In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00447-CR
FRANCISCO GONZALEZ-MARTINEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Potter County, Texas
Trial Court No. 62,782-B, Honorable Richard Dambold, Presiding
October 18, 2013
OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Francisco Gonzalez-Martinez (appellant) appeals his conviction for possessing a
controlled substance, namely cocaine. Through a single issue, he contends the trial
court erred by failing to submit to the jury an instruction pursuant to article 38.23(a) of
the Texas Code of Criminal Procedure. We agree.
Authority
Appellate review of error in a jury charge involves a two-step process. Abdnor v.
State, 871 S.W.2d 726, 731 (Tex. Crim. App.1994); see also Sakil v. State, 287 S.W.3d
23, 25-26 (Tex. Crim. App. 2009). Initially, we determine whether error occurred, and if
it did, we then evaluate whether it was harmful. Abdnor, 871 S.W.2d at 732.
In determining whether error occurred at bar, we first consider article 38.23(a) of
the Texas Code of Criminal Procedure. It provides that "[n]o evidence obtained by an
officer or other person in violation of any provisions 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." TEX. CODE
CRIM. PROC. ANN. art. 38.23(a) (West 2005). The statute also provides that when the
testimony presented at trial raises an issue regarding whether evidence was so
obtained, then " … 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.” Id.
Next, the requirements of art. 38.23 are triggered when (1) the evidence heard by
the jury raises an issue of fact; (2) the evidence on that fact is affirmatively contested;
and (3) the contested factual issue is material to the lawfulness of the conduct utilized to
obtain the evidence being challenged. Hamal v. State, 390 S.W.3d 302, 306 (Tex.
Crim. App. 2012). Finally, a fact issue may be raised from any source, and the
evidence raising it may be strong, weak, contradicted, unimpeached, or unbelievable.
Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004).
Application of Authority
Here, the police discovered the cocaine for which appellant was convicted on the
floor of a local tavern. He was present in the establishment when three officers entered
it to investigate potential drug trafficking. According to two officers who testified at trial
(Bullard and Vigil), such activity frequently occurred at the bar. They further opined that
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it usually transpired in or near the men's bathroom. So too did the officers talk about
entering the bar around 1:30 a.m., seeing a group of men gathered near the men's
room, and witnessing several members of the group gesturing as if they were
exchanging items with their hands. In particular, Vigil described how he saw money
changing hands.
Knowing the reputation of the tavern, seeing the group of individuals by the
men's room, and watching money being exchanged led Vigil to suspect that drug activity
was occurring, or so he testified. Consequently, he approached the two individuals
purportedly making the exchange. Appellant happened to be one of them, while the
other was someone described as a “white” man.
As the officer approached, the "white" man moved away into the crowd,
according to Vigil. Appellant remained put. And, upon arriving in the presence of
appellant, Vigil physically escorted him to where Bullard stood. The search for the
“white” man then began. It involved Vigil leaving appellant with Bullard and walking
around the bar. Vigil expressed his belief that appellant was detained at that point.
Unable to find appellant’s alleged cohort, Vigil said that he returned to Bullard.
As he did, he saw appellant throw something on the ground. At that point, Vigil
forcefully subdued and arrested appellant. He also recovered the allegedly discarded
item which consisted of cocaine.
As previously mentioned, Officer Bullard also testified at trial. He described 1)
entering the bar, 2) noticing the group of men by the bathroom, 3) seeing one person in
the group holding out his hand in a “cupped” manner while another extended his hand in
a grasping manner, 4) approaching one of the men who had his hand extended, 5)
either asking the person to disclose what was contained therein or grasping the
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person’s arm or hand, 6) seeing the person drop his hand to his side, and 7) ultimately
noticing a packet or the like on the floor next to the person. The latter happened to be
appellant. Also of import is a particular exchange between the prosecuting attorney and
this witness. The former asked Bullard: “[a]nd what was it about these individuals that
caught your attention or made you pay attention to them in the first place?” The officer
responded with:
Like I said before, they're just gathered up and just drew our
attention because that's just one of the clues that we focus on whenever
we see something like that. If -- if they were just standing there, say for
instance, just laughing and drinking, it would have been -- it wouldn't have
drawn our attention. We would have moved on to the next group or
something.
A third witness also testified at trial. She worked at the tavern as a waitress and
bartender. Present when the officers entered that night, she described the incident as
follows:
They [the police] walked into the back door, they went into the
men's rest room, and they came out and straight to [appellant]. They
attacked him, threw him on the floor, and it was about three or four cops.
One of them had his foot on his face and they just started -- they just
attacked him. They just started man handling him.
When asked if she was “watching the event the whole time,” she said: “Yeah.
