Foreman, Freddie James

• Court: Court of Appeals of Texas
• Decided: July 22, 2015
• Docket: PD-0909-15
• Status: Published

Opinion

?0?-f5 MO. RIGINAL

IN THE CORT OF CRIMINAL APPEALS

AUSTIN, TEXAS

FREDDIE J. FOREMAN

REC'D IN COURT OF APPEALS RECEIVED IN DEFENDANT - APPELLANT 2th Court of Appeals District COURT OF CRIMINAL APPEALS VS. 12.

JUL 2 2 2015 SVIEW THE STATE OF TEXAS "IVLER TEXAS Abel Acosta, Cleit PLAINTIFF - APPELLEE CATHY S. LUSK, CLERK

REVIEW SOUGHT FROM THE 12TH. COURT OF APPEALS

NO. 12-14-00232-CR

FILED IN APPEALLED FROM THE COURT OF CRIMINAL APPEALS 349th. JUDICIAL DISTRICT COURT JUL 22 2C.5 HOUSTON COUNTY, TEXAS

CAUSE NO. 13CR-184 Abel Acosta, Cierk THE HONORABLE MARK A. CALHOON

PRESIDING JUDGE

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FREDDIE JAMES FOREMAN #925367 ELLIS UNIT 1697 FM 980 HUNTSVILLE, TEXAS 77343 PRO SE TffiBLE OF CONTENTS

INDEX OF AUTHORITIES 1

STATEMENT OF JURISDICTION 2

STATEMENT OF THE CASE 2

PROCEDURAL HISTORY 2

APPELLANT'S GROUND FOR REVIEW. 3

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT ALLOWING

APPELLANT'S REQUESTED JURY INSTRUCTION UNDER TEXAS CODE OF CRINI-

NAL PROCEDURE ARTICLE 38.23: EVIDENCE OBTAINED IN VIOLATION

OF THE CONSTITUTION OR LAWS OF THE UNITED STATES OR THOSE OF

TEXAS MAY NOT BE ADMITTED IN A CRIMINAL CASE. SEE TEX. CODE

CRIM. PROC. ART. 38.23 INSTRUCTION.

ARGUMENT 3

PRAYER FOR RELIEF 10

CERTIFICATE OF SERVICE 10 INDEX OF AUTHORITIES

STATE CASES

ATKINSON V- STATE,

923 S.W.2d 21 (TX.CR.APP. 1996) 3

MADDEN V. STATE,

242 S.W 3d 504 (TEX .CR. APP. 2007 ) 5

STATE STATUTES

TEXAS CODE CRIMINAL PROCEDURE ART. 38.23 (A) 5

TEXAS CODE CRIMINAL PROCEDURE ART. 38.23 3,5,8

TEXAS CODE CRIMINAL PROCEDURE ART. 18.01 (B) 6,7,8,9

TEXAS CODE CRIMINAL PROCEDURE ART. 18.06 (B) 6

TEXAS RULE APP. PROC. ANN. 68.2 (VERN.2003) 2

TEXAS RULE APP. PROC. ANN. 68.4 (VERN.2003) 2

TEXAS RULE APP. PROC. ANN. 69.1 (VERN. 2003) 9

(PAGE ONE) STATEMENT OF JURISDICTION

APPELLANT WAS CHARGED WITH THE OFFENSE OF POSSESSION OF

A CONTROLLED SUBSTANCE ON SEPTEMBER 26,2013. APPELLANT WAS

CONVICTED OF POSSESSION OF A CONTRILLED SUBSTANCE ON AUGUST

06.2014, AND WAS SENTENCED TO TWENTY (20) YEARS CONFINEMENT

IN THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL

DIVISION, AND A TEN-THOUSAND DOLLAR FINE. NO MOTION FOR NEW

TRIAL WAS FILED. NOTICE OF APPEAL WAS FILED AUGUST 06,2014.

THE COURT OF APPEALS AFFIRMED APPELLANT'S CONVICTION ON JUNE

17.2015. NO MOTION FOR REHEARING WAS FILED. THIS COURT HAS

JURISDICTION PURSUANT TO TEX. R. APP. P. ANN. 68.2(VERN.

