This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

exclusionary rule (CCP Art. 38.23. Evidence Not to be Used)

• Failure to notify parents as required by Family Code 52.02(b) does not render def's subsequent written statement automatically inadmissible. In order for a juvenile's written statement to be suppressed because of a violation of 52.02(b), there must be some exclusionary mechanism. Unlike 51.095(a), 52.02(b) is not an independent exclusionary statute. 51.17, however, provides that CCP Chapter 38 applies, so if evidence is to be excluded because of a 52.02(b) violation, it must be excluded through the operation of 38.23(a). [Cause remanded to court of appeals to consider whether there was a causal connection between violation of 52.02(b) and acquisition of def's statement.] Gonzales v State (February 13, 2002, No. 47-00)

presenting issue (CCP Art. 38.23. Evidence Not to be Used)

• The State may make an attenuation-of-taint argument which is included under an Article 38.23 analysis, but this argument is discussed by a court only if the State raises it. Analysis of causal connection and attenuation-of-taint are not the same. An attenuation-of-taint analysis is not always required and therefore need not always be conducted, but a causal connection between a violation of section 52.02(b) FC and the obtaining of evidence must be shown before the evidence is rendered inadmissible. If there is no causal connection shown in the first place, there is no reason for the State to argue that the taint of the violation is so far removed that the causal connection is broken. Attenuation-of-taint breaks this connection. It does not negate the existence of the causal connection. Pham & Gonzales v State (June 8, 2005, No. PD-0012-04 & PD-0072-04)

• The burden is on the defendant, as the moving party in a motion to suppress evidence obtained in violation of the law under Art. 38.23, to produce evidence demonstrating the causal connection. The burden then shifts to the State to either disprove the evidence the defendant has produced, or bring an attenuation-of-taint argument to demonstrate that the causal chain asserted by the defendant was in fact broken. Pham & Gonzales v State (June 8, 2005, No. PD-0012-04 & PD-0072-04)

• Def in pros for evading arrest or detention (38.04), who filed motion to suppress on claim officer had no reasonable suspicion to detain him, was using the motion to challenge proof of one of elements of charged offense: that state could not prove detention that def was charged with evading was lawful. That issue may not be raised by pre-trial motion to suppress. Woods v State (January 12, 2005, No. PD-1693-03)

• Trial judge's ruling on objection to illegally-obtained evidence was not rendered moot by a guilty verdict from a jury that was instructed to disregard illegally-obtained evidence. Even when a jury's verdict of guilty necessarily means that it found that essential evidence was not obtained in violation of the constitutions and laws of the United States and of this state, such a finding cannot supplant the trial court's ruling on a motion to suppress evidence. Pierce v State (November 15, 2000, No. 301-00)

review on appeal (CCP Art. 38.23. Evidence Not to be Used)

• On appeal by state from order granting def's motion to suppress, it was error for trial court to decline state's request for findings of fact and conclusions of law. Upon granting a defendant's motion to suppress evidence, a trial court must grant a timely request for findings of fact. Trial court's refusal to act prevented court of appeals from meaningful review of the decision to grant the motion to suppress. Without findings of fact and conclusions of law, the court of appeals was left in the undesirable position of having to make assumptions about the reasons for the trial court's decision. Rule 44.4 authorizes the court of appeals to remand the case to the trial court so that the court of appeals is not forced to infer facts from an unexplained ruling. The efficient administration of justice will be served by a requirement that trial judges respond to a request for findings of fact and conclusions of law. Effective from the date of this opinion (6/28/06), the requirement is: upon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings. "Essential findings," means that the trial court must make findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court's application of the law to the facts. The findings and conclusions need to be recorded in some way, whether written out and filed by the trial court, or stated on the record at the hearing. The non-prevailing party does not forfeit its right to appellate review of an adverse ruling by failing to request findings of fact and conclusions of law. If the non-prevailing party fails to make the request, and the trial court does not enter findings of fact and conclusions of law of its own accord, the non-prevailing party can still appeal any adverse ruling. State v Cullen (June 28, 2006, PD-0984-05)

