BLOK III v. STATE (1999)

OPINION ON MOTION FOR REHEARING

We withdraw our opinion dated December 10, 1998, and substitute this opinion in its stead.   A jury found appellant, Siert Martin Blok, III, guilty of involuntary manslaughter by driving while intoxicated (DWI), and assessed him 10 years confinement.   We affirm the trial court's judgment.

BACKGROUND

On August 8, 1993, Elida Salinas was riding with her daughter down Voss road coming home from bingo.   Appellant drove his pickup truck around a car stopped at the red light at the intersection of Voss and Highway 6, ran the red light, and broadsided the Salinas's car.   Salinas died in the accident.

Several minutes after the accident, the police arrived.   The police found appellant sitting behind the wheel of the pickup truck.   Appellant had apparently attempted to mask the smell of alcohol through the use of cologne.   The police noticed an open bottle of cologne sitting upright, notwithstanding the fact that everything else in the vehicle had been thrown around due to the accident.   Appellant admitted drinking some alcohol and failed several field sobriety tests.   Appellant was arrested and charged with involuntary manslaughter.

DISCUSSION

Jury Charge—Community Correctional Facility

 In his fourth point of error, appellant contends the trial court erred by failing to instruct the jury in the punishment phase of the trial about the proper range of punishment.

At the time this offense occurred, it was punishable by (1) confinement for a term of not more than ten years or less than 2 years, or (2) confinement in a community correctional facility for any term of not more than one year.   Act of June 7, 1990, 71st Leg., 6th C.S., ch. 25, sec. 7, 1990 Tex. Gen. Laws 110 (amended 1994) (current version at tex. Penal Code Ann. § 12.34 (Vernon 1994)).   However, in the trial court, the prosecutor represented to the judge that Fort Bend County did not have a community correctional facility, and the judge declined to put that punishment option in the charge.   Without the option of sentencing appellant to one year in a community correctional facility, the jury assessed his punishment at 10 years in prison.

The defendant in this case was tried for a third degree felony, but the punishment charge presented to the jury did not include an instruction that the jury could assess confinement in a community correctional facility for up to 1 year.   We hold that it was error for the court not to include the full range of punishment in the charge.   See Tubert v. State, 875 S.W.2d 323, 325 (Tex.Crim.App.1994).

 As required by Tubert, we must now engage in the harm analysis.  Id. at 325;  see also tex.Code Crim. P. Ann. arts. 36.14, 36.19 (Vernon 1981).   Because appellant properly objected to the charge, he must show error that was “calculated to injure the rights of the defendant.”   tex.Code Crim. P. Ann. arts. 36.14, 36.19;  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984).   Appellant must have “suffered ‘some’ actual, rather than theoretical, harm from the error.”  Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986);  Almanza, 686 S.W.2d at 171.   To decide whether the error caused some actual harm to appellant, we must assay the degree of harm in light of the entire jury charge, the state of the evidence, the argument of counsel, and the record as a whole.  Almanza, 686 S.W.2d at 171.   We must determine whether the case for punishment was actually made clearly and significantly more persuasive by the error.  Saunders v. State, 817 S.W.2d 688, 690 (Tex.Crim.App.1991).

 The evidence in this case showed appellant was driving while intoxicated when he drove around a car stopped at a red light, ran the red light, and struck another car, killing one person and sending several others to the hospital.   The jury also heard appellant was already on probation for DWI when this offense occurred.   After hearing this evidence, the jury gave appellant the maximum penalty available.   It is highly unlikely the community correctional facility option of punishment for one year would have affected their decision.

We conclude appellant has not shown he suffered actual, not theoretical, harm by the court's failure to include the community correctional facility option in the charge.

We overrule point of error four.

The discussion of the remaining points of error does not meet the criteria for publication, tex.R.App. P. 47, and is thus ordered not published.

The judgment is affirmed.

Waiver

The State contends that appellant waived all points of error by admitting his guilt at the punishment phase of trial.   An admission of guilt at the punishment phase is the equivalent of a guilty plea and waives non-jurisdictional errors from the guilt-innocence phase of the trial.  DeGarmo v. State, 691 S.W.2d 657, 661 (Tex.Crim.App.).

