Criminal Law Library Blog

March 3, 2008 - March 7, 2008

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U.S. Supreme Court, March 03, 2008
Boulware v. US, No. 06-1509

I"n the context of sections of the Internal Revenue Code that set the conditions for treating certain corporate distributions as returns of capital, nontaxable to the recipient, a distributee accused of criminal tax evasion may claim return-of-capital treatment without producing evidence that either he or the corporation intended a return of capital when the distribution occurred."

U.S. 1st Circuit Court of Appeals, March 07, 2008
US v. Henry, No. 06-1298

"Conviction and sentence for drug trafficking and contempt of court are affirmed over defendant's arguments that the district court erred by: 1) convicting and sentencing him in violation of the Fifth Amendment's prohibition against double jeopardy; 2) failing to conduct the sentencing enhancement colloquy mandated by 21 U.S.C. section 851(b); and 3) determining that two prior offenses were unrelated for Guidelines purposes.".

U.S. 1st Circuit Court of Appeals, March 07, 2008
US v. Diaz, No. 06-2378

"Conviction and sentence for possession of a firearm and ammunition by an illegal alien are affirmed where: 1) police officers had a reasonable suspicion to believe that defendant was armed, thus they were justified in searching his car; 2) the evidence was sufficient to support the elements of the charges; 3) the prior convictions giving rise to defendant's sentence under the Armed Career Criminal Act did not need to be presented to the jury and proved beyond a reasonable doubt; and 4) a preponderance of the evidence adduced at sentencing supported the conclusion that defendant had been previously convicted of a felony."

U.S. 2nd Circuit Court of Appeals, March 04, 2008
US v. Regalado, No. 05-5739

Sentence based on guilty plea to conspiring to distribute and possess with intent to distribute cocaine base is vacated as it is unclear in light of Kimbrough v. US, 128 S. Ct. 558 (2007), whether the district court would have imposed a non-Guidelines sentence had it been aware that "the cocaine Guidelines, like all other Guidelines, are advisory only," and that it therefore had discretion to deviate from the Guidelines where necessary to serve the objectives of sentencing under 18 U.S.C. section 3553(a). .

U.S. 2nd Circuit Court of Appeals, March 04, 2008
DiSimone v. Phillips, No. 07-0522

Grant of habeas petition ordering conviction be vacated based on state's Brady violation is vacated in part as to barring of retrial of count of depraved indifference murder as petitioner had not exhausted his state remedies with respect to that relief.

U.S. 3rd Circuit Court of Appeals, March 06, 2008
US v. Daniel, No. 07-2413

A conviction for unlawful possession of ammunition under section 2256 of Title 14 of the Virgin Islands Code is reversed where the government was required to prove the absence of authorization as an element of the offense, but failed to do so in this case.

U.S. 4th Circuit Court of Appeals, March 04, 2008
Mora v. City of Gaithersburg , No. 06-2158

In civil rights action alleging unlawful searches and seizures and unlawful continued retention of plaintiff's weapons, dismissal with prejudice of federal claims, and dismissal without prejudice of state claims, are affirmed over plaintiff's claims that: 1) police searches of his luggage, van, and apartment violated his Fourth Amendment rights; 2) the initial seizures of his guns, ammunition, firearms accessories, and survival literature violated his Fourth Amendment rights; and 3) the retention of his guns and ammunition violates his Fourteenth Amendment due process rights.

U.S. 4th Circuit Court of Appeals, March 06, 2008
US v. Yearwood, No. 06-5128

Conviction for conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base is affirmed over defendant's claim that the Double Jeopardy Clause of the Fifth Amendment barred his retrial for conspiracy, as the retrial required relitigation of "an issue of ultimate fact" already determined by the jury in his first trial for the substantive crime of distribution.

