                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-18-00228-CR

FREDRICK VONSHA ROBERTSON,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 15-04071-CRF-85


                          MEMORANDUM OPINION


      In two issues, appellant, Fredrick Vonsha Robertson, challenges his conviction for

unlawful possession with intent to deliver a controlled substance—cocaine—four grams

or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West

2017). Specifically, Robertson contends that the trial court erred by denying his motion

to suppress evidence due to the absence of probable cause to support a warrant to search
his residence and by denying his request for an article 38.23(a) jury instruction. See TEX.

CODE CRIM. PROC. ANN. art. 38.23(a) (West 2018). We reverse and remand.

                     I.    THE SEARCH WARRANT & SUPPORTING AFFIDAVIT

        In his first issue, Robertson contends that the trial court erred by denying his

motion to suppress evidence due to the absence of probable cause to support a warrant

to search his residence.

A.      Standard of Review

        “A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.”

Kelly v. State, 529 S.W.3d 504, 508 (Tex. App.—Texarkana 2017, no pet.) (citing Oles v.

State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)). In performing this review, we

generally use a bifurcated standard of review, affording deference to the trial court’s

determination of historical facts and reviewing de novo the application of law to the facts.

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). However, when the question

before the trial court is whether probable cause supported the issuance of a search

warrant, as is the case here, the trial court does not make credibility determinations but

is instead limited to the four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 271

(Tex. Crim. App. 2011) (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App.

2004)). When we review a magistrate’s decision to issue a warrant, we apply a highly-

deferential standard, and we will uphold the magistrate’s probable-cause determination

as long as the magistrate had a substantial basis for determining that probable cause


Robertson v. State                                                                     Page 2
existed. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983);

Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004).

        “Probable cause exists when, under the totality of the circumstances, there is a ‘fair

probability’ that contraband or evidence of a crime will be found at the specified

location.” Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (citing Gates, 462

U.S. at 238, 103 S. Ct. 2317). It is a ‘flexible and nondemanding’ standard.” Id. (citing 40

GEORGE W. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE & PROCEDURE

§ 5.03 at 292 (2d ed. 2001)). To justify the issuance of a search warrant, the affidavit in

support thereof must set forth facts sufficient to establish probable cause:

     (1) that a specific offense has been committed, (2) that the specifically described
         property or items that are to be searched for or seized constitute evidence
         of that offense or evidence that a particular person committed that offense,
         and (3) that the property or items constituting evidence to be searched for
         or seized are located at or on the particular person, place, or thing to be
         searched.

TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (West Supp. 2018).

B.      Discussion

        In his motion to suppress, Robertson asserted that the affidavit in support of the

search warrant stated that a confidential informant went to the address of 2408 Old

Hearne Road—an address that is about a mile away from 2408 Old Kurten Road—and

purchased cocaine from “Fred.” However, using this information, police obtained a

search warrant for 2408 Old Kurten Road, the address of Robinson’s residence. After a



Robertson v. State                                                                         Page 3
hearing, at which two witnesses testified, the trial court overruled Robertson’s motion to

suppress. The trial court then entered numerous findings of fact and conclusions of law.

        In his affidavit in support of the complained-of search warrant, Bryan Police

Officer Randell Hall stated the following:

    1. There is in the City of Bryan, Brazos County, Texas, a suspected place and
       premises described and located as follows: 2408 Old Kurten Road, Bryan,
       Brazos County, Texas. Further described as a single story, white and gray
       framed house with a gray shingled roof. Also, in front of the house, at the
       curb, is a mailbox. “See Attached embedded photo.”[1]

                ...

    2. The suspected place is in control of each of the following person or persons:
       Fredrick Vonsha Robertson, B/M and DOB: September 27, 1972.

    3. It is the belief of affiant that at the above described premises is the following
       property or items: implements used in the commission of the offense of
       possession and delivery of a controlled substance, to wit: cocaine, drug
       paraphernalia and evidence of cocaine trafficking including but not limited
       to, scales, containers, packaging materials, sealing devices, as well as
       documentary, electronic and digitally stored records of sales receipts,
       purchases, customers and suppliers. . . .

