Freddie James Foreman v. State ( 2015 )

ACCEPTED
12-14-00232-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/27/2015 1:14:58 PM
CATHY LUSK
CLERK
No. 12-14-00232-CR
IN THE TYLER COURT OF APPEALS
FILED IN
TWELFTH JUDICIAL DISTRICT OF TEXAS 12th COURT OF APPEALS
TYLER, TEXAS
1/27/2015 1:14:58 PM
CATHY S. LUSK
Clerk
FREDDIE FOREMAN
Appellant,
v.
THE STATE OF TEXAS
Appellee
On appeal from the
TH
349 Judicial District Court, Houston County, Texas
Trial Cause No. 13CR-184
BRIEF FOR THE APPELLEE
Donna G. Kaspar
District Attorney for Houston County
401 E. Houston Ave., Basement Floor
Crockett, Texas 75835
(936) 544-3255 x 245
(936) 544-2790 (FAX)
SBOT# 00785201
1
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Freddie Foreman
ATTORNEY FOR APPELLANT
Mark Cargill
701 N. Elm
Palestine, Texas 75801
(903) 729-8011
ATTORNEY FOR APPELLEE
Donna Gordon Kaspar, District Attorney
401 E. Houston Ave., Basement Floor
Crockett, Texas 75835
(936) 544-3255 ext.245
dgordon@co.houston.tx.us
2
TABLE OF CONTENTS
Page
Table of Contents 3
Index of Authorities 4
Issues Presented 6
Statement of Facts 6
Issue Number One Restated 6
Summary of the Argument 6
Argument 7
Prayer 10
Certificate of Service 11
Certificate of Word Compliance 11
3
INDEX OF AUTHORITIES
Page
Cases
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) 7
Robinson v. State, 377 S.W.3d 712 (Tex.Crim.App. 2012) 8
Robles v. State, 711 S.W.2d 752, 753 (Tex. App.-San Antonio
1986, pet. ref'd) 9
Statutes
Article 38.23(a) 7
Tex. Code Crim. Proc. art. 1.06 9
4
No. 12-14-00232-CR
IN THE TYLER COURT OF APPEALS
TWELFTH JUDICIAL DISTRICT OF TEXAS
FREDDIE FOREMAN,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
On appeal From the
th
349 Judicial District Court, Houston County, Texas
Trial Cause No. 13CR-184
BRIEF FOR THE APPELLEE
TO THE HONORABLE TYLER COURT OF APPEALS:
NOW COMES, Donna Gordon Kaspar, District Attorney for
Houston County, and respectfully submits her Brief for the Appellee,
requesting that this Court affirm the judgment of the Trial Court.
5
ISSUES PRESENTED
1. The trial court did not err in denying Defendant’s requested
jury instruction.
STATEMENT OF FACTS
Defendant requested an Art. 38.23 instruction to the jury
claiming there were factual issues that the jury must decide to
determine if the evidence was illegally seized in this case. (R.R., Vol.
1, p. 184). The prosecutor argued that there were no factual issues
presented. (R.R., Vol. 1, p. 185). The trial court denied the requested
instruction. (R.R., Vol. 1, p. 190).
ISSUE NUMBER ONE
The trial court did not err in denying Defendant’s requested jury
instruction.
SUMMARY OF THE ARGUMENT
To be entitled to an Article 38.23(a) instruction, the Court of
Criminal Appeals held in Madden, the defendant must show that (1) an
issue of historical fact was raised in front of the jury; (2) the fact was
contested by affirmative evidence at trial; and (3) the fact is material
to the constitutional or statutory violation that the defendant has
identified as rendering the particular evidence inadmissible. Since the
issues raised by the evidence at trial do not involve controverted
historical facts, but only the proper application of the law to
6
undisputed facts, the issues were properly left to the determination of
the trial court and not the jury in this case.
ARGUMENT
Under Article 38.23(a), "[n]o evidence obtained by an officer . . .
in violation of any provisions of the Constitution or laws . . . shall be
admitted in evidence against the accused" at trial. When evidence
presented before the jury raises a question of whether the fruits of a
police-initiated search or arrest were illegally obtained, "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." To be entitled to an Article 38.23(a) instruction, the Court
of Criminal Appeals held in Madden, the defendant must show that (1)
an issue of historical fact was raised in front of the jury; (2) the fact
was contested by affirmative evidence at trial; and (3) the fact is
material to the constitutional or statutory violation that the defendant
has identified as rendering the particular evidence inadmissible.
