NO. 1329-00






Womack, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Price, Johnson, Holcomb, and Cochran, JJ., joined. Keasler and Hervey, JJ., dissented.

The appellant was pulled over by a Houston police officer for speeding. During the traffic stop, but before the appellant's arrest, the arresting officer conducted a series of field sobriety tests on the appellant. The appellant filed a motion to suppress evidence of these tests, but the trial court did not rule on the motion. The results of the tests were admitted at trial. The arresting officer testified that he told the appellant that "before any decision to let her go was gonna be made, that [he] needed to conduct tests to determine what her sobriety was." The appellant did not object to the admission of this evidence, but she requested a jury instruction on the voluntariness of the field sobriety tests pursuant to Code of Criminal Procedure article 38.23. (1) The trial court denied the request, and the appellant was convicted of DWI.

The court of appeals affirmed the conviction, holding that the appellant waived any error in the trial court's refusal to give the instruction when she failed to object to the evidence of the tests when offered at trial. (2) The court also held that the appellant's failure to object meant that she was not entitled to an instruction under article 38.23. (3) We believe that the court of appeals erred in each of these holdings.

Preservation of Error

The court of appeals held that because the appellant did not object to the evidence of the field sobriety tests at the time it was offered, she did not preserve error, if any, in the trial court's denial of her request for a jury instruction pursuant to article 38.23. (4) In support of this holding, the court cited Rule of Appellate Procedure 33.1(a), which requires a timely objection and a ruling by the trial court for preservation of error on appeal. However, because preservation of error with respect to jury charges is governed by statute, (5) Rule 33.1(a) does not apply. Therefore, the fact that the appellant did not object to the admission of the evidence at issue did not preclude her from complaining of the omission of an article 38.23 instruction from the jury charge. The court of appeals was incorrect to hold otherwise.

Right to Article 38.23 Instruction

The court of appeals also addressed the appellant's right to the requested jury charge instruction at trial. The court held that because the arresting officer "testified without objection about the [field sobriety] test and the test results," the appellant "was not entitled to a limiting instruction in the jury charge on [the voluntariness] issue." (6) We disagree.

In Pierce v. State, 32 S.W.3d 247 (Tex. Crim. App. 2000), we held that a jury's implicit finding that evidence was not illegally obtained, evidenced by a guilty verdict, does not supplant the trial court's prior denial of a motion to suppress that evidence. In other words, the issue presented to the trial judge - the admissibility of evidence - is independent of the issue given to the jury in the charge - whether the evidence may be considered in reaching a verdict. A defendant's decision whether to seek the judge's ruling on admissibility does not affect his right to have the jury instructed on a particular issue. Here, the appellant chose not to object to the admissibility of evidence of the sobriety tests based on involuntariness, but in doing so, she did not waive the right to have the issue included in the jury charge.

The court of appeals erred in holding that in failing to object to the evidence of the field sobriety tests, the appellant waived her rights to an article 38.23 instruction and to appeal error in the charge. With respect to the appellant's right to the instruction, article 38.23(a) requires an instruction only when "the legal evidence raises an issue" as to whether the evidence objected to was illegally obtained. The court of appeals should have decided whether, notwithstanding her failure to object to the evidence, the appellant was entitled to the requested instruction based on this requirement. Therefore, we reverse the judgment of the court of appeals and remand the case for resolution of this issue.

Delivered April 9, 2003.

Do Not Publish.

1. Article 38.23 provides, in part:

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

2. Hromadka v. State, No. 14-99-00685-CR, slip op. at 6 (Tex. App. - Houston [14th Dist.] 2000)(not designated for publication).

3. Id.

4. Id.

5. See Tex. Code Crim. Proc. art. 36.14, 36.19; Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).

6. Hromadka v. State, slip op. at 6.