    4. Affiant has probable cause for said belief by reason of the following facts
       and circumstances . . .

        Within the past 72 hours, I [Officer Hall] was working in an under[cover]
        capacity. Within the past 72 hours, I conducted a controlled buy with the
        assistance of a Confidential Informant (CI). For the safety of the CI[,] they
        will not be named in this affidavit. This CI has assisted The Bryan Police
        Department in the past and had proven to be both credible and reliable.
        The CI came forward and stated that a black male who goes by the name of
        “Fred” was distributing cocaine from an address on Old Kurten Road in

        1  A photograph of Robertson’s residence at 2408 Old Kurten Road was provided in both the
affidavit and the search warrant.

Robertson v. State                                                                         Page 4
        Bryan[,] Texas. The CI’s motivation was law enforcement related. I was
        familiar with the address and “Fred” due to a citizen coming forward
        recently who is a tax paying, employed resident of the City of Bryan who
        also has law enforcement motives, stated that a black male whose name is
        “Frederick Robertson” was selling narcotics within the City of Bryan at an
        address on Old Kurten Road. Based upon the prior knowledge provided
        to me, I had researched the name “Frederick Robertson”. I discovered that
        “Frederick Robertson” is Frederick Vonsha Robertson Sr., B/M and date of
        birth September 27, 1972 (Said Suspected Party). He had a listed address is
        Bryan Police Department’s record system of 2408 Old Hearne Road (Said
        Suspected Place). He also has this same listed address in the Brazos County
        Jail’s system. A utilities check of 2408 Old Kurten Road via Bryan Texas
        Utilities also confirmed that the utilities are under the name of Frederick
        Robertson.

        Within the past 72 hours, the CI agreed to make a controlled buy of cocaine
        from “Fred”. I met the CI at a predetermined location and conducted a
        check of his person to insure [sic] that he was not concealing any narcotics
        on his person. The CI was then given a specific amount of Bryan Police
        Department imprest funds. The CI then went to the address of 2408 Old
        Hearne Road and purchased a quality [sic] of cocaine an [sic] exchange for
        the Bryan Police Department imprest funds from “Fred”. While the CI was
        conducting the buy[,] surveillance was conducted. Officer Cottle[,] who is
        a member of the Bryan Police Department’s Drug Enforcement Team[,] saw
        the male that the CI called “Fred” enter the front door of the house located
        at 2408 Old Hearne Road during the time of the purchase of cocaine. The
        CI then returned back to the location[;] upon his return[,] I recovered a
        usable amount of cocaine.

        At the hearing on Robertson’s motion to suppress, Officer Kyle Cottle of the Bryan

Police Department testified that he was involved in the investigation of drug sales

occurring on Old Kurten Road; that he observed the controlled buy that was referenced

in Officer Hall’s affidavit; and that the controlled buy took place at 2408 Old Kurten Road,




Robertson v. State                                                                     Page 5
not Old Hearne Road.2 Officer Cottle emphasized that the reference to Old Hearne Road

was a discrepancy and that the affidavit should have read 2408 Old Kurten Road at all

times. Moreover, according to Officer Cottle, no law-enforcement activity was conducted

at 2408 Old Hearne Road.

        In its findings of fact, the trial court stated the following:

        15. The Court finds that, based on the four corners of the affidavit, the
        magistrate who issued the search warrant could have reasonably inferred
        that the informant who made the buy observed the defendant in possession
        of cocaine at his house at 2408 Old Kurten Road within 72 hours of the date
        the affidavit was sworn to:

                    The affiant particularly described the place to be searched as 2408
                     Old Kurten Road, Bryan, Brazos County, Texas and described it
                     as a single story, white and gray framed house with a gray
                     shingled roof and included a photo of the house located at 2408
                     Old Kurten Road.

                    A CI came forward and stated that a black male who goes by the
                     name of “Fred” was distributing cocaine from an address on Old
                     Kurten Road in Bryan[,] Texas.

                    An employed resident of the City of Bryan stated that a black
                     male whose name is “Frederick Robertson” was selling narcotics
                     within the City of Bryan at an address on Old Kurten Road.

                    A utilities check of 2408 Old Kurten Road via Bryan Texas
                     Utilities also confirmed that the utilities are under the name of
                     Frederick Robertson.

                    Within the past 72 hours, the CI agreed to make a controlled buy
                     of cocaine from “Fred,” and Officer Cottle observed that
                     controlled buy.

