Anthony Eugene Bendy, Jr. v. the State of Texas

NO. 12-21-00073-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANTHONY EUGENE BENDY, JR., § APPEAL FROM THE 114TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Anthony Eugene Bendy, Jr. appeals his conviction for possession of a controlled
substance with intent to deliver. In a single issue, Appellant argues that the trial court abused its
discretion in refusing to submit an instruction in its charge pursuant to Article 38.23 of the Texas
Code of Criminal Procedure and that such a refusal amounted to reversible error. We affirm.

BACKGROUND
On May 1, 2020, Officer Blake Kelley 1 of the Tyler Police Department was on patrol
when a tan Tahoe pulled into his lane at the intersection of South Baxter and East Front Streets.
Officer Kelley had to engage his brakes to avoid a collision. As a result, he initiated a traffic
stop for failure to yield the right of way. After making contact with the driver, Appellant,
Officer Kelley observed that Appellant’s eyes appeared “heavy” and his breath smelled like
alcohol. Officer Kelley shined his flashlight in the backseat and observed a glass jar with a gold
lid that contained a green leafy substance he believed to be marijuana. He also observed an open
container of Hennessey alcohol. He then asked Appellant to step out of the vehicle.

1
At the time of trial, Kelley had been promoted to a detective. We refer to him as Officer Kelley
throughout the opinion.

1
As Appellant exited the vehicle, Officer Kelley and Tyler Police Officer Spencer
McGregor, who arrived as backup, attempted to cuff Appellant. Appellant broke away, grabbed
a bag, and attempted to flee. The bag went flying, along with methamphetamine, crack, cocaine,
Xanax, marijuana, hydrocodone, cash, a gun, bullets, a scale, cell phones, and a pill bottle. A
struggle ensued, and Appellant ultimately fled. Appellant’s girlfriend, Ashley Bassett, was in the
passenger seat and remained in the vehicle.
Appellant was later arrested and charged by indictment for possession of
methamphetamine, in an amount of four grams or more but less than 200 grams, with intent to
deliver. 2 The indictment further alleged that Appellant used or exhibited a deadly weapon during
the commission of the offense and that Appellant had been convicted of three prior felony
offenses. Prior to trial, Appellant filed a motion to suppress, arguing that he was stopped,
detained, and arrested without probable cause and that any evidence seized as a result should be
excluded. Following a hearing, the trial court denied the motion.
Appellant pleaded “not guilty,” and the matter proceeded to a jury trial. At the charge
conference, Appellant requested the jury be given an instruction consistent with Article 38.23 of
the Texas Code of Criminal Procedure, which the trial court denied. Ultimately, the jury found
Appellant “guilty” and found that he used or exhibited a deadly weapon. After finding the
habitual offender allegations to be “true,” the jury assessed punishment at forty-five years
imprisonment. This appeal followed.

CHARGE ERROR
In his sole issue, Appellant urges he was harmed when the trial court denied his request
for an instruction under Article 38.23 of the Texas Code of Criminal Procedure.
Standard of Review
We review a trial court’s refusal to give an instruction in its charge for an abuse of
discretion. See Steele v. State, 490 S.W.3d 117, 130 (Tex. App.–Houston [1st Dist.] 2016, no
pet.). A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside
the zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579
(Tex. Crim. App. 2008).

2
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2017).

