                                                                               ACCEPTED
                                                                          12-14-00232-CR
                                                              TWELFTH COURT OF APPEALS
                                                                           TYLER, TEXAS
                                                                     1/27/2015 1:14:58 PM
                                                                             CATHY LUSK
                                                                                   CLERK

                No. 12-14-00232-CR

         IN THE TYLER COURT OF APPEALS
                                                FILED IN
       TWELFTH JUDICIAL DISTRICT OF TEXAS 12th COURT OF APPEALS
                                                      TYLER, TEXAS
                                                 1/27/2015 1:14:58 PM
                                                      CATHY S. LUSK
                                                          Clerk

                 FREDDIE FOREMAN
                     Appellant,

                         v.

                THE STATE OF TEXAS
                     Appellee




                  On appeal from the
  TH
349    Judicial District Court, Houston County, Texas
              Trial Cause No. 13CR-184




            BRIEF FOR THE APPELLEE




                          Donna G. Kaspar
                          District Attorney for Houston County
                          401 E. Houston Ave., Basement Floor
                          Crockett, Texas 75835
                          (936) 544-3255 x 245
                          (936) 544-2790 (FAX)
                          SBOT# 00785201




                          1
                  IDENTITY OF PARTIES AND COUNSEL


APPELLANT:

Freddie Foreman

ATTORNEY FOR APPELLANT

Mark Cargill
701 N. Elm
Palestine, Texas 75801
(903) 729-8011

ATTORNEY FOR APPELLEE

Donna Gordon Kaspar, District Attorney
401 E. Houston Ave., Basement Floor
Crockett, Texas 75835
(936) 544-3255 ext.245
dgordon@co.houston.tx.us




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                         TABLE OF CONTENTS

                                             Page

Table of Contents                             3

Index of Authorities                          4

Issues Presented                              6

Statement of Facts                            6

Issue Number One Restated                     6

Summary of the Argument                       6

Argument                                      7

Prayer                                       10

Certificate of Service                       11

Certificate of Word Compliance               11




                                 3
                     INDEX OF AUTHORITIES

                                                              Page

                               Cases

Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007)         7

Robinson v. State, 377 S.W.3d 712 (Tex.Crim.App. 2012)         8

Robles v. State, 711 S.W.2d 752, 753 (Tex. App.-San Antonio
1986, pet. ref'd)                                              9

                              Statutes

Article 38.23(a)                                               7

 Tex. Code Crim. Proc. art. 1.06                                   9




                                   4
                              No. 12-14-00232-CR

                       IN THE TYLER COURT OF APPEALS
                     TWELFTH JUDICIAL DISTRICT OF TEXAS




                              FREDDIE FOREMAN,

                                    Appellant

                                       vs.

                             THE STATE OF TEXAS,

                                    Appellee




                                On appeal From the
                th
          349        Judicial District Court, Houston County, Texas
                             Trial Cause No. 13CR-184




                          BRIEF FOR THE APPELLEE




TO THE HONORABLE TYLER COURT OF APPEALS:

      NOW COMES, Donna Gordon Kaspar, District Attorney for

Houston County, and respectfully submits her Brief for the Appellee,

requesting that this Court affirm the judgment of the Trial Court.

                                        5
                          ISSUES PRESENTED


      1. The trial court did not err in denying Defendant’s requested
         jury instruction.

                           STATEMENT OF FACTS

      Defendant requested an Art. 38.23 instruction to the jury

claiming there were factual issues that the jury must decide to

determine if the evidence was illegally seized in this case. (R.R., Vol.

1, p. 184). The prosecutor argued that there were no factual issues

presented. (R.R., Vol. 1, p. 185). The trial court denied the requested

instruction. (R.R., Vol. 1, p. 190).


                          ISSUE NUMBER ONE

      The trial court did not err in denying Defendant’s requested jury
instruction.

                     SUMMARY OF THE ARGUMENT

      To be entitled to an Article 38.23(a) instruction, the Court of

Criminal Appeals held in Madden, the defendant must show that (1) an

issue of historical fact was raised in front of the jury; (2) the fact was

contested by affirmative evidence at trial; and (3) the fact is material

to the constitutional or statutory violation that the defendant has

identified as rendering the particular evidence inadmissible. Since the

issues raised by the evidence at trial do not involve controverted

historical facts, but only the proper application of the law to


                                       6
undisputed facts, the issues were properly left to the determination of

the trial court and not the jury in this case.

                               ARGUMENT

      Under Article 38.23(a), "[n]o evidence obtained by an officer . . .

in violation of any provisions of the Constitution or laws . . . shall be

admitted in evidence against the accused" at trial.      When evidence

presented before the jury raises a question of whether the fruits of a

police-initiated search or arrest were illegally obtained, "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." To be entitled to an Article 38.23(a) instruction, the Court

of Criminal Appeals held in Madden, the defendant must show that (1)

an issue of historical fact was raised in front of the jury; (2) the fact

was contested by affirmative evidence at trial; and (3) the fact is

material to the constitutional or statutory violation that the defendant

has identified as rendering the particular evidence inadmissible.

