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Cunningham v. State12/8/2004
rts the trial court erred by refusing to submit his second proposed jury instruction because there was sufficient evidence he had been illegally arrested. Cunningham proposed the following instruction:
You are instructed that under our law, a peace officer or any other person may, without a warrant, arrest an offender when the offense is committed within his presence or view if the offense is one classified as a felony or an offense against the public peace.
You are instructed that under our law, traffic violations are not offenses against the public peace. You are further instructed that driving while intoxicated is an offense against the public peace.
No evidence obtained by a peace officer or any other person in violation of any provision of the Constitution or the laws of the United States of America, shall be used as evidence of the accused [sic] guilt.
Now bearing in mind these instructions, if you find from the evidence beyond a reasonable doubt that on the occasion in question, Rosalio Hernandez was acting as a peace officer or any other person, and placed the defendant under arrest without a warrant and that offense for which the defendant was placed under arrest was one classified as a felony or an offense against the public peace, then such arrest would be legal and you will continue your deliberations. If you do not so find and believe beyond a reasonable doubt or if you have a reasonable doubt thereof, then such arrest would be illegal and in such event the jury will disregard the evidence relative to the arrest of the defendant relative to the arrest of the defendant and you will not consider such evidence for any purpose whatsoever and you will return a verdict of "NOT GUILT[Y]."
The trial court rejected Cunningham's proposed instruction, but did instruct the jury to disregard evidence obtained in violation of the law. We find the trial court acted properly in refusing Cunningham's instruction. The jury charge should "state the law applicable to the case, without expressing or intimating any opinion as to the weight of the evidence, or the credibility of the statements made by the party accused." Henry v. State, 149 Tex. Crim. 321, 323, 194 S.W.2d 264, 265 (1946). Cunningham's proposed instruction is misleading because it implies that traffic violations cannot be considered a breach of the peace under any circumstance. While traffic violations do not per se constitute a breach of the peace, Texas courts have found they can give rise to a breach of the peace in the context of suspected DWI. See Romo, 577 S.W.2d at 252-53 (traffic violations indicated defendant was driving while intoxicated, justifying the citizen's arrest); McEathron, 294 S.W.2d at 621 (same). Cunningham's proposed instruction does not accurately state the law. Therefore, the trial court did not err by refusing his second proposed instruction. Cunningham's fourth issue is overruled.
Conclusion
The testimony presented in this case, though conflicting, supports the conclusion that the arrest of Cunningham by Rosalio Hernandez was a lawful citizen's arrest for DWI, which is a breach of the peace. Accordingly, evidence obtained as a result of the arrest was properly admitted. Further, Cunningham's requested jury instruction did not properly state the applicable law. The trial court correctly refused the requested instruction. We overrule Cunningham's issues on appeal and affirm the judgment of the trial court.
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