TX14: No Art. 38.23 instruction on detention where the facts are not in dispute

Where there was no fact issue on defendant’s detention and search question, he is not entitled to a jury instruction on it. Cummings v. State, 401 S.W.3d 127 (Tex. App. — Houston (14th Dist.) 2011) (dissenting opinion here):

Appellant complains that he received ineffective assistance of counsel based on his trial counsel’s failure to request an article 38.23 instruction. As noted, because there was no fact issue material to the lawfulness of appellant’s detention and arrest, appellant was not entitled to an instruction under article 38.23. See Hardin v. State, 951 S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (rejecting claim for ineffective assistance when trial counsel failed to request article 38.23 instruction). Appellant’s trial counsel’s failure to request an instruction to which appellant was not entitled is not ineffective assistance. See id. We conclude that the trial court did not abuse its discretion by denying appellant’s motion for new trial regarding alleged ineffective assistance based on counsel’s failure to request an article 38.23 instruction.

[Note: This is unique to Texas. Everywhere else, a suppression issue is just a question for the court, and the jury gets not say.]