Opinion issued December 22, 2016

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-15-00994-CR

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ANDREW EARL JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Case No. 2029192

MEMORANDUM OPINION
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A jury convicted appellant, Andrew Earl Jackson, of burglary of a motor 

vehicle1and assessed his punishment at 200 days’ confinement in the Harris County 

Jail. In two points of error, appellant contends that the trial court erred in failing to 

(1) instruct the jury pursuant to article 38.23 of the Code of Criminal Procedure and

(2) read the charge aloud to the jury pursuant to article 36.14. We affirm.

Background

On June 2, 2015, at approximately 3 a.m., Officer Jorge Rincones with the 

Houston Police Department was patrolling the Montrose area when he saw appellant 

standing behind a car with its trunk open, bending down, and going through the items 

in the trunk. Officer Rincones testified that appellant looked in his direction, 

removed a bag from the trunk, and walked away. Officer Rincones stated that 

appellant left the trunk open and luggage on the ground. According to Officer 

Rincones, the area is known as a high-crime area in which a number of crimes, 

including robberies, vehicle thefts, and car break-ins, have been committed.

After Officer Rincones observed appellant walk across the street without 

entering a residence, he pulled up beside him. Officer Rincones testified that he 

recognized appellant from the neighborhood and had never seen him driving a car. 

Appellant told Officer Rincones that he did not own the car from which he had taken 

 

1 See TEX. PENAL CODE ANN. § 30.04(a) (West 2013) (“A person commits an offense 

if, without the effective consent of the owner, he breaks into or enters a vehicle or any part 

of a vehicle with intent to commit any felony or theft.”).
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the bag and that he was on his way to see his girlfriend. Officer Rincones detained 

appellant while he investigated the situation. Seconds later, other officers arrived at 

the scene and told Officer Rincones that someone had called to report a vehicle 

burglary in progress. Officer Rincones later identified Eric Lanning as the owner of 

the car. Lanning told Officer Rincones that he had not given permission to anyone 

to enter his car, and that the luggage on the ground and the messenger bag appellant

was carrying belonged to him.

Armando Lomas, an area resident, testified that he woke up at approximately 

2 a.m. to use the restroom and looked out the window to check on his vehicle parked 

on the street. Lomas stated that he saw appellant walk down the street and stop at a 

red car. Appellant then leaned on the trunk of the car and looked around as if 

checking to make sure no one was watching. Lomas testified that the trunk popped 

open and he saw appellant pull out a piece of luggage and a shoulder bag. Lomas

testified that appellant put the luggage back in the trunk, closed the trunk, and walked

away with the bag. After Lomas called police to report a burglary, he saw an officer 

stop appellant. Appellant was subsequently charged with the offense of burglary of 

a motor vehicle.

Jury Charge

In his first issue, appellant contends that the trial court erred by denying his 

request for an instruction under article 38.23 of the Code of Criminal Procedure.
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A. Standard of Review

We review a claim of jury charge error using the standard set out in Almanza 

v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). First, we determine whether error 

exists in the jury charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App. 

2013). Second, if error exists, we determine whether sufficient harm was caused by 

that error to require reversal. Id.; Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. 

App. 2005). We review a trial court’s decision to not submit an instruction in the 

jury charge for an abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 

(Tex. Crim. App. 2000).

B. Applicable Law

Article 38.23(a) provides:

(a) No evidence obtained by an officer or other person in violation of 

any provisions of the Constitution or laws of the State of Texas, or of 

the Constitution or laws of the United States of America, shall be 

admitted in evidence against the accused on the trial of any criminal 

case. 

In any case where the legal evidence raises an issue hereunder, the jury 

shall be instructed that if it believes, or has a reasonable doubt, that the 

evidence was obtained in violation of the provisions of this article, then 

and in such event, the jury shall disregard any such evidence so 

obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). A defendant’s right to the 

submission of jury instructions under article 38.23(a) is limited to disputed issues of 

fact that are material to his claim of a constitutional or statutory violation that would 
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render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. 

Crim. App. 2007). 

To be entitled to an article 38.23(a) instruction, a defendant must demonstrate 

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 in obtaining the evidence. See id. at 510.

However, if other facts, not in dispute, are sufficient to support the lawfulness of the 

challenged conduct, then the disputed fact issue is not submitted to the jury because 

it is not material to the ultimate admissibility of the evidence. See id. at 513; Serrano 

v. State, 464 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). The 

disputed fact must be an essential one in deciding the lawfulness of the challenged 

conduct. Madden, 242 S.W.3d at 511; Serrano, 464 S.W.3d at 7.

