
MEMORANDUM OPINION


Nos. 04-07-00333-CR & 04-07-00334-CR

Juan ALCOCER,
Appellant

v.

The STATE of Texas,
Appellee

From the 186th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2006-CR-1306A & 2006-CR-1307
Honorable Maria Teresa Herr, Judge Presiding

Opinion by: 	Phylis J. Speedlin, Justice
Concurring opinion by:  Steven C. Hilbig, Justice

Sitting: 	Alma L. López, Chief Justice
		Phylis J. Speedlin, Justice
		Steven C. Hilbig, Justice

Delivered and Filed:  February 27, 2008 

AFFIRMED
	The sole issue in these appeals is whether the trial court erred in denying Juan Alcocer's
request that the jury be instructed to disregard evidence if it believed, or had a reasonable doubt, that
the evidence was obtained as a result of a violation of a constitutional provision or law.  We affirm
the trial court's judgments.

Background
	After receiving complaints about drug activity at a particular house, four officers went to
investigate the complaints.  The gate across the driveway of the house was open, and Officer Mario
Moreno and Officer Brian Baldwin went through the gate and knocked on the front door.  The
officers saw a surveillance camera concealed in a potted plant on a windowsill.  No one answered
the door, but the officers heard movement inside and the sound of someone running toward the rear
of the house.  Officer Moreno testified that he made his way toward the rear of the house because
he was concerned for his safety.  Officer Baldwin testified that he was covering the front, heard the
movement, and "believed that there was possibly some destroying of evidence going on" so he tried
to make entry through the front window.  As Officer Moreno walked toward the back of the house,
he saw Alcocer throwing bags of cocaine out a window.  Alcocer was arrested and charged with
possession of a controlled substance and possession of a controlled substance with intent to deliver.
Discussion
	Article 38.23 of the Texas Code of Criminal Procedure provides that where a fact issue is
raised with regard to whether evidence was obtained in violation of a constitutional provision or law,
the jury shall be instructed that if it believes, or has a reasonable doubt, that evidence was obtained
in violation of those provisions, then it must disregard that evidence.  Tex. Code Crim. Proc. Ann.
art. 38.23 (Vernon 2005).  An article 38.23 instruction is required to be included in the charge only
if there is a factual dispute about how the evidence was obtained.  Pickens v. State, 165 S.W.3d 675,
680 (Tex. Crim. App. 2005).  When essential facts concerning the search or arrest are not in dispute,
the legality of the search or arrest is a question of law, not fact, and no jury instruction is required. 
Garza v. State, 126 S.W.3d 79, 86 (Tex. Crim. App. 2004); McRae v. State, 152 S.W.3d 739, 748
(Tex. App.--Houston [1st Dist.] 2004, pet. ref'd).
	In his brief, Alcocer relies on a photograph that was introduced into evidence showing a no
trespassing sign posted on the front of the house and asserts a fact issue was raised because the
officers testified that no sign was posted.  Alcocer contends that he "unfairly lost the right under
[article 38.23] to let the jury pass on the factual dispute over the existence, at the time of the 'knock
and contact' by the police, of a prominent red and black no trespassing sign on Appellant's
residence."  (record citations omitted).  Accordingly, on appeal, Alcocer is claiming that an article
38.23 instruction was required because of a factual dispute over the existence of the no trespassing
sign.  
	At trial, however, defense counsel did not argue that an instruction was necessary because
of a factual dispute over the existence of the no trespassing sign.  Instead, the argument presented
to the trial court was that a factual dispute existed over the reason the officers went toward the back
of the house.  Defense counsel asserted:
		MR. GLASS: . . . .  This is private property.  And the actual idea that going
into someone's yard - Yes, I can understand going to the front door.  But actually
going into someone's yard, going behind their house, that is an unreasonable search
and there is facts, at least, about exigent circumstances which becomes a factual issue
on whether or not . . . . Officer Moreno said he heard noise and then all of a sudden
went to the back.  That is a factual issue as to whether or not just hearing noise is
enough to actually go onto someone's property, to go behind their house and
actually look around that house. . . . .  Actually going into the house or going around
the house actually to look to see what is being thrown out, in those circumstances,
is - becomes a factual issue because of that.

***
		MR. GLASS: The question becomes at what point do the exigent
circumstances exist to actually go - instead of going to someone's front door,
actually going into their yard and going behind the house itself.
 One officer says that he had fear of his safety.  But yet another officer says,
well, we thought they'd be getting rid of something.
		THE COURT: And it could actually be both things, right?  Without it really
- I mean, I can see how both reasons are there present in the totality of the
circumstances and all of those things could be going through the minds of individual
officers, maybe not - one might be more afraid at the moment for his own personal
safety, another - for example, running to the back of the house, could be more
concerned about the destruction of evidence and the exigent circumstances without
those two things in - You know what I mean?  They can both be happening and one
doesn't rule out the other.  So I don't know that the two things happening
concurrently means that there is a fact issue being raised. . . . .

	An objection must inform the trial judge of the basis of the objection and afford the judge
an opportunity to rule.   Aragon v. State, 229 S.W.3d 716, 720 (Tex. App.--San Antonio 2007, no
pet.).  The objection made at trial was that the trial court was required to submit the article 38.23
instruction because of a factual dispute over the reason the officers went behind the house.  No
objection was made that an article 38.23 instruction was required because of a factual dispute over
the existence of the no trespassing sign.  Because the error presented on appeal does not comport
with the objection raised in the trial court, Alcocer's complaint is not preserved for our review. 
Turner v. State, 87 S.W.3d 111, 117 (Tex. Crim. App. 2002); Aragon, 229 S.W.3d at 720.
	The concurring justice charges the majority with eroding public confidence in the criminal
justice system by requiring proper preservation of error. In appellate courts, however, preservation
of error is of fundamental importance to the proper and efficient functioning of the judicial system. 
See Alonzo v. State, 158 S.W.3d 515, 517 (Tex. Crim. App. 2005) (Keller, P.J., dissenting).  As
Presiding Judge Keller has explained, "[D]ecision-making at the appellate level must take into
account not only the parties' interests but also those of the trial court."  Id.  "[T]he trial courts'
interests in maintaining their judgments and avoiding further proceedings deserve protection by the
appellate courts themselves, and not simply by the parties."  Id. 

	The trial judge in this case was well-aware of the applicable law.  She knew that an article
38.23 instruction was required only "if there is a factual dispute about how the evidence was
obtained."  Pickens, 165 S.W.3d at 680.  She made an extensive inquiry into the factual dispute that
defense counsel believed would support the submission of an instruction.  As previously noted, the
factual dispute that defense counsel argued as support for the instruction at trial is far different than
the factual dispute asserted in the appellant's brief.  If we were to ignore this difference, we would
be abdicating our responsibility as a first-level appellate court to ensure that the systemic
requirement of preservation of error has been satisfied.  Alonzo, 158 S.W.3d at 516.  As the Texas
Court of Criminal Appeals has stated:
	[O]bjections promote the prevention and correction of errors.  When valid objections
are made and sustained, the parties may have a lawful trial.  They, and the judicial
system, are not burdened by appeal and retrial.  When a party is excused from the
requirement of objecting, the results are the opposite.    

Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002).  Far  from eroding public confidence,
we are fulfilling the proper role of an appellate court by refusing to allow an appeal by ambush.   
Conclusion
	The trial court's judgments are affirmed.
							Phylis J. Speedlin, Justice
PUBLISH



