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Click here for the full text of this decision FACTS:At about 3:30 a.m. on May 16, 2005, two Houston police officers responded to a call of an assault in progress between a man and woman involving a weapon. Upon arriving at the scene, the officers saw Billy Holmes holding a garden hoe and arguing with a woman in her front yard. When Holmes saw the patrol car, he dropped the hoe and began walking away. An officer ordered him to stop, but Holmes continued to walk away. The officers followed Holmes, who began running. After a one-quarter mile foot chase, the officers caught and detained Holmes, whom they believed to be under the influence of cocaine, based on his demeanor and appearance. After handcuffing Holmes, one of the officers searched him and found a crack pipe in his back pocket, which tested positive for cocaine. At trial, Holmes denied fleeing from the police, claiming that when he saw the patrol car park nearby, he decided to leave, because he had been drinking and did not want to talk to police with alcohol on his breath. Holmes stated that he walked away from the house and headed toward a bus stop but did not realize the officers were following him until he heard noise from one of their radios. Holmes denied that they ever asked him to stop and also denied that he had used cocaine or had a crack pipe in his pocket. Holmes filed a pretrial motion to suppress the cocaine seized from the crack pipe, and the trial court did not rule but carried the motion with the case. At trial, when the state moved to introduce the crack pipe and therefore the cocaine into evidence, Holmes affirmatively stated he had no objection to its admission. During the guilt/innocence phase charge conference, Holmes requested an instruction under Texas Code of Criminal Procedure Art. 38.23, arguing that because he contested the legality of the arrest and search leading to the cocaine seizure, the jury should be instructed to disregard the evidence if it found that police illegally obtained the evidence. The trial court denied this motion. Holmes appealed. HOLDING:Reversed and remanded. If the defendant, the court stated, raises a fact issue regarding the legality of the obtaining of the evidence at issue, even if the evidence is weak or unbelievable, the trial court must instruct the jury under Art. 38.23. The state, the court noted, argued that Holmes waived his right to this instruction by stating that he had “[n]o objection” to admitting the cocaine, thus forfeiting his right to contest the legality of the cocaine seizure. But the court disputed this argument, stating that the “central issue on an article 38.23 instruction is not the admissibility of the evidence, but rather, the evidence’s consideration by the jury.” Thus, the court concluded that Holmes did not waive his right to an Art. 38.23 instruction, and because he raised a fact issue regarding the legality of the seizure of the cocaine, he was entitled to such an instruction. Thus, the court held that the trial court erred in refusing to include an Art. 38.23 instruction in the jury charge. Next, the court conducted harm analysis. Under the 1984 CCA opinion Almanza v. State, “when the charge contains error and that error has, as here, been properly preserved, reversal is required if the appellant has suffered”some harm.’” The court concluded that the error was harmful. Had the jury believed the police illegally seized the crack pipe and thus disregarded the evidence showing that Holmes possessed cocaine, it could not have convicted Holmes for the offense of possession of a controlled substance. OPINION:Yates, J.; Yates, Anderson and Hudson, J.J.

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