                                                   ?0?-f5
                                MO.
                                                                                                   RIGINAL


                                IN    THE   CORT     OF    CRIMINAL        APPEALS

                                                  AUSTIN,       TEXAS




                                            FREDDIE       J.    FOREMAN

                                                                                  REC'D IN COURT OF APPEALS
      RECEIVED IN                      DEFENDANT           -    APPELLANT
                                                                                       2th Court of Appeals District
    COURT OF CRIMINAL APPEALS
                                                       VS.                       12.

         JUL 2 2 2015
                                                                                 SVIEW
                                            THE    STATE       OF   TEXAS
                                                                                            "IVLER TEXAS
     Abel Acosta, Cleit                 PLAINTIFF          -    APPELLEE               CATHY S. LUSK, CLERK




                     REVIEW     SOUGHT      FROM     THE       12TH.     COURT   OF    APPEALS

                                            NO.    12-14-00232-CR




        FILED IN
                                            APPEALLED          FROM    THE
COURT OF CRIMINAL APPEALS
                                349th.       JUDICIAL          DISTRICT      COURT
       JUL 22 2C.5                     HOUSTON        COUNTY,          TEXAS

                                            CAUSE    NO.       13CR-184
    Abel Acosta, Cierk
                                THE    HONORABLE           MARK     A.   CALHOON

                                             PRESIDING           JUDGE




                     APPELLANT'S       PETITION        FOR       DISCRETIONARY          REVIEW




                                                                               FREDDIE       JAMES   FOREMAN
                                                                               #925367       ELLIS   UNIT
                                                                               1697     FM   980
                                                                               HUNTSVILLE,         TEXAS
                                                                                                       77343
                                                                               PRO     SE
                                         TffiBLE   OF      CONTENTS




INDEX       OF   AUTHORITIES                                                                                  1


STATEMENT         OF    JURISDICTION                                                                          2


STATEMENT         OF    THE    CASE                                                                           2

PROCEDURAL         HISTORY                                                                                    2


APPELLANT'S            GROUND FOR       REVIEW.                                                               3

      THE    TRIAL        COURT        COMMITTED           REVERSIBLE         ERROR     IN    NOT    ALLOWING


APPELLANT'S            REQUESTED JURY INSTRUCTION UNDER                         TEXAS      CODE OF CRINI-

NAL     PROCEDURE             ARTICLE        38.23:        EVIDENCE          OBTAINED         IN    VIOLATION


OF    THE        CONSTITUTION           OR     LAWS        OF       THE   UNITED    STATES     OR    THOSE   OF


TEXAS       MAY     NOT       BE      ADMITTED        IN        A    CRIMINAL      CASE.     SEE    TEX.   CODE


CRIM.    PROC.     ART.       38.23     INSTRUCTION.




ARGUMENT                                                                                                      3


PRAYER      FOR   RELIEF                                                                                     10


CERTIFICATE        OF     SERVICE                                                                            10
                         INDEX      OF   AUTHORITIES




