Horacio Aguirre v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00286-CR
HORACIO AGUIRRE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Walker County, Texas
Trial Court No. 18-0499
OPINION
Horacio Aguirre was convicted of resisting arrest and sentenced to 365 days in jail.
See TEX. PENAL CODE § 38.03. His sentence was suspended, and Aguirre was placed on
community supervision for 18 months. Because the trial court did not err in refusing
Aguirre’s requested article 38.23 instruction to the jury, the trial court’s judgment is
affirmed.
BACKGROUND
Aguirre and another person were standing by a pickup, drinking. There were
many beer cans on the ground next to them. Sgt. Jeremy Carroll and Cpl. Cody Perkins
with the Huntsville Police Department were responding to a medical emergency in the
area when they missed the location of the emergency and had to turn around. Upon
turning around, Perkins saw the other person standing with Aguirre suspiciously lower
his arm and drop something. Carroll told Perkins to go on to the call and he would stay
to investigate what Perkins had seen. During the investigation, Carroll determined both
persons to be intoxicated in public and attempted to arrest them. Carroll first handcuffed
the other suspect with a plastic tie. Then, as Carroll attempted to place Aguirre in
handcuffs, Aguirre yanked his arm forward. To gain control of the situation, Carroll took
Aguirre down to the ground, where Aguirre tried to keep his arms under his body to
avoid being placed in handcuffs. While Carroll was struggling with Aguirre, the other
suspect ran away still handcuffed with a plastic tie. Aguirre was eventually handcuffed
and charged with resisting arrest.
During trial, Aguirre suggested through cross-examination of Carroll that Aguirre
was standing on private property during the encounter; and thus, the arrest was illegal.
Carroll testified that he believed Aguirre to be standing in a public area, and no evidence
was presented to the contrary.
RESISTING ARREST AND ARTICLE 38.23
In his sole issue, Aguirre complains that the trial court erred in refusing to include
a requested Code of Criminal Procedure article 38.23 instruction, the statutory
exclusionary rule, in the trial court’s charge to the jury.
Standard of Review
If error exists in the jury charge, we analyze the harm, if any, resulting from the
error. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Almanza v. State, 686
Aguirre v. State Page 2
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). If the error was preserved by
objection, as it was in this case, any error that is not harmless will constitute reversible
error. Id. The actual degree of harm must be assayed in light of the entire jury charge,
the state of the evidence, including the contested issues and weight of probative evidence,
the argument of counsel, and any other relevant information revealed by the record of
the trial as a whole. Almanza, 686 S.W.2d at 171.
The Law
A person commits the offense of resisting arrest if he intentionally prevents or
obstructs a person he knows is a peace officer or a person acting in a peace officer’s
presence and at his direction from effecting an arrest, search, or transportation of the actor
or another by using force against the peace officer or another. TEX. PENAL CODE § 38.03(a).
It is no defense to prosecution that the arrest or search was unlawful. Id. (b).
According to Texas’ statutory exclusionary rule, no evidence “obtained by an
officer in violation of … the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America,” is admissible in trial against the
accused. TEX. CODE CRIM. PROC. art. 38.23(a). Further, in any case where the evidence
raises such an issue, the jury shall be instructed that if it believes, or has a reasonable
doubt, that the evidence was obtained in violation of article 38.23(a), the jury shall
disregard that evidence. See id.
To be entitled to an Article 38.23(a) instruction, a 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
Aguirre v. State Page 3
inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). Although
evidence to justify an Article 38.23(a) instruction can derive "from any source," it must, in
any event, raise a "factual dispute about how the evidence was obtained." Id.; Garza v.
State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). 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, 377 S.W.3d at 719.
Argument
Aguirre argued at trial and argues on appeal that he was entitled to an article 38.23
jury instruction because the arrest which led him to resist was illegal. Aguirre does not
point to an evidentiary and material factual dispute which would support his requested
instruction. Rather, he claims that simply because he believed the arrest Carroll was
trying to make was illegal, the jury should be instructed to disregard Aguirre’s act of
resisting. He relies on the Court of Criminal Appeals’ opinion in Ford v. State, 538 S.W.2d
633 (Tex. Crim. App. 1976), for the proposition that a defendant is still entitled to use the
exclusionary rule even though the legality of the arrest is not a defense to prosecution for
resisting arrest. Thus, his argument continues, the jury should have been given the
opportunity, through an article 38.23 instruction, to disregard Aguirre’s act of resisting if
the jury believed the arrest which he resisted was illegal. We disagree with Aguirre.
Application
Aguirre misunderstands the holding in Ford. The issue discussed in Ford was the
constitutionality of the elimination of the common law right to resist an unlawful arrest
pursuant to Texas Penal Code Section 38.03. To clarify why the Court held the statute
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constitutional, the Court explained that by submitting to an unlawful arrest, the person
was not giving up his remedy to argue that arrest was unlawful and anything obtained
as a result of that unlawful arrest could be suppressed if otherwise appropriate to do so.
