NO. 1263-01






Keasler, J., announced the judgment of the Court and delivered an opinion, in which Keller, P.J., and Womack and Hervey, JJ., joined. Holcomb and Cochran, JJ., concurred in the result. Womack, J. filed a concurring opinion. Price, J., filed a dissenting opinion, joined by Meyers and Johnson, JJ.


A police officer said he saw David Middleton run a stop sign, but Middleton claimed that he stopped. The officer pulled Middleton over and found drugs. The jury was instructed to disregard this evidence if the officer lacked probable cause. We conclude that the failure to define that term was not error because this jury did not need the definition.

I. Facts

On New Year's Eve, 1998, Sergeant Stanford was "working radar" at the intersection of Crittendon Street and Cates Street in Bridgeport. He testified that he saw a small blue Chevy pick-up fail to come to a complete stop at the stop sign. Stanford followed the vehicle with his lights flashing and after a few blocks the truck came to a stop. Stanford approached the truck and identified the driver as Middleton. Middleton consented to a search, and upon searching the truck, Stanford found methamphetamine behind the ashtray.

Middleton testified that he stopped at the stop sign.

At the conclusion of testimony, defense counsel requested a charge pursuant to Art. 38.23:

I would request the Charge, under Article 3823 of the Code of Criminal Procedure at the beginning of top of Page 2, I would ask that it be inserted. "Our law provides that any evidence seized in violation of the United States Constitution, the Texas State Constitution, the laws of the State of Texas or of this county, shall not be admitted into evidence in any criminal proceeding."

Basically, I would ask for that charge as a descriptive of what the law is for the next two paragraphs, your Honor.

The court denied Middleton's request but did include the following language in the charge:

The court further instructs you that before you may consider the testimony of Steve Stanford concerning the search of the Defendant's vehicle, you must first find beyond a reasonable doubt that the officer had probable cause to believe and did believe that the defendant did not bring the vehicle he was operating to a stop at the intersection of Cates and Crittendon in Bridgeport, Texas, and if you do not so find beyond a reasonable doubt, or if you have a reasonable doubt, you will disregard such testimony and evidence.

During closing arguments, the defense made the following statements:

Remember we told you that any law [sic] that's seized in violation of the United States Constitution, State Constitution the laws of the State of Texas is not admissible in Court.

Now, this is where the issue comes. You get a charge on the law because there's an issue, and the issue is: Do you have a reasonable doubt as to whether or not he came to a complete stop. See, that's the probable cause issue. That's the probable cause issue. You have a reasonable doubt as to whether or not he came to a complete stop or whether Mr. Stanford - Officer - Sergeant Stanford was just out there making a lot of routine traffic stops.

So you have to have a reason to stop somebody, just to get into the idea where you can ask them for search of the vehicle.

Now, if you have a reasonable doubt as to whether or not Stanford - as he prefers to be called - had a reasonable doubt as to whether or not he, in fact, observed a traffic violation, if you even have a reasonable doubt to have to prove it beyond a reasonable doubt, Stanford who makes all these routine stops and who is an officer of the year, and doesn't know whether or not he's officer of the year because of all these routine consensual stops he makes, you have to believe beyond a reasonable doubt. It's not a weighing or balancing of, you know, I'm not sure maybe it was an okay stop, maybe it wasn't.

Remember the protections. It's to protect everybody from ill - unreasonable illegal detentions. If you have a reasonable doubt as to whether or not that stop was valid, you don't consider anything that was a result of that stop.

* * *

The evidence is - The evidence is that there is some factual dispute whether or not there was a valid stop or some pre-textual-type stop by the police.

The jury found Middleton guilty of possessing methamphetamine and the judge sentenced him to 12 years in prison.

