Opinion filed May 25, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-15-00112-CR

__________

TED CLINTON MURRAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 358th District Court

Ector County, Texas

Trial Court Cause No. D-44,172

M E M O R A N D U M O P I N I O N

The jury convicted Ted Clinton Murray of theft (less than $1,500) with two 

prior theft convictions. See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(D) (West 

Supp. 2016). The jury assessed Appellant’s punishment at confinement for two 

years in the State Jail Division of the Texas Department of Criminal Justice. The 

jury also assessed a fine of $1,000. In two issues on appeal, Appellant contends that 

the trial court erred when it denied (1) his requested jury instruction under 

Article 38.23 of the Texas Code of Criminal Procedure and (2) his motion for a 
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directed verdict based upon his claim of being illegally searched and illegally 

arrested. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). We affirm.

Background Facts

On August 26, 2014, Caleb Savell, the lead pawnbroker at EZ Pawn in 

Odessa, was outside the store when he noticed Appellant exiting the store with a 

blue electric guitar. Suspicious, Savell checked to see if the guitar had been sold by 

the store. When Savell determined that the guitar had not been sold, he reported the 

matter to his manager. Jessica Brown, the manager at EZ Pawn, watched 

surveillance footage of Appellant walking out of the store with the guitar without 

paying for it. Brown then called the police to file a report. The video depicting 

Appellant carrying the guitar out of the store without paying for it was admitted 

during Brown’s testimony, and Savell identified Appellant in open court as the 

person who took the guitar.

Officer Taylor Miley and Corporal Mike Troglin of the Odessa Police 

Department responded to the call. The officers watched the surveillance video of 

Appellant grabbing the guitar and walking out of EZ Pawn without paying for the 

guitar. Corporal Troglin recognized Appellant from the surveillance video as the 

person stealing the guitar.

Officer Miley and Corporal Troglin never attempted to obtain a warrant for 

Appellant’s arrest. Corporal Troglin knew where Appellant lived and drove to 

Appellant’s house after leaving EZ Pawn. On his first visit to the house, 

Corporal Troglin left after finding that Appellant was not home. About three hours 

later, Corporal Troglin returned to Appellant’s house and saw the silver Cadillac that 

witnesses saw Appellant driving as he left EZ Pawn. Corporal Troglin observed the 

vehicle parked in the driveway with what appeared to be the stolen guitar sitting on 

the front passenger seat.
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Corporal Troglin testified that, after he saw the guitar in the front seat of the 

vehicle, he tried to make contact with Appellant in the house. He stated that the 

garage and kitchen doors were open and that he saw people moving around in the 

home. According to Corporal Troglin, he entered the house after a male “kind of 

motioned” for him to enter. Corporal Troglin testified that he asked Appellant’s 

mother, Jackie Murray,

1 where Appellant was located and that she told him “that 

[Appellant] was in the backyard in a small house where he resides.”

After making contact with Appellant, Corporal Troglin detained him. 

Corporal Troglin testified that Murray allowed him to get the guitar out of the 

vehicle. Corporal Troglin contacted the EZ Pawn managers to come to the residence 

to identify the guitar. They determined that the guitar in the vehicle was the one 

stolen from EZ Pawn. Corporal Troglin then arrested Appellant.

Appellant called Murray as his only witness during the defense’s case-inchief. She testified that she lived at the same address as Appellant. She further 

testified that the doors to the house were open but that she did not invite the police 

officer into the house. She stated that her grandson called her to the kitchen where 

she saw an officer with his gun out. According to her, the officer never knocked or 

stated who he was, and she did not give him permission to enter the house.

At the conclusion of the guilt/innocence phase of trial, Appellant moved for a 

directed verdict of acquittal, arguing that Corporal Troglin’s warrantless entry into 

the home and his warrantless arrest of Appellant violated the Fourth Amendment. 

The trial court denied his motion. Appellant then requested a jury instruction under 

Article 38.23. The trial court denied the requested instruction, finding that, while 

there was a dispute as to whether Corporal Troglin had consent to enter Appellant’s 

 

1We will refer to Appellant’s mother as “Murray” in this opinion. 
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mother’s premises, Appellant lived in a separate, adjacent structure that was neither 

searched nor entered. The trial court concluded that Appellant’s arrest was lawful.

