Court of Appeals
Tenth Appellate District of Texas
10-25-00147-CR
Steve O'Neal Green,
Appellant
v.
The State of Texas,
Appellee
On appeal from the
272nd District Court of Brazos County, Texas Judge John L. Brick, presiding Trial Court Cause No. 23-04189-CRF-272
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
After a jury trial, Green was convicted of possession of a controlled substance in an amount of less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). He pled “true” to two felony enhancement paragraphs, and the jury assessed his punishment at ten years in prison. On appeal, Green challenges the trial court’s denial of his motion to suppress evidence, exclusion of his requested jury instruction, and admission of certain extraneous-offense evidence in the punishment phase. We affirm.
Motion to Suppress
Green claims in his first issue that the trial court reversibly erred by denying his motion to suppress the evidence seized from a warrantless search of his backpack at the jail. He invites us to extend the principles of Arizona v. Gant beyond warrantless vehicle searches to the search of his backpack and contends that the search cannot be justified as a search incident to arrest.1 556 U.S. 332 (2009). We disagree. STANDARD OF REVIEW When reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). We give almost complete deference to the trial court’s determination of historical facts. Id. We then proceed to a de novo determination of “the legal significance of the facts as found by the trial court— including the determination of whether a specific search or seizure was reasonable.” Id. We view all the evidence in the light most favorable to the trial court’s ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).
1 Green also contends that the search cannot be justified as an inventory search. We need not address this contention based on our disposition of this issue. See TEX. R. APP. P. 47.1.
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RELEVANT BACKGROUND Green’s pre-trial motion to suppress evidence ran with the trial.
Evidence presented during the State’s case-in-chief established that officers observed Green violating the Transportation Code by operating a bicycle at night that was not equipped with a front lamp. TEX. TRANS. CODE ANN. § 551.104(b)(1). Green was wearing a backpack. During the stop, officers had Green sit on the curb while they contacted dispatch with his identifying information. Dispatch informed officers that Green might have several municipal warrants for his arrest. While waiting for confirmation that the warrants were active, officers placed Green in handcuffs. After intake personnel with the police department confirmed the warrants were active, officers arrested Green and put him in the back of the patrol vehicle.
An officer began searching Green’s backpack and placing its contents on the hood of the patrol vehicle. However, due to darkness and the presence of “adult toys and entertainment paraphernalia,” the officer stopped his search, secured the backpack in the patrol car, and transported Green to jail. While Green was getting booked in, the officer continued searching the backpack. In an external pocket, the officer located an empty chip bag containing several small white rocks that eventually tested positive for the presence of cocaine.
After the State rested, outside of the jury’s presence, the trial court heard counsel’s arguments on the motion to suppress.2 The trial court found that “the search incident to arrest was valid” and denied the motion. ANALYSIS The Supreme Court has identified two distinct categories within the search-incident-to-arrest exception to the warrant requirement. United States v. Robinson, 414 U.S. 218, 224 (1973). The first category is a search of the arrestee’s person, which extends to property immediately associated with the person of the arrestee.3 United States v. Chadwick, 433 U.S. 1, 14-15 (1977). If a search falls under this category, a lawful custodial arrest is the sole justification needed to perform the search. Id.
The second category is a search of the area within the arrestee’s immediate control. Robinson, 414 U.S. at 224. A search pursuant to this category must be limited to “the area from within which [the arrestee] might
2 The State initially contends on appeal that Green forfeited any error in the trial court’s denial of his
motion to suppress by failing to obtain a ruling on the motion until after the trial court admitted the contested evidence, and affirmatively stating “no objection” to its admission. However, the Court of Criminal Appeals has held:
If the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his “no objection” statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal, then the appellate court should not regard the claim as “waived,” but should resolve it on the merits.
Thomas v. State, 408 S.W.3d 877, 884-85 (Tex. Crim. App. 2013). We find that the record as a whole plainly demonstrates no waiver or abandonment by Green, particularly considering the trial court’s decision to take up the motion to suppress after the statement of “no objection.” See Bouyer v. State, 264 S.W.3d 265, 268 (Tex. App.—San Antonio 2008, no pet.).