U.S. 4th Circuit Court of Appeals, March 06, 2008
US v. Mitchell, No. 06-516

Conviction for aggravated identity theft is reversed where defendant did not couple his use of the name "Marcus Jackson" a sufficient amount of correct, distinguishing information to identify a specific Marcus Jackson, as required by the statute.

U.S. 4th Circuit Court of Appeals, March 07, 2008
Golphin v. Branker, No. 07-8

Denial of habeas petition challenging convictions for the murder of a state trooper and a deputy sheriff is affirmed where: 1) the Supreme Court of North Carolina did not unreasonably apply the clearly established federal law of Batson v. Kentucky, 476 U.S. 79 (1986); and 2) any unreasonable application of Miranda v. Arizona, 384 U.S. 43 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981), did not have a substantial and injurious effect on the jury verdict.

U.S. 6th Circuit Court of Appeals, March 03, 2008
US v. Mabry, No. 06-2324, 06-2322

Defendants' convictions and sentences for conspiring to solicit and obtain prohibited payments from union contractors, and for soliciting and obtaining such payments, in violation of the Taft-Hartley Act, are affirmed over claims that: 1) the informal resolution of a payment dispute qualified as a "settlement" under 29 U.S.C. section 186(c)(2); 2) insufficient evidence presented at trial to support a finding that the exception to liability under 29 U.S.C. section 186(c)(3) should not apply; and 3) the district court engaged in unsupported judicial fact finding to arrive at a sentence.

U.S. 6th Circuit Court of Appeals, March 05, 2008
US v. Tatum, No. 07-5733

A sentence for bank fraud is vacated where a sentencing enhancement for abusing a position of private trust under U.S.S.G. section 3B1.3 was erroneously applied as defendant did not occupy a position of trust nor possess "special skills".

U.S. 6th Circuit Court of Appeals, March 06, 2008
Floyd v. City of Detroit, No. 06-2441

In a case arising from an incident in which defendants-police officers opened fire on unarmed plaintiff in his own backyard, wounding him in the chest, allegedly without warning and without cause, denial of summary judgment for officers is affirmed over claims that: 1) one officer was entitled to qualified immunity because his shot missed plaintiff; and 2) second officer should receive qualified immunity because he fired under the mistaken but reasonable belief that plaintiff had shot other defendant-officer. Defendant-city's appeal is dismissed as premature.

U.S. 6th Circuit Court of Appeals, March 07, 2008
US v. Gibney, No. 06-5909, 06-6442

A sentence imposed for offenses arising from a series of building fires at seven mattress and bedding stores in Kentucky, wherein the district court imposed a term of imprisonment of 84 months and a restitution order of over $1 million, is affirmed over claims of error regarding: 1) whether the district court erred as a matter of law in finding that a firefighter suffered bodily injury sufficient to warrant the imposition of an 84-month mandatory minimum sentence pursuant to 18 U.S.C. section 844(i); and 2) the factual basis and timeliness of the district court's restitution order.

U.S. 7th Circuit Court of Appeals, March 03, 2008
US v. Martinez, No. 06-2021
Convictions and sentences for drug offenses are affirmed where: 1) the evidence was sufficient to support defendants' convictions; 2) the jury was not required to determine the amount of drugs involved for sentencing purposes; 3) the reasonable foreseeability of the drug amounts was not at issue for defendants since they were directly involved in the entire amount; and 4) the district court did not err in enhancing one defendant's sentence for a managerial role in the conspiracy. Read more...

U.S. 7th Circuit Court of Appeals, March 05, 2008
US v. White, No. 06-4185
Conviction and sentence for distribution of crack cocaine are affirmed where: 1) the district court did not abuse its discretion in allowing the prosecution to introduce evidence concerning a witness' other government cooperation in order to rehabilitate the witness; 2) the defendant was predisposed to violate the law, thus the government did not engage in sentencing entrapment; and 3) the district court did not err in considering drug sales not included in the conviction when calculating defendant's sentence. Read more...