        2 Officer Kyle Cottle of the Bryan Police Department noted that, in preparation for trial, he drove
to the 2408 Old Hearne Road address and discovered an open field with horses grazing.

Robertson v. State                                                                                  Page 6
        16. The Court also finds that any reference to “Hearne” in the affidavit was
        a clerical error.

        17. The Court finds that the facts contained in the affidavit in support of
        the search warrant for 2408 Old Kurten Road set forth probable cause that
        would justify its search.

        As mentioned above, in reviewing the sufficiency of an affidavit to support a

search warrant, the trial court is generally limited to that which is contained within the

four corners of the affidavit. See McLain, 337 S.W.3d at 271. However, courts are

“instructed not to analyze the affidavit in a hyper-technical manner.” Id. (noting the

deferential standard is consistent with the constitutional preference for a warrant); see

Rodriguez, 232 S.W.3d at 61 (“Thus, when an appellate court reviews an issuing

magistrate’s determination, that court should interpret the affidavit in a commonsensical

and realistic manner, recognizing that the magistrate may draw reasonable inferences.

When in doubt, we defer to all reasonable inferences that the magistrate could have

made.” (internal footnotes & citations omitted)); see also State v. Duarte, 389 S.W.3d 349,

354-55 (Tex. Crim. App. 2012) (noting that the focus is not on what other facts could or

should have been included in the affidavit; the focus is on the combined logical force of

facts that are in the affidavit).

        Furthermore, the Court of Criminal Appeals has held that technical defects in a

warrant may be cured by explanatory testimony at the suppression hearing that shows

the error is merely a technical or clerical error. Green v. State, 799 S.W.2d 756, 759 (Tex.


Robertson v. State                                                                     Page 7
Crim. App. 1990) (holding that “purely technical discrepancies in dates or times do not

automatically vitiate the validity of search or arrest warrants” (emphasis in original)).

Other courts have likewise extended the rationale in Green to apply to typographical

errors in supporting affidavits. See Somoza v. State, 481 S.W.3d 693, 703 (Tex. App.—

Houston [1st Dist.] 2015, no pet.); see also State v. Deleon, Nos. 07-17-00193-CR & 07-17-

00194-CR, 2018 Tex. App. LEXIS 833, at **6-7 (Tex. App.—Amarillo Jan. 30, 3018, no pet.)

(mem. op., not designated for publication) (per curiam); State v. Welborn, No. 02-14-00464-

CR, 2015 Tex. App. LEXIS 8001, at **7-8 (Tex. App.—Fort Worth July 30, 2015, pet. ref’d)

(mem. op., not designated for publication), cert. denied, Welborn v. Tex., 136 S. Ct. 1672, 194

L. Ed. 768 (2016).

        In the instant case, we find sufficient evidence in the record to support the trial

court’s conclusion that the use of “Hearne” in the supporting affidavit was a clerical error

and did not serve to undermine probable cause to issue a warrant to search 2408 Old

Kurten Road. The majority of the affidavit referenced the property to be searched—2408

Old Kurten Road—and both the affidavit and search warrant contained photographs of

the place to be searched—Robertson’s residence at 2408 Old Kurten Road. The affidavit

also mentioned the confidential informant, as well as another Bryan citizen, who notified

law enforcement that Robertson was selling narcotics on Old Kurten Road. A utilities

check confirmed that 2408 Old Kurten Road was Robertson’s residence. Furthermore, in

explaining the clerical error, Officer Cottle testified that he observed the controlled buy


Robertson v. State                                                                      Page 8
and that the controlled buy took place at 2408 Old Kurten Road, not 2408 Old Hearne

Road. See Green, 799 S.W.2d at 759 (providing that technical defects in a warrant may be

cured by explanatory testimony at the suppression hearing explaining that the error was

clerical); Somoza, 481 S.W.3d at 703 (extending the Green rationale to affidavits supporting

search warrants); see also Bonds v. State, 403 S.W.3d 867, 876 (Tex. Crim. App. 2013) (noting

that an ambiguity between common descriptive factors of a manufactured home labeled

401 Barker and the residence actually searched was resolved by the officer’s personal

knowledge of the location and the residence intended to be searched); Lee v. State, No. 14-

04-00398-CR, 2005 Tex. App. LEXIS 7927, at *10 (Tex. App.—Houston [14th Dist.] Sept.