2003).

STATEMENT OF THE CASE

THIS APPEAL LIES FROM APPELLANT'S FELONY JURY TRIAL AND

CONVICTION. THIS ISSUE BROUGHT FORWARD WAS DEVELOPED IN THE

TRIAL COURT OR OTHERWISE APPEAR IN THE RECORD.

PROCEDDRAL HISTORY

APPELLANT RAISED ONE GROUND OF ERROR FOR REVIEW IN THE

COURT OF APPEALS. THE COURT CONSIDERED THIS GROUND ON THE

MERIT, AND DECIDED THE SAME ADVERSELY TO APPELLANT. THE COURT

OF APPEALS RENDERED IT'S JUDGMENT ON JUNE 17,2015. NO MOTION

FOR REHEARING WAS FILED. TEX. R. APP. P. ANN. 68.4(e) (VERN.

(PAGE TWO) APPELLANT'S GROUND FOR REVIEW

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT ALLOW ING APPELLANT'S REQUESTED JURY INSTRUCTION UNDER TEX. CODE OF CRIMINAL PROCEDURE ARTICLE 38.23; EVIDENCE OBTAINED IN VIOLATION OF THE CONSTITUTION OR LAWS OF THE UNITED STATES, OR THOSE OF TEXAS MAY NOT BE ADMITTED IN A CRIMINAL CASE. SEE TEX. CODE CRIM. PROC. ANN. ART. 38.23 (A) (WEST 2005) . APPELLANT DISAGREES WITH THE 12TH. COURT OF APPEALS ARGUE- MENT THAT APPELLANT WAS NOT ENTITLED TO AN ARTICLE 38.23 INSTRUCTION, AND AFFIRMED THE JUDGMENT OF THE TRIAL COURT.

ARGUMENT

THIS COURT SHOULD GRANT THIS PETITION ON THE GROUND THAT

THE TRIAL COURT ERRED BECAUSE THE EVIDENCE OBTAINED IN THIS

CASE WAS ILLEGALLY SEIZED EVIDENCE, ARTICLE 38.23 (TEXAS

EXCLUSIONARY RULE)); PERMITS THE JURY TO DISREGARD ILLEGALLY

SEIZED EVIDENCE.

THE COURT IS REQUIRED TO INSTRUCT THE JURY TO DISREGARD

INCRIMINATING EVIDENCE USED AGAINST THE DEFENDANT IF THE

JURY BELIEVES OR HAS A REASONABLE DOUBT THAT THE EVIDENCE

WAS OBTAINED IN VIOLATION OF THE LAW, ARTICLE 38.23. SEE

ATKINSON V. STATE,923 S.W.2d 21 (TX.CR.APP.1996): WHEN A

FACTUAL ISSUE IS RAISED, THE DEFENDANT HAS AN ABSOLUTE RIGHT

TO AN INSTRUCTION.

IN THIS CASE, A FACTUAL ISSUE WAS RAISED IN THE ILLEGALITY

OF THE SEIZED EVIDENCE. CROCKETT POLICE OFFICER, CLAYTON

SMITH, FAILED TO PROVIDE THE APPELLANT WITH A COPY OF THE

SEARCH WARRANT.

ON SEPTEMBER 26,2013, THURSDAY MORNING AT 7:20am., OFFICER

C. SMITH AND FIVE OTHER OFFICERS CAME TO APPELLANT'S HOME AT 218 WOOD STREET, OFFICER C. SMITH STATED , MR. FOREMAN

(PAGE THREE) WE HAVE A SEARCH WARRANT TO SEARCH YOUR HOUSE..

APPELLANT ASKED OFFICER C. SMITH FOR A COPY OF THE SEARCH

WARRANT, OFFICER C. SMITH STATED, WE GOT IT. THE APPELLANT

ASKED AGAIN IN HIS BEDROOM, OFFICER C. SMITH REPLIED, WE

GOT IT. THIS WAS BEFORE BEFORE THE SEARCH BEGAN, AN HOUR

LATER THE APPELLANT WAS ARRESTED AND CHARGED WITH POSSESSION

OF A CONTROLLED SUBSTANCE WITHOUT A SEARCH WARRANT.

