# No. PD
- 1233

- 15 Court of Appeals No. 03

- 13

- 00 764

- CR

______________________________________________________

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

________________________________________________



### JOSE SOSA , Petitioner

v. THE ST ATE OF TEXAS

________________________________________________

On Appeal from the District Court 403rd District Court of Travis County, Texas Trial Cause No. D1DC 11205390



### ________________________________________________
PETITION FOR DISCRETION ARY REVIEW

______________________________

DAVID W. CRA W FORD P.O. Box 686 Austin, Texas 787 67 (512) 795

- 2000 FAX (512) 237

- 7792 dcrawford@crawfordcruz.com Texas Bar No

. 24031601 AT TORNEY FOR PETITIONERii 

### STATEMENT REGARDING ORAL ARGUMENT

Oral argument would not be helpful in this case, and Petitioner does not request it

.iii 

### TABLE OF CONTENTS Page
Statement Regarding Oral Argument........................................

........ ................. ii
Table of Contents.............................................................................

................. .iii
Index of Authorities............................................................

............. ................ .. i v Statement of the Case......................................................................

................. . . 1 Statement of Procedural History................................................

..... ................. . . 2
Grounds for Review........................................................................

.................. . 3
Reason for Review........................................................................

.. ................ .. . 3 Arguments and Authorities .............................................................

................. . 4

I. The C ourt of Appeals incorrectly determined that the trial court had not abused its discretion in denying the motion to suppress

. II. The Court of Appeals incorrectly determined that there is no mandate for the appellate review of a jury determination of the admissibility of evidence that is subject to Texas Code of Criminal Procedure 38.23.

Conclusion and Prayer....................................................................

. ................ . .. 9
Certificate of Service......................................................................

................... 10
Certificate of Service......................................................................

.................. . . 1 1 Appendix...............................................................................

.................. ......... .. 1 2iv 

### INDEX OF AUTHORITIES

Cases Page(s) Brooks v. State , 323 S.W.3d 89 3 (Tex.Crim.App. 2010) 7
Clewis v. State , 922 S.W.2d 126 (Tex.Crim.App. 1996) 7
Hanks v. State , 137 S.W.3d 66 8 (Tex.Crim.App. 2004) 71 

### No. PD
- 1233
- 15 Court of Appeals No. 03
- 13
- 00 764
- CR

______________________________________________________

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

______________________________________________________ JOSE SOSA , Petitioner
V. STATE OF TEXAS,

___________

___________________________________________ On Appeal from the District Court 403rd District Court of Travis County, Texas Trial Cause No. D1DC 11 205390

______________________________________________________
PETITION FOR DISCRETIONARY REVIEW

______________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

NOW COMES Petitioner

- Appellant Jose Sosa (“ Sosa ") and respectfully submits this his petition for discretionary review pursuant to Rule 6 8 of the Texas Rules of Appellate Procedure.2 

### STATEMENT OF THE CASE This is an appeal of a denied motion to suppress evidence and the verdict of the jury at trial . The motion was argued in front of the trial court. The trial court denied the defendant's motion to suppress evidence. At trial, the jury found Sosa guilty of a lesser included charge after determining the adm issibility of evidence against him.

STAT EMENT OF PROCEDURAL HISTORY Sosa was accused of the offense of possession of a controlled substance with the intent to d eliver

. Sosa presented a motion to suppress evidence. The trial court heard evidence through testimony , and heard argument of the parties. The trial court deni ed the motion to suppress. Following the ruling on the motion to suppress, the case was heard by jury at trial. The jury wa s given an instruction under Texas Code of Criminal Procedure 38.23 to consider the admissibility of evidence. The jury found Sosa guilty of the lesser included offense of possession of a control led substance, a nd implicitly ruled that the disputed evidence was admissible. Sosa appealed the case to the Third Court of Appeals in Austin. The Court of Appeals handed down its opinion affirming the district court on August 18, 201 5

. The opinion of the Court of Appeals is unpublished. A copy of the Court’s opinion is attached hereto as Appendix A. No subsequent motion for rehearing was filed.3 

### GROUNDS FOR REVIEW

I. The C ourt of Appeals incorrectly determined that the trial court had not abused its discretion in denying the motion to suppress

.

