                                 NO. 12-19-00021-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

 JOHN MICHAEL LYDY,                              §      APPEAL FROM THE 369TH
 APPELLANT

 V.                                              §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                        §      CHEROKEE COUNTY, TEXAS

                                 MEMORANDUM OPINION
       John Michael Lydy appeals his conviction for possession with intent to deliver. In a single
issue, Appellant contends the trial court erred in denying his requested jury instruction under
Article 38.23 of the Texas Code of Criminal Procedure. We affirm.


                                         BACKGROUND
       In November 2016, Detective Brent Dickson of the Cherokee County Sheriff’s Department
was approached by Alan Langston, the County’s mental health deputy, about a potential controlled
buy involving Appellant. Langston put Dickson in contact with Marcel Doran, who agreed to
participate in the controlled buy as a confidential informant. Doran purchased methamphetamine
from Appellant as part of the controlled buy. Dickson used the information obtained from the buy,
along with his personal experience and other information, to write a probable cause affidavit to
secure a search warrant. The magistrate issued the search warrant for Appellant’s residence. Law
enforcement officers located 9.52 grams of methamphetamine inside a building where they
believed Appellant sold drugs.
       Appellant was charged by indictment with possession of a controlled substance with intent
to deliver. Prior to trial, Appellant’s counsel filed a motion to suppress the evidence obtained
during the execution of the search warrant. He argued that Dickson included false statements in
the probable cause affidavit which misled the magistrate. As a result, he contended the search
warrant was invalid and all evidence obtained as a result was inadmissible. The trial court denied
the motion.
        At trial, Appellant pleaded “not guilty” and the matter proceeded to a jury trial. It resulted
in a mistrial, and Appellant had a second trial. Following the conclusion of evidence in the second
trial, Appellant’s counsel requested an instruction under Article 38.23 of the Texas Code of
Criminal Procedure and argued that a fact issue existed as to whether the evidence in Appellant’s
case was obtained illegally. The trial court denied the requested instruction. The jury found
Appellant “guilty” and sentenced him to life in prison and a $10,000 fine. This appeal followed.


                                              CHARGE ERROR
        In his sole issue, Appellant argues that the trial court erred by denying his request for a jury
instruction under Article 38.23(a) of the Texas Code of Criminal Procedure. Specifically, he
claims that the evidence at trial raised a fact issue regarding whether probable cause existed to
support a warrant for the search of Appellant’s residence and that the trial court was therefore
required to include an Article 38.23(a) instruction in the jury charge.
Standard of Review
        The review of an alleged jury charge error in a criminal trial is a two-step process. Abdnor
v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must determine
whether there was error in the jury charge. Id. Then, if there is charge error, the court must
determine whether there is sufficient harm to require reversal. Id. at 731–32. The standard for
determining whether there is sufficient harm to require reversal depends on whether the appellant
objected to the error at trial. Id. at 732.
        If the appellant objected to the error, the appellate court must reverse the trial court’s
judgment when the error “is calculated to injure the rights of the defendant.” TEX. CODE CRIM.
PROC. ANN. art. 36.19 (West 2006). This means no more than that there must be some harm to the
accused from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An
appellant who did not raise the error at trial can prevail only if the error is so egregious and created
such harm that he has not had a fair and impartial trial. Id. “In both situations the actual degree
of harm must be assayed in light of the entire jury charge, the state of the evidence, including the




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contested issues and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.
         The record must show that the defendant suffered actual harm, not merely theoretical
harm. Id. at 174. In assessing whether the trial court erred by denying a requested defensive
instruction, an appellate court must examine the evidence offered in support of the defensive issue
in the light most favorable to the defense. Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App.
2013).
         Generally, a trial court must deliver to the jury “a written charge distinctly setting forth the
law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The charge
must include an instruction on any defensive theory raised by the evidence and properly requested
by the defendant. Booth v. State, 679 S.W.2d 498, 500 (Tex. Crim. App. 1984). But the trial court
has no duty to instruct the jury sua sponte on unrequested defensive issues because they are not
“the law applicable to the case.” Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). A
defendant who fails to preserve his request for a defensive instruction cannot complain about its
omission on appeal because he procedurally defaulted his complaint. Id.
Applicable Law
         Article 38.23(a) provides that “[n]o evidence obtained by an officer ... in violation of any
provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused” at trial. TEX. CODE
CRIM. PROC. ANN. art. 38.23(a) (West 2018). “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.’” Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (quoting
TEX. CODE CRIM. PROC. ANN. art. 38.23(a)).
         A defendant’s right to the submission of an instruction under Article 38.23(a) “is limited
to disputed issues of fact that are material to his claim of a constitutional or statutory violation that
would render evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim.
App. 2007). To be entitled to a jury instruction under Article 38.23(a), the defendant must meet
three requirements: “(1) [t]he evidence heard by the jury must raise an issue of fact; (2)[t]he
evidence on that fact must be affirmatively contested; and (3) [t]hat contested factual issue must



