AFFIRMED; Opinion Filed December 28, 2016.




                                                                   In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                        No. 05-15-00773-CR

                                            TONY DEJUAN JONES, Appellant
                                                        V.
                                            THE STATE OF TEXAS, Appellee

                                 On Appeal from the 203rd Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F13-59558-P

                                           MEMORANDUM OPINION
                                     Before Justices Francis, Fillmore, and Stoddart
                                              Opinion by Justice Fillmore
           A jury convicted Tony Dejuan Jones of possession with intent to deliver one gram or

more but less than four grams of cocaine. Jones pleaded true to the enhancement paragraph in

the indictment, and the jury assessed punishment of seven years’ imprisonment. In one issue,

Jones asserts the trial court erred by not instructing the jury under article 38.23 of the code of

criminal procedure “to disregard any statements made if the statements resulted from an

improper detention.” We affirm the trial court’s judgment.

                                                              Background1

           Because of complaints of “high traffic” to apartment 136 in the Terrace Apartment

Complex, Dallas police officers Terry Lewis and Michael Lawter, along with several other
     1
       Because Jones does not challenge the sufficiency of the evidence to support the conviction, we recite only those facts necessary to address
his complaint on appeal.
officers, conducted a “knock and talk” at the apartment. Lewis testified that he stood to the side

of the door and did a “real quick knock.” After Jones answered the door, Lewis moved in front

of the door, greeted Jones, and initiated a conversation about why the officers were at the

apartment. Lewis asked Jones if there were any illegal narcotics in the apartment. According to

Lewis, Jones told him there was “weed” or marijuana in the apartment and pointed toward the

kitchen bar. Lewis could see two “baggies” on the bar. Jones then said the officers could “come

in and look” and Lewis saw a “green leafy substance” in the baggies on the kitchen bar. The

officers did a protective sweep of the apartment to make sure that no one else was in the

apartment. They then left the apartment, handcuffed Jones, and told Jones that he was detained

pending a search warrant.      After obtaining a search warrant, Lewis and the other officers

searched the apartment and, in addition to the marijuana, found 1.2 grams of cocaine.

         According to Lawter, he stood on the left side of the door to the apartment while Lewis

knocked on the door. Jones answered the door, and Lewis explained why the officers were there

and asked if there were any drugs in the apartment. Jones responded that there were drugs in the

kitchen. They “had” Jones “come out” of the apartment, placed him into handcuffs for officer

safety, and did a protective sweep of the apartment to make sure no one else was “hiding in the

back.”    After obtaining a search warrant, the officers searched the apartment and found

marijuana and cocaine.

         Jones testified that he was visiting Robert Lockridge, who leased the apartment.

Lockridge left the apartment on an errand, and Jones was the only person in the apartment when

the police knocked on the door. According to Jones, the first officer he spoke with was Hispanic

and was neither Lewis nor Lawter. The Hispanic officer:

         [G]reeted his self. And I forgot his name. Stated why he was there. He asked me
         was I the owner of the apartment. I said no. He grabbed me by my wrist and
         pulled me out, asked me was anyone else available inside the residence. I said no.

                                                –2–
        He asked me if there was anything inside the residence they should know about. I
        said no. And he asked me why was the residence dark at the time. I said I don’t
        know. And he pushed the door open, which the door could swing back. And he
        had the full open view of the apartment.

        He pulled out his flashlight and began to do a sweep from right to left. And that’s
        when he got to the counter top. And he said, “What is this on the counter top? Is
        that weed?” I said, “Looks like it. And that’s what it is.” With that being said,
        he told me put my hands behind my back. He said, “You’re not being arrested.
        You’re being detained.” I did that. And the rest of the crew beside the one who I
        initially made contact with made their way inside and began to search the
        premises.

Jones testified the officers did not have a search warrant at the time they searched the apartment.

The jurors also heard the recording of a statement made by Jones at the police station shortly

after his arrest during which he said that he answered the door, and the officer asked him to “step

out” of the apartment. Jones stated that, after the officer asked if he had any drugs or guns, he

said that he had “weed on the counter right there” and told the officer that he could come into the

apartment.

        As to the constitutionality of the search of the apartment, the trial court’s charge to the

jury stated:

        You are instructed that no evidence obtained by an officer or other person in
        violation of any provision of the Constitution or law of the State of Texas, or of
        the Constitution or the laws of the United States of America, shall be admitted in
        evidence against the accused on the trial of any criminal case.

        You are further instructed that under the law, as applied in this case, a search of
        the apartment without consent would not be lawful. Any objects constitution [sic]
        unlawful contraband falling within the plain view of an officer who is lawfully on
        the premises and which are immediately apparent to the officer as contraband are
        subject to seizure without a warrant and may be lawfully admitted into evidence.

        Therefore, of [sic] you find beyond a reasonable doubt that Tony Jones
        voluntarily gave consent for Officer Lewis to enter the apartment and that Officer
        Lewis then saw what was immediately apparent to him as contraband in plain
        sight, you may consider the evidence seized as a result of entering the apartment
        and the subsequent search of the apartment pursuant to a search warrant.




                                               –3–
       If you do not so find, or if you have a reasonable doubt thereof, you may not
       consider the evidence seized as a result of entering and searching the building for
       any purpose.

Jones did not object to this instruction and did not request any additional instruction on the

constitutionality of the search.