II. The Court of Appeals incorrectly determined that there is no mandate for the appellate review of a jury determination of the admissibility of evidence that is subject to Texas Code of Criminal Procedure 38.23.

REASON FOR REVIEW Facts of the case. An arrest wa s initially made for the offense of public intoxication on October 7, 2011. During the search of the appellant following that arrest, an amount of a controlled substance, namely cocaine, was found on his person. Appellant was sub sequently arrested for possession of a controlled substance with the intent to deliver. A pretrial hearing was held on t he
appe llant's motion to suppress the evidence on the grounds that was not sufficient probable cause to sustain his arrest for public i ntoxication. The trial court denied the motion to suppress, and the ca se was subsequently tried to a jury. The jury was
presen ted with a charge under Texas Code of Criminal Procedure 38.23 regarding the admissibility of the evidence against the appellant . The jury found a ppellant guilty of the lesser included offense of possession of a controlled substance, and implicitly ruled that the arrest for public intoxication was valid. The court of4



### appeals ruled that the trial court did not abuse its discretion in denying the motion to suppress and that it had no standing to review the jury's imolicit finding under
38.23.

ARGUMENT AND AUTHORITIES

I. The C ourt of Appeals incorrectly determined that the trial court had not abused its discretion in denying the motion to suppress

. The Court of Appeals found that the trial court in this circumstance had not abused its discretion in finding that there existed probable cause for the initial arrest and detention of Sosa for the offense of public intoxication. This initial
detention led to the search of Sosa and the seizure of the controlled substance that was admitted as evidence in the trial against him.
The officer testified t hat the factors he relied upon to determine intoxication
were that he could smell alcohol on Sosa ’s breath, that his eyes were bloodshot, that he had impaired balance, and impaired speech. The officer was unable to provide an explanation for how Sosa was able to quickly run into the bar, wind his way through a crowded bar without running into anyone , but th en immediately
afterward display impaired balance outside the bar. The offic er did not recall how
Sosa ’s speech was impaired. The officer did not see Sosa drinking, nor did he note5



### that he ever admitted to consuming alcohol that evening. The officer did not perform any fiel d sobriety tests or test Sosa ’s blood or breath to dete rmine that he
was intoxicated. The officer testified t hat there was nothing about Sosa ’s actions that he personally observed that would indicate he was a danger to himself or anyone else.
In addition , there was another witness who te stified at the motion to suppress who provided testimony that contradicted much of the officer’s testimony. Gerardo Perez was the doorman at the back of Shakespeare’s Pub and he testified that he had two separate interactions with Sosa that eveni ng, about 20 minutes apart. Mr. Perez had received TABC training, part of which is determining
whether or not an individual is intoxicated. Mr. Perez testified that he had known
Sosa for approximately a year , from seeing him come into the bar where he worked
downtown. Mr. Perez testified that Sosa initially entered Shakespeare’s Pub through the back entrance, and that he observed Sosa and that he was not
intoxicated at that time. Mr. Perez then saw Sosa twenty minutes later, when he exited through the back entrance, and subsequently saw the officer detain Sosa

. Mr. Perez testified that in his observation at that time, Sosa was not intoxicated. Mr. Perez testified that no one would be allowed to just run into the bar, as the
officer indicated.6



### In light of all the facts given to the trial court and even in giving much deference to the trial court's ruling , the Court of Appeals erred in finding that the trial court did
not abuse its discretion . The officer’s own testimony by itself does not establish probable cause to arrest Sosa for pub lic intoxication. T he officer himself admits that nothing about Sosa ’s behavior that he observed indicated to him that the Appellant was a danger to himself or to anyone else. Sosa was not engaging in
behaviors such as walking down the middle of the street that would obviously indicate a danger to himself or others . Taken in combination with the other testimony presented, it was unreasonable for the trial court to find probable cause
in th is case, and it was an error by the appellate court to not find that such a ruling
was an abuse of discretion.