A WEEK AFTER APPELLANT WAS ARRESTED, THE APPELLANT SAW

OFFICER C. SMITH AND GOT A COPY OF THE SEARCH WARRANT. THE

APPELLANT REVIEWED THE SEARCH WARRANT AND NOTICED THE WORD

COPY AT THE TOP OF THE SEARCH WARRANT, IN BIG RED LETTERS

HE ALSO NOTICED THE DISTRICT CLERK OF HOUSTON COUNTY STAMP

MARK AT THE TOP RIGHT HAND CORNER OF THE SEARCH WARRANT,

IT STATES SEPTEMBER 27,2013 AT 9:43. APPELLANT ARGUES THAT

OFFICER C. SMITH CAME TO APPELLANT'S HOME ON SEPTEMBER 26,2013

AT 7:20am.; STATING HE HAD A SEARCH WARRANT.

OFFICER C. SMITH DID NOT HAVE A SEARCH WARRANT UNTIL THE

MORNING OF SEPTEMBER 27,2013 AT 9:43. THIS PROVES EVIDENCE

WAS OBTAINED IN VIOLATION OF THE LAW. THE SEARCH WARRANT

PROVES THAT OFFICER C. SMITH DID NOT PROVIDE THE APPELLANT

WITH A COPY OF THE SEARCH WARRANT ON SEPTEMBER 26,2013, WHICH

IS A THURSDAY.

THE APPELLANT CONTENDS, THE COPY OF THE SEARCH WARRANT

THAT HE RECEIVED FROM OFFICER C. SMITH, A WEEK AFTER APPEL

LANT'S ARREST, HAS THE CLERK STAMP-MARK DATED SEPTEMBER 27,2013,

WHICH IS A FRIDAY. IT IS IMPOSSIBLE FOR THE OFFICER TO GIVE

THE APPELLANT A COPY OF THE SEARCH WARRANT ON THURSDAY, SEPTE)-

(PAGE FOUR) MBER 26,2013.

APPELLANT ARGUED AT HIS TRIAL, THAT HE DID NOT RCEIVE

A COPY OF THE SEARCH WARRANT ON HIS AMENDED MOTION TO SUP

PRESS. THIS WAS FILED WITH THE COURT ON JULY 07,2,014. THE

MOTION WAS HEARD ON AUGUST 04,2014. THE JUDGE DENIED THE

MOTION A DAY BEFORE TRIAL. AT TRIAL, ON AUGUST 05,2014, DEFENSE

COUNSEL ASKED THE JUDGE FOR A JURY INSTRUCTION; CODE OF CRIM.

PROC. ART. 38.23: THE EVIDENCE IN THIS CASE WAS OBTAINED

ILLEGALLY.. WHEN EVIDENCE PRESENTED BEFORE THE JURY RAISES

A QUESTION OF WHETHER THE FRUITS OF A POLICE-INITIATED SEARCH

OR ARREST, WERE ILLEGALLY OBTAINED; "THE JURY SHALL BE IN

STRUCTED THAT IF IT BELIEVES, OR HAS A REASONABLE DOUBT,

THAT THE EVIDENCE WAS OBTAINED IN VIOLATION OF THE PROVISION

OF THIS ARTICLE, THEN AND IN SUCH EVENT, THE JURY SHALL

DISREGARD ANY SUCH EVIDENCE SO OBTAINED".

THE COURT OF CRIMINAL APPEALS HELD IN,MADDEN V. STATE, 242

S.W.3d 504 (TX.CR.APP.2007) WHEN A DISPUTED, MATERIAL ISSUE

OF FACT IS SUCCESSFULLY RAISED, THE TERMS OF THE STATUTE

ARE MANDATORY AND THE JURY MUST BE INSTRUCTED ACCORDINGLY.