29, 2005, pet. ref’d) (mem. op., not designated for publication) (“When viewed in its

entirety, the description adequately identifies, as near as possible, the location of the

residence and was sufficient to overcome the incorrect numerical address. Combined

with the executing officer’s personal knowledge, the warrant satisfied the constitutional

and statutory objectives of requiring a particular description of the place to be searched.”

(emphasis in original)).

        Therefore, interpreting the supporting affidavit in a commonsensical and realistic

manner, we cannot say that the trial court erred by concluding that the usage of “Hearne”

in the supporting affidavit was a clerical error. See Duarte, 389 S.W.3d at 354-55; McLain,

337 S.W.3d at 271; Rodriguez, 232 S.W.3d at 61; Green, 799 S.W.2d at 759; Somoza, 481

S.W.3d at 703; see also Strange v. State, 446 S.W.3d 567, 572-73 (Tex. App.—Texarkana 2014,


Robertson v. State                                                                     Page 9
no pet.) (concluding that the trial court did not err by admitting evidence seized during

the search of a single-family habitation when the affidavit supporting the search warrant

provided with particularity the place to be searched, but the search warrant itself

contained a clerical error authorizing the search of a vehicle); Rios v. State, 901 S.W.2d

706-07 (Tex. App.—San Antonio 1995, no pet.) (concluding that a discrepancy between

an affidavit, which described a residence and not a vehicle, and the warrant, which

incorporated the affidavit but commanded the search of “the suspected vehicle,” to be an

obvious clerical error that did not invalidate the search warrant for the residence).

Moreover, we further conclude that the trial court did not err by denying Robertson’s

motion to suppress and by admitting the evidence seized during the search. See TEX.

CODE CRIM. PROC. ANN. art. 18.01(c); Gates, 462 U.S. at 238, 103 S. Ct. 2317; Rodriguez, 232

S.W.3d at 60; see also Valtierra, 310 S.W.3d at 447; Swearingen, 143 S.W.3d at 810. We

overrule his first issue.

             II.     ROBERTSON’S REQUEST FOR ARTICLE 38.23 JURY INSTRUCTIONS

        In his second issue, Robertson contends that the trial court erred by denying his

requested jury instructions under article 38.23(a) of the Code of Criminal Procedure

because the evidence raised a fact question about whether officers had probable cause

and conducted a search prior to the issuance of the search warrant.

A.      Applicable Law




Robertson v. State                                                                   Page 10
        A claim of jury-charge error is reviewed using the procedure set out in Almanza.

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985)). The first step is to determine whether there is

error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). “Then, if

we find error, we analyze that error for harm.” Id. (citing Middleton v. State, 125 S.W.3d

450, 453 (Tex. Crim. App. 2003)).

        In the instant case, Robertson argues that the trial court erred by not including

article 38.23(a) instructions in the charge. Article 38.23(a) provides the following:

        No evidence obtained by an officer or other person in violation of any
        provisions of the Constitution or law 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 on the trial of any criminal case.

               In any case where the legal evidence raises an issue hereunder, the
        jury shall be instructed that if it believes, or has 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.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a). In Madden, the Court of Criminal Appeals

stated that a defendant’s right to the submission of jury instructions 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).        Specifically, the Madden court mentioned the

following:

        There are three requirements that a defendant must meet before he is
        entitled to the submission of a jury instruction under Article 38.23(a):
Robertson v. State                                                                        Page 11
                 (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) That contested factual issue must be material to the lawfulness of
                     the challenged conduct in obtaining the evidence.

        There must be a genuine dispute about a material fact. If there is no
        disputed factual issue, the legality of the conduct is determined by the trial
        judge alone, as a question of law. And if other facts, not in dispute, are
        sufficient to support the lawfulness of the challenged conduct, then the
        disputed fact issue is not submitted to the jury because it is not material to
        the ultimate admissibility of the evidence. The disputed fact must be an
        essential one in deciding the lawfulness of the challenged conduct.

Id. at 510-11.

B.      Discussion

        In the instant case, Robertson proffered two proposed jury instructions regarding

the search warrant. In his first argument in this issue, Robertson contends that he should

have received an article 38.23(a) instruction in the charge as to the clerical error in the

affidavit supporting the search warrant.          Because we hold that the warrant was

sufficiently supported by the affidavit and that, as a matter of law, the warrant was

sufficient to conduct the search, Robertson was not entitled to an instruction in the charge,

as argued in the first subpart of this issue. Thus, we overrule that portion of Robertson’s

second issue.