                               STATE      CASES




ATKINSON V-   STATE,

    923 S.W.2d 21      (TX.CR.APP.        1996)                          3

MADDEN V.   STATE,

    242 S.W 3d 504 (TEX .CR. APP. 2007 )                                 5




                             STATE       STATUTES




TEXAS CODE CRIMINAL PROCEDURE ART.                38.23   (A)            5

TEXAS   CODE CRIMINAL PROCEDURE           ART.    38.23          3,5,8

TEXAS CODE CRIMINAL PROCEDURE ART.                18.01   (B)   6,7,8,9

TEXAS CODE CRIMINAL PROCEDURE ART.                18.06   (B)            6

TEXAS RULE APP.      PROC.   ANN.    68.2 (VERN.2003)                    2

TEXAS RULE APP.      PROC.   ANN.    68.4 (VERN.2003)                    2

TEXAS RULE APP.      PROC.   ANN.    69.1   (VERN.    2003)              9




                               (PAGE ONE)
                                 STATEMENT OF JURISDICTION




      APPELLANT           WAS     CHARGED              WITH     THE OFFENSE OF POSSESSION OF

A     CONTROLLED           SUBSTANCE              ON        SEPTEMBER 26,2013.    APPELLANT WAS

CONVICTED           OF     POSSESSION              OF A CONTRILLED SUBSTANCE ON AUGUST

06.2014,           AND     WAS     SENTENCED TO TWENTY (20) YEARS CONFINEMENT

IN     THE        TEXAS     DEPARTMENT                 OF     CRIMINAL JUSTICE INSTITUTIONAL

DIVISION,           AND     A     TEN-THOUSAND DOLLAR FINE.                  NO MOTION FOR NEW

TRIAL        WAS        FILED.     NOTICE OF APPEAL WAS FILED AUGUST 06,2014.

THE     COURT           OF APPEALS AFFIRMED APPELLANT'S CONVICTION ON JUNE

17.2015.           NO     MOTION       FOR         REHEARING WAS FILED.          THIS COURT HAS

JURISDICTION              PURSUANT           TO        TEX.     R.    APP.   P. ANN. 68.2(VERN.

2003).

                                   STATEMENT OF THE                   CASE



      THIS        APPEAL        LIES     FROM           APPELLANT'S FELONY JURY TRIAL AND

CONVICTION.              THIS     ISSUE           BROUGHT FORWARD WAS DEVELOPED IN THE

TRIAL COURT OR OTHERWISE APPEAR                               IN THE RECORD.



                                       PROCEDDRAL              HISTORY



      APPELLANT           RAISED        ONE        GROUND        OF    ERROR FOR REVIEW IN THE

COURT        OF     APPEALS.           THE        COURT        CONSIDERED THIS GROUND ON THE

MERIT,        AND DECIDED THE SAME ADVERSELY TO APPELLANT. THE COURT

OF     APPEALS           RENDERED IT'S JUDGMENT ON JUNE 17,2015. NO MOTION

FOR     REHEARING           WAS FILED. TEX. R. APP. P. ANN. 68.4(e) (VERN.

2003).



                                                  (PAGE TWO)
                            APPELLANT'S          GROUND       FOR    REVIEW




      THE     TRIAL        COURT        COMMITTED       REVERSIBLE         ERROR   IN   NOT   ALLOW
ING        APPELLANT'S           REQUESTED        JURY       INSTRUCTION UNDER TEX.             CODE
OF  CRIMINAL  PROCEDURE    ARTICLE  38.23;  EVIDENCE OBTAINED IN
VIOLATION  OF  THE   CONSTITUTION OR LAWS OF THE UNITED STATES,
OR  THOSE  OF  TEXAS   MAY   NOT BE ADMITTED IN A CRIMINAL CASE.
SEE        TEX.     CODE        CRIM.     PROC.    ANN.      ART. 38.23 (A) (WEST 2005) .
      APPELLANT           DISAGREES WITH          THE 12TH.         COURT OF APPEALS          ARGUE-
MENT        THAT     APPELLANT           WAS     NOT     ENTITLED          TO AN ARTICLE 38.23
INSTRUCTION,             AND AFFIRMED THE JUDGMENT OF THE TRIAL COURT.



                                               ARGUMENT




      THIS        COURT     SHOULD        GRANT THIS PETITION ON THE GROUND THAT

THE        TRIAL     COURT        ERRED BECAUSE THE EVIDENCE OBTAINED IN THIS

CASE        WAS     ILLEGALLY           SEIZED     EVIDENCE,          ARTICLE       38.23 (TEXAS

EXCLUSIONARY              RULE));        PERMITS THE JURY TO DISREGARD ILLEGALLY

SEIZED       EVIDENCE.


      THE     COURT        IS     REQUIRED        TO INSTRUCT THE JURY TO DISREGARD

INCRIMINATING              EVIDENCE        USED        AGAINST       THE     DEFENDANT         IF THE

JURY        BELIEVES        OR     HAS     A     REASONABLE DOUBT THAT THE EVIDENCE

WAS        OBTAINED        IN     VIOLATION        OF        THE    LAW, ARTICLE 38.23. SEE

ATKINSON V. STATE,923                     S.W.2d        21     (TX.CR.APP.1996):              WHEN    A

FACTUAL           ISSUE     IS RAISED, THE DEFENDANT HAS AN ABSOLUTE RIGHT

TO    AN    INSTRUCTION.

