In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00358-CR
TOMMY JOE WOODS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2011-525-C1, Honorable Ralph T. Strother, Presiding
July 16, 2014
MEMORANDUM OPINION
Before CAMPBELL, and HANCOCK and PIRTLE, JJ.
Appellant, Tommy Joe Woods, appeals his conviction for possession of
marijuana over four ounces but less than five pounds.1 Through a single issue,
appellant contends that the trial court committed reversible error by failing to submit a
proper jury charge pursuant to article 38.23 of the Texas Code of Criminal Procedure.2
We will affirm.
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3) (West 2010).
2
See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
Factual and Procedural Background3
On July 8, 2010, Officer Vern Darlington, of the Waco Police Department Street
Crimes Unit initiated an investigation of reports that appellant was growing marijuana at
his home in Waco, Texas. Darlington, accompanied by at least three other officers of
the street crimes unit, went to appellant’s residence and conducted a “knock and talk”
procedure.4 After knocking on appellant’s front door, Darlington waited for
approximately two to three minutes for someone to answer the door. During this period,
Darlington testified that he could hear people in the house moving about. Appellant’s
wife initially answered the door. Eventually, appellant came to the door and stepped
outside and down the sidewalk toward the street. This action, according to Darlington,
was an attempt to draw the officers away from the house. After a short conversation
with appellant, Darlington requested permission to search the house. Appellant refused
to allow a search of his home.
Darlington then decided to walk to the alley and see if he could see any
marijuana growing in the backyard portion of the home. Darlington testified that, as he
walked toward the back of the house, he would occasionally detect an odor of
marijuana. Adjacent to the alley was a privacy fence made of corrugated tin that stood
approximately six feet high. Upon arriving at the rear fence, Darlington asked Officer
Flores, who had been stationed at the rear of the home for security purposes, if he
3
Pursuant to the Texas Supreme Court’s docket equalization efforts, this case was transferred to
th
this Court from the 10 Court of Appeals. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). That being
so, we must decide this case “in accordance with the precedent of the transferor court under the
principles of stare decisis” if our decision otherwise would have been inconsistent with the precedent of
the transferor court. TEX. R. APP. P. 41.3; see Phillips v. Phillips, 296 S.W.3d 656, 672 (Tex. App.—El
Paso 2009, pet. denied).
4
According to the record, a “knock and talk” procedure is used to quickly ascertain whether the
information received anonymously has any validity.
2
could see anything over the fence. Flores advised that he could not see over the
fence.
Darlington, who stood approximately 6 feet, 4 inches in height, then began
surveying the back of the property over the top of the privacy fence. Initially, Darlington
testified that he could not see any marijuana growing in the back part of the residence.
However, Darlington noticed a window to a shed opened approximately three inches.
When he shined his flash light on the opening, Darlington observed a white five gallon
bucket that contained stalks of what Darlington thought, based upon his experience and
training, to be marijuana. Based upon this observation, Darlington had appellant
secured while a search warrant was obtained.
A search warrant was issued at approximately 11:30 p.m. and, based upon the
search of the shed behind the home and the area adjacent to the shed, an amount of
marijuana was seized. The weight of the marijuana seized was 3.27 pounds.
During the trial, appellant’s neighbor, Leonard Thames, who lived across the
alley and two or three doors down from appellant, testified about his observations on the
night of the search. According to Thames, he observed a couple officers attempting to
peer over the privacy fence. He testified that the officers appeared to step up onto
something to get a better vantage point. Thames further testified that he saw one of the
officers peel the tin fence down in an attempt to see what was inside the back portion of
appellant’s property. Finally, Thames testified that he saw one of the officers push a
gate open and enter the property. According to Thames, he made all of his
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observations between 7:00 and 9:00 p.m. on the night in question. This was before the
search warrant was issued.
After the testimony had been completed, the trial court prepared a draft jury
charge. During a discussion of the proposed charge, appellant indicated to the court
that he desired a paragraph in the charge pursuant to article 38.23 of the Texas Code of
Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.23.5 The trial court then
inquired as to whether appellant’s counsel had prepared a proposed charge. Counsel
advised that he did not have a proposed charge because he had assumed the trial court
would have the applicable article 38.23 paragraph for insertion into the court’s charge.