2
We review alleged jury charge error in two steps—we first determine whether error
exists, and, if so, we then evaluate whether sufficient harm resulted from the error to require
reversal. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d
738, 743–44 (Tex. Crim. App. 2005); Joshua v. State, 507 S.W.3d 861, 863–64 (Tex. App.–
Houston [1st Dist.] 2016, no pet). The degree of harm required for reversal depends on whether
the charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (op. on reh’g) (setting forth analysis for determining whether jury charge error
requires reversal). If the charge error properly has been preserved by an objection or request for
instruction, reversal is required if the appellant suffered “some harm” from the error. Vega v.
State, 394 S.W.3d 514. 519 (Tex. Crim. App. 2013); see Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009). When the defendant fails to object or states that she has no objection to
the charge, we will not reverse for jury charge error unless the record shows the defendant
suffered egregious harm. See Ngo, 175 S.W.3d at 743–44. Thus, in considering Appellant’s
issue, we first must determine if there was error in the charge. See Joshua, 507 S.W.3d at 864.
Only if we find error do we address whether Appellant was harmed sufficiently to require
reversal. Id.
Applicable Law
Under Texas law, the Code of Criminal Procedure requires trial courts to exclude
evidence in a trial if the State obtained the evidence by violating the law. TEX. CODE CRIM.
PROC. ANN. art. 38.23 (West 2018). But if the evidence shows that a fact issue exists about
whether the police conduct was illegal, the trial court must submit an instruction to the jury that
informs the jury that “if it believes, or has a reasonable doubt, that the evidence was obtained in
violation of the provisions of this Article, . . . [it must] disregard any such evidence so obtained.”
Id. art. 38.23(a).
There must be a genuine dispute about a material fact issue before an Article 38.23
instruction is warranted. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).
The defendant must demonstrate that (1) the evidence heard by the jury raises an issue of fact,
(2) the evidence on that fact is affirmatively contested, and (3) the contested factual issue is
material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510. If there
is no disputed issue of material fact, the legality of the challenged conduct is a question of law
for the trial court. Id. And if other undisputed facts are sufficient to establish the lawfulness of

3
the conduct, the contested factual issue is not material, and the defendant is not entitled to a jury
instruction on the fact issue. See id. at 510–11.
To raise a disputed fact issue, there must be some affirmative evidence that contradicts
the existence of that fact. Id. at 513. This evidence can come “from any source,” regardless of
whether it is “strong, weak, contradicted, unimpeached, or unbelievable.” Garza v. State, 126
S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex.
App.—Houston [1st Dist.] 1996, pet. ref'd)). A defendant’s questions on cross-examination
cannot, by themselves, raise a disputed fact issue. Madden, 242 S.W.3d at 515. However, the
witnesses’ answers to those questions might raise a fact issue. Id. at 513.
Analysis
Appellant argues that the trial court abused its discretion in refusing his requested Article
38.23(a) instruction because a factual issue existed regarding the legality of Appellant’s initial
detention for a traffic violation and his continued detention for the officer’s investigation.
Specifically, he contends Bassett’s testimony directly conflicted with Officer Kelley’s, creating a
factual issue. Therefore, Appellant urges, the jury could have disbelieved Officer Kelley and
believed Bassett, which would have required them to disregard the evidence showing
Appellant’s possession of methamphetamine if they had an Article 38.23(a) instruction.
Appellant asserts that Bassett’s testimony gave rise to a genuine issue of fact. Appellant
points to Bassett’s testimony that she and Appellant did not drink alcoholic beverages, that she
was close enough to smell his breath, that she did not see alcohol in the vehicle, and that she did
not see marijuana in the jar in the vehicle. Based on this testimony, Appellant contends that a
fact issue arose that was affirmatively contested, which should have been resolved by an Article
38.23 instruction. We disagree.
We are guided by the Eastland Court’s explanation of what constitutes a disputed fact
issue. Applying the Texas Court of Criminal Appeals’ decision in Madden, the court reasoned:

[I]f Deputy Gibson had testified that Appellant did speed, and another witness, or Appellant, had
testified that Appellant did not speed, this disputed factual issue would have been required to be
submitted to the jury. With a factual dispute, if the jury were to believe that Appellant was
obeying the speed limit and/or that Deputy Gibson was untruthful or unreasonable in believing
that Appellant was not, then the jury, under Article 38.23, would be required to disregard the
evidence obtained as a result of the unlawful detention that followed. If, however, Deputy Gibson
had testified that Appellant did speed, and another witness, or Appellant, had testified that he did
not remember, did not know, or failed to testify at all, then there would have been no disputed fact
to submit because there was no affirmative evidence of a factual conflict. Similarly, if Deputy

4
Gibson had testified that Appellant did speed, but opposing counsel had grilled him, “Is it not true
that Appellant really did obey the speed limit, you are wrong or you are lying?” there would be no
factual dispute unless Deputy Gibson, to cross-examination, made an admission.