The Court was not saying that if the person resisted arrest, he retained the remedy of
suppression of evidence of resisting arrest on the theory that the initial arrest was
unlawful. 1
Under article 38.23, the phrase, "obtained in violation of the law," contemplates
that a crime has been committed; that evidence of that crime exists; and that officers
violated the law in attempting to obtain evidence of the previously committed crime.
State v. Mayorga, 901 S.W.2d 943, 945-46 (Tex. Crim. App. 1995). Thus, the officers must
act illegally in obtaining existing evidence of an offense. Id. at 946.
But, in the context of resisting arrest, as the Dallas Court of Appeals stated over 20
years ago:
Unlike prior criminal acts to which a defendant confesses or evidence
already in existence but found pursuant to a consent to search, evidence
that a defendant resisted arrest does not exist before the illegal arrest
because the crime of resisting arrest has not yet been committed. In fact,
when a defendant submits to the arrest as the public policy and the law of
this state require, there will be no such evidence. In contrast, when a
defendant does resist at the time and place of arrest, the evidence of
resistance comes into existence contemporaneously with the officer's
attempt to arrest him. Because the evidence does not exist prior to the
illegal arrest and may never exist, the police cannot suspect its existence
and arrest a defendant for the purpose of gaining the evidence. The police
correspondingly cannot foresee getting the evidence as a consequence of
their actions; their decision to arrest cannot be motivated by the possible
1
Moreover, Ford does not mandate that all evidence gathered by police after effecting an illegal arrest must
be suppressed or that an instruction under article 38.23 must be given. See Ford v. State, 538 S.W.2d 633,
635 (Tex. Crim. App. 1976); see also State v. Mayorga, 938 S.W.2d 81, 85 (Tex. App.—Dallas 1996, no pet.). A
defendant still must show entitlement to the instruction. See e.g. State v. Mayorga, 938 S.W.2d 81, 85 (Tex.
App.—Dallas 1996, no pet.); see also Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012) (sets out
requirements for entitlement to 38.23 instruction).
Aguirre v. State Page 5
acquisition and use of the evidence. Absent other facts inculpating the
police conduct, the evidence of resisting arrest simply does not come into
existence at a time and place or under circumstances to be within the field
of exploitation.
State v. Mayorga, 876 S.W.2d 176, 178 (Tex. App.—Dallas 1994), remanded, 901 S.W.2d 943,
946 (Tex. Crim. App. 1995) (emphasis added). We agree with the Dallas Court of
Appeals’s interpretation of article 38.23 with respect to the offense of resisting arrest; and
we note that other Texas courts have likewise applied that court’s reasoning to offenses
other than resisting arrest. See e.g. Martinez v. State, 91 S.W.3d 331, 340 (Tex. Crim. App.
2002) (commission of perjury after not being fully advised of right to remain silent, not
subject to suppression); Bryant v. State, 253 S.W.3d 810, 813 (Tex. App.—Amarillo 2008,
pet. dism’d) (exclusionary rule did not require suppression of the evidence of appellant's
destruction of the glass pipe in the presence of the officers, regardless whether the pipe
was located following an unlawful detention); Bell v. State, 233 S.W.3d 583, 588 (Tex.
App.—Waco 2007, pet. ref’d untimely filed) (aggravated assault on public servant during
illegal detention not subject to suppression); Cooper v. State, 956 S.W.2d 95, 98 (Tex.
App.—Tyler 1997, pet. ref’d) (alleged illegality of the arrest was irrelevant to the crime of
aggravated assault on a peace officer).
Thus, absent evidence that Sgt. Carroll engaged in an illegal act to exploit the
allegedly illegal arrest of Aguirre for public intoxication, for example to gain evidence of
another crime or to provoke Aguirre’s resisting, the base allegation that the arrest was
illegal, or that Aguirre thought it was illegal, or that it was in fact illegal, by itself, is not
sufficient to require the trial court to provide the jury with an article 38.23 instruction in
the trial for resisting arrest. Indeed, Aguirre has not pointed to any evidence in the record
Aguirre v. State Page 6
of exploitation, and we have found none, which would require an article 38.23
instruction. Nor has Aguirre directed the Court to any evidence he believes was illegally
obtained other than the evidence that he resisted arrest. But, as we have explained, that
evidence was not illegally obtained. The evidence of resisting arrest was obtained
lawfully during the course of Aguirre’s arrest for public intoxication. 2 Consequently,
Aguirre was not entitled to an article 38.23 instruction based on the argument he made
to the trial court or to us on appeal.
CONCLUSION
Accordingly, for the reasons expressed, the trial court did not err in denying
Aguirre’s requested instruction, and Aguirre’s sole issue is overruled.
The trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed October 28, 2020
Publish
[CR25]
2
To give the instruction for the purpose and in the manner as argued by Aguirre would effectively nullify
the very offense the legislature was creating—the purpose of which was to avoid altercations with the
police in the streets to determine if an arrest was lawful. See Ford v. State, 538 S.W.2d 633, 635 (Tex. Crim.
App. 1976) (“The line between an illegal and legal arrest is too fine to be determined in a street
confrontation; it is a question to be decided by the courts.”). As long as the arrestee submits to the arrest,
the arrestee retains the rights described in Ford, including the right to have any evidence discovered as a
result of the illegal arrest suppressed.
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