The State relies upon the following testimony as an admission of guilt:

Counsel:  Now, when you were put on probation, were you given certain conditions that you were supposed to adhere to?

Appellant:  Yes, ma‘am.

Counsel:  And one of those conditions was that you're not supposed to commit a new crime;  is that correct?

Appellant:  I'm sure, yes, ma‘am.

Counsel:  And that's basically something that we do without being put on probation, isn't it?

Appellant:  Right.

Counsel:  But even though that was one of your conditions and even though you were on probation for DWI, you still committed this offense?

Appellant:  Yes, I did.

The appellant further testified:

Counsel:  Let me get this straight.   You accept responsibility for drinking that night?

Appellant:  Yes, I do.

Counsel:  You accept responsibility for driving that night?

Appellant:  Yes, I do.

Counsel:  You accept responsibility for getting into a motor vehicle accident that night?

Appellant:  For the accident—cause of the accident or what?   I mean, I don't know what you're asking.

Counsel:  Did you cause the accident?

Appellant:  I don't believe so, no, ma‘am.

Counsel:  You don't believe so?

Appellant:  No, ma‘am, I do not.

Counsel:  Are you telling this jury you do not accept their verdict?

Appellant:  I am going—

Counsel:  “Yes” or “no,” sir?   My question was a “yes” or “no.”

Appellant:  Do I accept their verdict?   No, I don't.

․

Counsel:  You do not accept the responsibility for causing the death of Elida Salinas, “yes” or “no”?

Appellant:  No.

Appellant accepted responsibility for drinking and driving;  however, he denied responsibility for causing the death of Salinas.   In context, we cannot find that appellant has clearly admitted his guilt to the specific crime charged.   Therefore, the DeGarmo doctrine does not apply.

Jury Charge

1. General Charge

In his second point of error, appellant contends the trial court erred by submitting a general charge.   Appellant argues the trial court should have submitted two separate verdict forms—one for the loss of his normal use of faculties and one for the alcohol concentration of .10 or above.

Article 37.07, section 1(a) of the Texas Code of Criminal Procedure specifically requires “[t]he verdict in every criminal action must be general.”  Renfro v. State, 827 S.W.2d 532, 536 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd).   The Court of Criminal Appeals has held that a trial court has no authority, other than in capital offenses, to submit a charge that is anything but general.  Stewart v. State, 686 S.W.2d 118, 124 (Tex.Crim.App.1984);  McGinty v. State, 740 S.W.2d 475 (Tex.App.—Houston [1st Dist.] 1987, pet. ref'd).   The trial court did not err in submitting a general charge.

We overrule appellant's second point of error.

2. Exclusion of .10 Alcohol Concentration

In his third point of error, appellant contends the trial court erred by allowing the jury to consider a conviction based upon a blood alcohol concentration of .10 or more.   Appellant argues that this Court's opinion in McCafferty v. State, 748 S.W.2d 489 (Tex.App.—Houston [1st Dist.] 1988, no pet.), supports his contention.   We disagree.

In McCafferty, this Court reviewed the sufficiency of the evidence under the now-discarded “reasonable hypothesis” test, and noted that the fact that a defendant is intoxicated when the police arrive is not necessarily controlling.  Id. at 491.   When the police do not arrive shortly after the accident, there must be some evidence the defendant was intoxicated while driving.  Id. at 490–91 (discussing this Court's decision in Weaver v. State, 721 S.W.2d 495 (Tex.App.—Houston [1st Dist.] 1986, pet. ref'd)).   Because the police did not arrive until an hour and twenty minutes after the accident, we held the State was required to put on some evidence that McCafferty was intoxicated while driving.  Id. at 489–91.

In this case, the police arrived minutes after the accident.   Witnesses at the scene testified that immediately after the accident, appellant appeared intoxicated.   The trial court did not err in submitting the .10 concentration of alcohol definition of intoxication to the jury.   See also Owen v. State, 905 S.W.2d 434, 438 (Tex.App.—Waco 1995, pet. ref'd) (questioning McCafferty because it used the discarded “reasonable hypothesis” test and holding recent arrival of police after accident was sufficient for conviction);  Daricek v. State, 875 S.W.2d 770, 772–73 (Tex.App.—Austin 1994, pet. ref'd) (same);  Guerra v. State, 846 S.W.2d 124, 126 (Tex.App.—Fort Worth 1993, no pet.) (distinguishing McCafferty due to recent arrival of police).

