Opinion filed May 16, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00124-CR
                                  __________

                 JESUS GASPAR CARDOZA, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 238th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR47676


                     MEMORANDUM OPINION
       The jury convicted Jesus Gaspar Cardoza of the felony offense of possession
of a controlled substance, methamphetamine, in an amount of more than one gram
but less than four grams. The jury assessed his punishment at confinement for four
years in the Institutional Division of the Texas Department of Criminal Justice. In
his sole issue, Appellant contends that the trial court erred by denying his requested
Article 38.23 jury instruction concerning the legality of his initial arrest for public
intoxication. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2018). We affirm.
                                 Background Facts
      Midland Police Officer Aaron Renz heard a radio dispatch concerning a
disturbance with weapons. The suspects in the disturbance report were last seen
driving an older model Chevrolet Suburban. Officer Renz had previously observed
the same type of vehicle driving “hurriedly” in the same area. Officer Renz had
recorded the license plate number of the vehicle. After receiving the disturbance
report, Officer Renz ran the license plate number, obtained the registered owner’s
address, and proceeded to that location. The vehicle was not at that location, but
Midland Police Officer William Hodges located it within the area.
      Officers observed Appellant standing in the road adjacent to the vehicle; he
was balancing on a bicycle with one foot on the pedal and the other foot on the
ground while speaking to someone inside the vehicle. Officer Hodges made the
initial contact with Appellant and instructed him to stay there. Officer Renz
instructed Appellant to get off the bicycle, lean it against the vehicle, and put his
hands behind his back. Officer Renz searched Appellant for weapons because
Officer Renz suspected that Appellant was involved in the disturbance with
weapons. After Appellant failed to comply with Officer Renz’s verbal commands
to remain still during this search, Officer Renz arrested Appellant for public
intoxication. Officer Renz searched Appellant incident to this arrest and located
methamphetamine in Appellant’s front pocket.
      Officer Renz testified at trial that, although Appellant was initially compliant,
Appellant did not comply with Officer Renz’s verbal commands to remain still
during the pat-down search.        Officer Renz testified that Appellant “would
continually tense and untense his muscles in his arms and his abdomen” and “rapidly
. . . jerk his neck and slightly pull forward and slightly ease back just enough” to
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prevent Officer Renz from performing the pat-down search. Officer Renz also stated
that Appellant was sweating profusely, was speaking rapidly, and would not follow
simple instructions.    Officer Renz testified that, based upon his training and
experience,     he   believed     that   Appellant   was   under    the   influence   of
methamphetamine.
      Appellant requested an Article 38.23 jury instruction both in a written motion
filed before trial and orally during a charge conference at the close of the State’s
case. The trial court denied Appellant’s requests. Appellant had initially elected not
to testify. However, when the trial court denied Appellant’s requested Article 38.23
instruction, Appellant decided to testify. The trial court reopened the evidence
to permit Appellant to testify. Appellant testified that the officers “did not tell [him]
. . . about . . . public intoxication” and that he “was not under the influence or
nothing.” He said: “I had no beer. I don’t drink, you know.” Appellant also testified
that he was very hyper due to ADHD.
                                         Analysis
      Appellant contends that the trial court erred by denying his requested
Article 38.23 jury instruction. Appellant contends that his requested Article 38.23
jury instruction was required because there was a disputed fact issue as to whether
Appellant displayed signs of intoxication sufficient to justify his arrest for public
intoxication.   We disagree that the trial court erred in denying his requested
Article 38.23 jury instruction.
      Article 38.23(a) of the Texas Code of Criminal Procedure precludes the
admission of evidence obtained in violation of the constitution or laws of the State
of Texas or the Constitution or laws of the United States of America. The article
further provides:
             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,

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      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.
CRIM. PROC. art. 38.23(a). There must be a genuine dispute about a material fact
issue before an Article 38.23 instruction is warranted. Madden v. State, 242 S.W.3d
504, 509–10 (Tex. Crim. App. 2007). The defendant must demonstrate that (1) the
evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is
affirmatively contested, and (3) the contested factual issue is material to the
lawfulness of the challenged conduct in obtaining the evidence. Id. If there is no
disputed issue of material fact, the legality of the challenged conduct is a question
of law for the trial court. Id. And, if other undisputed facts are sufficient to establish
the lawfulness of the conduct, the contested factual issue is not material and the
defendant is not entitled to a jury instruction on the fact issue. See id. at 510–11.
      To raise a disputed fact issue, there must be some affirmative evidence that
contradicts the existence of that fact. Id. at 513. This evidence can come “from any
source,” regardless of whether it is “strong, weak, contradicted, unimpeached, or
unbelievable.” Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting
Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.—Houston [1st Dist.] 1996)).
A defendant’s questions on cross-examination cannot, by themselves, raise a
disputed fact issue. Madden, 242 S.W.3d at 515. However, the witnesses’ answers
to those questions might raise a fact issue. Id. at 513.
      Appellant requested the trial court to give the following instruction:
      MEMBERS OF THE JURY:
             You are instructed that no evidence obtained by an officer or
      other person in violation of any provisions of the Constitution or laws
      of the United States of America, or laws of the State of Texas, as a result
      of the unlawful warrantless arrest of a person may be admitted against
      that person at a subsequent trial. Our law provides that a warrantless


                                            4
        arrest is lawful only if it is made by an officer possessing probable cause
        to believe that an offense is occurring within the officer’s presence.
               Probable cause exists for these purposes when the facts and
        circumstances within the officer’s personal knowledge, and of which
        the officer has reasonably trustworthy information, would be sufficient
        to lead a person of reasonable caution to believe that an offense was
        being committed or had been committed and that the person to be
        arrested was linked with the commission of that offense.
               Therefore, if you find from the evidence that on March 12, 2016,
        Officer Renz arrested the defendant, but you further find, based on the
        evidence presented, if any, that the officer did not have probable cause
        to execute that arrest, or if you have a reasonable doubt whether the
        officer had probable cause, you will disregard the evidence seized by
        the officer as a result of that arrest and will not consider that evidence
        for any purpose whatsoever.
Appellant did not request an Article 38.23 instruction on a historical fact—he
requested a jury instruction on the legal determination of whether the officers had
probable cause.1 The determination of whether probable cause existed was one for
the trial court, not one for the jury under Article 38.23. See id. at 511 (noting that
trial judge decides what “quality and quantum” of facts are necessary to establish
legal terms of art like “reasonable suspicion” or “probable cause”). “Only the judge
is authorized to determine the legal significance of the material facts in the case and
how they affect the ultimate conclusion regarding the existence, vel non, of probable
cause or reasonable suspicion.” Robinson v. State, 377 S.W.3d 712, 722 (Tex. Crim.
App. 2012). Appellant did not set forth any specific historical fact in his requested
instruction (e.g., that he was or was not intoxicated) that the jury was to consider.
Instead, his request required the jury to determine the legal question of probable


        1
         The test for whether probable cause exists for a public intoxication arrest is whether the officer’s
knowledge at the time of the arrest would warrant a prudent person in believing that a suspect, albeit
intoxicated, was in any way a danger to himself or another person. See Britton v. State, 578 S.W.2d 685,
687 (Tex. Crim. App. 1978).

                                                     5
cause for his arrest. Accordingly, the trial court did not err in denying Appellant’s
requested Article 38.23 instruction. We overrule Appellant’s sole issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


May 16, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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