3 But see, Riley v. California, 573 U.S. 373 (2014) (does not extend to digital data on cell phones or similar devices).
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gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763 (1969). Gant addressed this category in the context of vehicle searches. 556 U.S. at 335. The Court held that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 351.
Green argues that if we extend Gant beyond warrantless vehicle searches, then the backpack search at the jail was unconstitutional because any concern for officer safety or evidence destruction had dissipated. Gant, however, carefully limited its holding to the second category of searches in the context of automobiles. We decline Green’s invitation to extend Gant to searches of personal effects in the arrestee’s possession at the time of arrest. We find that this search incident to arrest falls under the first Robinson category, and the only required justification for the search was a lawful arrest. This finding aligns with the Court of Criminal Appeals’s recent statement in Price v. State, that where
an arrestee is in actual possession of a receptacle at the time of, or reasonably contemporaneously to, his custodial arrest, and that receptacle must inevitably accompany him into custody, a warrantless search of that receptacle at or near the time of the arrest is reasonable under the Fourth Amendment as a search incident to the arrestee’s person. Such a search requires no greater justification than the fact of the lawful arrest itself.
662 S.W.3d 428, 438 (Tex. Crim. App. 2020) (plurality op.).
Because Green’s lawful arrest supports the search of his backpack as a search incident to arrest, the trial court did not err in denying his motion to suppress.4 Accordingly, we overrule Green’s first issue on appeal.
Article 38.23 Jury Instruction Green contends in his second issue that the trial court reversibly erred by denying his requested article 38.23 jury instruction. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a). He argues that the instruction should have been included so that the jury could resolve a factual dispute about “the validity of the collection warrants on which [he] was arrested.” We disagree. STANDARD OF REVIEW AND RELEVANT LAW Article 38.23 of the Code of Criminal Procedure provides that no evidence obtained by an officer in violation of the laws of Texas or the United States shall be admitted in evidence against an accused on the trial of any criminal case. See id. Where the evidence raises this issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the law, it shall disregard the evidence obtained. See id.
4 Green does not attack the lawfulness of his arrest on the municipal warrants in this issue, though
he contends in his second issue that there was a factual dispute as to their validity. We resolve Green’s second issue against him below.
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A defendant's right to an article 38.23(a) 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). There are three requirements that must be met to be entitled to an instruction pursuant to article 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510.
To raise a disputed fact issue warranting an article 38.23 jury instruction, there must be some affirmative evidence that puts the existence of that fact into question. Id. at 513. Mere insinuations by a defendant’s attorney on cross examination do not raise a fact issue. See Garza v. State, 126 S.W.3d 79, 87 (Tex. Crim. App. 2004). 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. RELEVANT BACKGROUND The five municipal warrants on which Green was arrested were issued on January 22, 2019. Certified copies of each capias pro fine were admitted into evidence as State’s Exhibits 9 through 13. On each of the State’s exhibits, the officer’s return was completed and dated August 2, 2023 – the date of Green’s arrest in this case. The trial court found that these warrants were valid.
The trial court also admitted Defendant’s Exhibits 10 through 13 into evidence. Defendant’s Exhibits 10, 11, and 13 are capias pro fine warrants issued on August 31, 2023, in the same cause numbers as State’s Exhibits 9, 11 and 13, respectively, though they list a different amount due than the State’s corresponding exhibits. Defendant’s Exhibit 12 appears to be a duplicate copy of State’s Exhibit 9, except that the officer’s return is not completed. There does not appear to be a corresponding defendant’s exhibit to State’s Exhibit 10.5 ANALYSIS On appeal, Green asserts that his requested article 38.23 jury instruction was warranted because “a material, contested fact issue existed on the validity of the collection warrants” on which he was arrested; namely, the possibility of a “clerical error in failing to recall collection warrants that had been laid out or otherwise satisfied[.]” The State responds that Green failed to
5 When the trial court overruled Green’s requested 38.23 jury instruction during the charge conference, Green submitted a written proposed jury charge including his requested instruction.