II. The Court of Appeals incorrectly determined that there is no mandate for the appellate review of a jury determination of the admissibility of evidence that is subject to Texas Code of Criminal Procedure 38.23.

The Court of Appeals found that Sosa's second point regarding the legal sufficiency of the evidence utilized by the jury in making an implicit ruling und er Texas Code of Criminal Procedure 38.23 w as not re viewable . This finding was7



### based on a number of unpublished opinio ns from a variety of Courts of Appeal in
Texas. The Court of Appeals also relies on the ruling of this court in Hanks v. State , 137 S.W. 3d 668 ( Tex.Crim.App. 2004). I n Hanks , this court ruled that review was not appropriate as to the admission of evidence when the question was
submitted to the jury pursuant to 38.23(a). Id . at 672. In rendering its decision, this court followed the guidanc e of Clewis v. State , 922 S.W.2d 126 ( Tex.Crim.App. 1996). However, this court should reevaluate its position in Hanks . This court has subsequently overruled Clewis and held that the standard put forth in Jackson v. Virginia would be the only standard a reviewing court should apply when determining the sufficiency of evidence. Brooks v. State , 323 S.W. 3d 893 , 895 (Tex.Crim.App. 2010). The question of applying the Jackson standard to jury
f i ndings under 38.23 does not appear to be one decided by this court since then,
and should be examined to determine if the logic of Hanks should still apply if the
Clewis standard of review is not utilized. In addition, Ju dge Womack's dissent in Hanks should bear reconsideration
of this court. As Judge Womack points out, there is no authority to explain why the appellate courts' authority should be limited to the sufficiency of evidence on
the elemen ts of the case. There is no statutory or constitutional authority for the limitation of review to determining the sufficiency o f evidence only on the8



### elements, and not also considering the suffic iency of the evidence heard by a jury in determining a quest ion under 38.23. Moreover, under the current standard, there is no way to review a jury's decision under 38.23, which provides a total deference to the findings of the jury. While determinations made by the jury should have a great amount of def

erence, rendering these determinations unreviewable provides too much deference to the jury's decisions. The determination that a jury's decision under 38.23 cannot be reviewed by an appellate court runs a gainst the protections afforded defendants by both the United States and the Texas constitutions a nd this court should provide a manner that, admittedly with great deference, such decisions could be reviewed by the appellate cour ts.9 

### PRAYER FOR RELIEF For the foregoing reasons, Petitioner request that the petition and review be granted, and that upon review of the grounds of error the judgment of the Court of Appeals be reversed, and that the evidence in this case be suppressed o r found not to be sufficient, or that the case be remanded to the appropriate court for a
decision in accord with this court's r uling.

Respectfully submitted,

/s/ David W. Crawford David W. Crawford State Bar No. 24031601 Crawford and Cruz PLLC P.O. Box 686 Austin, Texas 787 67 Telephone (512) 795

- 2000 Telefacsimile (512) 237

- 7792 Email: dcrawford@crawfordcruz.com Attorney for Appellant10 

### CERTIFICATE OF SERVICE I, David W. Crawford , do hereby certify that a true and correct copy of the foregoing instrument has been served on the following named attorney(s) in accor dance with the Texas Rules of Appellate Procedure, by United States Mail, first class: Rosemary Lehmberg, Travis County District Attorney PO Box 1748 Austin TX 78767
and to: State’s Prosecuting Attorney PO Box 12405 Austin TX 78711
on this the 19th day of October , 201 5

