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Click here for the full text of this decision FACTS:Based on two separate indictments, a jury convicted appellant of possession of four grams or more but less than 200 grams of heroin and possession of one gram or more but less than four grams of cocaine during the same incident. The jury found two enhancement allegations true and sentenced appellant to concurrent terms of 25 years’ confinement in the institutional division of the Texas Department of Criminal Justice. The court of appeals affirmed the judgments and sentences of the trial court. HOLDING:Remanded. In Allison v. State, 618 S.W.2d 763 (Tex. Crim. App. 1981), the court held, “The greater offense, when properly alleged, necessarily includes all the lesser-included offenses whether each of their constituent elements are alleged in the wording of the indictment on the greater offense or not.” Citing Allison, the court has held that “[i]f the constituent elements of a lesser offense are included within the charging instrument, in order to obtain a conviction for the lesser offense, it is not necessary for the state to also plead the constituent elements of the lesser offense.” Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App. 1985). The court overrules appellant’s ground for review that sought to overturn Allison. Because there was no error in submitting the instruction to the jury, the court also overrules the appellant’s allegation of egregious harm in the trial court’s submission of a jury charge on the lesser-included offense of simple possession. Based upon Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)(opinion on rehearing), that unobjected-to jury-charge error warrants reversal only when the error results in egregious harm, this court has held that the question of whether the defendant has preserved jury-charge error is relevant only if there is a determination that error actually occurred. Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986). Thomas also acknowledged that Texas Code of Criminal Procedure Article 38.23 provides in mandatory terms “that a jury is to be instructed to resolve factual disputes over whether evidence was illegally obtained and, therefore, inadmissible.” The court reiterated that “an Article 38.23 instruction must be included in the jury charge only if there is a factual dispute about how the evidence was obtained.” Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004). Thus, the court states, if a defendant raises a factual dispute about whether evidence was illegally obtained, an Article 38.23 instruction must be included in the jury charge. The jury charge in this case did not contain such an instruction. Appellant did not suggest to the trial court that the evidence raised a factual dispute as to whether the evidence had been legally obtained. He neither requested an Article 38.23 instruction nor objected to its absence. On appeal, appellant argued for the first time that the trial court’s failure to include such an instruction, sua sponte, was error and resulted in egregious harm. The court of appeals did not determine whether there was such a factual dispute. It simply held that appellant failed to preserve error on the issue of the Article 38.23 instruction and overruled his claim. Without a factual dispute, there is no error and therefore no requirement that the jury charge include an instruction pursuant to Article 38.23. Because, in addressing appellant’s second issue, the court of appeals failed to determine whether appellant had raised a factual dispute about whether the evidence in question was illegally obtained, the court sustains this ground for review in both cases, and remands both of these causes to the court of appeals so that it may resolve that question. OPINION:Johnson, J., delivered the opinion of the Court, joined by Meyers, Price, Womack, Keasler, Hervey, Holcomb, and Cochran, JJ. Keller, P.J., concurred in result.

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