U.S. 8th Circuit Court of Appeals, March 03, 2008
US v. Igbokwe, No. 07-1513
Defendant's convictions and sentence for health care fraud, currency structuring, and money laundering are affirmed where: 1) the evidence was sufficient to support the convictions; and 2) any error in calculating the loss for the health care fraud conviction would have been harmless because the sentence was based on defendant's currency structuring conviction under the guideline grouping rules, rather than on his health care fraud conviction. Read more...

U.S. 8th Circuit Court of Appeals, March 03, 2008
Brannum v. Missouri Dep't of Corr., No. 07-1598
In an action raising a retaliation claim under Title VII against plaintiff's employer, a state correctional department, summary judgment for defendant is affirmed where, for purposes of a prima facie retaliation case: 1) a single comment at issue in the case was insufficient as a matter of law to support an objectively reasonable belief it amounted to unlawful sexual harassment; and 2) under the facts of the case, no reasonable person could have believed another officer was being subjected to disparate treatment, since it appeared he didn't even suffer an adverse employment action. Read more...

U.S. 8th Circuit Court of Appeals, March 04, 2008
Brown v. Fortner, No. 06-3743

"In a former inmate's 42 U.S.C. section 1983 suit against, inter alia, defendants-correctional officers alleging they acted with deliberate indifference by failing to provide him safe transportation in violation of his Eighth Amendment rights, denial of summary judgment for defendants is affirmed in part and reversed in part where: 1) there was jurisdiction for the appeal; 2) plaintiff presented sufficient evidence that a defendant's actions, including a rejection of plaintiff's request for a seatbelt while he was restrained in a manner that prevented him from securing his own seatbelt, driving recklessly, and ignoring requests to slow down, may have violated the Eighth Amendment; 3) plaintiff's right was clearly established; but 4) other defendant who was driving a different van that caused an accident, was entitled to qualified immunity as the evidence was insufficient to establish his deliberate indifference, as opposed to simply reckless driving.".

U.S. 8th Circuit Court of Appeals, March 05, 2008
"Pinos-Gonzales v. Mukasey, No. 07-1299

Where the BIA properly applies its own waiver rule and refuses to consider the merits of an argument that was not raised in an initial hearing, the circuit court will not allow circumvention of such discretionary agency procedures by addressing the argument for the first time in a petition for judicial review."

U.S. 8th Circuit Court of Appeals, March 05, 2008
US v. Austad, No. 07-1376
A sentence for mailing threatening communications is affirmed over claims that the sentence was unreasonable, and that the district court failed to consider defendant's history and circumstances."

U.S. 8th Circuit Court of Appeals, March 05, 2008
US v. Vincent, No. 07-1397

"A sentence for being a felon in possession of a firearm is affirmed where defendant's 1994 Arkansas state court conviction involving his use of a sawed-off shotgun was a violent felony for purposes of sentencing under the Armed Career Criminal Act (ACCA)."

U.S. 8th Circuit Court of Appeals, March 06, 2008
US v. Moore, No. 05-4146, 05-4156

"On remand from the Supreme Court, a sentence for possession of crack cocaine with intent to distribute is affirmed where the district court did not make the error of law identified in Kimbrough v. US, 128 S. Ct. 558 (2007), and did not abuse its substantial discretion in imposing a sentence within the guidelines range."

U.S. 8th Circuit Court of Appeals, March 06, 2008
US v. Tipton, No. 06-4102, 06-4134

"Defendants' convictions and a sentence for hiring, harboring, and conspiring to hire and harbor unlawful aliens working at a restaurant owned by one defendant are affirmed over claims that: 1) there was insufficient evidence to support their convictions; and 2) the district court erred at sentencing when it calculated the advisory guidelines range."