We overrule appellant's third point of error.

3. Voluntary Intoxication Instruction

In his fifth point of error, appellant contends the trial court erred in charging the jury “you are further instructed that voluntary intoxication, if any, does not constitute a defense to the commission of a crime.”   Appellant maintains this statement of section 8.04(a) of the Texas Penal Code was an impermissible comment on the weight of the evidence.

Even if the inclusion of the voluntary intoxication charge in this case was a comment on the weight of the evidence, the inclusion of the phrase “if any” cured any error.   In Hathorn v. State, the Texas Court of Criminal Appeals held that where the charge was not an impermissible comment on the weight of the evidence, it was unnecessary to include the words “if any” or “alleged” in the jury instruction.  848 S.W.2d 101, 114 (Tex.Crim.App.1992).   The court's analysis implies that, had the charge been a comment on the weight of the evidence, the inclusion of the words “if any” would have cured the error.   Id.;  see also Andrews v. State, 652 S.W.2d 370, 374 & n. * (Tex.Crim.App.1983) (finding an impermissible jury instruction which commented on the weight of the evidence could have been cured or corrected by the inclusion of the words “if you so find”).

We overrule appellant's fifth point of error.

4. Mental State

In his sixth point of error, appellant contends the trial court erred in overruling his objections that the charge did not require a culpable mental state.   In his twelfth point of error, appellant contends the trial court erred in not quashing the indictment because it did not allege a culpable mental state.

This Court has already addressed and rejected appellant's contentions.   Chunn v. State, 923 S.W.2d 728 (Tex.App.—Houston [1st Dist.] 1996, pet. ref'd);  see also State v. Sanchez, 925 S.W.2d 371 (Tex.App.—Houston [1st Dist.] 1996, pet. ref'd) (reaffirming Chunn ).   An allegation of culpable mental state is not required for the offense of DWI. Chunn, 923 S.W.2d at 729;  Sanchez, 925 S.W.2d at 372.   Similarly, a culpable mental state is not required for involuntary manslaughter based upon DWI. Guerrero v. State, 605 S.W.2d 262 (Tex.Crim.App.1980) (no culpable mental state required where death caused due to DWI).

We overrule appellant's sixth and twelfth points of error.

Testimony on the Victim's Background

In his seventh point of error, appellant contends the trial court erred in permitting testimony pertaining to the victim's background.   Appellant argues this testimony was not relevant.

Appellant first argues the trial court erred in permitting the State, in opening and closing statements, to state the victim was a “very real person, that she was a mother, a wife, a grandmother, and a great grandmother,” that she was a lifelong resident of Fort Bend County, and that she had an extensive family in Fort Bend County.

Even assuming the State's comments were improper, appellant has waived his right to complain on appeal.   Appellant's trial counsel made no objection to the State's opening or closing statement and has failed to preserve his complaint for appellate review.  Tex.R. App. P. 33.1.   By not objecting during the trial, appellant also waived his complaint regarding the victim's daughter's testimony as to where she was born, where she grew up, whether she was married, who her father was, that she was Salinas's daughter, and that the Salinases had thirteen children.  Id.

Appellant also waived his complaint regarding the victim's daughter's testimony that she was very close to her mother and that her mother could not go to the store without having to be taken.   Although appellant had his objection sustained, appellant's trial counsel did not request an instruction or move for a mistrial.  Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App.1993).

Appellant also waived his complaint that the photograph admitted at trial was irrelevant.   At trial, appellant's trial counsel specifically stated his only objection was the photograph had not been produced during discovery.   Appellant's complaint on appeal is not the same as that at trial.  Ellason v. State, 815 S.W.2d 656, 665 (Tex.Crim.App.1991);  Blackmon v. State, 786 S.W.2d 467, 469 (Tex.App.—Houston [1st Dist.] 1990, pet. ref'd).

