New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
“Is Appellant entitled to an instruction pursuant to Article 38.23 of the Code of Criminal Procedure when there is a factual dispute regarding the officer’s credibility and a conflict between his testimony and his dashcam video?”
An officer stopped Chambers for driving a truck with no rear license plate and discovered drugs. As it turned out, the vehicle had a license tag, albeit a paper one attached to the left side of the bumper. During Chambers’ trial for possession, the officer testified that the tag was not visible from his vantage point. Both the officer’s dash-cam recording and photos of the truck taken from inside a lighted garage were admitted in evidence. The State insisted the plate was not visible on the dash-cam video; the defense insisted that, at certain times on the video, it was. Chambers requested an Article 38.23 instruction in the jury charge, but this was denied and he was convicted.
On appeal, Chambers complained of the missing instruction. The court of appeals affirmed. It reasoned that neither the dash-cam video nor the photos created a factual dispute warranting an instruction because the tag was not visible on the dash-cam video due to a “high degree of glare” and the garage photos did not represent the circumstances under which the officer observed the truck. It also rejected as “mere speculation” Chambers’ argument that the jury could infer from the photos that the officer was lying when he testified he did not see the plate. The court pointed out that the officer consistently stated he did not see the plate and no witness testified it was visible at the time the officer initiated the traffic stop.
Chambers argues that the court of appeals rejected the 38.23 instruction because it found the officer to be credible, thus supplanting the jury’s role. He compares the issue over whether the officer actually saw the plate to that in Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007), where a statement on the officer’s video raised a factual dispute about whether Madden had been speeding. He contends it is an anomaly to permit a 38.23 instruction when two witnesses contradict each other on a material point but not when an officer’s testimony is affirmatively refuted by video and photographic evidence. Finally, he asks whether appellate judges should be resolving this issue based on their own opinion of what they see (or don’t see) on the video.