                                     NUMBER 13-08-00107-CR

                                     COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


MELVIN CARTER,                                                                                     Appellant,

                                                         v.

THE STATE OF TEXAS,                                                                                Appellee.


   On appeal from the 319th District Court of Nueces County, Texas.


                                 MEMORANDUM OPINION

            Before Chief Justice Valdez and Justices Garza and Vela
                    Memorandum Opinion by Justice Garza

         Appellant, Melvin Carter, was charged by indictment with unlawful possession of

less than 200 grams but more than four grams of cocaine, a second-degree felony.1 See

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          Carter was re-indicted on April 26, 2007. Included in the new indictm ent was a paragraph detailing
Carter’s two previous felony convictions for robbery on July 14, 2000, and unlawful possession of cocaine on
May 2, 2003. The indictm ent noted that the conviction for unlawful possession of cocaine transpired after the
robbery conviction becam e final. See T EX . P EN AL C OD E A N N . § 12.42(d) (Vernon Supp. 2008) (“[I]f it is shown
on the trial of a felony offense . . . that the defendant has previously been finally convicted of two felony
offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first
previous conviction having becom e final, on conviction he shall be punished by im prisonm ent . . . for life, or
TEX . HEALTH & SAFETY CODE ANN . § 481.115(a), (d) (Vernon 2003); id. § 481.102(3)(D)

(Vernon Supp. 2008) (listing cocaine in the “Penalty Group 1“). A Nueces County jury

found Carter guilty of the offense. After pleading “true” to the enhancement paragraph in

the indictment, the jury sentenced Carter to thirty years’ confinement in the Texas

Department of Criminal Justice-Institutional Division with no fine. By two issues, Carter

contends that: (1) the trial court erred in failing to include an instruction in the jury charge

pertaining to evidence obtained in violation of article 38.23 of the code of criminal

procedure, see TEX . CODE CRIM . PROC . ANN . art. 38.23 (Vernon 2005); and (2) the

prosecutor engaged in misconduct by referencing an inadmissible extraneous offense in

his opening statement during the punishment phase of the trial. We affirm.

                            I. FACTUAL AND PROCEDURAL BACKGROUND

        On the evening of October 26, 2006, Corpus Christi Police Department Officers Matt

Harmon and Kevin Felt were searching Leopard Street in Corpus Christi, Texas, for a

possible witness in a murder case. As they were patrolling Leopard Street, the officers

discovered a silver Ford F-150 pickup truck backed in between two buildings at the

Economy Motel. Officer Felt testified that the parking spot was suspicious because that

was where the motel kept its trash cans, mops, and other things used for cleaning the

motel. Two females, whom the officers believed to be prostitutes, were speaking to the

passengers of the truck when the officers arrived. The officers, wanting to speak to the two

females and the passengers of the truck about the whereabouts of the witness, pulled their

police cruiser in front of the silver truck. Carter, the driver of the truck, attempted to quickly

flee the scene upon seeing the police cruiser, but the police cruiser blocked his escape.


for any term of not m ore than 99 years or less than 25 years.”).

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Carter then stopped the truck.

        The police officers, now suspecting that the passengers of the truck were soliciting

prostitutes, exited the police cruiser and attempted to contact the truck passengers. As the

police officers approached the truck, they observed Carter place a white substance in his

mouth.      Based on his experience and training, Officer Harmon believed the white

substance to be cocaine. Officer Harmon immediately instructed Carter to take the object

out of his mouth. Carter complied and placed the object inside a pair a folded pants that

were on the seat beside him. Believing that Carter was in possession of cocaine, Officer

Harmon placed Carter under arrest and retrieved the white substance from the folded

pants on the car seat.2 Once Carter was placed under arrest, he became irate and began

arguing with the other passenger of the truck, Ezekiel Rogers, alleging that the drugs

belonged to Rogers. Carter later calmed down and admitted to the police officers that the

cocaine was his. Officer Harmon also searched Carter’s wallet and found approximately

1.01 grams of powder cocaine inside the wallet.

