TX14: There has to be a fact dispute to get an art. 38.23(a) jury instruction on legality of search

“‘To raise a disputed fact issue warranting an article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question.’ Madden, 242 S.W.3d at 513. In other words, a cross examiner cannot create a factual dispute for purposes of an article 38.23(a) instruction merely by his questions or argument. Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008); Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. It is only the answers that are evidence and may create a dispute. Madden, 242 S.W.3d at 514; Cadoree, 331 S.W.3d at 521. Further, the jury’s right to disbelieve a witness’s testimony in whole or part does not create a factual dispute as to article 38.23. See id. If there is no disputed factual issue, the legality of the conduct is determined by the trial judge alone, as a question of law. Madden, 242 S.W.3d at 510, 518. And if other facts, not in dispute, 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. See id.’” Mandujano v. State, 2020 Tex. App. LEXIS 6102 (Tex. App. – Houston (14th Dist.) Aug. 3, 2020).

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