Analysis

In his second issue, Appellant contends that the trial court erred in denying 

his motion for a directed verdict. A challenge to the trial court’s denial of a motion 

for a directed verdict or instructed verdict is treated as a challenge to the sufficiency 

of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). 

As noted previously, Appellant did not base his motion for directed verdict on a 

claim of insufficient evidence. Instead, he based the motion on claims of an illegal 

search and an illegal arrest. Appellant makes the same argument on appeal. 

Appellant has not cited any authority, and we have found none, that authorizes a 

directed verdict of acquittal for an illegal search or an illegal arrest. To the contrary, 

if an officer violates a person’s privacy rights by conducting an illegal search or 

seizure, the remedy is the exclusion in a criminal proceeding of the fruits of the 

officer’s search or seizure under the exclusionary rule. See Miles v. State, 241 

S.W.3d 28, 36 (Tex. Crim. App. 2007) (discussing Article 38.23). Accordingly, we 

will treat Appellant’s second issue as a challenge to the sufficiency of the evidence.

We review a challenge to the sufficiency of the evidence, regardless of 

whether it is denominated as a legal or factual sufficiency challenge, under the 

standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. 

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 

288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we 

review all of the evidence in the light most favorable to the verdict and determine 

whether any rational trier of fact could have found the elements of the offense 

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 

633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we 

consider all the evidence admitted at trial, including pieces of evidence that may 
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have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. 

App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We 

defer to the factfinder’s role as the sole judge of the witnesses’ credibility and the 

weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard 

accounts for the factfinder’s duty to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to ultimate facts. 

Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports 

conflicting inferences, we presume that the factfinder resolved the conflicts in favor 

of the verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 

235 S.W.3d at 778.

There was abundant evidence in this case supporting Appellant’s conviction 

for theft with two prior theft convictions. The prosecutor offered the judgments from 

Appellant’s two prior theft convictions at the outset of the State’s case-in-chief. 

With respect to the instant offense, there was an eyewitness that observed Appellant 

steal the guitar from the store. Additionally, the theft was visually recorded on the 

pawnshop’s video surveillance system, and the recording was admitted into 

evidence. After Corporal Troglin recognized Appellant from the video, he went to 

Appellant’s home and subsequently found the guitar in Appellant’s vehicle. Even if 

we were to find that the subsequent identification of the guitar should have been 

suppressed, we would still consider it in conducting our review of the sufficiency of 

the evidence. See Winfrey, 393 S.W.3d at 767. Viewing the evidence in the light 

most favorable to the jury’s verdict, we conclude that a rational trier of fact could 

have found the elements of the alleged offense beyond a reasonable doubt. We 

overrule Appellant’s second issue.

In his first issue, Appellant argues that the trial court erred in denying his 

request for an Article 38.23 jury instruction. In analyzing a complaint of jury charge 

error, we first determine whether error existed in the charge. Middleton v. State, 125 
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S.W.3d 450, 453 (Tex. Crim. App. 2003); Almanza v. State, 686 S.W.2d 157, 174

(Tex. Crim. App. 1985). If error existed, we then determine whether the error caused 

sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.

Crim. App. 2005). When a defendant properly preserves error, reversal is required 

if the error caused some harm. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.

App. 2009); Almanza, 686 S.W.2d at 171.

Article 38.23(a) precludes the admission of evidence obtained in violation of 

the constitution or laws of the State of Texas or the Constitution or laws of the United 

States of America. The article further provides:

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.

CRIM. PROC. art. 38.23(a). 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 render evidence 

inadmissible. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).

A defendant is entitled to the submission of a jury instruction to disregard 

evidence when (1) the evidence heard by the jury raises a fact issue, (2) the evidence 

on that fact is affirmatively contested, and (3) that contested factual issue is material 

to the lawfulness of the challenged conduct in obtaining the evidence. Id. 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.” Id.

