Opinion filed January 9, 2020




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-17-00312-CR
                                    __________

              MOISES ACOSTA HERNANDEZ, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 244th District Court
                              Ector County, Texas
                      Trial Court Cause No. C-17-0675-CR


                      MEMORANDUM OPINION
      The jury convicted Appellant, Moises Acosta Hernandez, of possession of a
controlled substance, methamphetamine, four grams or more but less than 200
grams, with intent to deliver. See TEX. HEALTH & SAFETY CODE ANN. § 481.112
(West 2017). The jury found an enhancement allegation to be true and assessed
Appellant’s punishment at confinement for a term of forty years. The trial court then
sentenced Appellant accordingly. In a single issue on appeal, Appellant contends
that the trial court failed to issue a proper exclusionary-rule jury instruction, which
egregiously harmed Appellant. We affirm.
                                 Background Facts
      On July 7, 2016, Corporal Matthew Marshall and Corporal Tyler Rodgers of
the Odessa Police Department were on patrol looking for a suspect involved in a
shooting.    The suspect was said to be driving a small black Kia SUV.
Corporal Marshall and Corporal Rodgers initiated a traffic stop of the vehicle
Appellant was driving because it matched the description of the suspect’s vehicle.
      During the traffic stop, Appellant and his passenger were almost immediately
removed from the vehicle and placed on the curb due to the suspected presence of
weapons. In the following minutes, the officers concluded that Appellant and his
passenger were not the suspects for whom the officers were looking. Just as
Corporal Rodgers told Appellant and his passenger that they were no longer being
detained and were “free to go,” Corporal Marshall observed a bag of
methamphetamine in plain view on the driver’s-side floorboard of the vehicle and
placed Appellant in handcuffs. The officers then searched the rest of the vehicle and
found several more bags of methamphetamine.
      At trial, defense counsel noted that Corporal Marshall was not the first officer
to approach the driver’s side of the vehicle during the stop.                 In fact,
Corporal Marshall was the third officer to approach that side of the vehicle after both
Corporal Rodgers and Corporal Polo Frescas did not notice the methamphetamine
on the floorboard.       Moreover, when Corporal Marshall pointed out the
methamphetamine to Corporal Rodgers, Corporal Rodgers still could not see it.
Only after Corporal Marshall brought Corporal Rodgers over near the side
mirror and shined his flashlight directly on the bag of methamphetamine did
Corporal Rodgers observe the drugs. Defense counsel argued that these facts
suggested the initial bag of methamphetamine was not actually in plain view.
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      Pursuant to the factual discrepancy surrounding the discovery of the initial
bag of methamphetamine, the trial court proposed the following charge:
             You are instructed that if you believe, or have reasonable doubt,
      that evidence was obtained in violation of the Constitution or laws of
      the United States of America, then you shall disregard any such
      evidence so obtained.
This portion of the charge contained no reference to any relevant facts of the case.
During the charge conference, when asked whether the defense had an objection to
the charge, defense counsel responded, “No, Your Honor.” The charge, including
the excerpt above, was then read to the jury, and each side presented their closing
arguments. Ultimately, the jury reached a guilty verdict, and based on the jury’s
assessment of punishment, the trial court sentenced Appellant to confinement for a
term of forty years. This appeal followed.
                                 Jury-Charge Error
      In Appellant’s sole issue, he contends that the trial court erred by submitting
an improper jury charge concerning Article 38.23 of the Texas Code of Criminal
Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2018). As a result of
that error, Appellant argues that he sustained egregious harm. We disagree.
      A review of alleged jury-charge error involves a two-step analysis. Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871
S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether the
charge contains any actual error; second, if there is actual error, we must determine
whether the error resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d
at 743–44; Abdnor, 871 S.W.2d at 731–32. If the defendant preserved the error by
timely objecting to the charge, an appellate court will reverse so long as the appellant
demonstrates that he suffered some harm. Sakil v. State, 287 S.W.3d 23, 25–26
(Tex. Crim. App. 2009). By contrast, if a defendant fails to present a properly
requested jury charge, any error in the charge “should be reviewed only for
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‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513 (Tex.
Crim. App. 2007); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985).
                                  Exclusionary Rule
      Before we determine whether the charge contains any actual error, we must
first verify that Appellant was entitled to an Article 38.23 jury instruction. See
Hamal v. State, 390 S.W.3d 302, 307 (Tex. Crim. App. 2012). Article 38.23(a) of
the Texas Code of Criminal Procedure, colloquially referred to as the Exclusionary
Rule, prohibits the use of evidence obtained in violation of the Constitutions or
laws of either the United States of America or the State of Texas. CRIM. PROC.
art. 38.23(a). The article further provides in relevant part:
             In any case where the legal evidence raises an issue hereunder,
      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 evidence so
      obtained.
Id.
      For “the legal evidence” to “raise[] an issue” sufficient to warrant an
instruction under Article 38.23(a), id., “(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 be material to the lawfulness of the
challenged conduct in obtaining the evidence.” Madden, 242 S.W.3d at 510.
      In this case, there was a factual dispute as to whether Corporal Marshall
properly observed the initial bag of methamphetamine in plain view. At trial, during
his opening statement, closing statement, and cross-examinations, defense counsel
consistently argued that the evidence was discovered in violation of the Fourth
Amendment. Further, the trial judge apparently thought that it was necessary to
admonish the jury in accordance with Article 38.23(a), evidenced by the fact that he