        Carter was charged by indictment with unlawful possession of cocaine on April 26,

2007. See TEX . HEALTH & SAFETY CODE ANN . § 481.115(a), (d); id. § 481.102(3)(D). On

June 6, 2007, Carter filed a motion to suppress the cocaine seized by the officers, alleging

that the detention and seizure of the cocaine were unlawful and in violation of several

United States and Texas Constitution provisions and article 38.23 of the code of criminal

procedure. See TEX . CODE CRIM . PROC . ANN . art. 38.23. Carter’s motion to suppress was

denied by the trial court.


        2
         Texas Departm ent of Public Safety lab tests later proved that the white substance was, indeed,
cocaine. Officer Harm on testified that the cocaine retrieved from the folded pants am ounted to about 5.71
gram s.

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      Trial commenced on January 22, 2008. After the State rested its case, the following

colloquy occurred:

      THE COURT:             Okay. Are you going to put on—

      [Carter’s counsel]: May I confer with my client briefly? I’m thinking that
                          we’re not going to have any witnesses.

      THE COURT:             Okay.

      [Carter’s counsel]: If that’s the case, we may need to change the charge.
                          If I can have a few minutes.

      THE COURT:             Sure. And then as soon as you know, would you let Mr.
                             Skurka [State’s counsel] know and you can get the
                             charge.

                                         (Recess)

      THE COURT:             Okay. The State has rested. I understand the defense
                             is not going to put on any testimony.

      [Carter’s counsel]: That’s correct, Your Honor. We would rest.

      THE COURT:             Okay. Once the jury comes in, I’ll let you all rest and
                             close on the record. And any objections to the charge?

      [State’s counsel]:     The State has no objections to the Court’s proposed
                             charge.

      [Carter’s counsel]: We have no objection either.

The jury subsequently convicted Carter of the underlying offense and sentenced him to

thirty years’ confinement.

      On February 21, 2008, the trial court certified Carter’s right to appeal. This appeal

followed.

                                  II. JURY CHARGE ERROR

      By his first issue, Carter contends that he was denied a fair and impartial jury trial



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because the trial court failed to instruct the jury, pursuant to article 38.23 of the code of

criminal procedure, about the lawfulness of the detention and seizure of the cocaine. See

TEX . CODE CRIM . PROC . ANN . art. 38.23. The State argues that Carter has inadequately

briefed this issue and that he failed to demonstrate a contested factual issue entitling him

to an article 38.23 jury instruction. See id.

1. Standard of Review

       Texas Code of Criminal Procedure article 38.23 provides, in relevant part, that, in

any case in which the evidence raises a fact issue regarding whether it was obtained in

violation of any provisions of the United States Constitution or laws of the State of Texas,

“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 . . . the jury shall disregard

any such evidence so obtained." Id. art. 38.23(a); see Pickens v. State, 165 S.W.3d 675,

680 (Tex. Crim. App. 2005) (holding that it is not necessary for a defendant to request an

instruction under article 38.23 to preserve error); see also Bolds v. State, No. 14-07-00952-

CR, 2008 Tex. App. LEXIS 9585, at *6 (Tex. App.–Houston [14th Dist.] Dec. 23, 2008, no

pet.) (mem. op., not designated for publication). The court of criminal appeals recently

held that “[a] defendant must establish three foundation requirements to trigger an [a]rticle

38.23 instruction: (1) the evidence heard by the jury must raise an issue of fact; (2) the

evidence on that fact must be affirmatively contested; and (3) the contested factual issue

must be material to the lawfulness of the challenged conduct . . . .” Oursbourn v. State,

259 S.W.3d 159, 177 (Tex. Crim. App. 2008); see Madden v. State, 242 S.W.3d 504, 510

(Tex. Crim. App. 2007).