• Court of appeals applied wrong standard of review of trial court's denial of motion to suppress, where it applied standard for review of factual sufficiency of evid. When reviewing a trial court's decision to deny a motion to suppress, an appellate court should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. An appellate court should afford the same amount of deference to trial court's rulings on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. An appellate court may conduct a de novo review where the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor. Where a trial court does not enter any findings of fact when denying a defendant's motion to suppress, an appellate court must view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Montanez v State (April 26, 2006, PD-0894-04)

• Decision of court of appeals, reversing trial court order that granted def's motion to suppress based on claim of unlawful detention, did not fail to give proper deference to trial court's findings of fact. The facts were undisputed and court of appeals respected trial court's findings and conducted de novo review of application of law to trial court's findings of the historical facts. The undisputed fact that officer saw def commit offense of turning without signaling his intention gave him probable cause to believe def had committed an offense under the Rules of the Road statutes. Such an arrest for a minor traffic offense is not an unreasonable seizure under the Fourth Amendment. The fact that the officer may have had another subjective motive for seizing def would not have made an objectively reasonable seizure unlawful under the US or Texas constitutions. The officer lawfully arrested def at that point, and incident to that arrest the officer could have lawfully searched def's person and the passenger compartment of his vehicle and the containers in it. The officer who had arrested def also had discretion to transport him to a magistrate or to release him with a notice to appear in court. State v Gray (February 16, 2005, No. PD-0586-04)

• A defendant is not entitled to a factual sufficiency review of a jury's implied rejection of his Article 38.23(a) issue. No merit to def's contention that Tex. Const., art. V sec. 6 grant of conclusive jurisdiction on all questions of fact to the courts of appeals and art. 44.25 CCP authorization of the courts of appeals to reverse a conviction "as well upon the law as upon the facts" authorize a factual-sufficiency review of the evidence of the Article 38.23(a) issue. They do not require review of factual sufficiency of all disputed fact issues. "Sufficiency" relates to whether the elements of an offense have been logically established by all the evidence presented, both admissible and inadmissible. "Admissibility" relates to the fairness of introducing evidence and its logical relevance. Accordingly, legal and factual sufficiency issues must relate to the elements of offense. The issue of whether or not evidence was illegally obtained is not an element of the offense. Hanks v State (June 23, 2004, No. 769-03)

• Appeals court properly reviewed trial court ruling on motion to suppress by using a deferential standard of review, and not a de novo review, of a trial court's determination of historical facts, even though trial court determination was based solely upon affidavits. Trial courts are the traditional finders of fact, and their determinations of historical fact are entitled to deference. Manzi v State (October 23, 2002, No. 2116-01)

• A court of appeals, without examining a reporter's record of a guilty plea and sentencing, may decide that a trial court erred in denying a def's motion to suppress evidence. (1) No merit to state's contention that def had burden to present record demonstrating error and failed to do so by not presenting complete statement of facts to show was no waiver of error by def elsewhere in proceedings; although def once had burden of presenting such a record, that rule was revised in 1997 (see Rule 34 and comment on that rule); current rules do not assign a burden to either party, so def could not have failed to satisfy such burden by presenting a partial record. (2) No merit to state's contention that any omission in record def presents is presumed to support trial court's ruling. First, such a presumption does not support state's conclusion that court of appeals erred in determining merits of motion to suppress on a partial record; that omitted portion of record might support trial court's ruling does not affect a holding that record as presented shows conclusively that trial court committed error. Further, such a presumption no longer exists after amendments to Rules of Appellate Procedure. (3) No merit to state's contention that def challenging admissibility of evidence must present a complete appellate record. Under 1997 rule 34.6, parties may determine what constitutes "complete record" and permits and requires each party to see that reporter's record contains all that appellate court needs. It is no longer necessary, or sufficient, for a party to argue that appeal should be decided by hypotheses about missing portions of record. Prior holdings that an appellate court cannot review admissibility-of-evidence issues in absence of a complete record must be read in light of 1997 rules that allow parties to determine what is necessary for a record to be so complete as to enable appellate court to decide point of error (including its preservation and its effect). In instant case, state could have availed itself of Rule 34.6(d) to direct court reporter to file a record of guilt/innocence and punishment phases of trial. These portions of testimony might have shown that def waived his pretrial objection to admissibility of challenged evid or cured any error in its admission into evidence. In fact, state informed court of appeals that it was having a supplemental reporter's record prepared, but that supplement was not filed in record of instant appeal, as Rule 34.6(d) permits state to direct court reporter to do. If supplement showed that one of state's hypothetical waivers had happened, state should have directed it to be filed. In light of Rule 34.6 and state's failure to have record supplemented, court of appeals was permitted to decide this appeal on basis of record that parties chose to file. Rowell v State (November 21, 2001, No. 766-00)

