                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00358-CR


                              TOMMY JOE WOODS, APPELLANT

                                                  V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 19th District Court
                                     McLennan County, Texas
                Trial Court No. 2011-525-C1, Honorable Ralph T. Strother, Presiding

                                            July 16, 2014

                                 MEMORANDUM OPINION
                       Before CAMPBELL, and HANCOCK and PIRTLE, JJ.


       Appellant, Tommy Joe Woods, appeals his conviction for possession of

marijuana over four ounces but less than five pounds.1                   Through a single issue,

appellant contends that the trial court committed reversible error by failing to submit a

proper jury charge pursuant to article 38.23 of the Texas Code of Criminal Procedure.2

We will affirm.



       1
           See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3) (West 2010).
       2
           See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
                              Factual and Procedural Background3


        On July 8, 2010, Officer Vern Darlington, of the Waco Police Department Street

Crimes Unit initiated an investigation of reports that appellant was growing marijuana at

his home in Waco, Texas. Darlington, accompanied by at least three other officers of

the street crimes unit, went to appellant’s residence and conducted a “knock and talk”

procedure.4       After knocking on appellant’s front door, Darlington waited for

approximately two to three minutes for someone to answer the door. During this period,

Darlington testified that he could hear people in the house moving about. Appellant’s

wife initially answered the door. Eventually, appellant came to the door and stepped

outside and down the sidewalk toward the street. This action, according to Darlington,

was an attempt to draw the officers away from the house. After a short conversation

with appellant, Darlington requested permission to search the house. Appellant refused

to allow a search of his home.


        Darlington then decided to walk to the alley and see if he could see any

marijuana growing in the backyard portion of the home. Darlington testified that, as he

walked toward the back of the house, he would occasionally detect an odor of

marijuana. Adjacent to the alley was a privacy fence made of corrugated tin that stood

approximately six feet high. Upon arriving at the rear fence, Darlington asked Officer

Flores, who had been stationed at the rear of the home for security purposes, if he
        3
          Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
                       th
this Court from the 10 Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). That being
so, we must decide this case “in accordance with the precedent of the transferor court under the
principles of stare decisis” if our decision otherwise would have been inconsistent with the precedent of
the transferor court. TEX. R. APP. P. 41.3; see Phillips v. Phillips, 296 S.W.3d 656, 672 (Tex. App.—El
Paso 2009, pet. denied).
        4
          According to the record, a “knock and talk” procedure is used to quickly ascertain whether the
information received anonymously has any validity.


                                                   2
could see anything over the fence.      Flores advised that he could not see over the

fence.


         Darlington, who stood approximately 6 feet, 4 inches in height, then began

surveying the back of the property over the top of the privacy fence. Initially, Darlington

testified that he could not see any marijuana growing in the back part of the residence.

However, Darlington noticed a window to a shed opened approximately three inches.

When he shined his flash light on the opening, Darlington observed a white five gallon

bucket that contained stalks of what Darlington thought, based upon his experience and

training, to be marijuana.    Based upon this observation, Darlington had appellant

secured while a search warrant was obtained.


         A search warrant was issued at approximately 11:30 p.m. and, based upon the

search of the shed behind the home and the area adjacent to the shed, an amount of

marijuana was seized. The weight of the marijuana seized was 3.27 pounds.


         During the trial, appellant’s neighbor, Leonard Thames, who lived across the

alley and two or three doors down from appellant, testified about his observations on the

night of the search. According to Thames, he observed a couple officers attempting to

peer over the privacy fence. He testified that the officers appeared to step up onto

something to get a better vantage point. Thames further testified that he saw one of the

officers peel the tin fence down in an attempt to see what was inside the back portion of

appellant’s property. Finally, Thames testified that he saw one of the officers push a

gate open and enter the property.         According to Thames, he made all of his




                                            3
observations between 7:00 and 9:00 p.m. on the night in question. This was before the

search warrant was issued.


         After the testimony had been completed, the trial court prepared a draft jury

charge. During a discussion of the proposed charge, appellant indicated to the court

that he desired a paragraph in the charge pursuant to article 38.23 of the Texas Code of

Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.23.5 The trial court then

inquired as to whether appellant’s counsel had prepared a proposed charge. Counsel

advised that he did not have a proposed charge because he had assumed the trial court

would have the applicable article 38.23 paragraph for insertion into the court’s charge.