                                           4
did so. Accordingly, we assume, without deciding, that Appellant was entitled to a
jury instruction under Article 38.23(a) and proceed with our determination of
whether the charge contained actual error.
      When the evidence raises an issue as to whether evidence was 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 evidence so obtained.” CRIM. PROC. art.
38.23(a). In instructing the jury, the trial judge should include the “factual issue for
the jury to decide, along with an explanation of the pertinent law.” See Madden, 242
S.W.3d at 511–13. Jurors cannot be expected to be experts in Fourth Amendment
jurisprudence. See id. To be sure, it is well settled that “[t]he jury decides facts; the
judge decides the application of the law to those facts.” Id. at 511. The entire
purpose of the jury charge, then, “is to instruct the jury on the law that applies to the
case and to guide the jury in applying the law to the facts of the case.” Rideau v.
State, No. 09-16-00411-CR, 2018 WL 651775, at *10 (Tex. App.—Beaumont Jan.
31, 2018, pet. ref’d) (mem. op., not designated for publication) (emphasis added)
(citing Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996), disavowed on
other grounds by Gelinas v. State, 398 S.W.3d 703, 704, 710 (Tex. Crim. App.
2013)). A charge that simply regurgitates the law does little, if anything, to help
guide the jury. See Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977).
We assume, without deciding, that the charge contained actual error and proceed
with the harm analysis. See Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at
731–32.
                                    Harm Analysis
      In this case, Appellant made no objection to the issued charge. Accordingly,
any error must be reversed only upon a showing by Appellant that he has suffered
egregious harm: “To be reversible, any unpreserved jury-charge error must result in
                                           5
egregious harm which affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory.” Olivas v. State, 202 S.W.3d
137, 144 (Tex. Crim. App. 2006) (citations omitted) (internal quotation marks
omitted). In Almanza, the Court of Criminal Appeals outlined four factors that
reviewing courts should consider when determining whether a jury-charge error
resulted in egregious harm: “1) the charge itself; 2) the state of the evidence
including contested issues and the weight of the probative evidence; 3) arguments
of counsel; and 4) any other relevant information revealed by the record of the trial
as a whole.” Hutch, 922 S.W.2d at 171.
      Considering the charge itself, the language utilized closely mimics the
language of Article 38.23(a). Though the charge itself fails to incorporate any facts
of the case, the only dispute that implicated Article 38.23(a) was whether the
methamphetamine was found in accordance with the plain view exception to the
warrant requirement of the Fourth Amendment.            This further decreases the
likelihood that the jury was confused by the lack of factual application within the
charge.
      Most importantly, the arguments presented by counsel seemingly account for
any potential error. Immediately after explaining why he did not believe the initial
bag of methamphetamine was in plain view, defense counsel stated: “Based on that,
I don’t believe that the State had probable cause to do this search.” Defense counsel
then proceeded to quote Article 38.23(a) and explain why the jury did not have to
consider the illegally obtained evidence. Moreover, the prosecutor himself further
reiterated the defense’s argument during his own closing argument. Based on our
analysis of the factors outlined in Almanza, we hold that any potential error in the
jury charge did not egregiously harm Appellant.          Accordingly, we overrule
Appellant’s sole issue.


                                          6
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


January 9, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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