Johnny Todd Preston v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00068-CR
JOHNNY TODD PRESTON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Johnny Todd Preston of possession of four or
more but less than 200 grams of methamphetamine with intent to deliver and
assessed his punishment at 99 years’ confinement as an habitual offender. The
trial court sentenced him accordingly. Appellant brings three points on appeal
challenging the admissibility of his out-of-court statement and arguing that the
1
See Tex. R. App. P. 47.4.
trial court committed reversible jury charge error. Because the trial court
committed no reversible error, we affirm the trial court’s judgment.
In his first point, Appellant challenges the admissibility of his out-of-court
statement to George Courtney, a Weatherford police officer assigned to the Drug
Enforcement Task Force in Fort Worth, Texas, because, Appellant contends, the
State failed to provide him a copy of the statement twenty days before trial as
required by article 38.22 of the Texas Code of Criminal Procedure. 2 To preserve
his complaint for appellate review, Appellant was required to timely object to the
trial court and to object each time the evidence was offered, unless he requested
and was granted a running objection to that evidence. 3 Although Appellant
objected when the State first sought to present the evidence of his out-of-court
statement during the punishment phase of the trial, he requested no running
objection and made no further objection as the witness testified at length about
the statement and its content. Because Appellant did not preserve this issue for
appellate review, we overrule his first point.
In his second and third points, Appellant argues that the trial court
reversibly erred by overruling his objection to the jury charge and denying his
requested article 38.23 jury instruction. “[A]ll alleged jury-charge error must be
2
See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(5) (West Supp. 2013).
3
See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998);
Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).
2
considered on appellate review regardless of preservation in the trial court.” 4 In
our review of a jury charge, we first determine whether error occurred; if error did
not occur, our analysis ends. 5
The Texas Court of Criminal Appeals reminds us that
[a] defendant’s right to the submission of jury instructions
under Article 38.23(a) is limited to disputed issues of fact that are
material to his claim of a constitutional or statutory violation that
would render evidence inadmissible. We have previously explained:
The terms of the statute are mandatory, and
when an issue of fact is raised, a defendant has a
statutory right to have the jury charged accordingly.
The only question is whether under the facts of a
particular case an issue has been raised by the
evidence so as to require a jury instruction. Where no
issue is raised by the evidence, the trial court acts
properly in refusing a request to charge the jury.
There are three requirements that a defendant must meet
before he is entitled to the submission of a jury instruction under
Article 38.23(a):
(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) That contested factual issue must be material to the
lawfulness of the challenged conduct in obtaining the evidence.
There must be a genuine dispute about a material fact. If
there is no disputed factual issue, the legality of the conduct is
determined by the trial judge alone, as a question of law. And if
other facts, not in dispute, are sufficient to support the lawfulness of
4
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
5
Id.
3
the challenged conduct, then the disputed fact issue is not submitted
to the jury because it is not material to the ultimate admissibility of
the evidence. The disputed fact must be an essential one in
deciding the lawfulness of the challenged conduct. 6
Appellant requested the article 38.23 instruction in the jury charge on guilt,
but he cites only to evidence in the punishment phase of the trial as support for
his requested jury instruction. Our review of the record indicates that Appellant
sought that the instruction be included in the jury charge on guilt based on the
absence of twenty days’ notice of his statement, but he points to nothing in the
record directing the jury to the issue during the guilt phase. Instead, the record
shows that he objected to the State’s proffer of his statement during the
punishment phase, not the guilt phase, but he did not request an article 38.23
instruction at punishment. Even if a factual dispute regarding the admissibility of
Appellant’s statement existed, which we do not hold, we cannot conclude that the
trial court erred by failing to give an article 38.23 instruction in the jury charge on
guilt when that issue was not yet before the jury. Appellant does not raise an
issue about any failure of the trial court to sua sponte provide an article 38.23
instruction at punishment. 7 We overrule Appellant’s second and third points.
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
6
Madden v. State, 242 S.W.3d 504, 509–11 (Tex. Crim. App. 2007)
(citations omitted).
7
See Oursbourn v. State, 259 S.W.3d 159, 181–82 (Tex. Crim. App. 2008).
4
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 12, 2014
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