Appellant objected to the victim's daughter's testimony that she often went by and picked her mother up to take her places as she did on August 8, 1993 and that she often went by the house.   The objection was overruled.   Appellant asserts that the daughter's testimony was character evidence, admitted in violation of rules 404 and 405 of the Texas Rules of Evidence.   In Armstrong v. State, the Texas Court of Criminal Appeals held it was error for the State to introduce the issue of a victim's character through testimony that the deceased was peaceful and inoffensive.  718 S.W.2d 686, 695 (Tex.Crim.App.1985).   In this case, the victim's daughter's testimony cannot be described as character evidence within the meaning of Armstrong.   See Matchett v. State, 941 S.W.2d 922, 931 (Tex.Crim.App.1996) (holding that the victim's widow's identification of the victim from a photograph of him with his friends and testimony that “she had been married to the victim for twenty-five years, that they had five children, and that the victim was home alone on the night of his murder” did not constitute character evidence).

We overrule appellant's seventh point of error.

Jury Argument

In his eighth point of error, appellant contends the trial court erred in allowing improper jury argument by the State relating to appellant's “failure to testify.”   The complained-of argument, during the guilt/innocence phase of the trial, is as follows:

Prosecutor:  When do you finally say, “Enough is enough”?   When do you say, “We will not allow you to come into the courtroom and lie to a jury”?   When do you finally say—

Defense:  Wait, wait, wait.   Judge, she's commenting on this defendant's—

Court:  Sustain the objection.

Defense:  I'm not through.   She said we lied, we haven't put on a witness of our own;  and I object to that, and I ask you to instruct the jury to disregard that.

Court:  The jury is instructed to disregard the prosecutor's last comment.

Although appellant's objection was sustained, and the jury was instructed to disregard the argument, appellant's trial counsel did not move for a mistrial.   Appellant has waived any error.  Cook, 858 S.W.2d at 473.

We overrule appellant's eighth point of error.

In his ninth point of error, appellant also contends the trial court erred in permitting the following jury argument, during the guilt/innocence phase of the trial, by the State:

Prosecutor:  And you remember that people must be held accountable.   The defendant must be held accountable for what he does.   You don't run through an intersection after you've been drinking after you have a .22 alcohol level and you've killed an individual and walk out by saying, “Look, I didn't do it because I was intoxicated.   It isn't my fault.”   Don't let him do that, ladies and gentlemen.   Don't let him kill anyone else.   Don't let that be the message that you send out through your verdict.   Don't let anyone say that when they come into a courtroom—

Defense:  Judge, she's arguing.   It's improper.

Prosecutor:  It's a plea for law enforcement.

Defense:  It's not.   It's an argument to send a message in the community.

Court:  Overrule the objection.

To be permissible, the State's jury argument must fall within one of the following four general areas:  (1) summation of the evidence;  (2) reasonable deduction from the evidence;  (3) answer to argument of opposing counsel;  or (4) plea for law enforcement.  Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997);  Felder v. State, 848 S.W.2d 85, 94–95 (Tex.Crim.App.1992).