• In reviewing a motion to suppress, court gives great deference to a trial court's determination of historical facts. Mixed questions of law and fact that turn on credibility and demeanor of a witness are reviewed under the almost-total-deference standard, and mixed questions of law and fact that do not turn on credibility and demeanor of a witness are reviewed de novo. Also, court examines the evidence in light most favorable to trial court's ruling. When trial court does not file findings of fact, appeals court assumes that trial court made implicit findings that support its ruling, so long as those implied findings are supported by the record. If the decision is correct under any theory of law applicable to the case, the ruling will be sustained. Roquemore v State (November 14, 2001, No. 722-00)

• On appeal by state from order granting motion to suppress, where only witness at hearing on motion to suppress was state's witness whose testimony was not controverted, and where that testimony, if believed, showed reasonable suspicion for initial detention and probable cause for arrest, appeals court affirmed trial court order granting motion to suppress, because trial court made no findings of fact and was sole judge of credibility of witness, so appeals court applied rule that trial court ruling would be upheld on any theory of law applicable to the case, and outcome turned on credibility of witness. Appeals court would not review credibility de novo, and would apply rule that gives almost total deference to trial court's determination of the historical facts. (Court expressly disavowed footnote eight of Maestas v. State, 987 S.W.2d 59, 62 n.8 (Tex. Crim. App. 1999), which suggested that issue of appellate review of ruling on motion to suppress would turn on credibility and demeanor only when testimony is controverted.) State v Ross (November 29, 2000, No. 1618-99)

• When trial court fails to file findings of fact, appeals court views the evidence in the light most favorable to the trial court's ruling and assumes trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. If the trial judge's decision is correct on any theory of law applicable to the case, the decision will be sustained. State v Ross (November 29, 2000, No. 1618-99)

• In a motion to suppress hearing where the only evidence presented is the testimony of the arresting officer (which, if believed, adds up to probable cause) and the trial court grants the motion without any explanation, there is not necessarily a "concrete" set of facts that can be implied from such a ruling. The trial court may have disbelieved the officer on at least one material fact, or the trial court may be in a situation in which it does not know what exactly the facts are, but it does know (on the basis of demeanor, appearance, and credibility) that they are not as the witness describes. In this situation, the appellate court does not necessarily have a set of historical facts to which it may apply the law. The determination of probable cause rests entirely on the credibility of the lone witness. This scenario is a mixed question of law and fact, the resolution of which turns on an evaluation of credibility and demeanor. The proper standard of review is therefore "almost total deference" to the trial ruling. State v Ross (November 29, 2000, No. 1618-99)

