Javier Hernandez v. The State of Texas--Appeal from 178th District Court of Harris County

Opinion Issue March 13, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00092-CR

JAVIER HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1054441

MEMORANDUM OPINION

On January 19, 2006, appellant, Javier Hernandez, was stopped by a State Trooper for speeding. After a search of his vehicle, cocaine was found inside the spare tire. A jury convicted appellant of the felony offense of possession with intent to deliver a controlled substance, namely cocaine, weighing at least 400 grams. See Tex. Health & Safety Code Ann. 481.102(3)(D) (Vernon Supp. 2007), 481.112(a), (f) (Vernon 2003). The trial court assessed punishment at 35 years confinement and a $3500 fine. Appellant contends that the trial court erred in failing to sua sponte submit a jury instruction where a factual dispute had arisen regarding whether the search of appellant s vehicle had been lawfully conducted. We affirm.

Article 38.23 Instruction

In his sole issue, appellant contends that the trial court should have sua sponte submitted a jury instruction on the legality of the search of his vehicle, pursuant to Article 38.23 of the Texas Code of Criminal Procedure. // Specifically, appellant asserts that an Article 38.23 instruction should have been included because there was a fact issue whether (1) there was an initial legal justification for his stop, (2) his consent to search was knowingly and voluntarily given, (3) the duration of the search exceeded the time necessary for the initial stop, and (4) any consent to search given occurred after the time necessary for the initial stop.

Standard of Review

Our review of the jury charge depends on whether the trial court had a burden to sua sponte include an Article 38.23 instruction dealing with the legality of the search of appellant s vehicle. The Court of Criminal Appeals has recognized, but not addressed, a potential conflict among its cases regarding this issue:

Since appellant s only complaint on appeal is that the trial court refused his requested instruction, it is unnecessary in this case to resolve any conflict between our decision in Mendoza [v. State] // and our decision in Thomas [v. State] // on the issue of whether a trial court must sua spontesubmit any other properly worded Article 38.23 instruction.

Perry v. State, 158 S.W.3d 438, 443 & n.1 (Tex. Crim. App. 2004).

In Mendoza, the court explained that a trial court must instruct the jury to disregard illegally obtained evidence if the defendant raises a fact issue concerning the manner in which the evidence was obtained and requests the instruction. 88 S.W.3d at 239 (emphasis added). However, in Thomas, the court expressed that whether a defendant preserved error is relevant only in determining the standard of review during harm analysis. 723 S.W.2d at 707 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh g)); see also Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005) (citing Thomas, 723 S.W.2d at 707)( [T]he question of whether the defendant has preserved jury-charge error is relevant only if there is a determination that error actually occurred. ). The distinction between these standards is that one requires the defendant to request an instruction before error can be found, and the other changes the standard of review for harm if the defendant does not request an instruction.

We recently addressed whether a trial court erred in failing to sua sponte provide Article 38.23 instructions on the law of voluntariness of custodial confessions. Oursbourn v. State, __ S.W.3d __, 2006 WL 2773078, at *3 (Tex. App. Houston [1st Dist.] Sept. 28, 2006, pet. granted). After analyzing the potential conflict among the Court of Criminal Appeals decisions, we followed Mendoza and its progeny, in part because of the well-settled caselaw that a defensive issue must be formally requested to be included in the jury charge, and, where the defendant fails to request an instruction on a defensive issue, there is no jury-charge error. Id. at *6. (citing Posey v. State, 966 S.W.2d 57, 60 61 (Tex. Crim. App. 1998)). Because a challenge to the voluntariness of a confession is a defensive issue and because the defendant failed to request an instruction on the voluntariness of his confession, we held that there was no error in the jury charge. Id.

Analysis

Our reasoning from Oursbourn applies to the issue before us. Appellant argues that the factual disputes entitled him to an Article 38.23 instruction center on whether the evidence presented against him was illegally obtained. An allegation of illegally obtained evidence is a defensive issue. Parker v. State, 192 S.W.3d 801, 806 (Tex. App. Houston [1st Dist.] 2006, pet. ref d). Therefore, because appellant failed to request an instruction on the legality of the evidence obtained during the search of his vehicle, the trial court did not have a duty to sua sponte include an Article 38.23instruction. See Posey, 966 S.W.2d at 60 62. Accordingly, we hold that there is no error in the jury charge. //

We overrule appellant s sole issue.Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.2(b)