       "A fact issue about whether evidence was legally obtained may be raised 'from any

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source, and the evidence may be 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)).

Nevertheless, a court must include an article 38.23 instruction in the jury charge only if

there is a factual dispute about how the evidence was obtained. Id.

2. Discussion

      Carter did not testify at trial and offered no witnesses in his defense. Through the

cross-examination of Officers Harmon and Felt, Carter suggested that the police did not

have reasonable suspicion to detain him and that the reason he attempted to flee the

scene was because he believed the police officers to be carjackers. Carter, however,

elicited no evidence impeaching the testimony of either Officer Harmon or Officer Felt

about their observations regarding Carter’s possession of the cocaine and Carter’s attempt

to swallow the cocaine.

      Carter’s counsel asked a few questions about Officer Harmon’s and Officer Felt’s

ability to observe his attempt to swallow the cocaine and his placement of the cocaine in

the folded pants on the seat. Officer Harmon and Officer Felt both consistently testified

that: (1) they were able to observe Carter place a white substance in his mouth; (2) upon

commanding Carter to take the white substance out of his mouth, Carter placed the white

substance in the folded pants on the car seat; and (3) based on their training and

experience, the white substance was cocaine, a controlled substance. Furthermore, both

Officer Harmon and Officer Felt testified that they observed Carter parked in a suspicious

place—between two buildings where trash, mops, and other motel items were usually kept;

that Carter and Rogers appeared to be soliciting two female prostitutes; and that Carter

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immediately tried to flee the scene upon observing the police cruiser. Because Carter did

not elicit any evidence raising a fact question about the lawfulness of the detention and the

seizure of the cocaine, we conclude that the trial court did not err in failing to include an

article 38.23 instruction in the jury charge. See Oursbourn, 259 S.W.3d at 177 (noting that

a “factual dispute can be raised only by affirmative evidence, not by mere cross-

examination questions or argument”) (citing Madden, 242 S.W.3d at 513 nn.22-23).

Accordingly, Carter’s first issue is overruled.

                             III. PROSECUTORIAL MISCONDUCT

       In his second issue, Carter asserts that the prosecutor engaged in misconduct by

making several references to an unsubstantiated extraneous offense in his opening

statement during the punishment phase of the trial which constituted impermissible

“character conformity” evidence that was “so clearly calculated to inflame the mind of the

jury that an instruction to disregard would not have cured the harm.” Specifically, Carter

complains about the prosecutor’s reference to a case of retaliation filed against Carter by

Corpus Christi Police Department Officer Eddie Alvarado. The State counters by asserting

that Carter has not preserved this issue for appellate review because no objection was

made to the trial court.

       In order to preserve error in cases of prosecutorial misconduct, the defendant must

(1) make a timely and specific objection, (2) request an instruction that the jury disregard

the matter improperly placed before it, and (3) move for a mistrial. Cockrell v. State, 933

S.W.2d 73, 89 (Tex. Crim. App. 1996). Here, Carter’s trial counsel failed to object to the

prosecutor’s references to the retaliation case involving Carter and Officer Alvarado.

Because Carter did not make a timely objection to the prosecutor’s statements, we

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conclude that nothing has been preserved for review. See id.; see also TEX . R. APP. P.

33.1(a)(1); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (holding that a

defendant must make an objection, request an instruction to disregard, and move for a

mistrial in order to preserve jury argument error for appellate review); Carter v. State, No.

13-07-567-CR, 2008 Tex. App. LEXIS 8967, at **24-28 (Tex. App.–Corpus Christi Nov. 20,

2008, no pet.) (mem. op., not designated for publication) (same). Accordingly, we overrule

Carter’s second issue.

                                      IV. CONCLUSION

        Having overruled both of Carter’s issues on appeal, we affirm the judgment of the

trial court.



                                                  DORI CONTRERAS GARZA,
                                                  Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 12th day of March, 2009.




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