EVIDENCE TO JUSTIFY AN ARTICLE 38.23(A) INSTRUCTION CAN DERIVE

"FROM ANY SOURCE" NO MATTER WHETHER "STRONG, WEAK, CONTRA

DICTORY, UNIMPEACHED OR UNBELIEVEABLE." BUT IT MUST, IN ANY

EVENT, RAISE A FACTUAL DISPUTE ABOUT HOW THE EVIDENCE WAS

OBTAINED" APPELLANT ARGUES HE RAISED A FACTUAL DISPUTE ABOUT

HOW THE EVIDENCE WAS OBTAINED WITHOUT A SEARCH WARRANT UNDER

CHAPTER 18.(R.R., VOL.1, p. 185).

(PAGE FIVE) AT TRIAL, OFFICER C. SMITH TESTIFIED THAT, HE GAVE THE

APPELLANT A COPY OF THE SEARCH WARRANT ON SEPTEMBER 26,2013,

AT APPELLANT'S HOME, AND AT'THE JAIL.(R.R. VOL. 1 p. 122).

THE SEARCH WARRANT, ITSELF, SHOWS THAT OFFICER C. SMITH

IS NOT TELLING THE TRUTH.

THE DISTRICT CLERK'S STAMP-MARK STATES SEPTEMBER 27,2013

AT 9:43 ON A FRIDAY MORNING. APPELLANT ARGUES THAT OFFICER

C. SMITH AND FIVE OTHER OFFICERS CAME TO HIS RESIDENCE ON

SEPTEMBER 26,2013 AT 7:20am. WHICH IS A THURSDAY.

THE COPY OF THE SEARCH WARRANT IS TWENTY-SIX (26) HOURS

LATE. THIS PROVES THAT APPELLANT WAS NOT SERVED A COPY OF

THE SEARCH WARRANT BY OFFICER C. SMITH ON THURSDAY MORNING

SEPTEMBER 26,2013 AT 7:20am.

IT IS ILLEGAL FOR A POLICE OFFICER, OR OFFICERS, TO COME

TO A PERSON'S HOME AND STATE, I HAVE A SEARCH WARRANT TO

SEARCH YOUR HOME AND NEVER PRODUCE THE SEARCH WARRANT UNTIL

DAYS LATER.

APPELLANT ARGUES THE TEX. CODE OF CRIM. PROC. CHAPTER

18, ARTICLE 18.06, WAS VIOLATED IN THIS CASE, SEE SECTION

(B) OF THIS ARTICLE WHICH STATES, ON SEARCHING THE PLACE

ORDERED TO BE SEARCHED, THE OFFICER EXECUTING THE WARRANT

SHALL PRESENT A COPY OF THE WARRANT TO THE OWNER OF THE PLACE,

IF HE IS PRESENT. THE APPELLANT WAS AT HOME, BUT, DID NOT

RECEIVE A COPY SEARCH WARRANT.

MOREOVER, OFFICER C. SMITH DOES NOT MEET THE REQUIREMENTS

TO OBTAIN A SEARCH WARRANT IN THIS CASE. OFFICER C. SMITH

VIOLATED TEX. CODE OF CRIM. PROC. CH. 18, ART. 18.01, SEC

TION (B), WHICH STATES:

(PAGE SIX) "NO SEARCH WARRANT MAY NOT ISSUE FOR ANY PURPOSE IN THIS

STATE UNLESS SUFFICIENT FACTS ARE FIRST PRESENTED TO SATISFY

THE ISSUING MAGISTRATE THAT PROBABLE CAUSE DOES IN FACT EXISTS

FOT ITS ISSUING. A SWORN AFFIDAVIT SETTING FORTH SUBSTANT

IAL FACTS ESTABLISHING PROBABLE CAUSE SHALL BE FILED IN EVERY

INSTANCE IN WHICH A SEARCH WARRANT IS REQUESTED. EXCEPT

AS PROVIDED BY ARTICLE 18.011, THE AFFIDAVIT IS PUBLIC IN

FORMATION IF EXECUTED, AND THE MAGISTRATE'S CLERK SHALL

MAKE A COPY OF THE AFFIDAVIT AVAILABLE FOR PUBLIC INSPECT

ION IN THE CLERK'S OFFICE DURING NORMAL BUSINESS HOURS.

