OPINION
During the late evening hours of July 2, 2007, Officer Alex Sherwood, then of the Lockhart Police Department,*fn1 initiated a traffic stop on Robert Paul Mills after, Sherwood testified, he witnessed Mills making a right turn after Mills had failed to signal within one-hundred feet of the intersection. See Tex. Transp. Code Ann. § 545.104(b) (West 1999) (“An operator intending to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of movement of the vehicle before the turn.”). The investigatory detention led to a succession of incriminating discoveries by Officer Sherwood and his colleagues–weapons, outstanding out-of-state warrants, and a baggie containing .78 ounces of cocaine–and Mills’s arrest. Mills was indicted and, based on the evidence obtained during the traffic stop, convicted for the offense of possession of a controlled substance, cocaine, in an amount less than one gram. See Tex. Health & Safety Code Ann. § 481.002(38) (West Supp. 2008), § 481.115(b) (West 2003). Punishment was assessed at two years’ confinement in state jail, probated for a period of five years, and a $500 fine.
On appeal, Mills seeks reversal of his conviction and a new trial. He brings three issues. In his first issue, Mills complains of the district court’s refusal of his request for a jury instruction under article 38.23(a) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005); Madden v. State, 242 S.W.3d 504, 509-11 (Tex. Crim. App. 2007). Relatedly, Mills complains of the district court’s exclusion of expert testimony going to whether it was physically possible for Officer Sherwood, from his vantage point, to have seen whether or not Mills had signaled within one-hundred feet of the intersection. In his second issue, Mills challenges whether the State could have relied on the out-of-state warrants as a basis for arresting Mills. In his third issue, Mills complains that the district court erred “by demonstrating open and continuous hostility towards defense counsel both in front of and outside the presence of the jury, reflecting a bias in favor of the State.” Because we conclude that the evidence raised a material fact issue that required an article 38.23(a) jury instruction, we will reverse the judgment of conviction and remand this cause for a new trial.