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be material to the lawfulness of the challenged conduct in obtaining the evidence.” Id. at 510.
There must be a genuine dispute about a material issue of historical fact before an Article 38.23
instruction is warranted. Id. If there is no disputed issue of fact, the legality of the challenged
conduct is determined by the trial court alone as a matter of law. Id. Further, if other facts, not in
dispute, are sufficient to support the lawfulness of the challenged conduct, then the disputed fact
issue is not material to the ultimate admissibility of the evidence and is not to be submitted to the
jury. Id. The disputed fact issue must be essential to determining the lawfulness of the challenged
conduct. Id. at 511. If the defendant successfully raises a disputed, material issue of fact regarding
whether evidence was illegally obtained, an Article 38.23(a) instruction is mandatory and must be
included in the jury charge. Robinson, 377 S.W.3d at 719.
       In determining whether probable cause exists to support the issuance of a search warrant,
the task of the issuing magistrate is to determine “whether, given all the circumstances set forth in
the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will be found
in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d
527 (1983) (emphasis added); Hennessy v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. [Panel Op.]
1983). The magistrate must determine whether probable cause exists based solely on the facts
contained in the probable cause affidavit and any reasonable inferences drawn from those facts.
Kennedy v. State, 338 S.W.3d 84, 91–92 (Tex. App.—Austin 2011, no pet.); Borsari v. State, 919
S.W.2d 913, 918 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).
       When a probable cause affidavit is based on information received from an informant, the
informant’s veracity, reliability, and basis of knowledge are relevant considerations in the
determination of whether probable cause exists. Gates, 462 U.S. at 230, 233, 103 S. Ct. at 2328,
2330. These factors are not “entirely separate and independent requirements to be rigidly exacted
in every case[.]” Id., 462 U.S. at 230, 103 S. Ct. 2328. Rather, “they should be understood simply
as closely intertwined issues that may usefully illuminate the commonsense, practical question [of]
whether” probable cause exists, and “a deficiency in one may be compensated for, in determining
the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of
reliability.” Id., 462 U.S. at 230, 233, 103 S. Ct. at 2328, 2329. Significantly, however, any
showing of the informant’s veracity, reliability, or basis of knowledge must be set forth in the
probable cause affidavit, and the magistrate must analyze the existence and strength of those



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factors, as well as their overall effect on the existence of probable cause, based solely on the
information contained in the affidavit. See id., 462 U.S. at 238, 103 S. Ct. at 2332.
       Further, while the Fourth Amendment demands that there be a truthful showing of facts
sufficient to establish probable cause, “[t]his does not mean ‘truthful’ in the sense that every fact
recited in the [probable cause] affidavit is necessarily correct,” since “probable cause may be
founded upon hearsay and upon information received from informants, as well as upon information
within the affiant’s own knowledge that sometimes must be garnered hastily.” Franks v.
Delaware, 438 U.S. 154, 164–65, 98 S. Ct. 2674, 2680-81, 57 L. Ed. 2d 667 (1978). Rather, the
Fourth Amendment requires the probable cause affidavit to make a truthful showing “in the sense
that the information put forth is believed or appropriately accepted by the affiant as true.” Id., 438
U.S. at 165, 98 S. Ct. at 2681; see also McCray v. Illinois, 386 U.S. 300, 307, 87 S. Ct. 1056,
1060, 18 L. Ed. 2d 62 (1967) (explaining that when determining whether probable cause exists to
support a search warrant, “the magistrate is concerned, not with whether the informant lied, but
with whether the affiant is truthful in his recitation of what he was told.”) (internal citations
omitted).
       If a defendant establishes by a preponderance of the evidence that a warrant affidavit
contains a false statement made intentionally, knowingly, or with reckless disregard for the truth,
and if the statement was material to proving probable cause, the false material must be excised
from the affidavit. Franks, 438 U.S. at 164–65, 98 S. Ct. at 2680-81; State v. Five Thousand Five
Hundred Dollars in U.S. Currency, 296 S.W.3d 696, 705 (Tex. App.—El Paso 2009, no pet.). If
the remaining information in the affidavit is insufficient to establish probable cause, the search
warrant should be voided and the evidence that was seized pursuant to the warrant should be
excluded. Five Thousand Five Hundred Dollars, 296 S.W.3d at 705 (citing Franks, 438 U.S. at
155–56, 98 S. Ct. at 2676). A misstatement in the affidavit resulting from simple negligence or
inadvertence will not render the warrant invalid. See id.
Analysis
       Appellant argues that Detective Brent Dickson falsified information in the affidavit
supporting the search warrant. Specifically, he contends Detective Dickson lied regarding the
reliability of his confidential informant. He further argues that because certain items were not
found during the search, their inclusion in the statement of items believed to be concealed on the
property section of the affidavit renders them false.