Well, while I was walking around I was glancing over. I mean, it was something
everybody was paying attention to.” When asked if she “could see clearly what was
going on,” she said: “Yes.” When asked if appellant, a person whom she knew, “[w]as
just standing there talking to this person,” she replied: “Yes.” And when queried about
whether she saw appellant “exchange anything with anybody,” she answered: “No, sir.”
The testimony of these three witnesses does not paint a clear picture of the
actual events. For instance, one officer stated that he first made contact with appellant,
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while the other indicated that he did. One officer said he saw people exchanging
money, while another did not. One says he grabbed appellant’s arm while it was
outstretched in the direction of other bar patrons, while the other said he detained
appellant, walked him to where his fellow officer stood (which effectively terminated any
contact appellant had with the group with whom he was initially seen) and left him
there.1 Admittedly, both officers alleged that appellant was interacting with a group of
people with arms outstretched and that such conduct was indicia suggesting their
engagement in drug activity. Yet, the bartender/waitress testified that she had a clear
view, watched the entirety of the event, saw no exchanges from appellant to others, and
recalled appellant simply talking to another patron before being “attacked” by the police.
Finally, her testimony about appellant merely standing around and conversing with
another was the type of conduct that one officer implicitly deemed insufficient to suggest
criminal activity and, thus, draw his attention. Again, he testified that if they just saw a
group standing around, talking and drinking, they “would have moved on to the next
group or something.”
So, we cannot but conclude that the evidentiary record raised issues of fact
regarding what transpired and whether appellant actually engaged in the activity the
officers thought sufficient to create reasonable suspicion to believe crime was afoot.
Additionally, if the bartender’s version of events was accepted by a fact-finder, then
Bullard’s own analysis of what the circumstances meant would be quite correct.
Recalling his comment about just seeing patrons engaged in conversation and drinking,
we would agree that individuals conversing near a men’s room in a bar where drug
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Why or how appellant would be trying to exchange something when removed from the presence of his
compatriots and placed under the control of law enforcement personnel went unexplained.
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transactions have occurred are alone insufficient articulable facts from which to form a
reasonable suspicion that crime is afoot. That leads us to also view the issue of the fact
in question as quite material. Simply put, if appellant was not performing the furtive arm
gestures attributed to him by the officers, then they would have lacked either probable
cause or reasonable suspicion to detain him. Thus, the prerequisites of Hamal were
met here and the trial court was obligated to provide the art. 38.23(a) instruction.
Of note is the absence of any finding by the trial court that a material issue of fact
existed. Instead, it denied the requested instruction because appellant allegedly
abandoned the drugs. Authority does hold that abandoned items subsequently
collected by law enforcement personnel are not considered seized for purposes of a
Fourth Amendment search and seizure analysis. See e.g. Gomez v. State, 486 S.W.2d
338 (Tex. Crim. App. 1972); Miller v. State, 458 S.W.2d 680 (Tex. Crim. App. 1970);
King v. State, 416 S.W.2d 823 (Tex. Crim. App. 1967). It is also true that art. 38.23(a)
pertains to evidence obtained unlawfully or in violation of one’s right to be free of
unreasonable searches and seizures. So, logic suggests that a defendant may not be
entitled to an art. 38.23(a) instruction if the evidence in dispute was abandoned by him.
Yet, for there to be an abandonment of property, the decision to discard it must
not be due to police misconduct. McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim.
App. 1997) accord, State v. Dixon, No. 13-09-00445-CR, 2010 WL 3419231, 2010 Tex.
App. LEXIS 7156, at *18 (Tex. App.—Corpus Christi August 27, 2010, pet. ref’d) (mem.
op.) (not designated for publication); see Pickens v. State, 712 S.W.2d 560, 562 (Tex.
App.—Houston [1st Dist.] 1986, pet. ref’d) (wherein the court distinguished Gomez,
Miller and King by noting that they do not involve the abandonment of property following
an illegal detention). With this in mind we again refer to the testimony of Officer Vigil.
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He described how appellant dropped the packet after being detained. To it we have the
bartender’s testimony about the absence of appellant’s engagement in the furtive
gestures purportedly relied upon by the officers to justify their detention of him. And, if
she is to be believed, the same fact-finder had basis upon which to reasonably deduce
that appellant’s decision to discard the drugs (assuming he did discard them) was due
to the police detaining him without lawful cause. This, then, leads us to conclude that
the concept of abandonment did not justify the trial court’s decision to withhold the
instruction.
Next, had the instruction been given, the jury would have been free to accept the
bartender’s version of events and “disregard any . . . evidence . . . obtained” in violation
of the law. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). Given that the
evidence purportedly obtained in violation of the law was the very contraband appellant
was convicted of possessing, we must conclude that the trial court’s omission was not
harmless under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). So,
the prerequisites of Abdnor exist here, that is, error and harm.
Accordingly, we sustain appellant’s issue, reverse the judgment of the trial court
and remand the cause for further proceedings.
Brian Quinn
Chief Justice
Publish.
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