COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00068-CR

JOHNNY TODD PRESTON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Johnny Todd Preston of possession of four or 

more but less than 200 grams of methamphetamine with intent to deliver and 

assessed his punishment at 99 years’ confinement as an habitual offender. The 

trial court sentenced him accordingly. Appellant brings three points on appeal 

challenging the admissibility of his out-of-court statement and arguing that the 

 1

See Tex. R. App. P. 47.4.
2

trial court committed reversible jury charge error. Because the trial court 

committed no reversible error, we affirm the trial court’s judgment.

In his first point, Appellant challenges the admissibility of his out-of-court 

statement to George Courtney, a Weatherford police officer assigned to the Drug 

Enforcement Task Force in Fort Worth, Texas, because, Appellant contends, the 

State failed to provide him a copy of the statement twenty days before trial as 

required by article 38.22 of the Texas Code of Criminal Procedure.2 To preserve 

his complaint for appellate review, Appellant was required to timely object to the 

trial court and to object each time the evidence was offered, unless he requested

and was granted a running objection to that evidence.3 Although Appellant 

objected when the State first sought to present the evidence of his out-of-court 

statement during the punishment phase of the trial, he requested no running 

objection and made no further objection as the witness testified at length about 

the statement and its content. Because Appellant did not preserve this issue for 

appellate review, we overrule his first point.

In his second and third points, Appellant argues that the trial court 

reversibly erred by overruling his objection to the jury charge and denying his 

requested article 38.23 jury instruction. “[A]ll alleged jury-charge error must be 

 2

See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(5) (West Supp. 2013).

3

See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);

Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).
3

considered on appellate review regardless of preservation in the trial court.”4

 In 

our review of a jury charge, we first determine whether error occurred; if error did 

not occur, our analysis ends.5

The Texas Court of Criminal Appeals reminds us that

[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. We have previously explained:

The terms of the statute are mandatory, and 

when an issue of fact is raised, a defendant has a 

statutory right to have the jury charged accordingly. 

The only question is whether under the facts of a 

particular case an issue has been raised by the 

evidence so as to require a jury instruction. Where no 

issue is raised by the evidence, the trial court acts 

properly in refusing a request to charge the jury.

There are three requirements that a defendant must meet 

before he is entitled to the submission of a jury instruction under 

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.

There must be a genuine dispute about a material fact. If 

there is no disputed factual issue, the legality of the conduct is 

determined by the trial judge alone, as a question of law. And if 

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

 4

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

5

Id.
4

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. The disputed fact must be an essential one in 

deciding the lawfulness of the challenged conduct.6

Appellant requested the article 38.23 instruction in the jury charge on guilt, 

but he cites only to evidence in the punishment phase of the trial as support for 

his requested jury instruction. Our review of the record indicates that Appellant

sought that the instruction be included in the jury charge on guilt based on the 

absence of twenty days’ notice of his statement, but he points to nothing in the 

record directing the jury to the issue during the guilt phase. Instead, the record 

shows that he objected to the State’s proffer of his statement during the 

punishment phase, not the guilt phase, but he did not request an article 38.23 

instruction at punishment. Even if a factual dispute regarding the admissibility of 

Appellant’s statement existed, which we do not hold, we cannot conclude that the 

trial court erred by failing to give an article 38.23 instruction in the jury charge on 

guilt when that issue was not yet before the jury. Appellant does not raise an 

issue about any failure of the trial court to sua sponte provide an article 38.23 

instruction at punishment.7 We overrule Appellant’s second and third points.

Having overruled Appellant’s three points, we affirm the trial court’s 

judgment.

 6

Madden v. State, 242 S.W.3d 504, 509–11 (Tex. Crim. App. 2007)

(citations omitted).

7

See Oursbourn v. State, 259 S.W.3d 159, 181–82 (Tex. Crim. App. 2008).
5

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 12, 2014