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007). When a
disputed, material issue of fact is successfully raised, the terms of the
statute are mandatory, and the jury must be instructed accordingly.
Evidence to justify an Article 38.23(a) instruction can derive "from any
source," no matter whether "strong, weak, contradicted, unimpeached,
7
or unbelievable." But it must, in any event, raise a "factual dispute
about how the evidence was obtained." Where the issue raised by the
evidence at trial does not involve controverted historical facts, but only
the proper application of the law to undisputed facts, that issue is
properly left to the determination of the trial court. Robinson v.
State, 377 S.W.3d 712 (Tex.Crim.App. 2012).
In his brief, Appellant argues that an Art. 38.23 instruction is
required because a factual issue was raised in the illegality of the
seized evidence because the officer exceeded the scope of the search
warrant and had no probable cause to search Defendant’s room. In
his brief, He points to testimony from the trial that he believes shows
factual issues.
At trial, defense counsel responded to the trial court as follows:
THE COURT: Let me ask you, what evidence have
we heard that would give rise to that instruction?
MR. CARGILL: In regards to the -- the
information -- the pictures being changed, the material
being placed. That the scope was exceeded and the fact
that my client wasn't served a search warrant under Rule
18. (R.R., Vol. 1, p. 185).
The scope of the search warrant is a legal question, as is,
whether probable cause exists. There must be a factual dispute that
calls into question what the scope of the warrant was or what the basis
of the probable cause was. A careful reading of the transcript shows
8
that there is no factual issue raised in the evidence and, as such, no
Art. 38.23 instruction is required. Testimony from Officer Smith
outlined the scope of the search as 218 Wood St., Crockett, Texas and
nothing indicated the scope of the search was exceeded. (R.R. Vol. 1,
pp. 106, 109-110, 114, 122). Also, a search warrant may not legally
issue unless it is based on probable cause. Tex. Code Crim. Proc. art.
1.06. There simply is no factual dispute with regard to scope of the
search or of probable cause to search.
Appellant argued during the trial that an instruction should be
given because he was not given a copy of the search warrant. There
was testimony that Freddie Foreman was given a copy of the search
warrant both at the house and at the jail. (R.R. Vol. 1, p. 122). The
defense put on testimony that there were no papers in Mr. Foreman’s
jail property. The jail administrator also testified that if the papers
were given to Mr. Foreman after he was booked into the jail, the
papers would not be reflected in the jail records. (R.R. Vol. 1, pp.
180-181). Therefore, there is no factual dispute raised. However,
even if there were a dispute about the service of the search warrant, it
has been held that the failure of a police officer to deliver a copy of the
search warrant to the defendant does not require suppression of the
seized evidence absent a showing of prejudice. Robles v. State, 711
S.W.2d 752, 753 (Tex. App.-San Antonio 1986, pet. ref'd). Foreman
9
does not argue that the warrant was not issued before the search, nor
does he suggest in this situation how the officer's failure to give him a
copy of the warrant at the time of the search caused prejudice. In light
of the circumstances surrounding execution of this search warrant, the
jury could not disregard the evidence based on its finding that the
search warrant was not served on Mr. Foreman. Therefore, a 39.23(a)
instruction would have been improper.
Appellant also argued at trial that a factual issue was raised
because pictures were changed and material was placed. There was
no evidence that pictures were changed or any material placed.
Defense counsel tried to infer that the pictures were changed and the
drugs were placed in Mr. Foreman’s room through his questioning of
the witnesses but the officer’s response to those questions did not
raise any factual disputes. Since the issues raised by the evidence
at trial do not involve controverted historical facts, but only the proper
application of the law to undisputed facts, the issues were properly left
to the determination of the trial court and not the jury in this case.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State respectfully
prays that the Court affirm the judgment of the Trial Court in this
cause.
Respectfully Submitted,
10
Donna G. Kaspar
____________________________
Donna G. Kaspar
District Attorney for Houston County
401 E. Houston Ave.
Crockett, Texas 75835
(936) 544-3255 x 245
(936) 544-2790 (FAX)
SBOT# 00785201
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and
foregoing Appellee’s Brief was served on counsel of record on this the
27TH day of January, 2015.
Donna G. Kaspar
_______________________
Donna G. Kaspar
CERTIFICATE OF WORD COMPLIANCE
District Attorney, Donna Gordon Kaspar, on this the 27TH day of
January, 2015, hereby certifies this document has 1,528 word count,
including captions and table of contents.
Donna G. Kaspar
___________________________
Donna G. Kaspar
11