Appellant contends that an Article 38.23 jury instruction was mandatory 

because there was a disputed fact issue as to whether Corporal Troglin had consent 

to enter the home. The trial court denied the requested instruction, finding that,
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while there was a dispute as to whether Corporal Troglin had consent to enter 

Appellant’s mother’s home, Appellant lived in a separate, adjacent structure that was 

neither searched nor entered. Accordingly, the trial court determined that the dispute 

as to whether Corporal Troglin had consent to enter the home was not material to

the question of the lawfulness of Corporal Troglin’s subsequent search and seizure. 

This determination related to the third element for obtaining an instruction under 

Article 38.23. See id. In this regard, the Court of Criminal Appeals has “long 

construed Article 38.23(a) to require that a criminal accused suffer a direct injury to 

his own rights before he can invoke its exclusionary remedy.” Miles, 241 S.W.3d at 

47 (Price, J., concurring); see Fuller v. State, 829 S.W.2d 191, 201–02 (Tex. Crim.

App. 1992).

Murray’s testimony only addressed Corporal Troglin’s initial entry into the 

home where she resided. Murray did not testify about any facts concerning 

Appellant’s residency in another house located on the property or Corporal Troglin’s 

testimony that Murray subsequently permitted him to retrieve the guitar from 

Appellant’s vehicle. These were facts that were material to the lawfulness of 

Corporal Troglin’s challenged search. However, Appellant did not present any 

evidence affirmatively contesting these matters. 

With respect to the warrantless arrest, we disagree with Appellant’s assertion 

that Corporal Troglin did not have authority to make a warrantless arrest of 

Appellant for a misdemeanor offense. Article 18.16 provides:

Any person has a right to prevent the consequences of theft by 

seizing any personal property that has been stolen and bringing it, with 

the person suspected of committing the theft, if that person can be 

taken, before a magistrate for examination, or delivering the property 

and the person suspected of committing the theft to a peace officer for 

that purpose.
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CRIM. PROC. art. 18.16 (West 2015). A police officer may make an arrest for theft 

pursuant to Article 18.16 provided that he or she has probable cause for making the 

arrest. Lewis v. State, 598 S.W.2d 280, 284 (Tex. Crim. App. [Panel Op.] 1980).

Additionally, Article 14.01(b) provides that “[a] peace officer may arrest an offender 

without a warrant for any offense committed in his presence or within his view.” 

CRIM. PROC. art. 14.01(b). The theft statute precludes the unlawful appropriation of 

another person’s property, and Appellant was continuing to “appropriate” the guitar 

when Corporal Troglin arrested him. PENAL §§ 31.01(4), 31.03(b); see State v. 

Palmer, 313 N.W.2d 648, 652 (Neb. 1981) (interpreting Article 14.01 in considering 

the legality of a warrantless arrest made in Texas for a person in possession of stolen 

property). Accordingly, we conclude that the trial court did not err in denying 

Appellant’s request for an Article 38.23 instruction.

Moreover, assuming arguendo that the trial court erred in denying the 

Article 38.23 instruction, the error was harmless. Under the Almanza “some harm” 

standard, the error must be evaluated in light of the entire jury charge, and courts 

should consider 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. 686 S.W.2d at 171. Neither the Fourth 

Amendment exclusionary rule nor Article 38.23 requires the suppression of evidence 

that was not “obtained” as a result of some illegality. See State v. Jackson, 464 

S.W.3d 724, 731 (Tex. Crim. App. 2015).

The only evidence that was obtained after Corporal Troglin entered Murray’s 

home and arrested Appellant was the retrieval of the guitar from Appellant’s car and 

the identification of the guitar by the manager from the pawnshop. Savell’s 

observation of Appellant stealing the guitar from the pawnshop, the surveillance 

video depicting Appellant stealing the guitar from the pawnshop, Corporal Troglin’s 

identification of Appellant from the video, and Corporal Troglin’s initial observation 
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of the guitar in Appellant’s vehicle all preceded the conduct that Appellant 

challenges. This overwhelming evidence of Appellant’s guilt would not have been 

affected had the jury been given the requested instruction. Accordingly, we 

conclude that Appellant did not suffer harm from the denial of the requested 

instruction. We overrule Appellant’s first issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY 

JUSTICE

May 25, 2017

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

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.