U.S. 8th Circuit Court of Appeals, March 06, 2008
US v. King, No. 07-1961

"A sentence for possession with intent to distribute crack cocaine is affirmed over claims that: 1) the district court erred in calculating drug quantities for purposes of determining his advisory Sentencing Guidelines range; and 2) he was entitled to a sentence reduction based on recent amendments to the Guidelines that modify the advisory sentencing ranges for crack cocaine offenses."

U.S. 8th Circuit Court of Appeals, March 07, 2008
Irving v. Dormire, No. 07-1591

"In an inmate's 42 U.S.C. section 1983 suit against several employees of a correctional center alleging multiple violations of his constitutional rights of due process, access to the courts, and freedom from cruel and unusual punishment, denial of defendants' request for qualified immunity on the Eighth Amendment claim is affirmed in part, but reversed in part where: 1) qualified immunity was properly denied to one officer with respect to death threats and to the labeling of plaintiff as a snitch, and also properly denied as to two other officers regarding another incident; and 2) denial of qualified immunity to three defendants with respect to death threats they made was erroneous as those threats were not objectively credible.".

U.S. 8th Circuit Court of Appeals, March 07, 2008
US v. Robertson, No. 07-1755

"A conviction for knowing possession of marijuana with intent to distribute and aiding and abetting the possession of marijuana is affirmed where: 1) the evidence was sufficient to support the conviction; and 2) there was no error in enhancing defendant's offense level for a leadership role in the offense.".

U.S. 9th Circuit Court of Appeals, March 03, 2008
US v. Mendoza, No. 06-50447

"A conviction for subscribing to a false income tax return is reversed and remanded due to a violation of defendant's Sixth Amendment speedy-trial right where, despite defendant's departure to the Philippines, an eight-year delay between defendant's indictment and arrest was a result of the government's negligence and prejudice is presumed.".

U.S. 9th Circuit Court of Appeals, March 03, 2008
Blanco v. Mukasey, No. 06-71385

"In the context of immigration law, a misdemeanor conviction for false identification to a peace officer under California Penal Code section 148.9(a) is not a crime involving moral turpitude."

U.S. 9th Circuit Court of Appeals, March 03, 2008
US v. Cannel, No. 06-30590

"A sentence for possession of child pornography is affirmed where, contrary to defendant's claims, the government did not breach a plea agreement with him."

U.S. 9th Circuit Court of Appeals, March 04, 2008
US v. Alghazouli, No. 06-50422

I"n the context of 18 U.S.C. section 545, which prohibits fraudulent or knowing importation of merchandise "contrary to law," the term "law" in section 545 includes a "regulation" when, and only when, a statute (a "law") specifies that violation of the regulation is a crime. Also, the term "knowingly" in 42 U.S.C. section 7413(c) of the Clean Air Act requires only that the defendant know the facts constituting the violation."

U.S. 9th Circuit Court of Appeals, March 04, 2008
In re: Copley Press, Inc., No. 07-72143

"In proceedings involving the unsealing of documents relating to individuals who ran a drug cartel in Mexico, an order unsealing the transcript of a plea colloquy, a plea agreement's "cooperation addendum", and the documents supporting a motion to seal the plea proceedings is affirmed in part, vacated in part and remanded where: 1) the public has no right of access to certain documents; 2) the district court did not abuse its discretion in unsealing portions of the documents that describe defendant's cooperation; but 3) the district court did abuse its discretion in unsealing portions that describe other people in danger."

U.S. 10th Circuit Court of Appeals, March 03, 2008
US v. Trotter, No. 05-3487

"On remand from the Supreme Court, a sentence for distribution and possession of cocaine powder and crack cocaine as well as conspiracy to possess with intent to distribute those substances is remanded in light of Kimbrough v. US, 552 U.S. ____, 128 S. Ct. 558 (2007), for the district court to clarify why it rejected defendant's request for a variance based on the crack/powder punishment disparity."