. /s/ David W. Crawford David W. Crawford11 

### Certificate of Compliance As Attorney of Record for Appellant, I do hereby Certify by my signature
that this brief contains 1,585 words, in accordance with Tex. Rules of Appellate Procedure 9.4(i).
Date: October 19 , 201 5

/s/ David W. Crawford David W. Crawford State Bar No. 24031601 Crawford and Cruz PLLC P.O. Box 686 Austin, Texas 78767 Telephone (512) 795

- 2000 Telefacsimile (512) 237

- 7792 Email: dcrawford@crawfordcruz.com Attorney for Appellant12 

# A P P E N D I X

### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00764- CR

Jose Luis S osa, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 11- 2053 90, H ONO RAB LE B RENDA KENNEDY , JUDGE P RESIDING

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

Fo l l owing the denial of his motion to suppress evidenc e, a jury found appellan t
J ose Sosa g uilty of possession of a contr olled substance, a second- deg ree felony

. See Tex. Health
& Safety Code § 481.115(d). The tr i al co u rt assessed punishment at five y ear s’ imprisonment, probate d. I n two issues, Sosa contends that the trial court should have g rante d his motion to suppress and that the e vidence was not l eg ally sufficie nt to support the jury ’s implied finding tha t probable

cause exis ted for his a

rre st. W e will aff

irm the trial cour

t’s judgme nt.

BACK GR OUND 1
I n October 2011, Sosa and his friend wer e involved in a disturbance on Six th Street
in downtown Austin. The tw o m en al leg edly touched the brea sts of a y oung woman, and Sosa’s
friend alleg edly struck the y oung woman in the fac e. When Offic er Ronald Enriquez of the Austin

The fa cts rec ited here in are taken f rom the testimony

prese nted at trial. 1Police Depa rtment tried to approa ch Sosa to question him about the disturbance , Sosa ran into a bar.
Offic er Enriquez pursued Sosa throug h the b ar an d ca u ght up with him in an alley behind the
bar. Offic er Enr iquez spoke with Sosa and observe d what he be lieved to be signs of intox ication.
After speaking with additional witnesses, Offic er Enriquez place d Sosa under arr est fo r p u b lic
intox ication. Off

icer Enriquez sear ched Sosa a nd discovere d a plastic bag holding smaller plastic bag s containing what was later deter mined to be coca ine. Sosa was then also place d under arr est for possession of a c ontrolled substance

.

So s a w a s c h a

r g e d w it h p o s s e s s io n o f a c o n

tr o ll e d s u b s ta n c e w it h in te n t to d e li v e r in a

n
amount of four g rams or more but less than 200 g rams. Sosa filed a motion to suppress, arg uing that
the coca ine was discovere d in a sear ch incident to an unlawful arr est beca use there was no probable

cause to arre st him for public intox ication. The tria l court denie d the motion following a hear ing.
Sosa later reque sted the submissi on of a jury instruction pur suant to Texas Code of
Criminal Procedure article 38.23, and the tria l court g rante d Sosa’s reque st. See Tex. Code Crim.
Proc. art. 38

. 2 3 (“I n any case wher e the leg al evidence raises an issue here under, the jury shall be
instructed that if it be lieves, or has a re asonable doubt, that the evidenc e was obtained in violation

o f th e p r o v is io n s o f th is A r ti c le

. . . th e ju

r y s h a ll d is r e g a

r d a ny s u c h e v id e n c e s o o b ta in e d

. ” )

. T h e ju r y found Sosa not g uilty

of poss ession of a controlled subst ance with intent to deliver but found him
g uilty of the lesser included offe nse of possession of a controlled substance. This appea l followed.

