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

By John Wesley Hall, Jr.

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, 2011 Tex. App. LEXIS 2133 (Tex. App.—Houston (14th Dist.) March 24, 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...continue to full post

Full post as published by Fourth Amendment on March 27, 2011 (boomark / email).