      IN     THIS CASE, A FACTUAL ISSUE WAS RAISED IN THE ILLEGALITY

OF     THE        SEIZED        EVIDENCE.        CROCKETT           POLICE    OFFICER, CLAYTON

SMITH,        FAILED        TO     PROVIDE        THE        APPELLANT WITH A COPY OF THE

SEARCH       WARRANT.

      ON     SEPTEMBER 26,2013, THURSDAY MORNING AT 7:20am., OFFICER

C.     SMITH        AND     FIVE        OTHER     OFFICERS CAME TO APPELLANT'S HOME
AT     218        WOOD     STREET,        OFFICER        C. SMITH STATED , MR.                FOREMAN

                                           (PAGE THREE)
WE    HAVE       A    SEARCH             WARRANT          TO   SEARCH        YOUR       HOUSE..

      APPELLANT                    ASKED           OFFICER       C.       SMITH    FOR    A    COPY OF THE     SEARCH

WARRANT,              OFFICER                 C.     SMITH        STATED,         WE GOT        IT.    THE APPELLANT

ASKED        AGAIN                 IN     HIS        BEDROOM,              OFFICER        C.    SMITH    REPLIED,    WE

GOT        IT.        THIS              WAS        BEFORE        BEFORE           THE    SEARCH       BEGAN,   AN HOUR

LATER        THE              APPELLANT WAS                ARRESTED AND CHARGED WITH                      POSSESSION

OF A       CONTROLLED SUBSTANCE WITHOUT A                                     SEARCH WARRANT.

      A     WEEK              AFTER           APPELLANT           WAS        ARRESTED,          THE APPELLANT       SAW

OFFICER              C.        SMITH           AND        GOT A       COPY OF THE SEARCH WARRANT.                   THE

APPELLANT                 REVIEWED                 THE     SEARCH           WARRANT AND NOTICED THE WORD

COPY        AT        THE          TOP         OF        THE SEARCH WARRANT,                   IN BIG RED      LETTERS

     HE     ALSO              NOTICED THE DISTRICT CLERK OF HOUSTON COUNTY STAMP

MARK        AT        THE          TOP         RIGHT           HAND        CORNER OF THE SEARCH WARRANT,

IT        STATES              SEPTEMBER              27,2013              AT 9:43.       APPELLANT ARGUES THAT

OFFICER C. SMITH CAME TO APPELLANT'S HOME ON SEPTEMBER 26,2013

AT 7:20am.;                   STATING          HE    HAD A       SEARCH WARRANT.

      OFFICER                 C.        SMITH        DID NOT HAVE A SEARCH WARRANT UNTIL THE

MORNING              OF        SEPTEMBER                 27,2013           AT 9:43.       THIS PROVES EVIDENCE

WAS        OBTAINED                 IN        VIOLATION              OF     THE     LAW.       THE SEARCH WARRANT

PROVES           THAT              OFFICER           C.        SMITH DID NOT PROVIDE THE APPELLANT

WITH        A COPY OF THE SEARCH WARRANT ON SEPTEMBER 26,2013,                                                   WHICH

IS    A    THURSDAY.


      THE APPELLANT CONTENDS,                                  THE        COPY     OF     THE     SEARCH       WARRANT

THAT        HE        RECEIVED                 FROM OFFICER C. SMITH,                         A WEEK AFTER APPEL

LANT'S ARREST, HAS THE CLERK STAMP-MARK DATED SEPTEMBER 27,2013,

WHICH        IS           A        FRIDAY.          IT IS IMPOSSIBLE FOR THE OFFICER TO GIVE

THE APPELLANT A COPY OF THE SEARCH WARRANT ON THURSDAY,                                                         SEPTE)-




                                                           (PAGE          FOUR)
MBER    26,2013.