IN THE PRESENT CASE, OFFICER C. SMITH'S SWORN AFFIDAVIT

IS NOT IN PLACE: HIS SWORN AFFIDAVIT IS NOT FILED UNTILTWO-

DAYS (2) AFTER THE SEARCH WARRANT WAS ISSUED. THE SEARCH

WARRANT WAS ALLEGEDLY ISSUED TO OFFICER C. SMITH ON SEPT

EMBER 25,2013 AT 4;25pm. HIS SWORN AFFIDAVIT IS NOT FILED

UNTIL SEPTEMBER 27,2013 AT 9:43; HIS SWORN AFFIDAVIT IS FILED

TWO-DAYS (2) LATER.

OFFICER CLAYTON SMITH, AND FIVE OTHER OFFICERS, CAME TO

APPELLANT'S HOUSE ON SEPTEMBER 26,2013 AT 7:20am, ALLEGING

THEY HAD A SEARCH WARRANT. OFFICER C. SMITH DOES NOT HAVE

A FILED SWORN AFFIDAVIT IN PLACE, WHICH IS USED TO OBTAIN A

SEARCH WARRANT. APPELLANT WAS ARRESTED ON SEPTEMBER 26,2013.

OFFICER C. SMITH'S SWORN AFFIDAVIT TO OBTAIN A SEARCH WARRANT

IS NOT FILED UNTIL SEPTEMBER 27,2013 AT 9:43.. ACCORDING

TO ARTICLE 18.01, SECTION (B), OFFICER C. SMITH'S SWORN AF

FIDAVIT SHOULD HAVE BEEN FILED BEFORE THE SEARCH WARRANT

WAS ISSUED, IT IS NOT, IT IS FILED TWO-DAYS AFTER THE SEARCH

(PAGE SEVEN) WARRANT WAS ISSUED. THIS VIOLATED ARTICLE 18.01 OF CHAPTER

18, CODE OF CRIM. PROC, BECAUSE OFFICER C. SMITH'S SWORN

AFFIDAVIT WAS NOT FILED WITH THE DISTRICT CLERK'S OFFICE

BEFORE THE SEARCH WARRANT WAS ISSUED IN THIS CASE.

THE PROCEDURE OUTLINED IN ARTICLE 18.01, SECTION (B),

HAPPENS FIST BEFORE A SEARCH WARRANT IS ISSUED. THE 12TH.

COURT OF APPEALS STATED IN IT'S OPINION AT PAGE THREE: WE

NOTE THAT THE SEARCH WARRANT IS NOT IN THE APPELLATE RECORD.

THEREFORE, THE COURT OF APPEALS DID NOT REVIEW THE APPELLANT'S

SEARCH WARRANT WHICH WOULD HAVE SHOWN THAT APPELLANT DID

NOT GET A COPY OF THE SEARCH WARRANT ON SEPTEMBER 26,2013.

THE APPEALS COURT ALSO NOTED , AT PAGE THREE,OF IT'S OPINION

THAT APPELLANT'S MOTION TO SUPPRESS WAS NEVER RULED UPON.

HOWEVER, THIS IS NOT TRUE. APPELLANT FILED TWO-MOTIONS TO

SUPPRESS THE. THE FIRST MOTION WAS INCORRECT. THE SECOND

MOTION WAS HEARD ON AUGUST 04,2014; AMENDED MOTION TO SUP

PRESS. IT WAS FILED JULY 07,2014, WITH THE COURT NOT THE

CLERK. IT WAS DENIED BY THE HONORABLE JUDGE MARK A. CALHOON

AUGUST 04,2014.