A plea that the jury send a message to the community falls within the well-settled parameters of a plea for law enforcement.  Goocher v. State, 633 S.W.2d 860, 864 (Tex.Crim.App.1982) (“I am asking you to enforce it.   I'm asking you to do what needs to be done to send these type of people a message to tell them we're not tolerating this type of behavior in our county.”);   Whittington v. State, 580 S.W.2d 845, 847(Tex.Crim.App.1979) (“I think you will want to give them an answer you can be proud of, that your friends and neighbors can be proud of.”);  Barcenes v. State, 940 S.W.2d 739, 749 (Tex.App.—San Antonio 1997, pet. ref'd) (“You know, you're here because you have been chosen by the community to make the decision, and that's it ․—don't send a message to the community that you're going to believe—”);  Caballero v. State, 919 S.W.2d 919, 924 (Tex.App.—Houston [14th Dist.] 1996, pet. ref'd) (“[J]urors are sick and tired of this.   Jurors are tired of crime because jurors such as yourself are members of the community you represent.   You represent the community.”);  Alexander v. State, 919 S.W.2d 756, 764 (Tex.App.—Texarkana 1996, no pet.)  (“You give this man exactly what he deserves and what the victims in this case, or the victim's next of kin and loved ones, deserve, for this man to serve a life sentence.   It's only proper, and it serves the interest of this community as a whole.”);  Goff v. State, 794 S.W.2d 126, 127 (Tex.App.—Austin 1990, pet. ref'd) (“[I]f you want to find somebody like this innocent of the charge, you may do it, but you will have to explain your actions to the community.”);  Bell v. State, 774 S.W.2d 371, 375 (Tex.App.—Austin 1989, pet. ref'd) (“A jury verdict in a murder case speaks for this community.   You're saying:  What will Travis County tolerate?   What does Travis County think human life is worth?”);  Lugo v. State, 732 S.W.2d 662, 663 (Tex.App.—Corpus Christi 1987, no pet.)  (“Probation, in this case, members of the jury, would be a slap on the wrist to the Defendant, would be a slap in the face to law enforcement in this community.”);  Johnson v. State, 706 S.W.2d 120, 125 (Tex.App.—Dallas 1986), rev'd on other grounds, 755 S.W.2d 92 (Tex.Crim.App.1988), aff'd, Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (“That when it comes to destroying and enjoying destroying the symbol of our country that is offensive and it's serious as far as every American is concerned, and when you go back into that jury room you represent each and everyone of them;  and don't forget it,” and “consider the community effect of your verdict.”);  Rushton v. State, 694 S.W.2d 367, 370 (Tex.App.—Corpus Christi 1985, no pet.)  (“If you find Geary Rushton not guilty, then you're telling me, you're telling everybody in this courtroom, you're telling everybody in this community, that if a guy spends the night with a girl, sleeps with her, maybe lives with her and then finds out there's some kind of mistake and split it off, then he has a license and he can force her to have sex any time he wants.”).

The State's jury argument falls within the parameters of a proper plea for law enforcement.   The trial court did not err in overruling appellant's objection to the argument.

We overrule appellant's ninth point of error.

Findings of Fact and Conclusions of Law

In his eleventh point of error, appellant contends the trial court erred in not making findings of fact and conclusions of law on the issue of the voluntariness of “certain oral confessions.”   Appellant also asks, in his tenth point of error, that this appeal be abated and remanded to the trial court to make findings of fact and conclusions of law as required under article 38.22, section 6 of the Texas Code of Criminal Procedure.

Article 38.21 of the Code of Criminal Procedure provides:

A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.

Tex.Code Crim. P. Ann. art. 38.21 (Vernon 1979).

Additionally, article 38.22, section 5 provides:

Nothing in this article precludes the admission of a statement made by the accused ․ that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.

Tex.Code Crim. P. Ann. art. 38.22, § 5 (Vernon 1979) (emphasis added).

Only when the trial court determines that a statement is custodial, voluntary, as well as admissible, is article 38.22, section 6 triggered:

If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.

Tex.Code Crim. P. Ann. art. 38.22, § 6 (Vernon 1979) (emphasis added).

At the motion to suppress, the trial court examined several statements made by appellant.   Of these statements, only one occurred after appellant's arrest.   The one post-arrest statement, i.e., appellant's admission he had consumed several mixed drinks at a bar before the accident, was suppressed.

Under article 38.22, section 5, the trial court was not required to make findings of fact and conclusions of law regarding the pre-arrest statements because they were not a result of custodial interrogation.  Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App.1982);  Baker v. State, 682 S.W.2d 701, 710 (Tex.App.—Houston [1st Dist.] 1984) rev'd on other grounds, 707 S.W.2d 893 (Tex.Crim.App.1986).   The trial court was not required to enter findings of fact and conclusions of law regarding the one post-arrest statement because appellant's objection was sustained and the statement was not admitted into evidence.  Tex.Code Crim. P. Ann. art. 38.22, § 6.

We overrule appellant's tenth and eleventh points of error.

Suppression of Evidence

In appellant's thirteenth and fourteenth points of error, appellant contends the trial court erred in not suppressing from evidence the thermos that was seized from his automobile.

It is well settled that when a defendant affirmatively asserts during trial that he has “no objection” to the admission of the complained of evidence, he waives any error in the admission of the evidence despite any prior objections.  Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App.1992);  Harris v. State, 656 S.W.2d 481 (Tex.Crim.App.1983);  Marbles v. State, 874 S.W.2d 225, 228 (Tex.App.—Houston [1st Dist.] 1994, no pet.).