STANDARD OF REVIEW
I n his first issue, Sosa contends that the trial court err ed b y d en y i n g his motion

to suppress evidenc e beca us e Offic er Enriquez lacke d probable cause to arr est him for public

2intox ication. We revie w a trial court’s ruling on a motion to suppress for abuse of discretion, using

a bifurca ted standard. Goodwin v. State , 376 S.W .3d 259, 266 (Tex. App.—Austin 2012, pet. ref ’d).
I n doing so, we view the evidenc e in the light most favor able to the trial court’s ruling

. Johnson v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013). We g ive almost total defe renc e to r ulings on application of the law to questions of fac t and to mix ed questions of law and fac t if resolution of
those questions depends on an ass es s m en t o f cre dibilit y and demeanor of witnesses. Arguellez v.
State , 409 S.W .3d 657, 662 (Tex. Crim. Ap p
. 2013). We revie w de novo pure questions of law
and mix ed questions of law and fac t that do not depend on evalua ting cre dibilit y and demea n o r.
Martinez v. Stat e , 348 S.W .3d 919, 923 (Tex

. C ri m
. Ap p
. 2011). “The ultimate deter mination of
whether probable cause exis ts is subject to de novo revie w on appea l.” Baldwin v. State , 278 S.W .3d 367, 371 (Tex. Crim. App. 2009). We will aff irm the trial court’s ruling if the re co rd rea sonably supports it and it is corr ect on any theory of law applicable to the case
. State v. Duran , 396 S.W .3d 563, 571 (Tex. Crim. App. 2013).

DISCUSSIO N

Motion to suppress

I n his motion to suppress, Sosa arg ued that there was no probable cause to arr est him
for public intox ication and, there fore , any drug s that wer e discovere d during the sear ch incident to

arr est wer e inadmissible. See U.S. Const. amend. I V. Probable cause exis ts w hen the police have

rea sonably trustworthy information, considere d as a whole, sufficie nt to war rant a rea sonable person
to believe that t he person arr ested has committed or is committing an offe nse. Amador v. State ,

3275 S.W .3d 872, 878 (Tex. Crim. App. 2009). “Probable cause deals with probabilities.” Guzman

v. State , 955 S.W .2d 85, 87 (Tex. Crim. App. 1997). I t “re quires more than mere suspicion but far
less evidenc e than that neede d to support a conviction or even tha t neede d to support a finding by

a preponde ranc e of the evidenc e.” Hughes v. State , 24 S.W .3d 833, 838–39 (Tex. Crim. App. 2000).
I n other words, in order to overc ome Sosa’s motion to suppress, the State did not need to prove that
Sosa was publi cly intox icated, only that probable cause exis ted t o believe th at h e was. See Texas
D e p ’ t o f P u b

. S a fe ty v
. M c H u g h , N o
. 0 3

- 1 3

- 0 0 2 6 1

- CV , 2 0 1 4 WL 5 4 2 0 4 0 7 , a t * 4 ( T e x. A

p p
. — A u s ti n Oct. 24, 2014, no pet.) (mem. op.). A person commits the offe nse of public intox ication if the person “appe ars in a public place while intox icated to the deg ree that the person may endang er the person or anothe r.” Te x . Penal Code § 49.02(a ).

At the hear ing on Sosa’s motion, Offic er Enriquez testified to the fol l o wing fac ts.
A staff member from a bar flag g ed En ri quez down and called his attention to a disturbance happening outside the bar. The staff member pointed S o s a o u t as someone involved in the
disturbance , and Offic er Enriquez saw Sosa arg uin g wi t h a group of people. When Sosa saw the
office r approa ching , he turned and ran into t h e b ar
. Offic er Enriquez followed Sosa throug h the
bar and caug ht up to him in an alley

. Sosa exhibi ted signs of intox ication, includin g “[ i ] m p ai red

speec h, impaired balanc e, bloodshot and g lassy ey es, [and] a strong odor of an alcoholic bever ag e.”
Sosa also admitted to being involved in the disturbance

. I n addition, Offic er Enriquez spoke to the
victim of the alleg ed assault, who confirme d that she was assaulted. Ba sed on the totality of the
circ umstances, Offic er Enriquez conclude d that Sosa was a dang er to himself or others and place d
him under ar

rest for public intox ication.