      APPELLANT           ARGUED           AT     HIS     TRIAL,      THAT    HE DID NOT RCEIVE

A     COPY     OF       THE        SEARCH WARRANT ON HIS AMENDED MOTION TO SUP

PRESS.        THIS        WAS        FILED        WITH     THE COURT ON JULY 07,2,014.         THE

MOTION        WAS       HEARD         ON        AUGUST     04,2014.         THE JUDGE DENIED THE

MOTION A DAY BEFORE TRIAL.                         AT TRIAL,        ON AUGUST 05,2014,     DEFENSE

COUNSEL        ASKED THE JUDGE FOR A JURY INSTRUCTION;                             CODE OF CRIM.

PROC.        ART.       38.23:         THE        EVIDENCE      IN        THIS CASE WAS OBTAINED

ILLEGALLY..             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   IN

STRUCTED           THAT       IF      IT        BELIEVES,      OR     HAS A REASONABLE DOUBT,

THAT     THE        EVIDENCE WAS OBTAINED IN VIOLATION OF THE PROVISION

OF     THIS        ARTICLE,           THEN        AND     IN   SUCH EVENT,        THE JURY SHALL

DISREGARD ANY SUCH EVIDENCE SO OBTAINED".

      THE COURT OF CRIMINAL APPEALS HELD IN,MADDEN V. STATE,                                   242

S.W.3d        504        (TX.CR.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,            CONTRA

DICTORY,           UNIMPEACHED              OR     UNBELIEVEABLE." BUT IT MUST,            IN ANY

EVENT,        RAISE        A       FACTUAL         DISPUTE         ABOUT HOW THE EVIDENCE WAS

OBTAINED"           APPELLANT              ARGUES HE RAISED A FACTUAL DISPUTE ABOUT

HOW     THE        EVIDENCE WAS OBTAINED WITHOUT A SEARCH WARRANT UNDER

CHAPTER 18.(R.R.,                  VOL.1,        p. 185).



                                                  (PAGE FIVE)
      AT        TRIAL,              OFFICER           C.     SMITH    TESTIFIED THAT,           HE GAVE THE

APPELLANT A COPY OF THE SEARCH WARRANT ON                                          SEPTEMBER           26,2013,

AT APPELLANT'S HOME, AND AT'THE JAIL.(R.R. VOL. 1 p. 122).

      THE        SEARCH              WARRANT,              ITSELF,     SHOWS THAT OFFICER C.              SMITH

IS    NOT       TELLING             THE    TRUTH.


      THE        DISTRICT                 CLERK'S           STAMP-MARK STATES SEPTEMBER 27,2013

AT     9:43           ON        A     FRIDAY MORNING.                APPELLANT ARGUES THAT OFFICER

C.     SMITH              AND        FIVE        OTHER        OFFICERS CAME TO HIS RESIDENCE ON

SEPTEMBER 26,2013                         AT 7:20am.          WHICH    IS A    THURSDAY.

      THE        COPY           OF        THE     SEARCH WARRANT IS TWENTY-SIX (26) HOURS

LATE.           THIS        PROVES              THAT        APPELLANT        WAS NOT SERVED A COPY OF

THE        SEARCH           WARRANT              BY        OFFICER C.       SMITH ON THURSDAY MORNING

SEPTEMBER             26,2013             AT    7:20am.

      IT        IS        ILLEGAL              FOR A POLICE OFFICER,               OR OFFICERS,         TO COME

TO     A        PERSON'S              HOME        AND        STATE,     I HAVE A SEARCH WARRANT TO

SEARCH           YOUR           HOME           AND NEVER PRODUCE THE SEARCH WARRANT UNTIL

DAYS       LATER.


