Alex VILLALOBOS, Appellant v. The STATE of Texas, Appellee

NO. 14-16-00593-CR

Court of Appeals of Texas, Houston (14th Dist.).

Majority and Concurring Opinions filed May 22, 2018

Keith Alexander Gross, League City, TX, for Appellant.

Patricia McLean, Houston, TX, for the State.

Panel consists of Justices Jamison, Busby and Donovan.

*365For majority opinion see 2018 WL 2306880.

**CONCURRING OPINION**

John Donovan, Justice

Within his argument for issue two, appellant contends that his warrantless arrest was illegal and that he was entitled to an article 38.23 instruction.1 Taken together, it is apparent that appellant is claiming the trial court erred in denying his requested instruction because evidence was obtained as a result of his allegedly illegal arrest. *See* Tex. R. App. P. 38.1(f) ("The brief must state concisely all issues or points presented for review. The statement of an issue or point will be treated as covering every subsidiary question that is fairly included."); *Wolfe v. State* , 509 S.W.3d 325, 341 (Tex. Crim. App. 2017). Accordingly, I would address that issue rather than decide, as the majority does, appellant was found in a suspicious place. And although the majority ultimately concludes the trial court did not err in failing to give the requested question, it repeatedly states it is not deciding that question, clouding its decision. Ultimately, the majority does not determine whether an article 38.23 instruction was warranted. Because it was not, I concur.

Article 38.23 requires the trial court to exclude any evidence that it finds, as a matter of law, was obtained in violation of state or federal law. Tex. Code Crim. Proc. art. 38.23. Further, article 38.23 mandates the jury be instructed that if it believes, or has a reasonable doubt, that the evidence was illegally obtained it is to disregard any such evidence. *Id.;**Cummings v. State* , 401 S.W.3d 127, 128 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd). Such an instruction is only required if "there is a genuine dispute about a material fact that is essential to deciding the lawfulness of the challenged conduct in obtaining the evidence." *Id.* at 130 (citing *Madden v. State* , 242 S.W.3d 504, 510 (Tex. Crim. App. 2007) ). "If other facts not in dispute are sufficient to support the lawfulness of the challenged conduct, then the disputed fact issue is not material to the ultimate admissibility of the evidence." *Id.*

Appellant asserts his warrantless arrest was illegal because the State failed to establish he was found in a suspicious place. *See* Tex. Crim. Proc. Code § 14.03. However, appellant has not identified any factual dispute. Appellant challenges his arrest on legal, not factual, grounds that the evidence failed to show he was in a suspicious place. This is not a "conflict concerning [a] specific historical fact." *Holmes v. State,*248 S.W.3d 194, 200 (Tex. Crim. App. 2008). If the question is only one of law, or there is no affirmative evidence that raises a contested fact issue, there is nothing to instruct the jury about. *Id.; see also**Cummings* , 401 S.W.3d at 130. The record contains no conflicting evidence about the place where appellant was arrested. For this reason, the trial court did not err in denying appellant's requested instruction.

I therefore respectfully concur in this court's judgment.

1

I do not address whether appellant preserved this issue because the failure to properly request an article 38.23 instruction would affect the harm analysis, which I do not reach. *See**Holmes v. State* , 248 S.W.3d 194, 202 n.32 (Tex. Crim. App. 2008) (noting defendant's proffered incorrect instruction should have been analyzed under the egregious harm standard).