If anyone has a 38.23 jury instruction, please e-mail to me. My e-mail is on my profile.

expect it will be asked for by defense tomorrow, if he gets it, don't just want to go with his without something to compare with.

Thanks

[This message was edited by raythomas on 03-28-06 at .]

I don't know what your issue is, but John Rolater included a handy 38.23/38.22 instruction for confessions on p 129 of TDCAA's Confessions book.

if evidence is obtained through a search warrant, the state appeals the search warrant and the court of appeals determines that there is probable cause, does a defendant get a 38.23 instruction challenging the legality of the search?

A defendant is only entitled to a 38.23 instruction if there is a contested fact issue for the jury to resolve. So, a defendant merely claiming that a warrant affidavit does not establish probable cause would not be entitled to an instruction because it is merely a legal issue. I'm not sure a defendant could ever create a fact issue as to the contents of a warrant affidavit.

The classic fact pattern for a 38.23 instruction is a traffic stop. Officer testifies that the defendant rolled a stop sign. Defense witness testifies that defendant came to a complete stop. That is a disputed fact issue that a jury can resolve.

that's what i thought. so now, say the search warrant was based upon the commission of one offense (offense A) and the police seize evidence of another offense (offense B). can the defendant challenge the legality of the search based upon entrapment for offense A, and does he get an entrapment instruction negating probable cause for offense A in a trial for offense B?