Defense has indicated they will want a 38.23 jury instruction on whether there was probable cause to arrest in a DWI total refusal case. If they put on no evidence, would that be a legal issue where they wouldn't be entitled to that instruction?

And along the same lines, could they raise a factual issue by merely arguing the officer isn't credible without putting any evidence on themselves?

Read Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) as this case sets out what courts are supposed to look for when determining whether a 38.23 instruction is warranted.

If the defense doesn't put on any evidence then it will be harder for them to argue that there was an affirmatively contested issue of material fact. Madden makes very clear that they have to provide some contrary evidence. Unlike a general voluntariness instruction under 38.22, there has to be a factual dispute. It can't just be the legal issue of probable cause or reasonable suspicion. They can still do it, but they would have to rely upon conflicts in the evidence you presented.

Madden will go a long way to helping you if they try to suggest they get an instruction just because the officer wasn't credible. There, the officer refused to agree with any of the defense's cross-examination and the defense tried to use his "incredible" answers to get the instruction. The CCA said no, because the officer never changed his story. So, if the defense wants to say your officer lacks credibility the defense has to be able to point to some confict in his testimony that caused that credibility crisis. He has to contradict himself in some material way. (Or there must be other evidence to conflict with his testimony, but since you addressed officer credibility, I just focused on the officer's testimony by itself.)

Make sure you get the attorney to pin down exactly what factual dispute he's talking about. If he's just challenging probable cause (or reasonable suspicion) that's not going to do it. It has to be something factually specific like the light was red vs. the light was green. A conflict between the officer saying the defendant looks nervous and a videotape showing that your defendant is a Vulcan might do it (but that assumes that nervousness was the lynchpin of the stop). Once the court knows what factual dispute it's looking at, it can properly make a determination on whether the dispute is material. So, for example, if the officer says his uniform was clean and later admits it was dirty, the court should disregard that conflict and consider whether the rest of the unconflicting testimony establishes probable cause. If it does, no instruction.

[This message was edited by R.J. MacReady on 11-12-08 at .]

On a related point, the CCA has held that when probable cause is submitted to the jury, it doesn't have to be defined when the factual dispute is clearly identified: See Middleton

Good case. That's going into my medicine bag.