An investigative detention requires a police officer to have reasonable

suspicion of criminal activity. See Matthews v. State, 431 S.W.3d 596, 602–03 (Tex. 

Crim. App. 2014). Reasonable suspicion is present if the officer has specific, 

articulable facts that, when combined with rational inferences from those facts, 

would lead the officer to reasonably conclude that a person actually is, has been, or 

soon will be engaged in criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. 

Crim. App. 2005). A reasonable suspicion determination is made by considering the 

totality of the circumstances. Id. at 492–93.
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C. Analysis

During the charge conference, appellant requested that an article 38.23 

instruction be included in the charge, citing differences in Officer Rincones’s and 

Lomas’s testimony as to whether appellant left the trunk of the complainant’s car 

open or closed it before walking away with a bag. Appellant argued that this 

contested factual dispute entitled him to the instruction because Officer Rincones 

testified that he had reasonable suspicion to detain appellant based on the fact that 

appellant left the trunk open with bags on the ground. The trial court denied 

appellant’s request, finding that other factors amounted to reasonable suspicion to 

support the detention.

The question as to whether appellant left the trunk of the car open or closed it 

before walking away with the bag was not a fact material to determining the 

lawfulness of the detention. The following facts, not in dispute, were sufficient to 

support Officer Rincones’s reasonable suspicion: the area in question is known as a 

high-crime area in which a number of crimes, including robberies, vehicle thefts, 

and car break-ins, have been committed; at approximately 3:00 a.m., Officer 

Rincones observed appellant rummage through the trunk of the complainant’s car, 

remove a bag, turn and look in the officer’s direction, and walk away from the car 

with the bag; appellant did not walk toward any of the nearby residences; Officer 

Rincones recognized appellant from the neighborhood but had never seen him 
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driving a car; when the officer asked appellant what he was doing, appellant told 

him that the car did not belong to him. Under the totality of the circumstances, 

Officer Rincones had reasonable suspicion based on specific, articulable facts to 

conclude that appellant was engaging in criminal activity, even without evidence 

that the trunk was left open. See Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. 

Crim. App. 2011) (finding officer had reasonable suspicion to detain defendant who 

was observed stopping next to vehicles in parking lot and staring at occupants of 

vehicles); Tanner v. State, 228 S.W.3d 852, 856 (Tex. App.—Austin 2007, no pet.) 

(finding reasonable suspicion justifying stop based on officer’s observations that 

defendant and his companion had come from behind bar at 3:00 a.m. well after time 

when business had closed). 

There is no factual dispute sufficient to raise an issue for the jury regarding

whether Officer Rincones had reasonable suspicion to detain appellant. See 

Madden, 242 S.W.3d at 513; see also Garza v. State, 126 S.W.3d 79, 84–85 (Tex.

Crim. App. 2004) (“That appellant ‘disagrees with the conclusion that probable 

cause was shown as a matter of law’” is not the same as appellant controverting the 

facts.”) (emphasis in original). Thus, an article 38.23 instruction was not required. 

See Rocha v. State, 464 S.W.3d 410, 419 (Tex. App.—Houston [1st Dist.] 2015, pet. 

ref’d) (concluding article 38. 23 instruction was not required because question as to 

whether defendant’s window was rolled up as officer approached was not material 
8

to legality of officer’s warrantless search of vehicle where officer could have smelled 

marijuana as passengers exited car thereby providing probable cause for search).

Moreover, no instruction was required in this case because no evidence 

existed that could have been suppressed based on any illegal arrest. An instruction 

under article 38.23 instructs a jury to disregard any evidence if they find beyond a 

reasonable doubt that it was obtained in violation of the law. See TEX. CRIM. PROC.

ANN. art. 38.23(a). Here, no evidence was admitted that was obtained after Officer 

Rincones detained appellant. Although appellant argued that the shoulder bag he 

was carrying when he walked away from the car should have been suppressed, the 

record reflects that the State did not offer the bag into evidence.

The trial court did not err in denying the requested article 38.23 instruction. 

We overrule appellant’s first point of error.

Reading of the Court’s Charge

In his second point of error, appellant argues that the trial judge failed to read 

the jury instructions aloud. 

Article 36.14 of the Code of Criminal Procedure provides that “the judge shall, 

before the argument begins, deliver to the jury . . . a written charge distinctly setting 

forth the law applicable to the case . . . .” TEX. CRIM. PROC. ANN. art. 36.14 (West 

2007). A supplemental reporter’s record was filed on August 18, 2016, reflecting 
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that the charge was read to the jury in open court. Accordingly, we overrule 

appellant’s second point of error.

Conclusion

We affirm the trial court’s judgment.

Russell Lloyd

Justice 

Panel consists of Justices Keyes, Higley, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).