U.S. 10th Circuit Court of Appeals, March 03, 2008
US v. Martinez, No. 07-3087

"Denial of a motion to suppress evidence in a prosecution for possession with intent to distribute cocaine is affirmed where a trooper who effected a traffic stop because an out-of-state temporary registration permit was not displayed on the rear of the car, as required by Kansas law, did not act unreasonably for purposes of the Fourth Amendment."

U.S. 10th Circuit Court of Appeals, March 03, 2008
US v. Tatum, No. 07-7053

"Neither account numbers printed on counterfeit checks, nor counterfeit checks themselves, can be considered access devices for purposes of U.S.S.G. section 2B1.1(b)(10). A sentence for uttering a counterfeit check with the intent to deceive an organization is reversed and remanded where the district court erred in imposing a six-level enhancement pursuant to section 2B1.1(b)(10) as defendant's conduct did not involve the use or possession of access device-making equipment, nor did it involve trafficking in or producing access devices."

U.S. 10th Circuit Court of Appeals, March 03, 2008
US v. Tindall, No. 07-8038

"A sentence for assault resulting in serious bodily injury is affirmed over claims that: 1) the district court failed to comply with Fed. R. Crim. P. 32 in adopting a PSR's life-threatening injury recommendation; 2) the PSR did not contain sufficient evidence to support the conclusion that the victim had suffered a life-threatening injury; and 3) the district courts in the circuit are inconsistent in their applications of the life-threatening injury enhancement."

U.S. 10th Circuit Court of Appeals, March 04, 2008
US v. Ary, No. 06-3383

"Defendant's convictions and sentence for mail and wire fraud, theft of government property, transportation of stolen property, and money laundering, arising from various transactions involving space artifacts, are affirmed over claims that the district court erred: 1) by concluding defendant waived the work-product protection and attorney-client privilege; 2) by allowing the introduction of hearsay evidence at trial; and 3) in its calculation of loss."

U.S. 10th Circuit Court of Appeals, March 04, 2008
US v. Smart, No. 06-6120

"A sentence for inducing a minor to engage in sexually explicit conduct for the purpose of producing videotapes depicting such conduct is affirmed over the government's challenge where: 1) the district court relied on no improper factors at sentencing; and 2) applying the appropriate legal standard of review provided by recent Supreme Court precedent and crediting the district court's reasoned consideration of the multiple sentencing factors, there was no abuse of discretion in sentencing defendant to a below-Guidelines sentence."

U.S. 10th Circuit Court of Appeals, March 04, 2008
US v. Lopez, No. 07-3159

"In a prosecution for drug-related offenses, a ruling suppressing drugs found in the back of defendant's truck is reversed where: 1) although the government failed to timely file the certification required by 18 U.S.C. section 3731, the failure was not jurisdictional and the appeal could be considered as the government did, in substance, undertake the evaluation called for by section 3731 before noticing the appeal; and 2) on the merits, the events witnessed by government surveillance agents, taken as a whole, provided the officers reasonable suspicion to effect an investigative detention."

U.S. 11th Circuit Court of Appeals, March 03, 2008
Alexander v. Secretary, Dep't of Corr., No. 06-12501

"Dismissal of habeas petition as barred by the one-year limitations period in 28 U.S.C. section 2244(d)(1) is affirmed as petitioner's Florida Rule of Criminal Procedure 3.800(c) motion was a request to reduce a legal sentence based on mercy or leniency and did not constitute an application for State post-conviction or other collateral review with respect to the pertinent judgment under section 2244(d)(2) that tolled the limitations period."

U.S. 11th Circuit Court of Appeals, March 03, 2008
US v. Futch, No. 06-13655

"Motion for a certificate of appealability as to claims under 28 U.S.C. section 2255 is denied where defendant has not made a substantial showing of a Sixth Amendment violation and waived his due process claim. Imposition of new 215-month sentence for convictions for conspiracy to possess with intent to distribute, and to distribute, cocaine, is affirmed over claims that: 1) minor's mere presence and proximity to the cocaine are legally insufficient to warrant two-level sentence enhancement under U.S.S.G. section 3B1.4; and 2) the government failed to prove by a preponderance of the evidence that defendant used the minor to avoid detection."