Thereafter, the trial court drafted the charge at issue. The trial court proposed to charge

the jury as follows:


         Texas law provides that no evidence obtained by an officer or other
         person in violation of any provision 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 on the trial of any
         criminal case. You are instructed in that under this law, any search of the
         property or premises of the Defendant and any evidence seized before a
         search warrant was obtained would not be lawful. Therefore, if you
         believe that the search of the Defendant’s property and the marijuana
         seized from the Defendant’s property was obtained in violation of the law
         or if you have a reasonable doubt that the search of the Defendant’s
         property was lawful, you shall disregard any evidence so obtained.



   5
       Article 38.23 of the Texas Code of Criminal Procedure provides, in pertinent part:

   (a) No evidence obtained by an officer or other person in violation of any provision 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 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 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.


                                                      4
After presenting the proposed charge to appellant’s counsel, the trial court further

inquired as to whether there were any objections to the proposed charge. Trial counsel

for appellant stated he had none and, when specifically asked if trial counsel wished the

definition of probable cause in the instruction, stated that as a matter of trial strategy

appellant had decided not to request the definition of probable cause be added to the

court’s instruction. Therefore, the above-identified portion of the charge as drafted by

the trial court was submitted as part of the court’s charge to the jury.


        The jury ultimately convicted appellant of the indicted offense and sentenced him

to serve a term of confinement in a State Jail Facility for a period of eighteen months

and a fine of $5,000. Appellant appeals through a single issue, contending that the trial

court committed reversible error by failing to properly submit an article 38.23 issue to

the jury and that such failure resulted in harm to appellant. See TEX. CODE CRIM. PROC.

ANN. art. 38.23.6 Disagreeing with appellant, we will affirm.


                                            Charge Error


Standard of Review


        Appellate review of alleged jury charge error is a two-step process. Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Initially, the reviewing court must

determine if the charge was erroneous. Id. If we find that error occurred, we must then

analyze the error for harm. Id. After we analyze the error for harm, we must review the

record to determine whether appellant objected to the charge at issue. See Middleton

v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc). The degree of harm

    6
       Further reference to the Texas Code of Criminal Procedure shall be by reference to “art. ____” or
“article ____.”


                                                   5
necessary for reversal depends upon whether error was preserved. Id. (quoting Hutch

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc)). If appellant properly

objected to the charge, “the standard of harm is whether ‘the error appearing from the

record was calculated to injure the rights of [appellant],’ which we have construed as

‘some harm.’” Celis v. State, 416 S.W.3d 419, 423 n.3 (Tex. Crim. App. 2013) (quoting

article 36.19, and Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003) (per

curiam)). “Conversely, unpreserved charge error warrants reversal only when the error

resulted in egregious harm.” Id. (citing Pickens v. State, 165 S.W.3d 675, 680 (Tex.

Crim. App. 2005) (en banc)).


Analysis


       As a beginning point in our analysis of the court’s charge, we must address the

contention by the State that, if there is any error in the court’s article 38.23 instruction to

the jury, appellant invited the error by his conduct. See Woodall v. State, 336 S.W.3d

634, 644-45 (Tex. Crim. App. 2011) (holding that there was no confrontation clause

error because appellant refused the court’s offer to attach the witness whose grand jury

testimony was read to the jury). The doctrine of invited error is not a species of waiver

but is instead based upon the doctrine of estoppel. See Prystash v. State, 3 S.W.3d

522, 531 (Tex. Crim. App. 1999) (en banc). That is to say, where a party requests a

ruling that leads the court into error, he is precluded from claiming a reversal of the

judgment based upon that error. See id. The doctrine has long been applied to jury

charge error. See Livingston v. State, 739 S.W.2d 311, 341 (Tex. Crim. App. 1987)

(citing Boyett v. State, 692 S.W.2d 512, 515 (Tex. Crim. App. 1985)).




                                              6
       In Willeford v. State, the jury instruction at issue was an alleged erroneous

instruction on probable cause. 72 S.W.3d 820, 822 (Tex. App.—Fort Worth 2002, pet.

ref’d). There, the State asserted that appellant invited error when she requested an

erroneous instruction and objected to the trial court removing the paragraph from the

charge. Id. at 823. The Fort Worth court found that appellant invited the error by

requesting the charge given and then insisting the trial court leave the paragraph in the

charge over the State’s objection. Id. at 824. While not on all fours with the case before

the Court, Willeford is instructive in the application of the invited error rule in a case

involving a jury charge issue.