IMPORTANT DOCUMENTS AND TRIAL RECORDS WERE LEFT OUT OF

THIS APPEAL FOR SOME REASON. THE AMENDED MOTION TO SUPPRESS

ARGUED THAT APPELLANT WAS DENIED A COPY OF THE SEARCH WARRANT

AND THE POLICE OFFICERS VIOLATED APPELLANT'S STATE AND FEDERAL

CONSTITUTIONAL RIGHTS, ARTICLE ONE, SECTION NINE OF THE

TEXAS CONSTITUTION AND UNDER ARTICLE li.23 CODE OF CRIM. PROC. DEFENSE ALSO ARGUED AT TRIAL THAT APPELLANT WAS DENIED

A COPY OF THE SEARCH WARRANT AND A JURY INSTRUCTION 3§.23

IS REQUIRED (R.R. VOL. 1, p. 185). THE APPEALS COURT DID NOT HAVE THE SEARCH WARRANT, OFFI

CER C, SMITH'S SWORN AFFIDAVIT, AMENDED MOTION TO SUPPRESS,

THE REPORTER RECORDS WAS NOT EVER MADE TO THE AMENDED MOTION

TO SUPPRESS HEARING; THAT WAS HELD ON AUGUST 04,2014.

THERE IS TO MANY COURT RECORDS AND DOCUMENTS MISSING

IN THIS APPEAL FOR THE APPEALS COURT TO MAKE A DECISION

THAT APPELLANT WAS NOT ENTITLED TO TO AN ARTICLE 38.23 IN

STRUCTION. DEFENSE COUNSEL RAISED A FACTUAL DISPUTE IN THIS

AMENDED MOTION TO SUPPRESS AND DURING TRIAL;"MY CLIENT WAS

NOT SERVED A SEARCH WARRANT UNDER CHAPTER 18 (R.R., VOL.

1, p. 185).

THIS COURT SHOULD GRANT APPELLANT'S PETITION FOR DISCRE

TIONARY REVIEW ON THIS GROUND, AND ORDER A FULL BRIEF ON

THE MERIT. TEX. RULE APP. P. ANN. 69.1 (VERN. 2003).

(PAGE NINE) PRAYER FOR RELIEF

WHEREFORE PREMISES CONSIDERED, APPELLANT PRAYS THIS HONOR

ABLE COURT TO CONSIDER THIS GROUND FOR REVIEW RAISED HEREIN,

TO GRANT THIS PETITION FOR DISCRETIONARY REVIEW, AND TO ORDER

A FULL AND COMPLETE HEARING ON THE MERIT, AND WITH BRIEF.

RESPECTFULLY SUBMITTED,

-fAJ^Mjf^

PRO SE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT ON THIS jj^DAY OF JULY 2015, A TRUE AND CORRECT COPY OF THE FOREGOING PETITION WAS MAILED TO

THE 12th. COURT OF APPEALS, CLERK CATHY S. LUSK AND ANOTHER

MAILED TO THE HOUSTON COUNTY DISTRICT ATTORNEY'S OFFICE,

ANOTHER MAILED TO THE STATE PROSECUTING ATTORNEY, AT P.O. BOX 12405, CAPITOL STATION, AUSTIN, TEXAS 78711.

y^jZ^t&U^-UM^Z^^ — FREDDIE JAMES FOREMAN

(PAGE TEN) NO. 12-14-00232-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FREDDIE JAMES FOREMAN, § APPEAL FROM THE 349TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STA TE OF TEXAS, APPELLEE § HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

. Freddie James Foreman appeals his conviction for possession of a controlled substance. In his sole issue on appeal, Appellant contends that the trial court erred in denying his requested jury instruction under Texas Code of Criminal Procedure Article 38.23. We affirm.

Background

In 2013, Appellant and his nephew lived in a mobile home in Crockett, Texas. Crockett Police Department officers believed that Appellant's nephew committed several burglaries and thefts. They obtained a search warrant and executed it at the mobile home while Appellant and his nephew were present. When the officers initially entered the residence, they did not believe that Appellant was a suspect. However, while talking with Appellant in his bedroom prior to searching the home, the officers noticed several small baggies in plain view on the bedroom floor. These baggies were the type commonly used for packaging small quantities of narcotics for sale. The officers also noticed a hasp on Appellant's bedroom door, which they believed to be unusual inside a residence. Appellant told officers that his nephew was not allowed in his room, and that there was no need to search it.