        In the second of the two proposed jury instructions, Robertson argued that he was

entitled to an article 38.23(a) instruction because his father, Howard Davenport, testified


Robertson v. State                                                                        Page 12
that he saw police officers searching the residence at 2408 Old Kurten Road prior to the

issuance of the search warrant when he went to a local McDonald’s to meet friends. As

such, Robertson contended that the search was warrantless and presumptively

unreasonable.

        Specifically, regarding the alleged premature search, Robertson directs us to the

following exchange:

        Q [Defense Counsel]:       Okay. And so what time do y’all meet there
                                   [McDonald’s]?

        A [Davenport]:             Well, basically whenever we get there. About
                                   9:00, 9:15. We get there and drink coffee, eat
                                   breakfast.

        Q:                         Okay. I’ll represent to you that the day that
                                   Fredrick’s house on Kurten Road was searched
                                   was April 29th of 2014. Did you go to the
                                   McDonald’s on that day?

        A:                         Yes, I did.

        Q:                         So did you see the police at the house?

        A:                         Yes.

                ...

        Q:                         Okay. So, did you see police at Fredrick’s house
                                   on Old Kurten Road on your way up to the
                                   McDonald’s or on the way back?

        A:                         On my way up there.




Robertson v. State                                                                    Page 13
Later, Davenport testified that he saw one police officer inside the house and one outside

the house at the time he was on his way to McDonald’s.

        First, we address the State’s contention that this complaint was not preserved

because the proposed instruction did not include an application paragraph requiring the

jury to decide a disputed factual issue. The Court of Criminal Appeals has stated that

article 36.15 of the Code of Criminal Procedure does not require a proposed jury

instruction in perfect form. Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996)

(citing TEX. CODE CRIM. PROC. ANN. art. 36.15 (West 2006)). Instead, “the requested charge

must only be sufficient to call the trial court’s attention to the omission in the court’s

charge.” Id. In the instant case, Robertson proffered several proposed jury instructions

alerting the trial court to the purported necessity of an article 38.23(a) instruction based

on Davenport’s testimony. In light of article 36.15 and Chapman, we hold the above-

described efforts were enough to preserve this issue. See TEX. CODE CRIM. PROC. ANN. art.

36.15; see also Chapman, 921 S.W.2d at 695.

        Next, we address whether Robertson raised a disputed fact issue necessitating an

article 38.23(a) instruction. It is well settled that a defendant has the right to an instruction

on any defensive issue raised by the evidence, whether that evidence is weak or strong,

unimpeached or contradicted, and regardless of what the trial court may or may not think

about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.

1999); see Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). To raise a disputed


Robertson v. State                                                                       Page 14
fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative

evidence that puts the existence of that fact into question. Madden, 242 S.W.3d at 513.

This factual dispute can be raised only by affirmative evidence, not by mere cross-

examination questions or argument. See Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.

Crim. App. 2008).     Further, mere insinuations by a defendant’s attorney on cross

examination do not raise a fact issue. See Garza v. State, 126 S.W.3d 79, 87 (Tex. Crim.

App. 2004).

        As shown above, Robertson proffered evidence during his case-in-chief that raised

a material fact issue as to whether the search was executed prior to the issuance of the

warrant. Indeed, defense counsel represented the date the search warrant was executed

and asked whether Davenport saw police at Robertson’s house when Davenport went to

his daily meeting at McDonald’s at 9:00 or 9:15 that morning. Davenport answered in the

affirmative and noted that he saw police inside and outside of Robertson’s residence at

this time. The record also demonstrated that the search warrant was signed at 11:42 a.m.

on April 29, 2014. This exchange is enough to raise a material, disputed fact issue as to

whether the search was executed prematurely and possibly in violation of the Fourth

Amendment of the United States Constitution. See Oursbourn, 259 S.W.3d at 177; Madden,

242 S.W.3d at 513; Mendoza, 88 S.W.3d at 239; Granger, 3 S.W.3d at 38; see also TEX. CODE

CRIM. PROC. ANN. art. 38.23(a). Accordingly, we find that the trial court erred by refusing

to include an article 38.23(a) instruction in the charge. See TEX. CODE CRIM. PROC. ANN.