• Where trial court denied motion to suppress and no findings of fact were filed, appeals court must view the evidence in the light most favorable to the trial court's ruling and uphold the ruling on any theory of law applicable to the case. There were two possible theories upon which the trial court's ruling may have rested: either the testimony of the agent was credible, but the facts established by that testimony did not constitute probable cause (or reasonable suspicion for the initial detention); or the trial court did not find the testimony of the agent to be credible. Because agent's testimony (if believed) added up to reasonable suspicion for the initial stop and probable cause for the eventual arrest, appeals court would not presume that the trial court impliedly found that the facts simply did not add up to reasonable suspicion or probable cause; to do so would be to presume error. The trial court, however, was free to disbelieve all of the agent's testimony. As the sole trier of fact and judge of credibility, the trial court was not compelled to believe the agent's testimony, even if uncontroverted, based on credibility and demeanor. Because the evidence, if believed, would compel a denial of the motion to suppress, the record supports the second theory that the trial court did not find the agent's testimony to be credible based on demeanor, appearance, and tone. Trial court was within its discretion in disbelieving the testimony of the agent and granting the motion to suppress. No merit to state's contention that because the testimony was uncontroverted and sufficient to show probable cause, and because there was nothing in the record indicating that the trial court "actually" disbelieved the testimony, reversal of the trial court through a de novo review would be proper. That contention would have appeals court disregard the theory that supports the trial court and adopt the theory that results in error and leads to reversal. No merit to state's contention that by not conducting a de novo review in instant case, appeals court would be limiting appeals under article 44.01(a)(5), and give trial courts a way to insulate their rulings on motions to suppress from review by merely not filing findings of fact. Instant holding does nothing to limit the State's right to appeal under article 44.01(a)(5). The State is just as free to make the appeal today as it was before the decision today. If a non- prevailing party wishes to avoid the effects of these appellate presumptions, then it should attempt to get the rationale for the trial court's ruling on the record through either a verbal explanation at the hearing or express findings of fact and conclusions of law. State v Ross (November 29, 2000, No. 1618-99)

rules (CCP Art. 38.23. Evidence Not to be Used)

• Any noncompliance with 20.17 in the taking of a written "Sworn Statement to the Grand Jury" does not protect or immunize allegedly perjurious statements within that document. Even if grand jury statements are taken in violation of 20.17, the witness is not at liberty to lie under oath. A state official's noncompliance with statutory requirements does not confer a privilege to commit perjury. The perjured utterance is not "evidence" or "testimony" to a crime but is the very act of crime itself. The corpus delicti of the crime of perjury is not merely "evidence" of some pre-existing crime which might be subject to suppression under 38.23. A state official's failure to implement or abide by certain statutory requirements does not accord protection to the person who thereafter lies under oath. Martinez v State (December 11, 2002, No. 344-02)

• State's noncompliance with 20.17, specifically its failure to orally inform def of his Miranda rights before def made written sworn statement to grand jury, did not require suppression of that statement in perjury prosecution. Martinez v State (December 11, 2002, No. 344-02)

• In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record. State v Ross (November 29, 2000, No. 1618-99)

• A defendant has a right, entirely apart from guilt or innocence, not to be convicted with illegally obtained evidence. This right is based in part on the Fourth and Fourteenth Amendments to the US Constitution, and in part on Article 38.23. The decision of a judge is necessary for a defendant to have a fair hearing and a reliable determination of the legality with which evidence was obtained. The jury is given a role to be a backup protection against erroneous judicial rulings that have admitted evidence, not to supplant them. The task of determining the legality of the means by which evidence was obtained without being distracted by its probative value is too difficult to be left to the jury alone. Pierce v State (November 15, 2000, No. 301-00)

• Article 38.23 does not apply to violations of Article 18.10. Article 38.23(a) requires the exclusion of evidence "obtained...in violation of any provisions of the Constitution or laws of the State of Texas...." Article 18.10's requirement that property not be removed from the county applies only after the property has already been seized. The "obtaining" of a particular item of evidence is not a continuing act. That officers may move an item of evidence to an unauthorized location after it has been legally obtained does not vitiate the status of such evidence as having been legally obtained. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• Treaties do not constitute "laws" for Article 38.23 purposes. Rocha v State (April 12, 2000, No. 73,280)

