X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Authorities charged Billy Holmes with the offense of possession of cocaine. Immediately before opening statements in his jury trial, Holmes asked to file a handwritten motion to suppress evidence alleging that he was seized and searched without a warrant, probable cause or exigent circumstances. He asked that the evidence seized from him be suppressed pursuant to the United States and Texas Constitutions and Texas Code of Criminal Procedure Art. 38.23. The trial judge told Holmes to give his motion to his attorney, and his attorney handed it to the trial judge, who said that he would “carry [it] with trial.” Houston Patrol Officer Frank testified that he and Officer Carter were patrolling in the Studemont area at about 3:30 a.m. when they got a dispatch “to a weapons disturbance regarding a male and a female.” As they arrived at the location, they saw Holmes and a female arguing in front of the residence. The woman, Alice Manning, was “[v]ery excited, talking loudly, fast, seems like she was scared.” Holmes was holding a garden hoe. As soon as Holmes saw the officers, he dropped the hoe. Frank ordered Holmes to approach him, but Holmes turned and began to walk away, saying that he needed to go inside the house for something. Frank told him to stop. Holmes did not comply; he started running. He ran through the backyard, and Frank chased him through the next lot, which was overgrown and littered with debris. Carter eventually caught up with Holmes and tackled him. Carter handcuffed Holmes, patted him down and led him back to the patrol car. Carter searched Holmes more thoroughly and found a 5- to 6-inch metal crack pipe in Holmes’ left rear pocket. Carter swabbed the pipe, and the swab tested positive for cocaine. Officer Orekoya testified that he, too, was dispatched to the scene, and he talked to Manning, the woman with whom Holmes had been arguing. She was crying and talking really fast. She said that Holmes was getting high on drugs, which scared her, so she called her mother. Then Holmes got mad and threatened to kill her. He tried to strangle her with a telephone cord and ran after her with a hoe. She did not testify at trial. A chemist testified that she conducted a lab test on the pipe residue and that it was cocaine. When the state offered the crack pipe into evidence, Holmes’ attorney stated, “No objection.” In the defense case, Holmes, 57, testified that he didn’t think the officers saw him leave the scene and he didn’t know they were behind him until he heard an officer talk into his crackling radio. He said that he did not have a garden hoe or a crack pipe. “I don’t smoke crack,” he testified. At the jury-charge conference, Holmes’ attorney asked for a special charge under Art. 38.23, urging the jury to disregard evidence obtained in violation of the U.S. Constitution, the Texas Constitution or Art. 38.23. The trial court denied Holmes’ request for a charge on the law concerning the admissibility of evidence. The jury returned a verdict of guilty, and the trial court sentenced Holmes to six months of imprisonment. On appeal, Holmes argued that the trial court erred in failing to instruct the jury in accordance with Art. 38.23, which authorized the jury to disregard any evidence it concludes was obtained illegally. The 14th Court of Appeals agreed. Specifically, the 14th Court held that Holmes had not waived his right to an Art. 38.23 instruction when he stated that he had no objection to the introduction of the crack pipe. Because Holmes had raised a disputed fact issue regarding the legality of the seizure of that pipe, the court stated that Holmes was still entitled to a jury instruction under Art. 38.23. HOLDING:Affirmed. Article 38.23 is the Texas exclusionary rule, which a defendant may invoke when he asserts that certain evidence was obtained illegally. There is a definite distinction, the CCA stated, between the admissibility of evidence under Art. 38.23, which is decided solely by the trial judge, and the jury’s role under Art. 38.23 in considering admitted evidence. Holmes, the CCA stated, affirmatively waived his right to have the trial judge determine the admissibility of the crack pipe by stating “no objection” when the state offered that evidence. He therefore waived any claim on appeal that the trial court erred in admitting that evidence. But the CCA stated that even when a defendant affirmatively states that he has no objection to the admission of certain evidence, a defendant may still be entitled to an Article 38.23 jury instruction. The admissibility of evidence and the jury’s consideration of that evidence are not necessarily linked together. In this case, Holmes requested a jury instruction under Art. 38.23. Because the 14th Court of Appeals correctly concluded that: 1. Holmes had not waived his right to a jury instruction when he stated that he had no objection to the admission of the crack pipe; and 2. he had raised disputed fact issues for the jury’s consideration, the CCA affirmed the judgment of the 14th Court. OPINION:Cochran, J., delivered the opinion in which Keller, P.J., and Price, Womack, Johnson, Keasler, Hervey and Holcomb, JJ., joined. Meyers, J., did not participate.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.