Robertson v. State                                                                  Page 15
art. 38.23(a); see also Totten v. State, 570 S.W.3d 387, 389 (Tex. App.—Houston [1st Dist.]

2019, no pet.) (“Noting that the ‘terms of the statute [article 38.23] are mandatory,’ the

Court of Criminal Appeals has held that ‘when an issue of fact is raised, a defendant has

a statutory right to have the jury charged accordingly.’” (quoting Madden, 242 S.W.3d at

510)).

         Having found that the trial court erred by refusing Robertson’s request for an

article 38.23(a) instruction on this ground, we must now analyze harm. In the instant

case, Robertson objected to the trial court’s refusal to include an article 38.23(a)

instruction in the charge. Because Robertson properly preserved error in the jury charge,

reversal is required if we find “some harm” to his rights. See Almanza, 686 S.W.2d at 171.

In conducting our review for “some harm,” neither Robertson nor the State bears the

burden on appeal to show harm or lack thereof. Rogers v. State, 550 S.W.3d 190, 191 (Tex.

Crim. App. 2018). Instead, this Court must examine the relevant portions of the entire

record, including the entire jury charge, the state of the evidence, arguments of counsel,

and other relevant record information, to determine whether Robertson suffered actual,

as opposed to theoretical, harm as a result of the error. Id. at 192. This evaluation is case-

specific. Id.

         Despite the fact that the record indicates that the possible premature execution of

the search warrant was one of the central issues at trial, the jury charge does not contain

an article 38.23(a) instruction or any reference to the possible premature execution of the


Robertson v. State                                                                     Page 16
search warrant, which, if true, would have rendered the search warrantless and

presumptively unreasonable given that the State offered no evidence of any exception to

the warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130,

2135, 124 L. Ed. 2d 334 (1993) (noting that, under the Fourth Amendment, a warrantless

search is unreasonable per se, unless it fits within one of a few specifically established

exceptions); see also State v. Rodriguez, 521 S.W.3d 1, 10 (Tex. Crim. App. 2010) (stating

that the established exceptions include the consent exception, the exigency exception, the

automobile exception, the search-incident-to-arrest exception, and the special needs

exception). Additionally, the State’s evidence at trial solely consisted of that which was

obtained as a result of the search and the connection between Robertson and where the

controlled substances and drug paraphernalia were found. And despite references in the

search-warrant affidavit to eyewitnesses who purchased drugs from Robertson at his

residence, the State did not present eyewitness testimony showing Robertson’s

possession or conduct indicating his possession of controlled substances or drug

paraphernalia separate and apart from the fruits of the search of Robertson’s residence.

Furthermore, the State’s closing argument focused mostly on what was found at

Robertson’s residence after the execution of the search warrant.

        The majority of the harm factors discussed in Rogers weigh in favor of a finding

that Robertson suffered some harm in the absence of the requested article 38.23(a)

instruction. See 550 S.W.3d at 192. Had the trial court submitted a proper charge


Robertson v. State                                                                 Page 17
regarding article 38.23(a), the jury could have excluded the controlled substances and

drug paraphernalia found at Robertson’s residence if they had a reasonable doubt that

the evidence was obtained in violation of the law. See TEX. CODE CRIM. PROC. ANN. art.

38.23(a). Moreover, without considering this highly incriminating evidence, the jury

might have chosen to believe Robertson’s plea of “not guilty,” especially considering the

bulk of the State’s case relied on the fruits of the search of Robertson’s residence.

Accordingly, we conclude that the trial court’s error in failing to include an article 38.23(a)

instruction caused some harm to Robertson. See Rogers, 550 S.W.3d at 192; see also

Almanza, 686 S.W.2d at 171. As such, we sustain the remainder of Robertson’s second

issue.

                                       III.   CONCLUSION

         Because we have concluded that the trial court erred by failing to include an article

38.23(a) instruction in the jury charge, and because we have further concluded that

Robertson suffered some harm from the error, we reverse the judgment of the trial court

and remand the cause for a new trial.




                                                   JOHN E. NEILL
                                                   Justice




Robertson v. State                                                                      Page 18
Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Reversed and remanded
Opinion delivered and filed January 8, 2020
Do not publish
[CR25]




Robertson v. State                            Page 19