Thereafter, the trial court drafted the charge at issue. The trial court proposed to charge
the jury as follows:
Texas law provides that no evidence obtained by an officer or other
person in violation of any provision of the Constitution or laws of the State
of Texas, or of the Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the trial of any
criminal case. You are instructed in that under this law, any search of the
property or premises of the Defendant and any evidence seized before a
search warrant was obtained would not be lawful. Therefore, if you
believe that the search of the Defendant’s property and the marijuana
seized from the Defendant’s property was obtained in violation of the law
or if you have a reasonable doubt that the search of the Defendant’s
property was lawful, you shall disregard any evidence so obtained.
5
Article 38.23 of the Texas Code of Criminal Procedure provides, in pertinent part:
(a) No evidence obtained by an officer or other person in violation of any provision of the
Constitution or laws of the State of Texas, or of the Constitution or laws of the United
States of America, shall be admitted in evidence against the accused on the trial of any
criminal case.
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.
4
After presenting the proposed charge to appellant’s counsel, the trial court further
inquired as to whether there were any objections to the proposed charge. Trial counsel
for appellant stated he had none and, when specifically asked if trial counsel wished the
definition of probable cause in the instruction, stated that as a matter of trial strategy
appellant had decided not to request the definition of probable cause be added to the
court’s instruction. Therefore, the above-identified portion of the charge as drafted by
the trial court was submitted as part of the court’s charge to the jury.
The jury ultimately convicted appellant of the indicted offense and sentenced him
to serve a term of confinement in a State Jail Facility for a period of eighteen months
and a fine of $5,000. Appellant appeals through a single issue, contending that the trial
court committed reversible error by failing to properly submit an article 38.23 issue to
the jury and that such failure resulted in harm to appellant. See TEX. CODE CRIM. PROC.
ANN. art. 38.23.6 Disagreeing with appellant, we will affirm.
Charge Error
Standard of Review
Appellate review of alleged jury charge error is a two-step process. Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Initially, the reviewing court must
determine if the charge was erroneous. Id. If we find that error occurred, we must then
analyze the error for harm. Id. After we analyze the error for harm, we must review the
record to determine whether appellant objected to the charge at issue. See Middleton
v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc). The degree of harm
6
Further reference to the Texas Code of Criminal Procedure shall be by reference to “art. ____” or
“article ____.”
5
necessary for reversal depends upon whether error was preserved. Id. (quoting Hutch
v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc)). If appellant properly
objected to the charge, “the standard of harm is whether ‘the error appearing from the
record was calculated to injure the rights of [appellant],’ which we have construed as
‘some harm.’” Celis v. State, 416 S.W.3d 419, 423 n.3 (Tex. Crim. App. 2013) (quoting
article 36.19, and Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003) (per
curiam)). “Conversely, unpreserved charge error warrants reversal only when the error
resulted in egregious harm.” Id. (citing Pickens v. State, 165 S.W.3d 675, 680 (Tex.
Crim. App. 2005) (en banc)).
Analysis
As a beginning point in our analysis of the court’s charge, we must address the
contention by the State that, if there is any error in the court’s article 38.23 instruction to
the jury, appellant invited the error by his conduct. See Woodall v. State, 336 S.W.3d
634, 644-45 (Tex. Crim. App. 2011) (holding that there was no confrontation clause
error because appellant refused the court’s offer to attach the witness whose grand jury
testimony was read to the jury). The doctrine of invited error is not a species of waiver
but is instead based upon the doctrine of estoppel. See Prystash v. State, 3 S.W.3d
522, 531 (Tex. Crim. App. 1999) (en banc). That is to say, where a party requests a
ruling that leads the court into error, he is precluded from claiming a reversal of the
judgment based upon that error. See id. The doctrine has long been applied to jury
charge error. See Livingston v. State, 739 S.W.2d 311, 341 (Tex. Crim. App. 1987)
(citing Boyett v. State, 692 S.W.2d 512, 515 (Tex. Crim. App. 1985)).
6
In Willeford v. State, the jury instruction at issue was an alleged erroneous
instruction on probable cause. 72 S.W.3d 820, 822 (Tex. App.—Fort Worth 2002, pet.
ref’d). There, the State asserted that appellant invited error when she requested an
erroneous instruction and objected to the trial court removing the paragraph from the
charge. Id. at 823. The Fort Worth court found that appellant invited the error by
requesting the charge given and then insisting the trial court leave the paragraph in the
charge over the State’s objection. Id. at 824. While not on all fours with the case before
the Court, Willeford is instructive in the application of the invited error rule in a case
involving a jury charge issue.