The officers searched Appellant's bedroom and quickly discovered cocaine located in a sock. The officers told Appellant they discovered cocaine in his bedroom, and Appellant's immediate reply was to ask how much cocaine they found. One of the officers then asked Appellant about the baggies they discovered, and Appellant replied that the baggies held cookies he consumed. Appellant then stated that his nephew could have gone in his room without his permission, implying that the cocaine belonged to his nephew. Appellant was arrested and indicted for possession of a controlled substance, namely cocaine, in an amount of one gram or more, but less than four grams. The punishment level was raised to that of a second degree felony because of a prior felony conviction. Appellant pleaded "not guilty" to the charged offense and "true" to the enhancement paragraph. The jury sentenced Appellant to twenty years of imprisonment and assessed a $10,000.00 fine. This appeal followed.

Jury Instruction

In his sole issue on appeal, Appellant contends that the trial court erred in denying his requested jury instruction under Texas Code of Criminal Procedure Article 38.23. Standard of Review and Applicable Law

Under Article 38.23, evidence obtained in violation of the Constitution or laws of the United States or those of Texas may not be admitted in a criminal case. See Tex. Code Crim. PROC. Ann. art. 38.23(a) (West 2005). If a fact issue is raised about whether evidence was improperly obtained in this manner, the jury shall be instructed to disregard evidence that it finds was obtained in violation of the United States or Texas Constitution or laws. See id.

A defendant's right to the submission of an Article 38.23 jury instruction is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)). To be entitled to an Article 38.23 jury instruction, the defendant must establish that (1) the evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is affirmatively contested, and (3) the contested factual issue is material to the lawfulness of the challenged conduct. Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012). If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone as a question of law. Madden, 242 S.W.3d at 510. "The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct." Id. at 511.

Discussion

Appellant contends in his brief that the officers had no probable cause to search his bedroom, and that the officers exceeded the scope of the search warrant. Appellant did not provide any analysis in his brief showing that the evidence raised an issue of material fact on these issues. However, he cited various pages of the record he believed supports his argument. At trial, he asked for an Article 38.23 instruction based on "the pictures being changed, the material being placed. That the scope was exceeded and the fact [that Appellant was not] served a search warrant under Rule 18."

The issue of whether the officers had probable cause to search his room was not a contested issue of material fact at trial. Appellant filed a pretrial motion to suppress evidence stating generally that the officers violated his state and federal constitutional rights pertaining to search and seizure, along with his rights under Texas Code of Criminal Procedure Article 38.23. However, he never obtained a ruling on the motion, and the issue was not litigated at a pretrial hearing or at the trial itself. Consequently, the issue of probable cause was not affirmatively contested, and Appellant was not entitled to an Article 38.23 instruction on that basis. See Madden, 242 S.W.3d at 510. Moreover, since the facts do not raise the issue of probable cause to search his room, the issue was to be decided by the trial court as a question of law. See id. With regard to Appellant's remaining argument concerning the scope of the search warrant, we note that the search warrant is not in the appellate record, nor was it admitted into evidence at trial. The detective who obtained the warrant testified that the warrant directed him to search the

residence at the specified address. He was not asked whether it covered the entire residence or only a portion of it. None of the testimony or other evidence raised the issue concerning the search warrant's scope. Therefore, an Article 38.23 instruction was not required on this ground. See id. Appellant's sole issue is overruled.

Disposition

Having overruled Appellant's sole issue, we affirm the judgment of the trial court.

James T. Wqrthen Chief Justice

Opinion delivered June 17, 2015. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH) COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 17, 2015

FREDDIE JAMES FOREMAN, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 349th District Court of Houston County, Texas (Tr.Ct.No. 13CR-184)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, for which execution may issue, and that this decision be certified to the court below for observance.

James T. Worthen, Chief Justice. Panel consisted ofWorthen, C.J., Hoyle, J., and Nee ley, J. ft •OV ^ 3o

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