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

disputed, material issue of fact is successfully raised, the terms of the

statute are mandatory, and the jury must be instructed accordingly.

Evidence to justify an Article 38.23(a) instruction can derive "from any

source," no matter whether "strong, weak, contradicted, unimpeached,


                                     7
or unbelievable."   But it must, in any event, raise a "factual dispute

about how the evidence was obtained." Where the issue raised by the

evidence at trial does not involve controverted historical facts, but only

the proper application of the law to undisputed facts, that issue is

properly left to the determination of the trial court.       Robinson v.

State, 377 S.W.3d 712 (Tex.Crim.App. 2012).

      In his brief, Appellant argues that an Art. 38.23 instruction is

required because a factual issue was raised in the illegality of the

seized evidence because the officer exceeded the scope of the search

warrant and had no probable cause to search Defendant’s room.          In

his brief, He points to testimony from the trial that he believes shows

factual issues.

      At trial, defense counsel responded to the trial court as follows:

            THE COURT: Let me ask you, what evidence have
            we heard that would give rise to that instruction?
            MR. CARGILL: In regards to the -- the
            information -- the pictures being changed, the material
            being placed. That the scope was exceeded and the fact
            that my client wasn't served a search warrant under Rule
            18. (R.R., Vol. 1, p. 185).



      The scope of the search warrant is a legal question, as is,

whether probable cause exists. There must be a factual dispute that

calls into question what the scope of the warrant was or what the basis

of the probable cause was. A careful reading of the transcript shows



                                    8
that there is no factual issue raised in the evidence and, as such, no

Art. 38.23 instruction is required.      Testimony from Officer Smith

outlined the scope of the search as 218 Wood St., Crockett, Texas and

nothing indicated the scope of the search was exceeded. (R.R. Vol. 1,

pp. 106, 109-110, 114, 122). Also, a search warrant may not legally

issue unless it is based on probable cause. Tex. Code Crim. Proc. art.

1.06. There simply is no factual dispute with regard to scope of the

search or of probable cause to search.

      Appellant argued during the trial that an instruction should be

given because he was not given a copy of the search warrant. There

was testimony that Freddie Foreman was given a copy of the search

warrant both at the house and at the jail. (R.R. Vol. 1, p. 122). The

defense put on testimony that there were no papers in Mr. Foreman’s

jail property.   The jail administrator also testified that if the papers

were given to Mr. Foreman after he was booked into the jail, the

papers would not be reflected in the jail records.      (R.R. Vol. 1, pp.

180-181).    Therefore, there is no factual dispute raised.      However,

even if there were a dispute about the service of the search warrant, it

has been held that the failure of a police officer to deliver a copy of the

search warrant to the defendant does not require suppression of the

seized evidence absent a showing of prejudice. Robles v. State, 711

S.W.2d 752, 753 (Tex. App.-San Antonio 1986, pet. ref'd). Foreman


                                     9
does not argue that the warrant was not issued before the search, nor

does he suggest in this situation how the officer's failure to give him a

copy of the warrant at the time of the search caused prejudice. In light

of the circumstances surrounding execution of this search warrant, the

jury could not disregard the evidence based on its finding that the

search warrant was not served on Mr. Foreman. Therefore, a 39.23(a)

instruction would have been improper.

      Appellant also argued at trial that a factual issue was raised

because pictures were changed and material was placed. There was

no evidence that pictures were changed or any material placed.

Defense counsel tried to infer that the pictures were changed and the

drugs were placed in Mr. Foreman’s room through his questioning of

the witnesses but the officer’s response to those questions did not

raise any factual disputes.    Since the issues raised by the evidence

at trial do not involve controverted historical facts, but only the proper

application of the law to undisputed facts, the issues were properly left

to the determination of the trial court and not the jury in this case.

                                 PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State respectfully

prays that the Court affirm the judgment of the Trial Court in this

cause.

                                     Respectfully Submitted,


                                    10
                                   Donna G. Kaspar
                                   ____________________________
                                   Donna G. Kaspar
                                   District Attorney for Houston County
                                   401 E. Houston Ave.
                                   Crockett, Texas 75835
                                   (936) 544-3255 x 245
                                   (936) 544-2790 (FAX)
                                   SBOT# 00785201


                      CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and
foregoing Appellee’s Brief was served on counsel of record on this the
27TH day of January, 2015.

                                       Donna G. Kaspar
                                   _______________________
                                   Donna G. Kaspar

                CERTIFICATE OF WORD COMPLIANCE

      District Attorney, Donna Gordon Kaspar, on this the 27TH day of
January, 2015, hereby certifies this document has 1,528 word count,
including captions and table of contents.


                                   Donna G. Kaspar
                                   ___________________________
                                   Donna G. Kaspar




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