Yoda v. State, 630 S.W.3d 470, 481 (Tex. App.—Eastland 2021, pet. ref’d) (internal citations
omitted). Ultimately, the court concluded there was no affirmative evidence of “did not speed” to
contradict the deputy’s testimony and create a disputed fact issue. Id. at 482.
At trial, Officer Kelley testified that he initiated a traffic stop after he had to brake to
avoid hitting a vehicle that turned out in front of him. According to Officer Kelley, the driver of
the vehicle, Appellant, smelled like alcohol and had “heavy” eyes. As a result, Kelley suspected
Appellant may be intoxicated. During the stop, the officer shined his flashlight in the backseat
and observed a jar that contained what he believed to be marijuana and an open Hennessey
bottle. At this point, his investigation shifted from a traffic investigation to possible driving
while intoxicated and drug possession offenses. Officer Kelley testified that he asked Appellant
about the substance, and Appellant denied there was marijuana in the vehicle. However, when
asked again about the substance in jar, Appellant admitted it was marijuana. The failure to yield
and traffic stop were captured on Officer Kelley’s dash camera and played for the jury.
When initially questioned about Appellant’s turn onto Front Street, Basset testified that
she felt Appellant made a safe turn because she did not see Officer Kelley’s car. However, on
cross-examination, Bassett testified that she did not know how close Appellant was to Officer
Kelley’s car when he pulled out because she did not see the officer’s car. Because Bassett
testified that she did not know whether Appellant failed to yield, her testimony did not create an
affirmatively contested fact issue on the initial stop. See Madden, 242 S.W.3d at 514; Yoda, 630
S.W.3d at 481.
Regarding the continued detention, Bassett testified that Appellant did not tell Officer
Kelley there was marijuana in the vehicle. She also initially denied that Officer Kelley asked
about the marijuana. However, on cross-examination, she did not remember whether Officer
Kelley asked Appellant about marijuana. She further testified that while she saw a jar in the
vehicle, she did not see what was in the jar. Bassett’s testimony directly contradicts Officer
Kelley’s regarding whether Appellant admitted to having marijuana in the vehicle. However, her
testimony does not affirmatively contradict whether Officer Kelley observed a jar containing
marijuana in the vehicle. See Madden, 242 S.W.3d at 514; Yoda, 630 S.W.3d at 481. And

5
observing marijuana provides probable cause to conduct a warrantless search of the vehicle for
marijuana. See Harper v. State, 349 S.W.3d 188, 192 (Tex. App.—Amarillo 2011, pet. ref’d).
Bassett further testified that she was “definitely” close enough to Appellant to smell his
breath and that he did not smell like alcohol. She also denied that Appellant drank any alcohol
from the time she arrived at his house around 8:30 pm until they left and denied that he
consumed any alcohol earlier in the day. When asked whether there was alcohol in the vehicle,
Bassett testified that she “didn’t see any alcohol.” Bassett’s testimony does affirmatively
contradict Officer Kelley’s testimony whether Appellant appeared intoxicated. However, her
testimony that she “didn’t see” the alcohol in the car does not affirmatively contradict Officer
Kelley’s testimony that he did. See Madden, 242 S.W.3d at 514; Yoda, 630 S.W.3d at 481.
When Officer Kelley observed the Hennessey bottle, he had probable cause to believe an open
container violation was being committed and had authority to conduct a warrantless search of the
vehicle for open containers. Harper, 349 S.W.3d at 192.
Because there was no disputed factual issue presented, we hold that the trial court did not
err by failing to include Appellant’s requested jury instruction under Article 38.23. Therefore, we
overrule Appellant’s sole issue.

DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

GREG NEELEY
Justice

Opinion delivered March 23, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

6
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 23, 2022

NO. 12-21-00073-CR

ANTHONY EUGENE BENDY, JR.,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0238-21)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

7