Opinion issued July 7, 2016




                                    In The

                              Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                              NO. 01-15-00115-CR
                          ———————————
                 CLYDE BRIAN BRUTON, JR., Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 405th District Court
                        Galveston County, Texas
                     Trial Court Case No. 13CR1854


                        MEMORANDUM OPINION

      Appellant, Clyde Brian Bruton, Jr., pleaded not guilty to a charge of

possession of cocaine in an amount of 4 grams or more but less than 200 grams,
with intent to deliver.1 A jury found Appellant guilty, found an enhancement

paragraph true, and assessed Appellant’s punishment at 27 years in prison.

      In his sole issue on appeal, Appellant contends that the trial court erred when

it denied his request for a jury instruction regarding the legality of the evidence.

See TEX. CODE CRIM. PROC. art. 38.23(a) (Vernon 2005).

      We affirm.

                                    Background

      On July 11, 2013, law enforcement officers executed a narcotics search

warrant at a house in Texas City. Because Appellant’s car was not parked outside,

the officers waited until the Appellant’s car arrived before entering the home,

approximately 30 minutes later. While searching the residence, they found both

liquid and powdered cocaine inside a clear measuring glass. To transport the

liquid cocaine, an officer retrieved a plastic water bottle from their van, emptied it,

and poured the liquid cocaine into it.

      Also while searching the house, officers found money and Appellant’s

identification card in a purse. Detective J. Castro instructed Deputy C. Vernon to

remove the money and identification card from the purse to photograph both items.

      The State charged Appellant with the offense of possession of cocaine in an

amount of 4 grams or more but less than 200 grams, with intent to deliver. See

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D), 481.112 (Vernon
      2010).

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TEX. HEALTH & SAFETY CODE ANN. §§ 481.102, 481.112 (Vernon 2010).

Appellant pleaded not guilty, and the case was tried to a jury. At the charge

conference, Appellant’s trial counsel requested an article 38.23(a) instruction

allowing the jury to first consider whether the evidence was obtained legally before

weighing the evidence. Appellant’s trial counsel suggested Detective Castro’s

testimony raised fact issues. Specifically, Appellant asserts Detective Castro’s

testimony raised the following fact issues:

             Whether the search warrant was obtained [il]legally by failing
      to advise the magistrate of the existence of two individuals having the
      name of Clyde Brian Bruton;
             Whether the action[s] of . . . Detective Castro and the police
      officers [were] illegal in their service and/or execution of the search
      warrant in waiting for the appearance of Appellant at the location
      named on the search warrant;
             Whether evidence was placed legally in the . . . water bottle;
      [and]
             Whether the character of the photographic evidence in State’s
      Exhibit 8 was illegally altered by the admitted repositioning of the
      money and the [identification card].

      The court denied the requested instruction, and the jury found Appellant

guilty.

                    Article 38.23(a) Jury Charge Instruction

      In a single issue, Appellant contends that the trial court erred when it denied

his request for a jury instruction on whether evidence was obtained illegally. He

asserts his counsel’s cross-examination of Detective Castro’s testimony raised




                                          3
questions to the legality of the search, which warranted an article 38.23(a)

instruction.

A.    Standard of Review

      We review a challenge to a jury charge using a two-step process. See Sakil

v. State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). First, we must determine

whether the jury charge contained an error. Id. at 25. If it did, we then evaluate

whether the error was harmful so as to constitute reversible error. Id. at 25–26.

B.    Analysis

      We recently summarized in Garza v. State,

             Article 38.23 of the Code of Criminal Procedure provides that
      evidence obtained in violation of the Constitution or laws of Texas or
      the United States shall not be admitted in evidence against the accused
      in a criminal case. TEX. CODE CRIM. PROC. art. 38.23(a). In any case in
      which “the legal evidence” raises such an issue, “the jury shall be
      instructed that if it believes, or has a reasonable doubt” that the
      evidence was illegally obtained, “then and in such event, the jury shall
      disregard any such evidence so obtained.” Id. A defendant must meet
      three requirements before she is entitled to 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) the contested factual issue must be material to the lawfulness
      of the challenged conduct in obtaining the evidence. [Hamal v. State,
      390 S.W.3d 302, 306 (Tex. Crim. App. 2012)]. . . . To raise a disputed
      fact necessary for an article 38.23(a) instruction, there must be some
      affirmative evidence that puts the existence of that fact into question.