      APPELLANT                 ARGUES           THE        TEX.     CODE     OF    CRIM.   PROC.       CHAPTER

18,        ARTICLE              18.06,           WAS        VIOLATED        IN THIS CASE, SEE SECTION

(B)        OF        THIS           ARTICLE           WHICH        STATES,     ON SEARCHING THE PLACE

ORDERED              TO        BE     SEARCHED,              THE     OFFICER EXECUTING THE WARRANT

SHALL PRESENT A COPY OF THE WARRANT TO THE OWNER OF THE PLACE,

IF     HE        IS        PRESENT.              THE        APPELLANT WAS AT HOME,              BUT,    DID NOT

RECEIVE          A    COPY          SEARCH       WARRANT.

      MOREOVER,                 OFFICER           C. SMITH DOES NOT MEET THE REQUIREMENTS

TO     OBTAIN              A        SEARCH        WARRANT           IN THIS CASE.        OFFICER C. SMITH

VIOLATED              TEX.           CODE        OF        CRIM.    PROC.    CH.   18,   ART.    18.01,    SEC

TION (B),             WHICH STATES:

                                                            (PAGE SIX)
      "NO        SEARCH           WARRANT           MAY NOT ISSUE          FOR   ANY PURPOSE      IN THIS

STATE           UNLESS        SUFFICIENT FACTS                   ARE FIRST PRESENTED TO SATISFY

THE    ISSUING MAGISTRATE THAT PROBABLE CAUSE                                    DOES   IN FACT EXISTS

FOT        ITS        ISSUING.           A        SWORN AFFIDAVIT SETTING FORTH SUBSTANT

IAL FACTS ESTABLISHING PROBABLE                                  CAUSE SHALL      BE FILED IN EVERY

INSTANCE              IN     WHICH           A     SEARCH        WARRANT     IS REQUESTED.        EXCEPT

AS     PROVIDED              BY        ARTICLE 18.011,             THE    AFFIDAVIT     IS PUBLIC    IN

FORMATION              IF     EXECUTED,              AND     THE       MAGISTRATE'S       CLERK SHALL

MAKE        A     COPY        OF THE AFFIDAVIT AVAILABLE FOR PUBLIC                          INSPECT

ION IN THE CLERK'S OFFICE DURING                                  NORMAL    BUSINESS     HOURS.

      IN        THE        PRESENT           CASE,       OFFICER C.        SMITH'S SWORN AFFIDAVIT

IS     NOT        IN        PLACE:      HIS SWORN AFFIDAVIT IS NOT FILED UNTILTWO-

DAYS (2) AFTER THE SEARCH WARRANT WAS ISSUED. THE                                                  SEARCH

WARRANT           WAS        ALLEGEDLY              ISSUED        TO     OFFICER C.     SMITH ON SEPT

EMBER           25,2013           AT     4;25pm.           HIS     SWORN AFFIDAVIT IS NOT FILED

UNTIL SEPTEMBER 27,2013 AT 9:43;                                  HIS SWORN AFFIDAVIT IS FILED

TWO-DAYS          (2)       LATER.

      OFFICER              CLAYTON           SMITH,        AND     FIVE OTHER OFFICERS,           CAME TO

APPELLANT'S                 HOUSE        ON        SEPTEMBER           26,2013 AT 7:20am,      ALLEGING

THEY        HAD        A     SEARCH              WARRANT.        OFFICER C.      SMITH DOES NOT HAVE

A    FILED SWORN AFFIDAVIT                         IN PLACE,       WHICH    IS USED TO OBTAIN A

SEARCH           WARRANT.              APPELLANT WAS ARRESTED ON SEPTEMBER 26,2013.

OFFICER           C.       SMITH'S SWORN AFFIDAVIT TO OBTAIN A SEARCH WARRANT

IS     NOT        FILED           UNTIL           SEPTEMBER        27,2013       AT 9:43..   ACCORDING

TO     ARTICLE              18.01,           SECTION (B),          OFFICER C. SMITH'S SWORN AF

FIDAVIT           SHOULD           HAVE           BEEN     FILED        BEFORE    THE SEARCH WARRANT

WAS        ISSUED,           IT IS NOT,             IT IS FILED TWO-DAYS AFTER THE SEARCH



                                                     (PAGE SEVEN)
WARRANT           WAS        ISSUED.        THIS        VIOLATED ARTICLE 18.01 OF CHAPTER

18,     CODE           OF     CRIM.        PROC,            BECAUSE OFFICER C. SMITH'S SWORN

AFFIDAVIT              WAS     NOT     FILED        WITH        THE       DISTRICT CLERK'S OFFICE

BEFORE THE SEARCH WARRANT WAS                               ISSUED IN THIS CASE.

