Opinion
No. 10-05-00077-CR
Opinion delivered and filed February 22, 2006. DO NOT PUBLISH.
Appeal from the 371st District Court, Tarrant County, Texas, Trial Court No. 0951051R. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury convicted Freddy Wayne Marshall of aggravated robbery. The court assessed his punishment at forty years' imprisonment. Marshall contends in his sole point that the court erred by failing to submit an instruction under article 38.23 of the Code of Criminal Procedure concerning the lawfulness of his initial detention. Article 38.23 provides in pertinent part:
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005). However, "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). Here, Officer Paul Davis testified that he assisted another officer who had stopped a car suspected to have just been involved in an armed robbery. The sole occupant of the car at that time was Angela Higgins, who told the officers that she and a man named Joe (who had fled the scene) had just let Marshall out at the corner near his house. Higgins got in Davis's patrol car and directed him to the location of Marshall's house. Davis dialed Marshall's telephone number. When Marshall answered, Davis explained that he was there with Higgins and asked Marshall if he could come out and talk about why Joe may have fled. Marshall came out a few moments later. When he did, he was detained by other officers. Several witnesses to the robbery drove by and saw Marshall as he sat in the other officers' patrol car. These witnesses identified Marshall as the robber. Higgins testified consistently with Officer Davis that, after she was stopped by the first officer, she took Davis to Marshall's house, where Marshall was detained. Marshall did not testify, nor did the other officers who assisted Davis at Marshall's house. Marshall contends that he was entitled to an article 38.23 instruction because Officer Davis "strongly implied that [Marshall] was detained but a short time, which was not true and raised a fact issue regarding the legality of his detention." We disagree. Officer Davis did not testify about the length of Marshall's detention. Rather, he testified he left the scene with Higgins about ten minutes after Marshall was detained. Despite Marshall's assertion, there is no factual dispute in the record about the basis for Marshall's detention or the length of his detention. Accordingly, the court did not abuse its discretion by denying his request for an article 38.23 instruction. See Garza, 126 S.W.3d at 85. Thus, we overrule his sole point and affirm the judgment.
Marshall incorrectly identifies Officer Davis as Officer Shipp in his brief. However, the testimony Marshall refers to in his brief is Officer Davis's, not Officer Shipp's.