’s fact

determination.

III. Conclusion

With these thoughts, I join the Court’s opinion in full.

The facts that were known to the officer in this case are comparable to, but

significantly less than, those known to the officer in Navarette v. California, 572 U.S.

393, 395 (2014).

In Navarette, an anonymous 911 caller reported that a silver Ford F-150 pickup

truck swerved and ran her off the road on Highway 1, at mile marker 88. Id. She

reported the truck’s exact license plate number and said the driver was headed

southbound. Id. About twenty minutes later, an officer spotted a silver Ford F-150

pickup truck with the exact same license plate number headed southbound on

Highway 1, near mile marker 69. Id. Justice Thomas, writing for the majority, found

that the officer had reasonable suspicion to initiate a traffic stop based on these facts.
HERNANDEZ CONCURRENCE — 9

Id. This was largely because the 911 caller personally observed the defendant commit

a dangerous traffic violation. Id. at 403.

The factual scenario presented in this case is distinct from the one in

Navarette. There, the officer pulled over a truck that precisely matched the 911

caller’s description, down to the color and license plate number. See id. at 395. Here,

the 911 caller specifically reported seeing a four-door Chevrolet Silverado pickup

truck and Mr. Hernandez was driving a two-door pickup truck.3 In Navarette, the

caller personally witnessed the driver commit a dangerous traffic violation. See id.

Here, the 911 caller reported conduct that was not inherently suspicious, let alone

illegal—she witnessed a pickup truck driving slowly on a dirt road around 10:15 p.m.,

in a partly-residential area. On the stand, Officer Garcia testified that it was common

to see pickup trucks in the area, and that it is normal to drive slowly on dirt roads. 4

Even if Officer Garcia could have reasonably believed that Mr. Hernandez’s

vehicle was the truck that the 911 caller described, the 911 caller did not witness any

illegal activity. If Officer Garcia himself had witnessed Mr. Hernandez commit a

single traffic infraction, the stop would have been valid. See Navarette, 572 U.S. 393,

3
Officer Garcia was himself driving a department-issued four-door Chevrolet Silverado pickup
truck.
4
Driving slowly is arguably the only safe way to drive on a dirt road, particularly in the dark.
HERNANDEZ CONCURRENCE — 10

412 (Scalia, J., dissenting) (“Had the officers witnessed the petitioners violate a

single traffic law, they would have had cause to stop the truck.”). But before

activating his emergency lights, Officer Garcia did not witness Mr. Hernandez

commit any traffic violation nor did he observe Mr. Hernandez deviate from normal

driving behavior.

Accordingly, I join the Court’s opinion. The record simply does not establish

facts sufficient to give rise to reasonable suspicion.

Filed: December 19, 2025

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