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affirmatively contest this factual dispute in front of the jury. We agree with the State.
Simply offering Defendant’s Exhibits 10 through 13 into evidence was insufficient on its own to create a factual dispute. See Sterling v. State, 10-19- 00250-CR, 2020 WL 950147, *2-3 (Tex. App.—Waco Feb. 26 2020, pet. ref’d) (mem. op., not designated for publication) (citing Madden, 242 S.W.3d at 513- 16). As noted by the State, Green “never elicited testimony regarding whether the warrants in State’s Exhibits 9 through 13 were recalled or satisfied[.]” Though Green argued his clerical-error theory to the court outside of the jury’s presence, Green did not affirmatively contest the validity of the warrants on which he was arrested in front of the jury. Because Green failed to present affirmative evidence of a factual issue for the jury to resolve, the trial court did not err in refusing the article 38.23 instruction.
Moreover, even assuming, arguendo, that all of the warrants on which Green was arrested were recalled or otherwise satisfied, the good-faith exception negated his requested instruction. See TEX. CODE CRIM. PROC. ANN. art. 38.23(b). Green does not contest the facial validity of the warrants in State’s Exhibits 9 through 12; however, he argues that the article 38.23 good- faith exception does not apply to his capias pro fine warrants because those
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warrants are not based on probable cause. Contrary to Green’s contention, the Court of Criminal Appeals has explained:
While a capias is issued after a judgment has been rendered against the defendant, it must still be supported by probable cause.
But because a judgment against a defendant signifies a finding beyond a reasonable doubt that he has committed the charged offense, we have held in the context of a parole violation that a judgment coupled with a finding by the court that there is a “reason to believe” that the defendant has violated the conditions of his parole will constitute sufficient probable cause to support the issuance of a parole violation warrant. While a traffic violator, unlike a parolee, is not subject to a judgment imposing a term of imprisonment, the judgment establishing the traffic violation nonetheless carries considerable weight and validity because it is based upon a finding beyond a reasonable doubt. Thus, a judgment for a traffic violation, together with a finding by the court that the defendant has failed to satisfy its terms, will comprise sufficient probable cause to support issuance of the capias pro fine.
Jones v. State, 119 S.W.3d 766, 786 (Tex. Crim. App. 2003); see Durio v. State, 807 S.W.2d 876 (Tex. App.—Corpus Christi-Edinburg 1991, no pet.) (holding that the good-faith exception applied to evidence seized by officers acting in good-faith reliance on facially valid municipal warrants, even where the warrants were later determined to be invalid). We overrule Green’s second issue.
Extraneous Offense Evidence In his third issue, Green claims that the trial court reversibly erred by overruling his article 37.07 and Rule 403 objections to State’s Exhibits 31 and
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33 during the punishment phase of trial. See TEX. CODE CRIM. PROC. ANN. art. 37.07; TEX. R. EVID. 403. We disagree. ANALYSIS We review a trial court’s decision to admit extraneous offense evidence for an abuse of discretion. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).
State’s Exhibit 33 is a certified copy of an indictment alleging that Green committed the offense of attempted sexual assault on or about February 11, 2005.
State’s Exhibit 31 is a certified copy of a document requesting the trial court to take into consideration the unadjudicated attempted sexual assault offense in assessing Green’s punishment for the offense of injury to a child. The document includes a statement that the trial court, having heard Green “admit his guilt” to the attempted sexual assault, barred further prosecution of the offense and released him from the charge.
Article 37.07 If the trial court deems it relevant to sentencing, the State may introduce evidence of an extraneous bad act that is shown beyond a reasonable doubt to have been committed by the defendant, regardless of whether he has
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previously been charged with or finally convicted of the act. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1).
