Tommy Baker v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00283-CR
___________________________

TOMMY BAKER, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court No. 1846923

Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION

A jury convicted Appellant Tommy Baker of possessing, with the intent to

deliver, more than 4 grams but less than 200 grams of a controlled substance, namely

methamphetamine. See Tex. Health & Safety Code § 481.112(a), (d). On appeal, Baker

argues in a single issue that the trial court erred by failing to include an Article

38.23 instruction in the jury charge. See Tex. Code Crim. Proc. art. 38.23(a). We

affirm.

I. BACKGROUND

In October 2024, plainclothes narcotics officers were surveilling the area

around the Relax Inn in west Fort Worth, a known “hot spot” for drug activity. One

of the surveilling officers, Officer Steven Smith, positioned his vehicle next to a

nearby convenience store so that he had a view of a fenceline bordering a driveway to

the motel.

From this vantage point, Officer Smith observed Baker driving a moped along

the driveway into the motel parking lot. Roughly a minute later, Baker returned along

the driveway in the opposite direction and stopped “about halfway.” Officer Smith

then saw two men and a woman approach Baker on the moped. Given the short time

that Baker had been at the motel and the fact that the three individuals “immediately

gravitated” towards him, Officer Smith began paying close attention to the situation

because the parties’ behavior was “consistent with drug dealing.”

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Because Officer Smith’s view was partially obstructed by a double-panel, slatted

fence, he positioned himself at an angle to give himself a clear view of Baker. Thus,

while he could see Baker clearly, his view of the other individuals was sometimes

obscured.

After a short period of time, Officer Smith saw Baker hand a clear plastic

baggie containing what appeared to be blue pills to one of the two men. Given the

color of the pills, the use of the plastic baggie, and the location, Officer Smith

suspected that Baker was selling fentanyl. Officer Smith then saw Baker place

something in the woman’s extended hand before leaving with her on the back of his

moped.

As all this was happening, Officer Smith was communicating with other

officers over the radio, and they formulated a plan of action. It was decided that

Officer Daniel Villeneuve and Sergeant Chavez1 would follow Baker and the woman,

and two other officers would follow the two men, who had left on foot.

Officer Villeneuve observed Baker drop the woman off at a nearby apartment

complex before parking his moped at a different apartment complex. Officer

Villeneuve then approached Baker and detained him. Baker admitted that he had a

meth pipe and showed both the pipe and a bag of methamphetamine to Officer

Villeneuve. Officer Villeneuve then placed Baker under arrest, and Sergeant Chavez

1
Sergeant Chavez’s first name does not appear in the record.

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searched the backpack that Baker had taken with him on his moped. Inside the

backpack, Sergeant Chavez found a case containing a digital scale, a larger bag of

methamphetamine, marijuana, and white pills that were later determined to be

hydrocodone. The methamphetamine weighed 23 grams, which, according to Officers

Smith and Villeneuve, is a “dealer amount,” not a “user amount.”

Baker was indicted for possessing, with the intent to deliver, more than 4 grams

but less than 200 grams of methamphetamine. 2 He pleaded not guilty, and a jury trial

was held.

At trial, Baker called his friend Shannon McNeil as a witness. McNeil testified

that earlier that day she had gone to the convenience-store parking lot where Officer

Smith had been parked when he observed the apparent drug transaction involving

Baker and the three other individuals at the Relax Inn. She took photographs and a

video purporting to show what Officer Smith would have been able to see from that

vantage point. She testified that she saw a man walking down the motel driveway and

that she lost sight of him once he was “in the middle” of the driveway because the

fence obstructed her view.

2
The indictment also charged Baker with actually delivering—not merely
possessing with the intent to deliver—methamphetamine and fentanyl. See Tex.
Health & Safety Code § 481.112(a). But the State waived these additional charges
before jury selection.

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After considering all the evidence, the jury found Baker guilty, found the

indictment’s habitual-offender notice to be true, and assessed his punishment at

25 years in prison. This appeal followed.

II. DISCUSSION

In his sole appellate issue, Baker contends that the trial court erred by failing to

include an Article 38.23 instruction in the jury charge. See Tex. Code Crim. Proc.

art. 38.23(a). We disagree.

A. Applicable Law and Standard of Review

Article 38.23(a) provides that no evidence obtained by an officer or other

person in violation of the laws or constitutions of Texas or the United States shall be

admitted into evidence against the accused on the trial of any criminal case. Id. When

there is an issue as to whether evidence was obtained by such a violation, the jury shall

be instructed that if it believes, or has a reasonable doubt, that the evidence was

obtained by such a violation, then it shall disregard any such evidence. Id. A

defendant’s right to the submission of a jury instruction under Article 38.23(a) is

limited to disputed issues of fact that are material to the defendant’s claim of a

constitutional or statutory violation that would render evidence inadmissible. Madden

v. State, 242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007).