• Statutory exclusionary rule of 38.23(a) did not apply to evidence that undercover police officer obtained (officer purchased cocaine from def) outside the geographical boundaries set out in an Interlocal Assistance Agreement authorized by Section 362.002(b) of the Local Government Code, for three reasons: (1) Def lacks standing to complain about the seizure of the cocaine because officer did not obtain the cocaine in violation of def’s rights. The Agreement and the provision of the Local Government Code authorizing it obviously are meant to protect the autonomy of the local governments who are parties to the Agreement. Only these parties to the Agreement have standing to complain about a breach of the Agreement by one of the parties to it. The Agreement confers no third party beneficiary status on def to complain about a breach of the Agreement. And, even if someone like def had standing to complain about a breach of the Agreement by one of its parties, the contractual remedy would be specific performance of the Agreement and not exclusion of evidence obtained by police officers acting outside the geographical boundaries set out in the Agreement. (2) The “plain” language of 38.23(a) does not require exclusion of the cocaine because no “ordinary person” would consider the cocaine to have been “obtained” in violation of the law. 38.23(a) rejects a strict “but/for” test of causation between the illegality and seizure of the evidence. Any causal relationship between undercover officer’s alleged breach of the Agreement and his acquisition of the cocaine is too remote for 38.23(a) to consider the cocaine to have been “obtained” by the “illegality” of officer’s alleged contractual breach of the Agreement. (3) 38.23(a) treats “state action” and “private action” the same or on an equal footing. 38.23(a) would not consider the cocaine to have been “obtained” in violation of the law had undercover officer acted in a purely private capacity. Therefore, treating “private action” and “state action” equally, 38.23(a) does not consider the cocaine to have been “obtained” in violation of the law in this case. Chavez v State, 9 S.W.3d 817 (Jan. 12, 2000)

rules: act of private person (CCP Art. 38.23. Evidence Not to be Used)

• When private persons broke into or entered a vehicle without the effective consent of the owner, with intent to appropriate property without the consent of the owner, with intent to deprive the owner of the property, and without intent to turn over the property to an officer, their conduct violated the law against burglary of a vehicle. Article 38.23(a) forbids the admission, against the accused in the trial of a criminal case, of evidence so obtained. Jenschke v State (October 20, 2004, No. PD-1677-03)

• When a person who is not an officer or an agent of an officer takes property that is evidence of crime, without the effective consent of the owner and with the intent to turn over the property to an officer, the conduct may be non-criminal even though the person has intent to deprive the owner. Jenschke v State (October 20, 2004, No. PD-1677-03)

not error to deny motion to suppress (CCP Art. 38.23. Evidence Not to be Used)

• No merit to contention def's rights under Vienna Convention on Consular Relations was violated where def did not show (1) that any of the rights he claimed under the Vienna Convention were violated; or (2) that any purported treaty violation either caused him to do anything he would not otherwise have done or affected the fairness of his trial in any way. Under facts of case Texas authorities complied with their obligations under Article 36 of the Vienna Convention when they faxed required notification to Salvadoran consulate within 48 hours after def's arrest on probation revocation warrant. Also, def did not show causal connection or prejudice from any violation where def initiated contact with police, he had previous experience with Texas criminal system in which he had explicitly acknowledged he knew he had right to consular assistance and explicitly waived that right in writing, and in instant case he was repeatedly given his Miranda warnings in Spanish by officers and magistrate and on each occasion explicitly stated he understood his legal rights and wished to waive them. Sorto v State (October 5, 2005, No. AP-74,836)

• It was not error to admit evid derived from arrest in Arizona that Arizona court had ruled was product of illegal arrest, where taint was attenuated, there were intervening circumstances in Texas after exclusionary rule had been applied in Arizona, and application of federal exclusionary rule would have marginal or nonexistence benefits of deterring Texas and Arizona authorities from committing Fourth Amendment violations. Arizona prosecution was dismissed after Arizona suppression hearing in which court ruled def's arrest was illegal. In Texas prosecution for offense committed four years after Arizona offense, def had been lawfully arrested in Texas and lawfully-obtained Arizona DNA evid from sexual assault victim of Arizona offense was compared with lawfully-seized DNA evid obtained from def in Texas after lawful Texas arrest. Any taint from illegal Arizona arrest was attenuated by passage of four years; and primary object of exclusionary rule were Arizona authorities who illegally arrested def. Thornton v State (September 22, 2004, No. 0080-03)