The record before us reveals that, at the conclusion of the evidence, the trial
court conducted a charge conference out of the jury’s presence. When asked if
appellant was requesting an article 38.23 instruction, appellant’s trial counsel answered
that that was appellant’s request. The court then inquired if counsel had a proposed
charge. Counsel advised, “Well, I can get one, Judge. I mean, honestly, I just assumed
that the Court has had this issue come up before.” After a short recess, the trial court
presented the court’s charge to counsel for the State and appellant that contained the
charge at issue. The trial court then inquired if either party had any objections to the
charge, neither the State nor appellant had any objections. Finally, after the proposed
charge had been drafted, the trial court inquired whether counsel for appellant desired
to have an additional instruction placed in the charge that defined probable cause.
Counsel affirmatively stated that, as a matter of trial strategy, appellant did not want the
definition in the article 38.23 instruction. This discussion reinforces the Court’s
conclusion that appellant received the instruction that he requested and approved of.
7
See Prystash, 3 S.W.3d at 531; Willeford, 72 S.W.3d at 824. Accordingly, appellant is
estopped to now request reversal for the instruction given. See Prystash, 3 S.W.3d at
531; Willeford, 72 S.W.3d at 824. Appellant’s issue is overruled.
In addressing appellant’s concerns, we note that appellant’s contention simply
asserts error in the trial court’s charge without addressing the State’s contention
regarding invited error. From appellant’s perspective, the lack of specificity as to the
contested factual issue results in error. We note that appellant’s contention reflects the
erroneous belief that the trial court’s instruction to the jury went only to any alleged
improper seizure of the marijuana. In fact, appellant contends that the article 38.23
instruction did not inquire about the search. The record belies this contention. As
recited above, the trial court clearly identified that, “any search of the property” before a
warrant was issued would be unlawful. Appellant then leaps to the conclusion that,
since the error involved was a constitutional error involving unlawful search and seizure,
if error is demonstrated, the proper measure of harm would be pursuant to Texas Rule
of Appellate Procedure 44.2(b). Under that standard, the reviewing court must reverse
“unless the court determines beyond a reasonable doubt that the error did not contribute
to the conviction or punishment.” See TEX. R. APP. P. 44.2(b). Such a position ignores
Texas jurisprudence regarding unpreserved charge error. See Middleton, 125 S.W.3d
at 453. Appellant lodged no objection to the trial court’s charge; therefore, even if the
same was in error, the record would have to demonstrate egregious harm to afford
appellant any relief. See Celis, 416 S.W.3d at 423 n.3.
In making a determination of egregious harm, the reviewing court is instructed to
examine: 1) the entire jury charge; 2) the state of the evidence; 3) the argument of
8
counsel; and 4) any other relevant information in the record. See Wooten v. State, 400
S.W.3d 601, 606 (Tex. Crim. App. 2013). Our examination of the total court’s charge
reveals that the trial court properly charged the jury on the law as applicable to the
charge of possession of marijuana in an amount over four ounces but less than five
pounds. No other portions of the charge are complained of. The charge complained of
contains a correct statement of the law in regard to the prohibition against using
evidence that was seized unlawfully. See art. 38.23. Further, the questioned paragraph
properly places the burden of proof on the issue of the legality of the search and seizure
of the marijuana on the State. It is only in a lack of factual specificity that appellant can
fault the charge. The evidence shows that the marijuana seized was seized from
appellant’s residence and that appellant accepted the responsibility for the marijuana
being on the property. Further, the record demonstrates that both the State and
appellant argued the contested facts of the search to the jury. The factual contest about
how the search was conducted, that is to say, whether the search occurred before or
after the search warrant was issued was the primary focus of the final arguments. The
jury was fully informed of the import of their decision regarding the contested factual
issues. From our review of the entire record, it is apparent that appellant did not suffer
egregious harm. Therefore, even were we to assume, arguendo, that the trial court
erred in its charge, appellant would not be entitled to a reversal of his conviction. See
Celis, 416 S.W.3d at 423 n.3.
9
Conclusion
Having overruled appellant’s single issue, we affirm the judgment of the trial
court.
Mackey K. Hancock
Justice
Do not publish.
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