      THE     PROCEDURE              OUTLINED           IN     ARTICLE        18.01,   SECTION (B),

HAPPENS           FIST        BEFORE        A     SEARCH        WARRANT IS ISSUED. THE 12TH.

COURT        OF        APPEALS        STATED           IN     IT'S OPINION AT PAGE THREE: WE

NOTE        THAT        THE SEARCH WARRANT IS NOT IN THE APPELLATE RECORD.

THEREFORE, THE COURT OF APPEALS DID NOT REVIEW THE APPELLANT'S

SEARCH        WARRANT              WHICH        WOULD        HAVE     SHOWN     THAT APPELLANT DID

NOT     GET        A        COPY     OF THE SEARCH WARRANT ON SEPTEMBER 26,2013.

THE APPEALS COURT ALSO NOTED , AT PAGE THREE,OF IT'S OPINION

THAT        APPELLANT'S              MOTION        TO        SUPPRESS       WAS NEVER RULED UPON.

HOWEVER,           THIS        IS     NOT        TRUE.        APPELLANT FILED TWO-MOTIONS TO

SUPPRESS           THE.        THE     FIRST           MOTION       WAS     INCORRECT. THE SECOND

MOTION        WAS           HEARD     ON        AUGUST 04,2014; AMENDED MOTION TO SUP

PRESS.        IT        WAS        FILED        JULY        07,2014,       WITH THE COURT NOT THE

CLERK.        IT        WAS        DENIED BY THE HONORABLE JUDGE MARK A.                      CALHOON

AUGUST       04,2014.

      IMPORTANT              DOCUMENTS           AND        TRIAL     RECORDS     WERE LEFT OUT OF

THIS        APPEAL           FOR     SOME REASON. THE AMENDED MOTION TO SUPPRESS

ARGUED        THAT APPELLANT WAS DENIED A COPY OF THE SEARCH WARRANT

AND THE POLICE OFFICERS VIOLATED APPELLANT'S STATE AND FEDERAL

CONSTITUTIONAL                    RIGHTS,        ARTICLE        ONE,       SECTION     NINE   OF THE

TEXAS        CONSTITUTION              AND        UNDER        ARTICLE        li.23    CODE OF CRIM.
PROC.         DEFENSE ALSO ARGUED AT TRIAL THAT APPELLANT WAS DENIED

A     COPY        OF        THE     SEARCH        WARRANT AND A JURY INSTRUCTION 3§.23

IS REQUIRED (R.R. VOL. 1, p. 185).
      THE     APPEALS        COURT     DID    NOT    HAVE       THE      SEARCH          WARRANT,       OFFI


CER     C,     SMITH'S        SWORN        AFFIDAVIT,       AMENDED MOTION TO SUPPRESS,

THE     REPORTER           RECORDS    WAS    NOT    EVER    MADE         TO    THE       AMENDED    MOTION


TO SUPPRESS HEARING;                THAT WAS HELD ON AUGUST                     04,2014.

      THERE    IS    TO    MANY    COURT    RECORDS       AND       DOCUMENTS            MISSING


IN     THIS     APPEAL        FOR     THE     APPEALS           COURT         TO MAKE       A    DECISION


THAT        APPELLANT        WAS     NOT     ENTITLED       TO      TO    AN    ARTICLE          38.23    IN

STRUCTION.          DEFENSE        COUNSEL     RAISED           A   FACTUAL          DISPUTE       IN    THIS


AMENDED        MOTION        TO     SUPPRESS        AND    DURING         TRIAL;"MY CLIENT WAS

NOT     SERVED        A    SEARCH      WARRANT        UNDER           CHAPTER 18            (R.R.,       VOL.

1, p. 185).