Although appellant's counsel specifically objected, outside the presence of the jury, to the thermos as evidence illegally obtained and a fruit of an illegal arrest, he responded that he had “no objection” when the thermos was actually offered into evidence later during the trial.   Thus, appellant has waived any error.

We overrule appellant's thirteenth and fourteenth points of error.

In appellant's fifteenth and sixteenth points of error, appellant contends the trial court erred in denying his motion to suppress certain evidence, i.e., the inventory list of appellant's truck, the videotape of appellant, and the results of appellant's blood test.

As he did with the thermos, at the time it was offered into evidence, appellant's counsel stated he had “no objection” to the inventory list, and “I'm willing to let it come in” as to the videotape.   Thus, appellant has waived any error regarding this evidence.  Moody, 827 S.W.2d at 889.

With regard to the results of appellant's blood test, although appellant made a different objection at trial than at the motion to suppress hearing, he did not specifically state that he did not have any objections, and thus, has preserved error.   See Gardner v. State, 733 S.W.2d 195, 201 (Tex.Crim.App.1987).

Appellant argues the trial court erred in denying his motion to suppress because the evidence was obtained pursuant to an unlawful warrantless arrest.   Appellant argues an officer may not make a warrantless arrest for DWI under Texas law where the officer does not see the suspect driving.

We note the police would have been justified in arresting appellant for public intoxication.   The term “public intoxication” applies to a person who appears in a public place while intoxicated to the degree the person may endanger the person or another.   See Tex. Penal Code Ann. § 49.02(a) (Vernon 1994).   Whenever an intoxicated person is in an officer's presence and there is probable cause to arrest the person for public intoxication, the officer may do so without a warrant, even though a warrantless arrest of that person for the offense of driving while intoxicated would be unlawful.  Reynolds v. State, 902 S.W.2d 558, 559–60 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd).

When there is sufficient evidence to support a finding of probable cause to arrest a person for the offense of public intoxication committed in the officer's presence, the arrest is not invalid just because the officer labels the offense “driving while intoxicated.”   See Warrick v. State, 634 S.W.2d 707, 709 (Tex.Crim.App.1982);  Reynolds, 902 S.W.2d at 560.

Based on his personal observations, including field sobriety tests, the arresting officer formed the opinion appellant was intoxicated.   Appellant had been driving a vehicle that caused a fatal accident.   This knowledge provided the officers sufficient probable cause to arrest appellant for public intoxication because he had already shown himself to be a danger to others.   See Carrasco v. State, 712 S.W.2d 120 (Tex.Crim.App.1986) (officers who observed symptoms of intoxication in driver of car involved in one-car accident had sufficient probable cause to believe she posed danger to herself or others to arrest for public intoxication);  Porter v. State, 969 S.W.2d 60, 65 (Tex.App.—Austin 1998, pet. ref'd) (officers who observed symptoms of intoxication in driver of car in accident causing a fatality had sufficient probable cause to believe defendant posed danger to herself or others).

The trial court did not err in denying the motion to suppress.   We overrule appellant's fifteenth and sixteenth points of error.

Jury Instruction under article 38.23

In his first point of error, appellant contends that the charge inadequately set out the law regarding the arrest and the issues raised under article 38.23 of the Texas Code of Criminal Procedure.   See Tex.Code Crim. P. Ann. art. 38.23(a) (Vernon Supp.1998).  Article 38.23 requires the jury to decide the lawfulness of an arrest or search only when the facts regarding that arrest or search are in controversy.  Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986);  Bell v. State, 866 S.W.2d 284, 287–88 (Tex.App.—Houston [1st Dist.] 1993, no pet.).   When there is no factual dispute, no instruction is required.  Gaffney v. State, 575 S.W.2d 537, 542 (Tex.Crim.App.1978);  Bell, 866 S.W.2d at 287–88.   Appellant has not pointed to a fact dispute in the present case.   Because appellant was not entitled to a 38.23 instruction, we need not address whether the 38.23 instruction given was adequate.

We overrule appellant's first point of error.

We affirm.

NUCHIA, Justice.