VENANCIO VILLEGAS, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE AND REMAND and Opinion Filed August 5, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00631-CR
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VENANCIO VILLEGAS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 2
Dallas County, Texas
Trial Court Cause No. MA05-65084-B
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MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice O'Neill
 
        After pleading not guilty, a jury convicted appellant Venancio Villegas of unlawfully carrying a weapon. The trial court set punishment at 180 days' confinement in Dallas County jail, probated for twelve months, and a $300 fine. In a single issue, he argues the trial court erred by denying his requested article 38.23 instruction, which resulted in harm. See Tex. Code Crim. Proc. Ann. § 38.23(a) (Vernon 2005). We reverse and remand for further proceedings.
        On November 6, 2005 at approximately 2 a.m., officers were working an accident on R.L. Thornton Freeway. The accident blocked the roadway, and officers were directing traffic around it. Several concerned witnesses approached Officer Lawrence Christian and reported another car in the back up blocking the roadway with two individuals inside, who appeared to be passed out. Officer Christian approached the car and knocked on the window, but neither person inside responded. He observed what he suspected to be a container of alcohol sitting in the center console. He called for cover and waited approximately five to ten minutes for Officer Tamez to arrive. During this time, neither person inside the car responded to the situation.
        When Officer Tamez arrived, she had appellant, who was the passenger, step out of the car. Officer Christian then “heard something to the effect that somebody had a gun . . . .” Officer Tamez smelled alcohol on appellant's breath and observed he had blood-shot eyes and was unsteady on his feet. She handcuffed him for public intoxication and then searched him. During the search, she found a handgun in the back of his pants. He was later charged with unlawfully carrying a weapon.
        Jorge Tavero, the driver, testified at trial and told a different version of events. He claimed he was not sleeping in the car, but rather appellant was sleeping when Officer Christian approached the car and knocked on the window. He then lowered the window and talked to the officer. He said they were not intoxicated and appellant did not slur his speech or stagger while exiting the car. He further denied having any alcohol in the car and asserted appellant did nothing to make him think he was intoxicated.
        Based on the contrary version of events, appellant's attorney made the following article 38.23 request:
 
        I want to add what we call a 38.23 charge, and I think the court probably knows what that is. But for purposes of the record, a 38.23 charge basically is one where you don't have probable cause for the initial arrest, and I don't think it covers that. I think there has to be a paragraph that's added that says something to the effect that the reason for the arrest in this case was public intoxication and then you have to define what public intoxication is. And then after that, based upon the definition of public intoxication and the facts presented in this case, do you believe that he committed the criminal act of public intoxication? And if you answer “no,” you need to go no further and that's the end of the case frankly, at that point, if they don't believe that he committed the act. That's called a 38.23 charge. And certainly I'm entitled to it in this case. There's plenty of evidence.
 
 
The trial court denied the requested instruction. The jury found appellant guilty, and the trial court assessed punishment.
        On appeal, appellant asserts the trial court erred in denying his requested instruction, which caused harm because without the illegal search and evidence obtained, the State had no other evidence to prove the offense of unlawfully carrying a weapon. The State concedes that because the issue of probable cause for arrest was contested, the trial court erred in failing to include an article 38.23 instruction. We agree and now must determine if the error resulted in harm.
        The standard for determining whether an error in submitting the charge was harmful is set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). When an appellant timely objects, as here, reversal is mandated if there was “some harm” to the accused from the error. Id.; Chubb v. State, 821 S.W.2d 298, 302 (Tex. App.-Corpus Christi 1991, pet. ref'd). In determining whether there was “some harm,” the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, argument of counsel, and any other relevant information revealed by the trial record as a whole. Almanza, 686 S.W.2d at 171; see also Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996) (holding harmless error rule of article 36.19 applies to errors predicated upon a disregard of article 38.23), abrogated on other grounds, Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). After examining the record as a whole, we must be able to say with confidence the error did not cause some harm. Ovalle v. State, 13 S.W.3d 774, 787-88 (Tex. Crim. App. 2000). If any harm is found after conducting this review, then reversal is required. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994).
        After reviewing the record, we conclude appellant suffered some harm by not receiving the article 38.23 instruction. If properly instructed, the jury could have believed Tavero's testimony and determined that Officer Tamez was not justified in asking appellant to step out of the car and then searching him based on public intoxication. In that event the jury would have been instructed to disregard the weapon obtained in the search incident to an arrest. See Tex. Code Crim. Proc. Ann. § 38.23(a); Rodriguez v. State, 239 S.W.3d 277, 280 (Tex. App.-Amarillo 2007, pet. ref'd). Because the jury was not provided this option, we conclude the trial court's failure to provide an article 38.23 instruction was harmful.
        In reaching this conclusion, we reject the State's assertion the jury was aware of and rejected appellant's position that the public intoxication arrest was illegal because defense counsel urged this scenario during closing arguments.   See Footnote 1  Jury arguments do not serve to instruct the jury on the law. Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996). In the instant case, the jury was instructed they were to be governed by the law as set forth in the jury charge. We must assume the jury followed the instructions as set forth in the charge, which did not include the article 38.23 instruction. Thus, we sustain appellant's sole issue.
        Accordingly, we reverse the trial court's judgment and remand the cause for further proceedings.
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070631F.U05
 
                                
 
Footnote 1 He argued as follows:
 
 
You have to have a legal arrest, or we don't get to the gun. You don't even think about the gun. You don't even have to think about it under the law, if the arrest wasn't legal. . . . What was the offense here? Public, public intoxication. That was the offense they arrested him for. . . . And if he didn't commit that offense the law says doesn't matter if he had a gun or not.