Horacio Aguirre v. State

• Court: Court of Appeals of Texas
• Decided: October 28, 2020
• Docket: 10-19-00286-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00286-CR

HORACIO AGUIRRE, Appellant v.

THE STATE OF TEXAS, Appellee

From the County Court at Law Walker County, Texas Trial Court No. 18-0499

OPINION

Horacio Aguirre was convicted of resisting arrest and sentenced to 365 days in jail.

See TEX. PENAL CODE § 38.03. His sentence was suspended, and Aguirre was placed on

community supervision for 18 months. Because the trial court did not err in refusing

Aguirre’s requested article 38.23 instruction to the jury, the trial court’s judgment is

affirmed.

BACKGROUND

Aguirre and another person were standing by a pickup, drinking. There were

many beer cans on the ground next to them. Sgt. Jeremy Carroll and Cpl. Cody Perkins with the Huntsville Police Department were responding to a medical emergency in the

area when they missed the location of the emergency and had to turn around. Upon

turning around, Perkins saw the other person standing with Aguirre suspiciously lower

his arm and drop something. Carroll told Perkins to go on to the call and he would stay

to investigate what Perkins had seen. During the investigation, Carroll determined both

persons to be intoxicated in public and attempted to arrest them. Carroll first handcuffed

the other suspect with a plastic tie. Then, as Carroll attempted to place Aguirre in

handcuffs, Aguirre yanked his arm forward. To gain control of the situation, Carroll took

Aguirre down to the ground, where Aguirre tried to keep his arms under his body to

avoid being placed in handcuffs. While Carroll was struggling with Aguirre, the other

suspect ran away still handcuffed with a plastic tie. Aguirre was eventually handcuffed

and charged with resisting arrest.

During trial, Aguirre suggested through cross-examination of Carroll that Aguirre

was standing on private property during the encounter; and thus, the arrest was illegal.

Carroll testified that he believed Aguirre to be standing in a public area, and no evidence

was presented to the contrary.

RESISTING ARREST AND ARTICLE 38.23

In his sole issue, Aguirre complains that the trial court erred in refusing to include

a requested Code of Criminal Procedure article 38.23 instruction, the statutory

exclusionary rule, in the trial court’s charge to the jury.

Standard of Review

If error exists in the jury charge, we analyze the harm, if any, resulting from the

error. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Almanza v. State, 686 Aguirre v. State Page 2 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If the error was preserved by

objection, as it was in this case, any error that is not harmless will constitute reversible

error. Id. The actual degree of harm must be assayed in light of the entire jury charge,

the state of the evidence, including the contested issues and weight of probative evidence,

the argument of counsel, and any other relevant information revealed by the record of

the trial as a whole. Almanza, 686 S.W.2d at 171.

The Law

A person commits the offense of resisting arrest if he intentionally prevents or

obstructs a person he knows is a peace officer or a person acting in a peace officer’s

presence and at his direction from effecting an arrest, search, or transportation of the actor

or another by using force against the peace officer or another. TEX. PENAL CODE § 38.03(a).

It is no defense to prosecution that the arrest or search was unlawful. Id. (b).

According to Texas’ statutory exclusionary rule, no evidence “obtained by an

officer in violation of … the Constitution or laws of the State of Texas, or of the

Constitution or laws of the United States of America,” is admissible in trial against the

accused. TEX. CODE CRIM. PROC. art. 38.23(a). Further, in any case where the evidence

raises such an issue, the jury shall be instructed that if it believes, or has a reasonable

doubt, that the evidence was obtained in violation of article 38.23(a), the jury shall

disregard that evidence. See id.

To be entitled to an Article 38.23(a) instruction, a defendant must show that (1) an

issue of historical fact was raised in front of the jury; (2) the fact was contested by

affirmative evidence at trial; and (3) the fact is material to the constitutional or statutory

violation that the defendant has identified as rendering the particular evidence Aguirre v. State Page 3 inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). Although

evidence to justify an Article 38.23(a) instruction can derive "from any source," it must, in

any event, raise a "factual dispute about how the evidence was obtained." Id.; Garza v.

State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). Where the issue raised by the evidence

at trial does not involve controverted historical facts, but only the proper application of

the law to undisputed facts, that issue is properly left to the determination of the trial

court. Robinson, 377 S.W.3d at 719.

Argument

Aguirre argued at trial and argues on appeal that he was entitled to an article 38.23

jury instruction because the arrest which led him to resist was illegal. Aguirre does not

point to an evidentiary and material factual dispute which would support his requested

instruction. Rather, he claims that simply because he believed the arrest Carroll was

trying to make was illegal, the jury should be instructed to disregard Aguirre’s act of

resisting. He relies on the Court of Criminal Appeals’ opinion in Ford v. State, 538 S.W.2d

633 (Tex. Crim. App. 1976), for the proposition that a defendant is still entitled to use the

exclusionary rule even though the legality of the arrest is not a defense to prosecution for

resisting arrest. Thus, his argument continues, the jury should have been given the

opportunity, through an article 38.23 instruction, to disregard Aguirre’s act of resisting if

the jury believed the arrest which he resisted was illegal. We disagree with Aguirre.

Application

Aguirre misunderstands the holding in Ford. The issue discussed in Ford was the

constitutionality of the elimination of the common law right to resist an unlawful arrest

pursuant to Texas Penal Code Section 38.03. To clarify why the Court held the statute Aguirre v. State Page 4 constitutional, the Court explained that by submitting to an unlawful arrest, the person

was not giving up his remedy to argue that arrest was unlawful and anything obtained

as a result of that unlawful arrest could be suppressed if otherwise appropriate to do so.

