                                    NO. 07-07-0335-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                     AUGUST 27, 2008

                           ______________________________


                           TRINNY MARROQUIN, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                         _________________________________

                FROM THE 242 N D DISTRICT COURT OF HALE COUNTY;

                   NO. A16884-0607; HONORABLE ED SELF, JUDGE

                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Trinny Marroquin, was convicted by a jury of possession of cocaine,

enhanced, and sentenced to nine years confinement. He contends the trial court erred by

failing to give jury instructions, pursuant to article 38.23(a) of the Texas Code of Criminal

Procedure, regarding the following issues: (1) whether he was intoxicated and a danger to
himself and others at the time of his initial arrest; and (2) whether he was in a public place at

the time of his initial arrest. W e affirm.


                                              Background


       At the trial of this cause, the State presented five witnesses. Officers Sophia Jaramillo,

Eric W iley, and Paul Renfro testified to the circumstances surrounding Appellant’s arrest and

subsequent discovery of a suspicious substance. The remaining two witnesses testified as

to the chain-of-custody and chemical analysis of that substance. Appellant did not testify, nor

did he present any other witnesses.


       Officer Jaramillo of the City of Plainview Police Department testified that at

approximately 4:00 a.m., on March 26, 2006, she responded to a disturbance call. After

interviewing the complainant, she began patrolling the area in an attempt to locate the suspect

who had fled on foot. During that patrol, she entered an alley and observed a group of

persons, including Appellant, in the alley and a female urinating behind a residence. W hen

she approached the group, she determined that the individuals were intoxicated because she

detected an odor of alcohol on their breath, slurred speech, and glassy eyes.              Upon

questioning, Jaramillo learned that none of the members of the group resided at the

residence.


       Jaramillo observed that although the weather that morning was cool enough to require

a jacket, Appellant wore only a t-shirt. Jaramillo believed he was intoxicated and that he was


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a danger to himself because he was not appropriately dressed for the weather. In her

estimation, he had access to an automobile, was in no condition to drive, and, if allowed to

leave, would have been a danger to himself or others. Jaramillo then transported Appellant

to the Hale County Jail on a charge of public intoxication.1


       On cross-examination, Jaramillo testified that she could not recall having a face-to-face

conversation with Appellant, nor could she specifically remember whether his eyes were

bloodshot and glassy, or his speech slurred. Officer W iley testified that he served as back-up

to Jaramillo. He testified that he observed Appellant in the alley, his speech was slurred, eyes

a little red, and his hair was messed up. He further testified Appellant lacked the normal use

of his physical faculties, leaned up against a house for balance, and lost his balance while

standing. He believed Appellant was intoxicated and, if not arrested, was a danger to himself

and others.


       Sergeant Renfro testified that at the jail Appellant repeatedly asked him whether he

could use the restroom. Prior to permitting him to use the restroom, Renfro patted him down

and found a white, powdery substance in a bag in Appellant’s back pocket. Subsequent

chemical analysis of that substance revealed it to contain cocaine. Referring to Appellant’s

booking photo, Renfro described him as leaning to one side, his eyes closed, his tongue

partially protruding from his mouth, and hair disheveled.


       1
         A person commits the offense of public intoxication if he appears in a public place under
the influence of alcohol or any other substance to the degree he may endanger himself or
another. Tex. Penal Code Ann. § 42.08 (Vernon 2005).

                                                3
       At the trial court’s jury charge conference, Appellant sought a jury instruction pursuant

to article 38.23 of the Texas Code of Criminal Procedure 2 requesting a jury determination

whether Jaramillo had probable cause to arrest Appellant for public intoxication and whether

her warrantless arrest complied with article 14.03 of the Code of Criminal Procedure.3 In

support of the requested jury instruction, Appellant contended that the testimony of “the

officers [was] somewhat conflicted and vague and insufficient regarding the issue of the

legality or lawfulness of the arrest.” The trial court overruled Appellant’s requested instruction.


       2
           Article 38.23 of the Texas Code of Criminal Procedure states, in pertinent part, as
follows:

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

Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Hereafter, for convenience, we will
refer to this article as “article 38.23.”
       3
           Article 14.03 of the Code of Criminal Procedure states, in pertinent part, as follows:

       (a) Any peace officer may arrest, without warrant:

       (1) persons found in suspicious places and under circumstances which
       reasonably show that such persons have been guilty of some felony, violation
       of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under
       Section 49.02 [public intoxication], Penal Code, or threaten, or are about to
       commit some offense against the laws;

Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon 2005).