• It was not error to deny motion to suppress five knives taken from def's apartment by def's father and turned over to police, over contention they were obtained illegally. Def's father was not acting under control or at behest of law enforcement, so was no constitutional violation. They were not inadmissible under 38.23 on claim they were obtained by private person in violation of law: they were taken by a person authorized to be on premises (father was retrieving keys from apartment at request of def's girlfriend who also lived there, when he found knives and took them to turn over to police); and taking of knives was not theft where they were not taken for purpose of depriving owner of them, but rather for purposes of a criminal investigation. Cobb v State (May 29, 2002, No. 72,807)

• It was not error to deny motion to suppress def's oral statements under Article 38.23 because law enforcement officers failed to give him warnings required by the Vienna Convention. (The Vienna Convention on Consular Relations grants a foreign national who has been arrested, imprisoned or taken into custody a right to contact his consulate and requires the arresting government authorities to inform the individual of this right "without delay.") Treaties do not constitute "laws" for Article 38.23 purposes. Rocha v State (April 12, 2000, No. 73,280)

error to deny motion to suppress (CCP Art. 38.23. Evidence Not to be Used)

• It was error to deny motion to suppress under 38.23(a), evid acquired by private persons by conduct that violated a criminal law. While 38.23(a) may permit admission of evid acquired by private persons in violation of criminal law when private persons turn over such evid to an officer, it did not permit introduction of such evid in instant case, where sexual assault victim's parents entered def's truck without his consent and took evid, committing burglary of a vehicle, and evid was not turned over to police until over two years later. Jenschke v State (October 20, 2004, No. PD-1677-03)

not error to grant motion to suppress (CCP Art. 38.23. Evidence Not to be Used)

• In pros for sale of alcoholic beverage to a minor it was not error for trial court to deny motion to suppress. No merit to contention that minor used in sting operation by TABC officers was guilty of criminal trespass when she entered premises that had sign posted that prohibited minors from being on the premises. By accepting a license or permit to sell alcohol, the premises lounge consented to inspection by TABC agents. The minor was recruited by and under the immediate supervision of TABC agent to help conduct a sting operations that was expressly contemplated by the legislature. Therefore, minor was not a criminal trespasser under 30.05. Phillips v State (April 27, 2005, No. PD-1400-03)

presenting issue (CCP Art. 38.23. Evidence Not to be Used)

• It was error for court of appeals to reverse conviction on a theory not presented at trial or on appeal. At trial and on appeal def claimed that trial court erred in denying him an article 38.23 instruction regarding whether def had failed to maintain a single lane of traffic, but court of appeals held that def was entitled to an article 38.23 jury instruction concerning whether a police officer could stop def outside of his geographical jurisdiction and reversed and remanded the case to the trial court. Gerron v State (February 5, 2003, No. 1963-01)

rules (CCP Art. 38.23. Evidence Not to be Used)

• If a defendant raises a factual dispute about whether evidence was illegally obtained, an instruction under 38.23 must be included in the jury charge. Pickens v State (June 22, 2005, No. PD-1437-04 & PD-1454-04)

• Where charge did not contain instruction under 38.23 on whether evid was illegally obtained, and def argued for the first time on appeal that trial court's failure to include such an instruction, sua sponte, was error and resulted in egregious harm, it was error for court of appeals not to determine whether there was a factual dispute on the matter, and to simply hold that def failed to preserve error on the issue. Without a factual dispute, there is no error and therefore no requirement that the jury charge include an instruction under 38.23. Cause remanded for court of appeals to resolve question of whether there was a factual issue. Pickens v State (June 22, 2005, No. PD-1437-04 & PD-1454-04)

absence of charge not error (CCP Art. 38.23. Evidence Not to be Used)

• It was not error to deny requested punishment charge under 38.23 regarding testimony of Wesbrook v State (September 20, 2000, No. 73,205)

