                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-12-00447-CR


                   FRANCISCO GONZALEZ-MARTINEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 181st District Court
                                    Potter County, Texas
              Trial Court No. 62,782-B, Honorable Richard Dambold, Presiding

                                   October 18, 2013

                                       OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Francisco Gonzalez-Martinez (appellant) appeals his conviction for possessing a

controlled substance, namely cocaine. Through a single issue, he contends the trial

court erred by failing to submit to the jury an instruction pursuant to article 38.23(a) of

the Texas Code of Criminal Procedure. We agree.

       Authority

       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 determine whether error occurred, and if

it did, we then evaluate whether it was harmful. Abdnor, 871 S.W.2d at 732.

       In determining whether error occurred at bar, we first consider article 38.23(a) of

the Texas Code of Criminal Procedure. It provides that "[n]o 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." TEX. CODE

CRIM. PROC. ANN. art. 38.23(a) (West 2005). The statute also provides that when the

testimony presented at trial raises an issue regarding whether evidence was so

obtained, then " … 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.” Id.

       Next, the requirements of art. 38.23 are triggered when (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 conduct utilized to

obtain the evidence being challenged. Hamal v. State, 390 S.W.3d 302, 306 (Tex.

Crim. App. 2012).     Finally, a fact issue may be raised from any source, and the

evidence raising it may be strong, weak, contradicted, unimpeached, or unbelievable.

Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004).

       Application of Authority

       Here, the police discovered the cocaine for which appellant was convicted on the

floor of a local tavern. He was present in the establishment when three officers entered

it to investigate potential drug trafficking. According to two officers who testified at trial

(Bullard and Vigil), such activity frequently occurred at the bar. They further opined that

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it usually transpired in or near the men's bathroom. So too did the officers talk about

entering the bar around 1:30 a.m., seeing a group of men gathered near the men's

room, and witnessing several members of the group gesturing as if they were

exchanging items with their hands. In particular, Vigil described how he saw money

changing hands.

      Knowing the reputation of the tavern, seeing the group of individuals by the

men's room, and watching money being exchanged led Vigil to suspect that drug activity

was occurring, or so he testified. Consequently, he approached the two individuals

purportedly making the exchange. Appellant happened to be one of them, while the

other was someone described as a “white” man.

      As the officer approached, the "white" man moved away into the crowd,

according to Vigil.   Appellant remained put.    And, upon arriving in the presence of

appellant, Vigil physically escorted him to where Bullard stood. The search for the

“white” man then began. It involved Vigil leaving appellant with Bullard and walking

around the bar. Vigil expressed his belief that appellant was detained at that point.

      Unable to find appellant’s alleged cohort, Vigil said that he returned to Bullard.

As he did, he saw appellant throw something on the ground.            At that point, Vigil

forcefully subdued and arrested appellant. He also recovered the allegedly discarded

item which consisted of cocaine.

      As previously mentioned, Officer Bullard also testified at trial. He described 1)

entering the bar, 2) noticing the group of men by the bathroom, 3) seeing one person in

the group holding out his hand in a “cupped” manner while another extended his hand in

a grasping manner, 4) approaching one of the men who had his hand extended, 5)

either asking the person to disclose what was contained therein or grasping the

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person’s arm or hand, 6) seeing the person drop his hand to his side, and 7) ultimately

noticing a packet or the like on the floor next to the person. The latter happened to be

appellant. Also of import is a particular exchange between the prosecuting attorney and

this witness. The former asked Bullard: “[a]nd what was it about these individuals that

caught your attention or made you pay attention to them in the first place?” The officer

responded with:

              Like I said before, they're just gathered up and just drew our
       attention because that's just one of the clues that we focus on whenever
       we see something like that. If -- if they were just standing there, say for
       instance, just laughing and drinking, it would have been -- it wouldn't have
       drawn our attention. We would have moved on to the next group or
       something.


       A third witness also testified at trial. She worked at the tavern as a waitress and

bartender. Present when the officers entered that night, she described the incident as

follows:

              They [the police] walked into the back door, they went into the
       men's rest room, and they came out and straight to [appellant]. They
       attacked him, threw him on the floor, and it was about three or four cops.
       One of them had his foot on his face and they just started -- they just
       attacked him. They just started man handling him.

       When asked if she was “watching the event the whole time,” she said: “Yeah.

Well, while I was walking around I was glancing over. I mean, it was something

everybody was paying attention to.”     When asked if she “could see clearly what was

going on,” she said: “Yes.” When asked if appellant, a person whom she knew, “[w]as

just standing there talking to this person,” she replied: “Yes.” And when queried about

whether she saw appellant “exchange anything with anybody,” she answered: “No, sir.”