                                                 4
       Appellant contends he was entitled to an article 38.23 jury instruction to permit the jury

to decide whether the cocaine discovered during his booking on public intoxication was

lawfully obtained because the evidence at trial suggested that, at the time of his arrest, he

was neither intoxicated to the point at which he was a danger to himself or others, nor was he

in a public place.


                                          Discussion


       To trigger an exclusionary rule instruction under article 38.23(a) three conditions must

exist: (1) the evidence heard by the jury must raise a fact issue; (2) the evidence on that fact

issue must be affirmatively contested; and (3) the contested factual issue must be material

to the lawfulness of the challenged conduct in obtaining the evidence. Oursbourn v. State,

No. PD 1687-06, 2008 W L 2261744, at *10 (Tex.Crim.App. June 4, 2008); Madden v. State,

242 S.W .3d 504 (Tex.Crim.App. 2007).


       “A fact issue about whether evidence was legally obtained may be raised ‘from any

source, and the evidenced may be strong, weak, contradicted, unimpeachable, or

unbelievable.’” Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004) (quoting Wilkerson v.

State, 933 S.W.3d 276, 280 (Tex.App.–Houston [1st Dist.] 1996, pet. ref’d)). It should be noted,

however, that an article 38.23 instruction must be included in the jury charge only if there is a

factual issue as to how the evidence was obtained. Id. A disagreement with the trial court’s

conclusion that probable cause was shown as a matter of law is not the same as appellant

controverting the facts. Id. at 86. Here, Appellant’s argument is that his arrest and the

                                               5
subsequent seizure of the cocaine were unlawful because Officer Jaramillo did not have

probable cause to arrest him for public intoxication. That is a legal issue not a factual one.

Because no factual dispute exists concerning the circumstances of Appellant’s arrest and the

seizure of the cocaine, the trial court did not err in refusing to instruct the jury under article

38.23(a).


       Furthermore, in order to be “affirmatively contested” the factual dispute must be raised

by affirmative evidence, not merely cross-examination questions or argument. Oursbourn,

2008 W L 2261744 at 10, n. 68.; Madden, 242 S.W .3d at 513 nn. 22-23. Appellant presented

no evidence contesting a factual issue. True, Jaramillo’s testimony on cross-examination

indicated that she could no longer specifically recall Appellant’s physical condition that night, nor

could she say she personally observed him in the alley. Nevertheless, Wiley’s testimony was

unequivocal that he personally observed Appellant prior to his arrest and found his speech

slurred, eyes a little red, hair messed up, and his motor abilities lacking. Jaramillo’s uncertainty

on cross-examination does not raise a fact issue related to whether probable cause existed for

Appellant’s arrest. See Skatell v. State, 688 S.W.2d 248, 251-52 (Tex.App.–Fort Worth 1985,

no pet.).4 This is particularly so because no other controverting evidence was produced. See

Rose v. State, 470 S.W.2d 198, 200 (Tex.Crim.App. 1971); Skattel, 688 S.W.2d at 251.


       4
         Even if Jaramillo did not personally observe Appellant in the alley, probable cause still
existed for Appellant’s arrest for public intoxication. In determining whether probable cause
exists for an arrest, the cumulative information known to all the officers who cooperated in the
arrest is examined. See Muniz v. State, 851 S.W .2d 238, 251 (Tex.Crim.App.), cert. denied,
510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993); Coyarrubia v. State, 902 S.W .2d 549,
553 (Tex.App.–Houston [1 st Dist.] 1995, pet. ref’d).

                                                 6
       Finally, even if we were to assume that a factual issue was “affirmatively contested,” the

only contested evidence Appellant points to is evidence which is not material to the lawfulness

of the challenged conduct in obtaining the evidence. Testimony that Appellant was close to

home, in a “jovial” mood, and/or did not resist arrest does not contradict the facts underlying the

officers’ testimony at trial. There was no testimony at trial to support Appellant’s assertions on

appeal that the cold morning air did not cause him discomfort, his disheveled appearance may

have been caused by a lack of sleep, or that he was not a threat to himself or others because

he intended to walk home. Neither was there any testimony to contradict Jaramillo’s testimony

that Appellant was intoxicated and in a group in a public place. The absence of evidence does

not raise a fact issue.


        Accordingly, Appellant’s issues are overruled.


                                          Conclusion


       The trial court’s judgment is affirmed.




                                                     Patrick A. Pirtle
                                                          Justice

Do not publish.




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