Affirmed and Majority and Concurring Opinions filed May 22, 2018.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-16-00593-CR

                           ALEX VILLALOBOS, Appellant
                                               V.
                          THE STATE OF TEXAS, Appellee

               On Appeal from County Criminal Court at Law No. 6
                             Harris County, Texas
                         Trial Court Cause No. 2018160

                    CONCURRING                          OPINION


       Within his argument for issue two, appellant contends that his warrantless
arrest was illegal and that he was entitled to an article 38.23 instruction.1 Taken
together, it is apparent that appellant is claiming the trial court erred in denying his

       1
          I do not address whether appellant preserved this issue because the failure to properly
request an article 38.23 instruction would affect the harm analysis, which I do not reach. See
Holmes v. State, 248 S.W.3d 194, 202 n.32 (Tex. Crim. App. 2008) (noting defendant’s proffered
incorrect instruction should have been analyzed under the egregious harm standard).
requested instruction because evidence was obtained as a result of his allegedly
illegal arrest. See Tex. R. App. P. 38.1(f) (“The brief must state concisely all issues
or points presented for review. The statement of an issue or point will be treated as
covering every subsidiary question that is fairly included.”); Wolfe v. State, 509
S.W.3d 325, 341 (Tex. Crim. App. 2017). Accordingly, I would address that issue
rather than decide, as the majority does, appellant was found in a suspicious place.
And although the majority ultimately concludes the trial court did not err in failing
to give the requested question, it repeatedly states it is not deciding that question,
clouding its decision. Ultimately, the majority does not determine whether an article
38.23 instruction was warranted. Because it was not, I concur.

      Article 38.23 requires the trial court to exclude any evidence that it finds, as a
matter of law, was obtained in violation of state or federal law. Tex. Code Crim.
Proc. art. 38.23. Further, article 38.23 mandates the jury be instructed that if it
believes, or has a reasonable doubt, that the evidence was illegally obtained it is to
disregard any such evidence. Id.; Cummings v. State, 401 S.W.3d 127, 128 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). Such an instruction is only required if
“there is a genuine dispute about a material fact that is essential to deciding the
lawfulness of the challenged conduct in obtaining the evidence.” Id. at 130 (citing
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007)). “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.” Id.

      Appellant asserts his warrantless arrest was illegal because the State failed to
establish he was found in a suspicious place. See Tex. Crim. Proc. Code § 14.03.
However, appellant has not identified any factual dispute. Appellant challenges his
arrest on legal, not factual, grounds that the evidence failed to show he was in a
suspicious place. This is not a “conflict concerning [a] specific historical fact.”

                                           2
Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008). If the question is
only one of law, or there is no affirmative evidence that raises a contested fact issue,
there is nothing to instruct the jury about. Id; see also Cummings, 401 S.W.3d at
130. The record contains no conflicting evidence about the place where appellant
was arrested. For this reason, the trial court did not err in denying appellant’s
requested instruction.

      I therefore respectfully concur in this court’s judgment.




                                        /s/       John Donovan
                                                  Justice


Panel consists of Justices Jamison, Busby and Donovan. (Jamison, J., majority).
Publish — Tex. R. App. P. 47.2(b).




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