4Viewing the evidenc e in the light most favor able to the trial court’s ruling and

defe rring to the trial court’s ev al u at i o n of the cre dibilit y and demea nor of witnesses, we cannot
conclude that the trial court abused its discretion by d en y i n g Sosa’s motion to suppress. Offic er Enriquez’s own observa tions and the statements he rec eived from witnesses constituted rea sonably trustworthy information t h at Sosa was intox icated and had just been involved in an assault. Although Offic er Enriquez did not perf orm a field sobriety test or brea thaly z er t es t , h e testified
that Sosa exhibi ted sever al signs of intox ication. See Harris v. State , 204 S

. W

. 3 d 1 9 , 2 5 (Tex. App.—Houston [14t h Dist.] 2006, pet. ref ’d) (“Evide nce of intox ication may include (1) sl u rre d

speec h, (2) bloodshot ey es, (3) the o d o r of alcohol on the person, (4) the odor of alcohol on the
brea th, (5) unste ad y b al an ce, or (6) a stag g ere d g ait.”); see also Tex. Penal Code § 49.01(2)( A) (“‘ I ntox icated’ means
. . . not having the normal use of mental or phy sical fac ul t i es by rea son of
the introduction of alcohol

. . . into the body

. . . .”); Bris t er v. State , 414 S.W .3d 336, 341 (Tex. App.—B eaumont 2013), aff’d , 449 S.W .3d 490 (Tex. Crim. App. 2014) (“When ba sed upon fac ts

an experience d office r observe s and then descr ibes t o t h e j u ry , an office r’s opinion conce rning a person’ s intox ication provides sufficie nt evidenc e of intox ication.”)

. Ba sed on this evidenc e, we conclude that Offic er Enriquez had probable cause to arr est Sosa for public intox ication beca use the
office r rea sonably believed that Sosa was intox icated in a public place and was a dang er to himself
or others. See Tex. P enal Code § 49.02( a) ( listi ng elements of public intoxication).

Sosa points out what he perc eives to be wea knesses in the State’s evidenc e, including
the fac t that Offic er Enriquez did not rec ord the name of ever y witness that he spoke to, that a friend
of Sosa’s testified at the hear ing that he had observe d Sosa on the evening of the disturbance and

5does not believe that Sosa was intox icated, and that Sosa’s ability to quickly maneuve r throug h a

crow ded bar underc uts Offic er Enriquez’s deter mination that Sosa was intox icated. Howeve r, these alleg ed defe cts d o n o t indicate that Offic er Enriquez lacke d rea sonably trustworthy information
that Sosa had committed a crime. Moreover, all of these observa tions addre ss the cre dibilit y or weig ht of the State’s evidenc e, not its admissibili ty

. At a hear ing on a motion to suppress, the trial

court is “the sole trier of fac t and judge of the witnesses’ cre dibilit y and the weig ht to be g iven their testimony .” W

illiams v. State , 257 S.W .3d 426, 432 (Tex. App.—Austin 2008, no pet.). There fore , the trial court could have found Offic er Enriquez to be a cre dible witness and could have disreg arde d conflicting testimony

.

Be cause we cannot conclude that the trial court abused its discretion by deny ing Sosa’s motion to suppress, we over rule Sosa’s f

irst issue.