II. Court of Appeals

Middleton appealed arguing, among other things, that the trial judge erred by failing "to include an abstract instruction on the law of illegal search and seizure in the Art. 38.23 charge." He argued the charge failed to describe the law that the jury was to apply and failed to define "probable cause." The State responded that Middleton failed to preserve error and, if he did so, any error was harmless. The Court of Appeals held that "probable cause" was not required to be defined in the charge because it is not defined by statute. (1) We granted Middleton's petition for discretionary review to decide whether a trial court "should provide the jury with a definition of the term 'probable cause' in an Art. 38.23 instruction."

III. Preservation of Error

The State argues initially that Middleton's complaint on appeal is different from his complaint at trial. This argument is premature.

As we explained in Hutch v. State, (2) an appellate court's first duty in evaluating a jury charge issue is to determine whether error exists. Then, if error is found, the appellate court should analyze that error for harm. Error preservation does not become an issue until harm is assessed because "the degree of harm necessary for reversal depends upon whether the error was preserved." (3)

This is the analysis we set forth almost 20 years ago in Almanza v. State. (4) There we explained that Art. 36.19 contains harm standards for "both 'fundamental error and ordinary reversible error' in jury charges." (5) As a result, all jury charge error must be considered, whether or not the defendant preserved error. (6) And we have specifically applied the harmless error rule of Art. 36.19 to Art. 38.23. (7) So we must analyze whether error existed in Middleton's jury charge before we consider whether that error was preserved. (8)

IV. Analysis

Article 38.23(a) provides that no evidence obtained in violation of the law should be admitted at trial. It also provides that if the evidence "raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained."

As a general rule, terms need not be defined in the charge if they are not statutorily defined. (9) But terms which have a technical legal meaning may need to be defined. (10) This is particularly true when there is a risk that the jurors may arbitrarily apply their own personal definitions of the term (11) or where a definition of the term is required to assure a fair understanding of the evidence. (12)

"Probable cause" is not statutorily defined, and Middleton argues that it must be defined because it has a technical legal meaning. But even if "probable cause" has acquired a technical legal meaning, that does not necessarily mean that it had to be defined. (13) In this case, there was no risk that the jurors would arbitrarily apply their own personal definition, nor was a definition of the term required to assure a fair understanding of the evidence.

This case involved a single, and simple, factual dispute - whether or not Middleton stopped at the stop sign. Its resolution determined whether the seized evidence could be considered. There were no other facts which could have established probable cause. As the State explained in its brief to the Court of Appeals:

If this case had been a case wherein an officer had to rely upon a multitude of factors to come to his conclusion regarding probable cause, a definition for the jury might have been helpful. However, the only issue involved in the determination of probable cause in this case is whether [Middleton] failed to come to a complete stop.

Indeed, defense counsel's argument to the jury highlighted this fact and explained to the jury that, in this case, "probable cause" meant a failure to stop at the stop sign.

V. Conclusion

Because there was no ambiguity in this case as to the meaning of "probable cause," we conclude that the trial judge did not err in failing to define it.

We affirm the Court of Appeals' judgment.

DATE DELIVERED: April 23, 2003



1. Middleton v. State, No. 02-00-00039-CR, slip op. at 8-9 (Tex. App. - Fort Worth, delivered April 26, 2001) (not designated for publication).

2. 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

3. Id.

4. 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g).

5. Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998).

6. Almanza, 686 S.W.2d at 171. See also Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991).

7. Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996).

8. See Balentine v. State, 71 S.W.3d 763, 774 (Tex. Crim. App. 2002) (stating that "[b]ecause we find that no error occurred, we need not decide whether appellant waived the asserted jury charge error.").

9. Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996); Garcia v. State, 887 S.W.2d 846, 859 (Tex. Crim. App. 1994).

10. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000); Andrews v. State, 652 S.W.2d 370, 375-76 (Tex. Crim. App. 1983) (explaining that term acquiring technical meaning need not necessarily be defined).

11. Medford, 13 S.W.3d at 772.

12. See Draughon v. State, 831 S.W.2d 331, 338 (Tex. Crim. App. 1992).

13. See Andrews, 652 S.W.2d at 375-76.