The Court was not saying that if the person resisted arrest, he retained the remedy of

suppression of evidence of resisting arrest on the theory that the initial arrest was

unlawful. 1

Under article 38.23, the phrase, "obtained in violation of the law," contemplates

that a crime has been committed; that evidence of that crime exists; and that officers

violated the law in attempting to obtain evidence of the previously committed crime.

State v. Mayorga, 901 S.W.2d 943, 945-46 (Tex. Crim. App. 1995). Thus, the officers must

act illegally in obtaining existing evidence of an offense. Id. at 946.

But, in the context of resisting arrest, as the Dallas Court of Appeals stated over 20

years ago:

Unlike prior criminal acts to which a defendant confesses or evidence already in existence but found pursuant to a consent to search, evidence that a defendant resisted arrest does not exist before the illegal arrest because the crime of resisting arrest has not yet been committed. In fact, when a defendant submits to the arrest as the public policy and the law of this state require, there will be no such evidence. In contrast, when a defendant does resist at the time and place of arrest, the evidence of resistance comes into existence contemporaneously with the officer's attempt to arrest him. Because the evidence does not exist prior to the illegal arrest and may never exist, the police cannot suspect its existence and arrest a defendant for the purpose of gaining the evidence. The police correspondingly cannot foresee getting the evidence as a consequence of their actions; their decision to arrest cannot be motivated by the possible

1 Moreover, Ford does not mandate that all evidence gathered by police after effecting an illegal arrest must be suppressed or that an instruction under article 38.23 must be given. See Ford v. State, 538 S.W.2d 633, 635 (Tex. Crim. App. 1976); see also State v. Mayorga, 938 S.W.2d 81, 85 (Tex. App.—Dallas 1996, no pet.). A defendant still must show entitlement to the instruction. See e.g. State v. Mayorga, 938 S.W.2d 81, 85 (Tex. App.—Dallas 1996, no pet.); see also Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (sets out requirements for entitlement to 38.23 instruction). Aguirre v. State Page 5 acquisition and use of the evidence. Absent other facts inculpating the police conduct, the evidence of resisting arrest simply does not come into existence at a time and place or under circumstances to be within the field of exploitation.

State v. Mayorga, 876 S.W.2d 176, 178 (Tex. App.—Dallas 1994), remanded, 901 S.W.2d 943,

946 (Tex. Crim. App. 1995) (emphasis added). We agree with the Dallas Court of

Appeals’s interpretation of article 38.23 with respect to the offense of resisting arrest; and

we note that other Texas courts have likewise applied that court’s reasoning to offenses

other than resisting arrest. See e.g. Martinez v. State, 91 S.W.3d 331, 340 (Tex. Crim. App.

2002) (commission of perjury after not being fully advised of right to remain silent, not

subject to suppression); Bryant v. State, 253 S.W.3d 810, 813 (Tex. App.—Amarillo 2008,

pet. dism’d) (exclusionary rule did not require suppression of the evidence of appellant's

destruction of the glass pipe in the presence of the officers, regardless whether the pipe

was located following an unlawful detention); Bell v. State, 233 S.W.3d 583, 588 (Tex.

App.—Waco 2007, pet. ref’d untimely filed) (aggravated assault on public servant during

illegal detention not subject to suppression); Cooper v. State, 956 S.W.2d 95, 98 (Tex.

App.—Tyler 1997, pet. ref’d) (alleged illegality of the arrest was irrelevant to the crime of

aggravated assault on a peace officer).

Thus, absent evidence that Sgt. Carroll engaged in an illegal act to exploit the

allegedly illegal arrest of Aguirre for public intoxication, for example to gain evidence of

another crime or to provoke Aguirre’s resisting, the base allegation that the arrest was

illegal, or that Aguirre thought it was illegal, or that it was in fact illegal, by itself, is not

sufficient to require the trial court to provide the jury with an article 38.23 instruction in

the trial for resisting arrest. Indeed, Aguirre has not pointed to any evidence in the record

Aguirre v. State Page 6 of exploitation, and we have found none, which would require an article 38.23

instruction. Nor has Aguirre directed the Court to any evidence he believes was illegally

obtained other than the evidence that he resisted arrest. But, as we have explained, that

evidence was not illegally obtained. The evidence of resisting arrest was obtained

lawfully during the course of Aguirre’s arrest for public intoxication. 2 Consequently,

Aguirre was not entitled to an article 38.23 instruction based on the argument he made

to the trial court or to us on appeal.

CONCLUSION

Accordingly, for the reasons expressed, the trial court did not err in denying

Aguirre’s requested instruction, and Aguirre’s sole issue is overruled.

The trial court’s judgment is affirmed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed October 28, 2020 Publish [CR25]

2 To give the instruction for the purpose and in the manner as argued by Aguirre would effectively nullify the very offense the legislature was creating—the purpose of which was to avoid altercations with the police in the streets to determine if an arrest was lawful. See Ford v. State, 538 S.W.2d 633, 635 (Tex. Crim. App. 1976) (“The line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts.”). As long as the arrestee submits to the arrest, the arrestee retains the rights described in Ford, including the right to have any evidence discovered as a result of the illegal arrest suppressed. Aguirre v. State Page 7