Legal sufficiency

of the jury’s im

plied findin g
I n his second issue, Sosa arg ues that the evidenc e was not leg ally sufficie nt to support
the jury ’s implied f

inding, pursuant to the article 38.23 instruction, tha t pr obable cause exis ted for
his arr est. “When a contested fac t issue reg arding the leg ali t y of the state’s procur ement of the primary evidenc e of g uilt is submitt ed to the jury , a g uilty verdic t indicates an implied finding that

t h e procur ement of the evidenc e was lawful.” Crain v. State , No. 12-13-00110- CR, 20 1 3 W L
6 2 0 7 8 3 5 , a

t *1 (Tex. App.—Ty ler Nov. 26, 2013, no pet.) (mem. op., not desig nated for publication).
Howeve r, “[t] he Texas Court of Criminal Ap p ea l s has rec og nized that evidentiar y sufficie ncy and admissibili ty of evidenc e are distinct issues.” Price v. State , No. 06-11-00120- CR,
2012 WL 112534, at *1 (Te x . App.—Texarkana J an. 12, 2012, no pet.) (mem. op., not de signa ted

6for publication); see Hanks v. State , 137 S.W .3d 6 6 8 , 6 7 1 (T ex
. Crim. App. 2004) (noting that

sufficie ncy and admissibili ty are distinct issues). “Ac cording ly , a sufficie ncy revie w is appropr iate only as t o the s ufficie ncy of t he S tate’s proof as to elements of the offense,” and “[t] he lega lity of appellant’ s detention is not an element of the offe nse char g ed, but rela tes t o t h e ad missibi lity of
evidenc e.” Price , 2012 WL 112534, at *1; see Hanks , 137 S.W .3d at 672 (“ We hold that factua lsufficie ncy revie w is appropr iate only as to the sufficie ncy of the state’s proof as to elements of the
offe nse. Such a revie w is not appropr iate as to the admissibili ty of evidenc e when such a question
is submitted to the jury pursuant to A rticle 38.23(a) .”). There fore , courts of appea ls do not r eview
the sufficie ncy of the evidenc e supporting the jury ’s implied finding that probable cause exis ted for
the defe ndant’s arr est. See Churchill v. State , No. 03-03-00746- CR, 2006 WL 305022, at *4 (Tex. App.—Austin Fe b. 9, 2006, pet. ref ’d) (mem. op., not desig nated for publication) (“[W] e may only
conduct a fac tual-suffic iency revie w reg arding the sufficie ncy of the State’s proof of elements of the
offe nse. We may not conduct a fac tual-suffic iency revie w of the admissibili ty of evidenc e when a question is submitt ed to the jury pursuant to article 38.23(a) .”) (cit ation omitted); see also Crain , 2 0 1 3 WL 6207835, at *1 (“[A] leg al sufficie ncy revie w is not an appropr iate vehicle to revie w a jur y ’s i m p l i ed finding under article 38.23.”); Price , 2012 WL 112534, at *1 (“[A]n evidentiar y sufficie ncy revie w is not available fo r an Article 38.23 jury instruction.”); Gonzales v. State , N o
. 1 3

- 0 9

- 0 0 6 4 0

- CR , 2 0 1 1 WL 5 8 4 3 6 8 6 , a t * 6 ( T e x. A

p p
. — Co r p u s Ch r is ti N o v
. 2 2 , 2 0 1 1 , p e t. r e f ’ d ) (mem. op., not desig nated for publication) (“A n appellate court may not conduct a sufficie ncy r e view

o f a ju r y ’ s d e te r mi n a ti o n u n d e r a r ti c le 3 8

. 2 3 ; r a

th e r , a s u f f ic ie n c y r e v ie w a

p p li e s to w h e th e r s u f

f ic ie n t
evidenc e shows the elements of a criminal offe n s e. ”) ; Saylor v. State , No. 05-09-01558- CR,

72011 WL 505453, at *1 (Tex . App.—Dallas F eb. 15, 2011, no pet.) (mem. op., not desig nated f or publication) (“[A] jury instruction conce rning the leg ality of appellant’ s detention should not be
used to measur e the suff

iciency of the e vidence .”).
Acc ording ly , we ove rrule Sosa’ s second issue.

CONCLUSION Having overr

uled both of Sosa’s issues, we aff irm the judg ment of convic tion.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field
Affir med Filed: Aug ust 18, 2015
Do Not Publish

8