      THIS     COURT       SHOULD      GRANT       APPELLANT'S            PETITION          FOR    DISCRE


TIONARY        REVIEW       ON      THIS     GROUND,        AND          ORDER       A    FULL    BRIEF    ON

THE MERIT.          TEX.   RULE APP.        P. ANN.       69.1       (VERN.      2003).




                                            (PAGE NINE)
                                       PRAYER       FOR   RELIEF




      WHEREFORE          PREMISES       CONSIDERED,           APPELLANT       PRAYS    THIS       HONOR

ABLE        COURT    TO CONSIDER             THIS      GROUND    FOR REVIEW         RAISED    HEREIN,

TO        GRANT   THIS    PETITION FOR            DISCRETIONARY          REVIEW,      AND    TO    ORDER

A    FULL    AND COMPLETE         HEARING         ON    THE MERIT,       AND WITH      BRIEF.




                                                       RESPECTFULLY SUBMITTED,



                                                        -fAJ^Mjf^ <Jcu*uuz -fmemis^^
                                                       FREDDIE     JAMES      FOREMAN
                                                       #925367     ELLIS      UNIT
                                                       1697 FM 980
                                                       HUNTSVILLE,          TEXAS    77343


                                                                 PRO   SE




                                  CERTIFICATE OF              SERVICE



      I    HEREBY     CERTIFY THAT ON THIS jj^DAY OF JULY 2015, A TRUE
AND       CORRECT     COPY        OF        THE     FOREGOING          PETITION      WAS    MAILED    TO

THE       12th.     COURT        OF    APPEALS,        CLERK     CATHY S.      LUSK AND ANOTHER

MAILED       TO     THE     HOUSTON           COUNTY       DISTRICT          ATTORNEY'S       OFFICE,

ANOTHER       MAILED        TO        THE     STATE       PROSECUTING ATTORNEY,               AT P.O.
BOX   12405,      CAPITOL STATION,                AUSTIN,       TEXAS 78711.




                                                                y^jZ^t&U^-UM^Z^^                           —
                                                                FREDDIE       JAMES    FOREMAN




                                              (PAGE TEN)
                                   NO. 12-14-00232-CR


                            IN THE COURT OF APPEALS


               TWELFTH COURT OF APPEALS DISTRICT


                                      TYLER, TEXAS


FREDDIE JAMES FOREMAN,                           §      APPEAL FROM THE 349TH
APPELLANT


V.                                               §      JUDICIAL DISTRICT COURT

THE STA TE OF TEXAS,
APPELLEE                                         §      HOUSTON COUNTY, TEXAS

                                   MEMORANDUM OPINION

     . Freddie James Foreman appeals his conviction for possession of a controlled substance. In
his sole issue on appeal, Appellant contends that the trial court erred in denying his requested jury
instruction under Texas Code of Criminal Procedure Article 38.23. We affirm.



                                          Background

       In 2013, Appellant and his nephew lived in a mobile home in Crockett, Texas. Crockett
Police Department officers believed that Appellant's nephew committed several burglaries and
thefts. They obtained a search warrant and executed it at the mobile home while Appellant and his
nephew were present. When the officers initially entered the residence, they did not believe that
Appellant was a suspect. However, while talking with Appellant in his bedroom prior to searching
the home, the officers noticed several small baggies in plain view on the bedroom floor. These
baggies were the type commonly used for packaging small quantities of narcotics for sale. The
officers also noticed a hasp on Appellant's bedroom door, which they believed to be unusual inside
a residence. Appellant told officers that his nephew was not allowed in his room, and that there
was no need to search it.

       The officers searched Appellant's bedroom and quickly discovered cocaine located in a
sock. The officers told Appellant they discovered cocaine in his bedroom, and Appellant's
immediate reply was to ask how much cocaine they found.            One of the officers then asked
Appellant about the baggies they discovered, and Appellant replied that the baggies held cookies
he consumed. Appellant then stated that his nephew could have gone in his room without his
permission, implying that the cocaine belonged to his nephew.
       Appellant was arrested and indicted for possession of a controlled substance, namely
cocaine, in an amount of one gram or more, but less than four grams. The punishment level was
raised to that of a second degree felony because of a prior felony conviction. Appellant pleaded
"not guilty" to the charged offense and "true" to the enhancement paragraph. The jury sentenced
Appellant to twenty years of imprisonment and assessed a $10,000.00 fine. This appeal followed.