To be entitled to an Article 38.23 instruction, a defendant must show that

(1) the evidence heard by the jury raised an issue of fact, (2) the fact was contested by

affirmative evidence at trial, and (3) the fact is material to the lawfulness of the

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challenged conduct in obtaining the evidence. Id. at 510. When these elements are not

met, a trial court is not required to include an Article 38.23 instruction. Id.; see Shpikula

v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding

trial court did not err by refusing Article 38.23 instruction when defendant did not

present affirmative evidence raising an issue of material fact).

We review a trial court’s refusal to include a requested instruction in the jury

charge for an abuse of discretion. See Steele v. State, 490 S.W.3d 117, 130 (Tex. App.—

Houston [1st Dist.] 2016, no pet.). A trial court abuses its discretion only if its

decision is “so clearly wrong as to lie outside the zone within which reasonable people

might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008).

B. The Requested Article 38.23 Instruction

At the charge conference, Baker requested that the following instruction be

included in the jury charge:

If you do not believe or have a reasonable doubt thereof that Officer
Smith’s testimony in testifying that he saw a hand-to-hand transfer of
what he believed to be narcotics on the other side of the fence between
the defendant and another person from where he observed it, you must
not consider any evidence seized as a result of the search that was
undertaken as a result of Officer Smith’s statements about what he
observed.
When the trial court asked Baker to identify the material fact that, if resolved in his

favor, would result in the suppression of evidence and to specify the particular

evidence that would be suppressed, he responded,

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The fact that Officer Smith said that he saw a hand-to-hand transfer of
what he believed to be narcotics that was on the other side of the fence,
which led to the reasonable suspicion that caused Officer Villeneuve to
approach Mr. Baker, . . . if they have a reasonable doubt as to the
veracity -- the accuracy of his observation, I believe that that would
require this charge to be given because there is a fact[-]issue question.
The State responded that Baker had not presented any affirmative evidence

contesting what Officer Smith had seen on the day of the arrest and pointed out that

McNeil’s testimony concerned only her observations from her vantage point on a

different day. According to the State, because there was no contested fact issue for the

jury to resolve, the requested Article 38.23 instruction was inappropriate.

The trial court agreed with the State and denied the requested instruction.

C. Analysis

Having reviewed the record, we conclude that there was no dispute in the

evidence that required an Article 38.23 instruction. For a defendant to be entitled to

such an instruction, “[t]here must be an affirmative contest—i.e.[,] conflicting

testimony or self-contradictory testimony—regarding a historical[-]fact question, not

merely a question of credibility.” Perez v. State, No. 03-12-00041-CR,

2013 WL 4822915, at *4 (Tex. App.—Austin Aug. 29, 2013, no pet.) (mem. op., not

designated for publication) (citing Madden, 242 S.W.3d at 513–14). Here, the evidence

presented no such affirmatively contested historical-fact question.

As the State points out, there was only one witness who testified as to what

Officer Smith saw on the day that Baker was arrested: Officer Smith himself. Officer

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Smith acknowledged that his line of sight had been partially obscured by the fence

and testified that he had maneuvered himself so that he could clearly see Baker during

his interactions with the three individuals who had approached him in the motel

driveway. McNeil’s testimony about what she could see from her vantage point on a

different day does not affirmatively contradict Officer Smith’s testimony about what

he saw on the day of the arrest.3 Accordingly, the trial court did not abuse its

discretion by refusing the requested Article 38.23 instruction. Cf. Bendy v. State,

No. 12-21-00073-CR, 2022 WL 869131, at *4 (Tex. App.—Tyler Mar. 23, 2022, no

pet.) (mem. op., not designated for publication) (holding that trial court had not erred

by refusing Article 38.23 instruction because appellant’s girlfriend’s “testimony that

she ‘didn’t see’ . . . alcohol in the [appellant’s] car d[id] not affirmatively contradict

[the police officer’s] testimony that he did”); Jones v. State, 338 S.W.3d 725, 740 (Tex.

App.—Houston [1st Dist.] 2011) (op. on reh’g) (holding that trial court had not erred

by refusing Article 38.23 instruction because police officer’s testimony about one

controlled cocaine buy was “not necessarily inconsistent” with second officer’s

testimony “that he [had] observed two different controlled buys involving two

3
As the State pointed out during the charge conference, the record does not
indicate what Officer’s Smith’s exact position was on the day of the arrest or how it
compares to the position from which McNeil made her observations. Further,
nothing in the record suggests that McNeil attempted to change her angle to permit a
better view of the motel driveway as Officer Smith testified that he did.

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different informants on two different days”), aff’d, 364 S.W.3d 854 (Tex. Crim. App.

2012).

We overrule Baker’s sole issue.

III. CONCLUSION

Having overruled Baker’s sole issue, we affirm the trial court’s judgment.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 11, 2026

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