       The record before us reveals that, at the conclusion of the evidence, the trial

court conducted a charge conference out of the jury’s presence.            When asked if

appellant was requesting an article 38.23 instruction, appellant’s trial counsel answered

that that was appellant’s request. The court then inquired if counsel had a proposed

charge. Counsel advised, “Well, I can get one, Judge. I mean, honestly, I just assumed

that the Court has had this issue come up before.” After a short recess, the trial court

presented the court’s charge to counsel for the State and appellant that contained the

charge at issue. The trial court then inquired if either party had any objections to the

charge, neither the State nor appellant had any objections. Finally, after the proposed

charge had been drafted, the trial court inquired whether counsel for appellant desired

to have an additional instruction placed in the charge that defined probable cause.

Counsel affirmatively stated that, as a matter of trial strategy, appellant did not want the

definition in the article 38.23 instruction.     This discussion reinforces the Court’s

conclusion that appellant received the instruction that he requested and approved of.



                                             7
See Prystash, 3 S.W.3d at 531; Willeford, 72 S.W.3d at 824. Accordingly, appellant is

estopped to now request reversal for the instruction given. See Prystash, 3 S.W.3d at

531; Willeford, 72 S.W.3d at 824. Appellant’s issue is overruled.


       In addressing appellant’s concerns, we note that appellant’s contention simply

asserts error in the trial court’s charge without addressing the State’s contention

regarding invited error. From appellant’s perspective, the lack of specificity as to the

contested factual issue results in error. We note that appellant’s contention reflects the

erroneous belief that the trial court’s instruction to the jury went only to any alleged

improper seizure of the marijuana. In fact, appellant contends that the article 38.23

instruction did not inquire about the search. The record belies this contention. As

recited above, the trial court clearly identified that, “any search of the property” before a

warrant was issued would be unlawful.        Appellant then leaps to the conclusion that,

since the error involved was a constitutional error involving unlawful search and seizure,

if error is demonstrated, the proper measure of harm would be pursuant to Texas Rule

of Appellate Procedure 44.2(b). Under that standard, the reviewing court must reverse

“unless the court determines beyond a reasonable doubt that the error did not contribute

to the conviction or punishment.” See TEX. R. APP. P. 44.2(b). Such a position ignores

Texas jurisprudence regarding unpreserved charge error. See Middleton, 125 S.W.3d

at 453. Appellant lodged no objection to the trial court’s charge; therefore, even if the

same was in error, the record would have to demonstrate egregious harm to afford

appellant any relief. See Celis, 416 S.W.3d at 423 n.3.


       In making a determination of egregious harm, the reviewing court is instructed to

examine: 1) the entire jury charge; 2) the state of the evidence; 3) the argument of


                                             8
counsel; and 4) any other relevant information in the record. See Wooten v. State, 400

S.W.3d 601, 606 (Tex. Crim. App. 2013). Our examination of the total court’s charge

reveals that the trial court properly charged the jury on the law as applicable to the

charge of possession of marijuana in an amount over four ounces but less than five

pounds. No other portions of the charge are complained of. The charge complained of

contains a correct statement of the law in regard to the prohibition against using

evidence that was seized unlawfully. See art. 38.23. Further, the questioned paragraph

properly places the burden of proof on the issue of the legality of the search and seizure

of the marijuana on the State. It is only in a lack of factual specificity that appellant can

fault the charge.   The evidence shows that the marijuana seized was seized from

appellant’s residence and that appellant accepted the responsibility for the marijuana

being on the property.     Further, the record demonstrates that both the State and

appellant argued the contested facts of the search to the jury. The factual contest about

how the search was conducted, that is to say, whether the search occurred before or

after the search warrant was issued was the primary focus of the final arguments. The

jury was fully informed of the import of their decision regarding the contested factual

issues. From our review of the entire record, it is apparent that appellant did not suffer

egregious harm. Therefore, even were we to assume, arguendo, that the trial court

erred in its charge, appellant would not be entitled to a reversal of his conviction. See

Celis, 416 S.W.3d at 423 n.3.




                                             9
                                       Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial

court.




                                         Mackey K. Hancock
                                             Justice


Do not publish.




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