                                         Jury Instruction

       In his sole issue on appeal, Appellant contends that the trial court erred in denying his
requested jury instruction under Texas Code of Criminal Procedure Article 38.23.
Standard of Review and Applicable Law

       Under Article 38.23, evidence obtained in violation of the Constitution or laws of the
United States or those of Texas may not be admitted in a criminal case. See Tex. Code Crim.
PROC. Ann. art. 38.23(a) (West 2005).        If a fact issue is raised about whether evidence was
improperly obtained in this manner, the jury shall be instructed to disregard evidence that it finds
was obtained in violation of the United States or Texas Constitution or laws. See id.

       A defendant's right to the submission of an Article 38.23 jury instruction is limited to
disputed issues of fact that are material to his claim of a constitutional or statutory violation that
would render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App.
2007) (citing Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)). To be entitled to an
Article 38.23 jury instruction, the defendant must establish that (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 challenged conduct. Hamal v. State, 390 S.W.3d
302, 306 (Tex. Crim. App. 2012). If there is no disputed factual issue, the legality of the conduct
is determined by the trial judge alone as a question of law. Madden, 242 S.W.3d at 510. "The
disputed fact must be an essential one in deciding the lawfulness of the challenged conduct." Id. at
511.

Discussion

       Appellant contends in his brief that the officers had no probable cause to search his
bedroom, and that the officers exceeded the scope of the search warrant. Appellant did not provide
any analysis in his brief showing that the evidence raised an issue of material fact on these issues.
However, he cited various pages of the record he believed supports his argument. At trial, he
asked for an Article 38.23 instruction based on "the pictures being changed, the material being
placed. That the scope was exceeded and the fact [that Appellant was not] served a search warrant
under Rule 18."

         The issue of whether the officers had probable cause to search his room was not a contested
issue of material fact at trial.         Appellant filed a pretrial motion to suppress evidence stating
generally that the officers violated his state and federal constitutional rights pertaining to search
and seizure, along with his rights under Texas Code of Criminal Procedure Article 38.23.
However, he never obtained a ruling on the motion, and the issue was not litigated at a pretrial
hearing or at the trial itself. Consequently, the issue of probable cause was not affirmatively
contested, and Appellant was not entitled to an Article 38.23 instruction on that basis.           See
Madden, 242 S.W.3d at 510. Moreover, since the facts do not raise the issue of probable cause to
search his room, the issue was to be decided by the trial court as a question of law. See id.
         With regard to Appellant's remaining argument concerning the scope of the search warrant,
we note that the search warrant is not in the appellate record, nor was it admitted into evidence at
trial. The detective who obtained the warrant testified that the warrant directed him to search the

residence at the specified address. He was not asked whether it covered the entire residence or
only a portion of it. None of the testimony or other evidence raised the issue concerning the search
warrant's scope. Therefore, an Article 38.23 instruction was not required on this ground. See id.
         Appellant's sole issue is overruled.


                                                    Disposition

         Having overruled Appellant's sole issue, we affirm the judgment of the trial court.


                                                                   James T. Wqrthen
                                                                       Chief Justice


Opinion delivered June 17, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                              (DO NOT PUBLISH)
                                   COURT OF APPEALS


      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS


                                           JUDGMENT


                                             JUNE 17, 2015



                                         NO. 12-14-00232-CR




                                  FREDDIE JAMES FOREMAN,
                                                 Appellant
                                                     V.
                                      THE STATE OF TEXAS,
                                                 Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 13CR-184)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, for which execution may issue, and that this
decision be certified to the court below for observance.

                    James T. Worthen, Chief Justice.
                    Panel consisted ofWorthen, C.J., Hoyle, J., and Nee ley, J.
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