• informant, on claim the evidence raised an issue about the legality of evidence obtained by the state. There was no dispute as to the facts surrounding the acquisition of informant's testimony; the only issue in instant case was of a legal nature, not factual, so def was not entitled to the requested jury instruction. Wesbrook v State (September 20, 2000, No. 73,205)

absence of charge not error: confession (CCP Art. 38.23. Evidence Not to be Used)

• It was not error to deny charge under 38.23 on voluntariness of statements where evid did not raise issue and he failed to establish at trial that his education, language, or nationality affected voluntariness of his statements. Sorto v State (October 5, 2005, No. AP-74,836)

• It was not error to deny voluntariness charge under 38.23(a) on claim of conflicting evid as to whether def was intoxicated or was in a distressed condition due to injuries and being cold; assuming there was such fact issue, evid of def's intoxication and injury did not raise any constitutional voluntariness issues because that evid did not involve any police coercion or other official over-reaching. Perry v State (December 15, 2004, No. AP-74,591)

• It was not error to deny charge under 38.23(a), for jury to disregard def’s audio-taped statement and the transcription of that recording if they found the tape was inaccurate or had been altered. Requirement of 38.23(a) for a jury instruction only applies when there exists a factual issue that evidence was obtained in violation of the constitution or laws of Texas or of the United States. The presence of skips or over-records on def's audio-taped statement did not indicate the tape was obtained in violation of the Constitution or a state or federal law, and def presented no evidence showing the skips were created as a result of a violation of the law. At worst, the anomalies could have rendered the tape inaccurate and, therefore, inadmissible, but this was a determination for the trial judge, not the jury. Maldonado v State, 998 S.W.2d 239 (June 30, 1999)

• It was not error to fail to charge jury under 38.23(a), to disregard def's statement if jury found it was obtained in violation of his rights under Vienna Convention on Consular Relations, that he be advised of his right to contact the Mexican Consulate before making a statement to the police, where evid did not show def was a Mexican citizen. Maldonado v State, 998 S.W.2d 239 (June 30, 1999)

absence of charge not error: arrest stop or detention (CCP Art. 38.23. Evidence Not to be Used)

• It was not error to fail to charge jury on definition of probable cause in charge under 38.23 instructing jury to disregard evid if officer lacked probable cause for traffic stop, where under facts of 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. Facts of case involved a single and simple fact issue: whether or not def stopped at stop sign. Because there was no ambiguity in instant case as to meaning of "probable cause," it was not error to fail to define it. Middleton v State (April 23, 2003, No. 1263-01)

• It was not error to refuse to charge jury to disregard confession if they found it was product of illegal arrest where material facts leading to arrest were undisputed. To extent his trial testimony raised a fact issue on whether he was illegally "arrested" when he was first placed in the back of the police car, undisputed facts removed taint of this illegal "arrest." Also, any error in not instructing jury on this issue was harmless in light of def's handwritten note claiming responsibility for murdering the victims and other evidence presented at trial. Jackson v State (December 13, 2000, No. 73,033)

absence of charge not error: search & seizure (CCP Art. 38.23. Evidence Not to be Used)

• It was not error to deny jury charge on legality of auto inventory where def did not raise any fact issue before jury on the issue. Def failed to show officers deviated from department rules in conduct of inventory and those rules were not introduced in evid; def did nothing more than hint at mere possibility that officers may have breached department rules. Also, def's testimony did not differ significantly from testimony of officers; def did not controvert facts to which officers testified. Garza v State (January 28, 2004, No. 1691-02)

• It was not error to fail to charge jury on admissibility of fruits of search, over contention that a fact issue was raised concerning third party's authority to consent to the search. The facts that supported the warrantless search were not controverted. Although def on appeal raised legal argument that third party's authority to use and control the premises was not co-extensive with def's, the factual bases for his authority to consent to the search were uncontroverted at trial, so no instruction was required. Balentine v State (April 3, 2002, No. 73,490)