At trial, Green argued that State’s Exhibits 31 and 33 were “mere accusations” and were inadmissible under article 37.07 unless supported by testimony proving the unadjudicated attempted sexual assault beyond a reasonable doubt. On appeal, he contends that the trial court should not have treated the exhibits as a judicial confession and should have required additional testimonial proof of the unadjudicated offense before admitting the documents into evidence. As to this argument, we note that the beyond-a- reasonable-doubt burden in the punishment phase applies to the defendant's involvement in the extraneous act itself – in other words, whether the extraneous act is attributable to him – not to the elements of a crime necessary for a finding of guilt. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).
Relevance in the punishment phase is “a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.” Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). The trial court is the exclusive authority on the threshold issue of admissibility of relevant evidence, while the jury ultimately determines whether the State has met the burden of proof for the extraneous act. Mitchell, 931 S.W.2d at
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954. “Stated differently, the trial court is not charged with determining whether the State has proven the extraneous offenses beyond a reasonable doubt” in deciding whether to admit the evidence. Nanez v. State, 179 S.W.3d 149, 152-53 (Tex. App.—Amarillo 2005, no pet.).
Here, the trial court found that the unadjudicated attempted sexual assault evidence was relevant for punishment. A defendant’s history of bad acts is relevant evidence for a jury to consider when assessing an appropriate sentence because it relates to the defendant’s character, and the existence of prior bad acts and crimes may justify the imposition of a harsher sentence for the charged offense. Ex parte Boxton, 888 S.W.2d 23, 27 (Tex. Crim. App. 1994); see Sanders v. State, 422 S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref’d).
We find that the trial court did not abuse discretion in admitting State’s Exhibits 31 and 33 under article 37.07.
Rule 403 Even if extraneous evidence is otherwise admissible during the punishment phase, it may be excludable under Rule 403 if it is substantially more prejudicial than probative. See TEX. R. EVID. 403.
On appeal, Green claims that State’s Exhibits 31 and 33 were not probative because the unadjudicated attempted sexual assault is twenty years
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old and is dissimilar to the possession of a controlled substance offense for which he was convicted. He also asserts that the evidence suggested punishment on an improper basis because juries tend to give undue weight to sexually-based offenses, and he points to the jury’s assessment of the maximum punishment as support.
Assuming without deciding that the trial court erred in overruling Green’s Rule 403 objection, we find that the error, if any, was harmless. Erroneous admission of extraneous offense evidence in the punishment phase is subject to a non-constitutional harm analysis under Rule 44.2(b) to determine whether the error affected a substantial right of the defendant. See TEX. R. APP. P. 44.2(b). Substantial rights are affected when “the error had a substantial and injurious effect or influence in determining the jury’s verdict.” Haley, 173 S.W.3d at 518.
Here, the record contains evidence of Green’s extensive criminal history dating back to 1993, including multiple felony convictions. Though much of Green’s prior criminal history was theft-related, one of his felony convictions was for the offense of injury to a child. Green was accused in that case of subjecting a child to “unreasonable touching.” The trial court in the injury to a child case also took into consideration the unadjudicated attempted sexual assault charge in assessing punishment. The judgment reflects that Green’s
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sentence was initially probated for nine years, but that the trial court eventually revoked his community supervision and sentenced him to ten years in prison.
Moreover, in this case, the trial court instructed the jury not to consider any extraneous bad act or offense unless they believed beyond a reasonable doubt that Green committed the bad act or offense. There is no indication in the record that the jury failed to follow this instruction, nor is there any evidence that Green’s maximum sentence was the result of the unadjudicated attempted sexual assault. Additionally, the State only briefly mentioned the unadjudicated attempted sexual assault in its opening statement and in its closing statement. Each time, the State mentioned the unadjudicated offense as one piece of Green’s lengthy criminal history in requesting the jury to consider Green’s “continued pattern of behavior” despite the many opportunities Green had been given. We find that the trial court’s error, if any, in overruling Green’s Rule 403 objection was harmless.
Accordingly, we overrule Green’s third issue.
Conclusion
Having overruled all of Green’s issues on appeal, we affirm the trial court’s judgment.
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STEVE SMITH
Justice
OPINION DELIVERED and FILED: August 27, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Do Not Publish CR25