                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-134-CR


DAVID GLENN SMITH                                                     APPELLANT

                                            V.

THE STATE OF TEXAS                                                          STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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                                  I. Introduction

      Appellant David Glenn Smith appeals his conviction for aggravated robbery,

contending in four issues that the trial court erred by admitting evidence he claims

the police illegally seized from his apartment and by refusing to include an article

38.23 instruction in the jury charge. W e affirm.




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           See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      James “Shorty” Nixon was re-stocking the beer cooler at the Hattie Food Store

in Fort W orth when Smith, a regular customer, walked behind the counter and shot

the cashier, Mike Hamd, six times. Shorty emerged from the cooler just before the

first two shots were fired but went back again after Smith threatened to shoot him,

too. Smith shot Mike four more times before leaving with Mike’s cell phone, cash

from Mike’s pocket, the store’s telephone, and cash from the safe.

      The police arrived within minutes. Shorty and Mike both knew Smith by his

nickname, “Little D.” Shorty also knew where Smith lived, and he led officers to

Smith’s apartment, two blocks away.

      Officer Thompson covered the back door as Officer J.C. W illiams knocked

hard on the front, causing it to swing open. Smith darted from the living room down

the hallway and ducked into a bedroom. Officers W illiams, Ricks, and Fincher swept

into the apartment and extracted Smith from under a bed. On top of the bed lay an

empty holster and a baseball cap that Smith had been wearing as he ran down the

hall, and that matched the description Shorty had given earlier to the police. The

officers arrested Smith, secured the apartment, and then, after obtaining a search

warrant, seized the cap and holster from the bed, and a wad of cash from a table in

the living room.

      Smith was charged with aggravated robbery. At a pretrial hearing, the trial

court overruled his motion to suppress the baseball cap, holster, and cash seized


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from the apartment. At trial, as the State offered each of these items in evidence,

Smith’s attorney stated that he had “no objection.” The jury returned a guilty verdict

and assessed Smith’s punishment at forty-five years’ confinement. The trial court

sentenced him accordingly.

                 III. Evidence Seized From Smith’s Apartment

      In Smith’s first three issues, he contends that the trial court erred by denying

his motion to suppress the baseball cap, holster, and cash seized from his apartment

because the police entered his apartment illegally. Specifically, he claims that the

trial court should have suppressed these items because the officers’ warrantless

entry into his apartment violated the Fourth and Fourteenth Amendments to the

United States Constitution, article 1, section 9 of the Texas constitution, and chapter

14 of the code of criminal procedure. However, by stating “no objection” when these

items were offered in evidence, Smith has forfeited his claims for review.

      Ordinarily, by filing a motion to suppress, a defendant preserves his right to

complain of the admission of evidence at trial even if he fails to object when that

evidence is introduced. James v. State, 772 S.W .2d 84, 97 (Tex. Crim. App.)

(holding that review of trial court’s ruling on admissibility of evidence made outside

jury’s presence is forfeited if defendant affirmatively asserts that he has “no

objection” when evidence is offered), vacated on other grounds, 493 U.S. 885

(1989); Dean v. State, 749 S.W .2d 80, 83 (Tex. Crim. App. 1988); Moraguez v.

State, 701 S.W .2d 902, 904 (Tex. Crim. App. 1986); Gearing v. State, 685 S.W .2d


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326, 329 (Tex. Crim. App. 1985), overruled on other grounds by Woods v. State, 956

S.W .2d 33, 36–38 (Tex. Crim. App. 1997); Williams v. State, No. 02-07-00095-CR,

2008 W L 1932110, at *1 (Tex. App.—Fort W orth May 1, 2008, no pet.) (mem. op.,

not designated for publication).       However, when the defendant’s attorney

affirmatively states that there is no objection to the admissibility of the evidence

when it is introduced at trial, he forfeits his right to complain of its admission on

appeal. Dean, 749 S.W .2d at 83; Moraguez, 701 S.W .2d at 904; Gearing, 685

S.W .2d at 329.

      At the pretrial hearing, the trial court overruled Smith’s motion to suppress the

baseball cap, holster, and cash seized from his apartment. During trial, the State

offered the cap, holster, and a photograph of the cash resting on a table in Smith’s

apartment as State’s Exhibits 6A, 7A, and 21, respectively. As the State offered

each of these exhibits, Smith’s attorney stated that he had “no objection.” By

affirmatively stating that he had “no objection” to each of these exhibits, Smith has

forfeited his right to complain about their admission on appeal. See Dean, 749

S.W .2d at 83; Moraguez, 701 S.W .2d at 904; Gearing, 685 S.W .2d at 329.