                                        Standard of Review

       We review alleged jury charge error in two steps. Cortez v. State, 469 S.W.3d 593, 598

(Tex. Crim. App. 2015). We first determine whether error exists in the charge. Id. Second, if

there is error, we review the record to determine whether the error caused sufficient harm to

warrant reversal. Id.; Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). When, as

in this case, the defendant fails to object, we will not reverse for jury charge error unless the

record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at 743–44.

                                          Article 38.23(a)

       Article 38.23(a) of the code of criminal procedure prohibits the admission of evidence

against an accused in a criminal trial if the evidence was obtained in violation of the constitutions

or laws of Texas or the United States. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2006).

To be entitled to an article 38.23(a) instruction, a defendant must show (1) an issue of historical

fact was raised in front of the jury, (2) the fact was contested by affirmative evidence at trial, and

(3) the fact is material to the constitutional or statutory violation that the defendant has identified

as rendering the particular evidence inadmissible. Robinson v. State, 377 S.W.3d 712, 719 (Tex.

Crim. App. 2012). The jury must be instructed to disregard the evidence “if it believes, or has a

reasonable doubt, that the evidence was obtained in violation of the provisions” of article

38.23(a). TEX. CODE CRIM. PROC. ANN. art. 38.23(a); see also Robinson, 377 S.W.3d at 719.

       A defendant’s right to submission of a jury instruction under article 38.23 is limited to

disputed issues of material fact. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App.

                                                 –4–
2007); see also Hamal v. State, 390 S.W.3d 302, 307 (Tex. Crim. App. 2012) (appellant was not

entitled to an article 38.23 instruction where there was “no factual dispute” about what

information the officer “received before and during the [traffic] stop”). Evidence to justify an

article 38.23(a) instruction can derive “from any source,” no matter whether “strong, weak,

contradicted, unimpeached, or unbelievable.” Robinson, 377 S.W.3d at 719 (quoting Garza v.

State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)). However, the evidence must “raise a ‘factual

dispute about how the evidence was obtained.’ Where the issue raised by the evidence at trial

does not involve controverted historical facts, but only the proper application of the law to

undisputed facts, that issue is properly left to the determination of the trial court.” Id. (quoting

Garza, 126 S.W.3d at 85). In addition, if the undisputed facts “are sufficient to support the

lawfulness of the challenged conduct, then the disputed fact issue is not submitted to the jury

because it is not material to the ultimate admissibility of the evidence.” Madden, 242 S.W.3d at

510.

       Jones argues the trial court should have instructed the jury to disregard any statement that

he made regarding marijuana being present in the apartment if the statement resulted from an

“improper detention.” However, “the question of whether a given set of historical facts amount

to a consensual police-citizen encounter or a detention under the Fourth Amendment . . . is an

issue of law[.]” Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013) (quoting State v.

Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)). A question asking the jury to

decide whether a detention is unlawful is “wholly incorrect.” See Madden, 242 S.W.3d at 511

(requested 38.23(a) instruction that asked jury to decide whether officer had “reasonable

suspicion” to continue to detain defendant improperly asked jury to decide question of law); see

also Robinson, 377 S.W.3d at 720 (defendant not entitled to instruction under article 38.23(a)

when dispute was “with respect to the legal significance of what are, in essence, undisputed

                                                –5–
facts).2 It is the trial court, not the jury, that “decides what quality and quantum of facts are

necessary” to establish whether an individual was detained and whether that detention was

lawful. See Madden, 242 S.W.3d at 511.3 “Only if one or more of those necessary facts are

disputed” does the trial court instruct the jury to determine that disputed fact. Id.

           Jones has failed to identify a disputed issue of fact relevant to the legal issues of whether

he was detained prior to making the statement that there was marijuana present in the apartment

or whether that detention was lawful. See id. at 511–12. Further, his complaint on appeal that

the trial court should have instructed the jury to disregard any statement Jones made “if the

statements resulted from an improper detention” is focused only on the law, not on any specific

historical fact for the jury to decide. See id. at 512. We conclude the trial court did not err by

failing to give this “wholly incorrect” instruction. See id. at 511. We resolve Jones’s sole issue

against him.

           We affirm the trial court’s judgment.




                                                                            /Robert M. Fillmore/
                                                                            ROBERT M. FILLMORE
                                                                            JUSTICE

Do Not Publish
TEX. R. APP. P. 47
150773F.U05




     2
       See also Totten v. State, No. PD-0483-15, 2016 WL 5118331, at *2 (Tex. Crim. App. Sept. 21, 2016) (not designated for publication)
(dispute about whether, in light of testimony, defendant’s detention was objectively reasonable under Fourth Amendment, “is solely a legal
question that juries are unauthorized to resolve”).
     3
        Jones filed a pretrial motion to suppress, asserting the police “entered and searched” the apartment and arrested him without a warrant. He
specifically argued the police did not have reasonable suspicion to detain or investigate him. The trial court carried the motion to suppress with
the trial and denied it after the close of evidence. Jones has not appealed the trial court’s denial of the motion to suppress.


                                                                      –6–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

TONY DEJUAN JONES, Appellant                        On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas,
No. 05-15-00773-CR        V.                        Trial Court Cause No. F-1359558-P.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Justices Francis and Stoddart participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 28th day of December, 2016.




                                             –7–