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       Appellant urges that because Detective Martin Pepin did not inquire into the informant’s
history, Dickson must have provided inaccurate information on the affidavit. However, Detective
Pepin did not write or swear to the probable cause affidavit. He testified that Detective Dickson
asked him to assist with a “controlled narcotics purchase” and he agreed to do so without further
questions.
       The probable cause affidavit stated, in relevant part, the following information as grounds
for issuance of a warrant:


       a.    Within the past seventy-two hours your Affiant has conducted a controlled narcotics purchase
             at the above-mentioned suspected place with the assistance of a Confidential Informant
             (S01607) that yielded a controlled substance, namely methamphetamine. The said Confidential
             Informant has provided information in the past that has been proven to be true and correct. The
             Confidential Informant will be referred to as CI for the rem[a]inder of this affidavit.

       b.    The CI conducted a controlled narcotics purchase from the suspected residence, from the
             suspected party, within the past seventy-two hours. The controlled narcotics purchase the said
             CI arrived at the suspected residence and completed the narcotics purchase. The controlled
             narcotics purchase yielded a gram or more of methamphetamine.

       c.    The CI provided information that the suspected party sells methamphetamine from the
             suspected place. Within the past seventy-two hours the Cl has observed an amount of
             methamphetamine within the said suspected residence.



The affidavit further provided the following information:


       E. Your Affiant knows that persons involved in the possession, sale and distribution of controlled
          substances maintains documents, writings, lists of suppliers and customers, including names,
          addresses, and telephone numbers, other papers, notes, books and ledgers, that enable them to
          keep an accurate listing of persons with whom they are engaged in the illicit activities. Your
          Affiant also knows that persons involved in the above listed offenses keep financial records to
          enable them to keep current accounting of money expended and owed themselves by other
          persons. Your Affiant knows that these persons involved in the above listed offenses commonly
          keep quantities of controlled substances, and the money derived from their illicit activities
          inside residence in order to avoid detection by law enforcement officers. Your Affiant also
          knows that persons in the sell and distribution of controlled substances commonly keep
          weapons and other devises in close proximity to said controlled substances and inside of
          residence utilized to conceal said controlled substances, to protect the persons investment and
          controlled substances, and will commonly take weapons as payment in the sell and distribution
          of those controlled substances to individuals not having the means of paying for said controlled
          substances in US currency.



        At trial, Detective Dickson’s testimony was consistent with the allegations in the probable
cause affidavit. The detective testified that he was contacted by Langston in November 2016 about



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a potential undercover buy involving Appellant. Deputy Langston put him in contact with Doran.
Detective Dickson stated that he had several telephone conversations with Doran in which Doran
provided information “that appeared to be true and correct” regarding other drug dealers in the
area. Doran disclosed that he had a prior conviction for burglary and claimed to wish to stop using
drugs. When Dickson and Pepin met Doran prior to making the controlled buy, they filled out the
confidential informant packet, searched Doran’s person and vehicle, and provided him with money
for the buy and recording devices. Doran, under the surveillance of Dickson and Pepin, then went
to Appellant’s residence. Doran went inside and left after approximately eighteen minutes. When
the detectives subsequently met with Doran, they secured a “clear baggy containing a white, crystal
rock substance believed to be methamphetamine,” performed another search, and recovered the
recording devices. Dickson then used that information to draft his probable cause affidavit to
secure a search warrant.
        In considering Detective Dickson’s testimony, we fail to perceive an issue of material fact.
Detective Dickson testified that Doran provided truthful information about other drug dealers prior
to the controlled buy. In addition, Detective Dickson testified that he searched the informant both
before and after the controlled buy to ensure any drugs actually came from Appellant. Therefore,
Detective Dickson demonstrated Doran’s reliability with regard to the controlled buy. See Blake
v. State, 125 S.W.3d 717, 727 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (previous dealings
with informant gave officers and magistrate basis for crediting informant’s information).
        Appellant further claims that a factual dispute exists because items listed in the probable
cause affidavit were not ultimately recovered during the search. Specifically, Appellant points to
the fact that neither ledgers nor books were found during the search. We disagree that this creates
a fact issue. Detective Dickson stated in his affidavit that he believed those items might be
concealed at Appellant’s location and that, in his experience, those items are often recovered where
drug trafficking occurs. He did not affirmatively state that such items would be found. It is
axiomatic that not all searches recover all of the items law enforcement believes might be at a
specific location. A probable cause affidavit need not be “truthful” in the sense that every fact
recited in the affidavit is necessarily correct; “it is to be ‘truthful’ in the sense that the information
put forth is believed or appropriately accepted by the affiant as true.” Franks, 438 U.S. at 164-
65, 98 S. Ct. at 2681. Detective Dickson’s affidavit satisfies this standard.




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         Based on the foregoing, we determine that Detective Dickson’s testimony does not
demonstrate that he provided a false statement or that the any statements in the affidavit were made
intentionally, knowingly, or with reckless disregard for their truth. See Shedden v. State, 268
S.W.3d 717, 737-38 (Tex. App.—Corpus Christi 2008, pet. ref’d). As a result, the trial court did
not err in refusing Appellant’s requested instruction under Article 38.23. We overrule Appellant’s
sole issue.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice



Opinion delivered October 31, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 31, 2019


                                         NO. 12-19-00021-CR


                                      JOHN MICHAEL LYDY,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 369th District Court
                           of Cherokee County, Texas (Tr.Ct.No. 20277)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