474 S.W.3d 825, 828–29 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

      In the context of cross-examination, only the witness’s answers can create

conflicts in the evidence, no matter how vigorous the questions. Madden v. State,


                                          4
242 S.W.3d 504, 513–14 (Tex. Crim. App. 2007). If cross-examination raises no

factual dispute, then the judge may apply the law to the facts and no article

38.23(a) instruction is necessary. See id. at 511, 514 (“The jury decides facts; the

judge decides the application of the law to those facts.”).

      On appeal, Appellant contends four factual disputes were raised by

Detective Castro’s testimony:

             [(1)] Whether the search warrant was obtained [il]legally by
      failing to advise the magistrate of the existence of two individuals
      having the name of Clyde Brian Bruton;
             [(2)] Whether the action[s] of . . . Detective Castro and the
      police officers [were] illegal in their service and/or execution of the
      search warrant in waiting for the appearance of Appellant at the
      location named on the search warrant;
             [(3)] Whether evidence was placed legally in the . . . water
      bottle; [and]
             [(4)] Whether the character of the photographic evidence in
      State’s Exhibit 8 was illegally altered by the admitted repositioning of
      the money and the [identification card].

      On cross-examination, Detective Castro, the case agent responsible for

securing the search warrant, admitted he did not tell the magistrate there was a

“Clyde Bruton Jr.” and a “Clyde Bruton Sr.” Specifically, the following exchange

occurred during the cross-examination of Detective Castro by Appelant’s trial

counsel:

      Q:     And so prior to talking to the Judge, you would have known
             there was a Junior and a Senior?

      A:     Yes, sir.



                                          5
      Q:    And it’s fair to say, is it not, sir, that you didn’t tell the Judge
            there was a Junior and a Senior, did you?

      A:    I did not.

      Detective Castro also testified that he held back on serving the warrant until

he thought Appellant had arrived at home. A person was surveilling the house and

informed Detective Castro initially that they did not see Appellant’s car.

Approximately 30 minutes later, the person informed Detective Castro that

Appellant’s car had arrived home. Detective Castro’s team then searched the

house.

      As to the water bottle, Detective Castro confirmed either he or Deputy

Vernon poured the liquid cocaine from a clear measuring glass into a plastic water

bottle to preserve the evidence. Deputy Vernon also testified that she retrieved the

sealed water bottle from her van.

      Concerning the money and identification card, Detective Castro verified

they were not pictured as they were found. He directed Deputy Vernon to remove

the money and identification card from the purse before photographing them.

Deputy Vernon confirmed that she repositioned both items.

      Appellant argues the trial court erred when it failed to provide the article

38.23(a) jury instruction because Detective Castro’s testimony called into question




                                          6
the legality of the search.2 Yet, Detective Castro never contradicted himself, but

instead provided a clear narrative of what he and his law enforcement officers did

and did not do. Appellant does not dispute what the officers did, but the legal

effect of what the officers did on the search and the evidence obtained. Because no

conflicts of fact existed for the jury to decide, the legal effects of those facts was a

question of law for the trial court. See Madden, 242 S.W.3d at 510–11.

      Because he did not raise any affirmative evidence of a factual conflict,

Appellant was not entitled to a 38.23(a) jury instruction. See Garza v. State, 474

S.W.3d at 831 (citing Hamal v. State, 390 S.W.3d at 306). Accordingly, the trial

court did not err in denying his request for the jury instruction. We overrule

Appellant’s sole issue.

                                     Conclusion

      We affirm the judgment of the trial court.



                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Higley, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).



2
      While Madden v. State provides examples of contradictory testimony from other
      witnesses that create fact conflicts, Appellant does not provide such evidence. 242
      S.W.3d 504, 513–14 (Tex. Crim. App. 2007).

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