Accordingly, we overrule Smith’s first three issues.2

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         Even if Smith had not forfeited his claims, and if we were to assume that
the trial court erred by admitting the evidence seized from Smith’s apartment, we
would hold beyond a reasonable doubt that its admission had no effect on the verdict
because the jury heard two eyewitnesses testify that they knew Smith and that they
saw him take cash and telephones from the store after shooting the clerk. Moreover,
Smith conceded the issue of his identity by taking the stand in his own defense and
admitting that he shot Mike; he only contested the evidence that he stole anything.

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                            IV. Article 38.23 Instruction

      In his fourth issue, Smith contends that the trial court erred by refusing his

request to include in the jury charge an instruction based on code of criminal

procedure article 38.23.3

      Appellate review of error in a jury charge involves a two-step process. Abdnor

v. State, 871 S.W .2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. State, 287

S.W .3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must determine whether error

occurred. If so, we must then evaluate whether sufficient harm resulted from the

error to require reversal. Abdnor, 871 S.W .2d at 731–32.

      Article 38.23(a) states:

      (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



Although the money seized from the table is arguably some evidence of theft, it is
inconsequential given that two eyewitnesses testified that Smith took Mike’s cell
phone, Mike’s cash, the store’s telephone, and cash from the safe. See Tex. R.
App. P. 44.2(a).
      3
          Although a defendant who affirmatively states, “no objection,” when
evidence is offered forfeits his right to complain on appeal that the evidence was
illegally obtained under article 38.23, he may still request and receive a jury
instruction under article 38.23 if the evidence raises a contested factual issue that
is material to the lawfulness of obtaining the evidence. Holmes v. State, 248 S.W .3d
194, 196 (Tex. Crim. App. 2008).

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      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).

      The court of criminal appeals has held that the second sentence of article

38.23 requires a jury instruction only if there is a genuine dispute about a fact that

is material to the admissibility of the challenged evidence. See Oursbourn v. State,

259 S.W .3d 159, 177 (Tex. Crim. App. 2008); Holmes, 248 S.W .3d at 199; Madden

v. State, 242 S.W .3d 504, 510 (Tex. Crim. App. 2007); Pierce v. State, 32 S.W .3d

247, 251 (Tex. Crim. App. 2000). A defendant must establish three foundation

requirements to trigger an article 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 in obtaining the evidence claimed to have been seized

illegally. See Oursbourn, 259 S.W .3d at 177; Madden, 242 S.W .3d at 510. The

defendant must offer evidence that, if credited, would create a reasonable doubt as

to a specific factual matter essential to the admissibility of the challenged evidence.

See Oursbourn, 259 S.W .3d at 177; Madden, 242 S.W .3d at 510; 40 George E. Dix

& Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 4.194 (2d

ed. 2001). This factual dispute can be raised only by affirmative evidence, not by

mere cross-examination questions or argument. Oursbourn, 259 S.W .3d at 177;

Madden, 242 S.W .3d at 513 nn. 22–23. The jury is to decide only the disputed



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factual issue—e.g., did the officer hold a gun on the defendant’s head to extract a

confession.    Oursbourn, 259 S.W .3d at 177.         If there is no disputed factual

issue—e.g., if there is a video definitively showing that the officer did or did not hold

a gun to the defendant’s head—the legality of the conduct is determined by the trial

judge alone, as a question of law. The legal question would never go to the jury.

Oursbourn, 259 S.W .3d at 177–78.

      Here, as the following discussion between defense counsel and the trial court

illustrates, Smith presented no factual issue for the jury to decide regarding the

officers’ entry into Smith’s apartment:

      MR. GORDON: I have a special request that the Court charge the jury
      on Article 38.23 concerning whether the items seized from David’s
      apartment without a warrant were illegally seized and, therefore —

      THE COURT: W hat factual issue is the jury to determine?

      MR. GORDON: The factual issue is that the entry into the apartment —

      THE COURT: No, that’s a legal issue. W hat’s the factual issue —

      MR. GORDON: The factual issue. Sorry. The facts are that —

      THE COURT: I know what the facts are. W hat is the issue that they
      are to determine? Only issues of fact can be determined by the jury.

      MR. GORDON: The seizure of the money and the seizure of the hat.
      It’s our contention that those are subject to a 38.23 admonition.

      THE COURT: That’s denied.

      Our review of the record leads us to hold that the trial court correctly

ascertained that the issue Smith presented was solely one of law, i.e., whether the


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seizure of the challenged evidence was permissible under constitutional and

statutory law. Because Smith presented no factual issue for the jury to resolve

material to the admissibility of the evidence he sought to exclude, the trial court

correctly refused Smith’s requested 38.23 instruction. See id. Accordingly, Smith’s

fourth issue is overruled.

                                 V. Conclusion

      Having overruled all of Smith’s issues, we affirm the trial court’s judgment.



                                             PER CURIAM



PANEL: MCCOY, DAUPHINOT, and W ALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 8, 2010




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