       The testimony of these three witnesses does not paint a clear picture of the

actual events. For instance, one officer stated that he first made contact with appellant,

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while the other indicated that he did.        One officer said he saw people exchanging

money, while another did not.         One says he grabbed appellant’s arm while it was

outstretched in the direction of other bar patrons, while the other said he detained

appellant, walked him to where his fellow officer stood (which effectively terminated any

contact appellant had with the group with whom he was initially seen) and left him

there.1 Admittedly, both officers alleged that appellant was interacting with a group of

people with arms outstretched and that such conduct was indicia suggesting their

engagement in drug activity. Yet, the bartender/waitress testified that she had a clear

view, watched the entirety of the event, saw no exchanges from appellant to others, and

recalled appellant simply talking to another patron before being “attacked” by the police.

Finally, her testimony about appellant merely standing around and conversing with

another was the type of conduct that one officer implicitly deemed insufficient to suggest

criminal activity and, thus, draw his attention. Again, he testified that if they just saw a

group standing around, talking and drinking, they “would have moved on to the next

group or something.”

       So, we cannot but conclude that the evidentiary record raised issues of fact

regarding what transpired and whether appellant actually engaged in the activity the

officers thought sufficient to create reasonable suspicion to believe crime was afoot.

Additionally, if the bartender’s version of events was accepted by a fact-finder, then

Bullard’s own analysis of what the circumstances meant would be quite correct.

Recalling his comment about just seeing patrons engaged in conversation and drinking,

we would agree that individuals conversing near a men’s room in a bar where drug


1
 Why or how appellant would be trying to exchange something when removed from the presence of his
compatriots and placed under the control of law enforcement personnel went unexplained.

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transactions have occurred are alone insufficient articulable facts from which to form a

reasonable suspicion that crime is afoot. That leads us to also view the issue of the fact

in question as quite material. Simply put, if appellant was not performing the furtive arm

gestures attributed to him by the officers, then they would have lacked either probable

cause or reasonable suspicion to detain him. Thus, the prerequisites of Hamal were

met here and the trial court was obligated to provide the art. 38.23(a) instruction.

       Of note is the absence of any finding by the trial court that a material issue of fact

existed.   Instead, it denied the requested instruction because appellant allegedly

abandoned the drugs.        Authority does hold that abandoned items subsequently

collected by law enforcement personnel are not considered seized for purposes of a

Fourth Amendment search and seizure analysis. See e.g. Gomez v. State, 486 S.W.2d

338 (Tex. Crim. App. 1972); Miller v. State, 458 S.W.2d 680 (Tex. Crim. App. 1970);

King v. State, 416 S.W.2d 823 (Tex. Crim. App. 1967). It is also true that art. 38.23(a)

pertains to evidence obtained unlawfully or in violation of one’s right to be free of

unreasonable searches and seizures. So, logic suggests that a defendant may not be

entitled to an art. 38.23(a) instruction if the evidence in dispute was abandoned by him.

       Yet, for there to be an abandonment of property, the decision to discard it must

not be due to police misconduct. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim.

App. 1997) accord, State v. Dixon, No. 13-09-00445-CR, 2010 WL 3419231, 2010 Tex.

App. LEXIS 7156, at *18 (Tex. App.—Corpus Christi August 27, 2010, pet. ref’d) (mem.

op.) (not designated for publication); see Pickens v. State, 712 S.W.2d 560, 562 (Tex.

App.—Houston [1st Dist.] 1986, pet. ref’d) (wherein the court distinguished Gomez,

Miller and King by noting that they do not involve the abandonment of property following

an illegal detention). With this in mind we again refer to the testimony of Officer Vigil.

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He described how appellant dropped the packet after being detained. To it we have the

bartender’s testimony about the absence of appellant’s engagement in the furtive

gestures purportedly relied upon by the officers to justify their detention of him. And, if

she is to be believed, the same fact-finder had basis upon which to reasonably deduce

that appellant’s decision to discard the drugs (assuming he did discard them) was due

to the police detaining him without lawful cause. This, then, leads us to conclude that

the concept of abandonment did not justify the trial court’s decision to withhold the

instruction.

       Next, had the instruction been given, the jury would have been free to accept the

bartender’s version of events and “disregard any . . . evidence . . . obtained” in violation

of the law. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). Given that the

evidence purportedly obtained in violation of the law was the very contraband appellant

was convicted of possessing, we must conclude that the trial court’s omission was not

harmless under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). So,

the prerequisites of Abdnor exist here, that is, error and harm.

       Accordingly, we sustain appellant’s issue, reverse the judgment of the trial court

and remand the cause for further proceedings.



                                                        Brian Quinn
                                                        Chief Justice

Publish.




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