U.S. 11th Circuit Court of Appeals, March 04, 2008
US v. Aviles, No. 05-14446

"Convictions and sentences related to complex healthcare fraud scheme involving both Medicare and private insurance companies are affirmed where there is no reversible error on issues raised by defendants. On government's cross-appeal, sentences of two physicians are vacated where the district court failed to conduct a relevant ex post facto analysis to determine which sentencing guidelines, the 2000 U.S. Sentencing Guidelines Manual or the 2004 Guidelines Manual, applied."

U.S. 11th Circuit Court of Appeals, March 04, 2008
Bates v. Harvey, No. 07-10570

"In civil rights action alleging false arrest after entering plaintiff's home without a warrant to search for the subject of a civil commitment order, denial of summary judgment is reversed where, although defendant deprived plaintiff of her constitutional rights, he is nonetheless entitled to qualified immunity as at the time defendant acted, the law did not give a reasonable officer fair and clear warning that a civil commitment order does not present circumstances sufficiently exigent to excuse the warrantless entry and search of an unrelated third party's home."

U.S. 11th Circuit Court of Appeals, March 05, 2008
US v. Deverso, No. 06-16048

"Convictions for (1) possessing materials involving a depiction of a minor engaged in sexually explicit activity, (2) transporting materials involving a depiction of a minor engaged in sexually explicit activity, and (3) using a minor to engage in sexually explicit conduct outside of the U.S. for the purpose of producing a visual depiction of such conduct and transporting that visual depiction into the U.S., are affirmed where the prosecution properly authenticated the foreign document it admitted into evidence, and the third conviction does not contain a scienter element as to age."

U.S. 11th Circuit Court of Appeals, March 07, 2008
Gordon v. US, No. 05-16703

"Conviction and sentence based on guilty plea to engaging in a continuing criminal enterprise and conspiracy to import cocaine are affirmed where defense counsel did not render ineffective assistance by failing to object to the trial court's failure to: 1) inform defendant of the nature of the charges to which he was pleading; and 2) address defendant personally concerning his right to allocute."

U.S. D.C. Circuit Court of Appeals, March 04, 2008
Juarez v. Dep't Of Justice, No. 07-5064

"Summary judgment upholding the DEA's denial of appellant's Freedom of Information Act request is affirmed over claims that: 1) the DEA's affidavits and underlying explanations were insufficient to justify withholding the records requested under FOIA's Exemption 7(A), which protects records and information compiled for law enforcement purposes; or, alternatively, 2) the district court erred by failing to conduct a segregability analysis for the withheld documents. "

Supreme Court of Florida, March 06, 2008
Jenkins v. State of Florida, No. sc06-839

"The exclusionary rule is not a remedy for a violation of the strip-search statute, Fla. Stat. section 901.211 (2005) unless a constitutional violation has also occurred.".

Supreme Court of Florida, March 06, 2008
Carrin v. State of Florida, No. SC04-1251

"The petition for review in the case at hand is granted, the decision under review is quashed, and the matter is remanded to the First District Court for reconsideration upon application of the Florida Supreme Court's decision in State v. Sigler, 967 So. 2d 835, 845 (Fla. 2007), which held Florida Statutes section 924.34 (2001) unconstitutional 'to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a reasonable doubt.' "

California Appellate Districts, March 03, 2008
People v. Whaley, No. H031647

"Order retroactively committing defendant to an indeterminate term of commitment as a sexually violent predator under the Sexually Violent Predator Act is reversed as an indeterminate term of commitment imposed under Welfare and Institutions Code section 6604.1 may not be imposed retroactively."

California Appellate Districts, March 03, 2008
Lopez v. Superior Ct. (People), No. G039025

"Petition for a writ of prohibition/mandate challenging order overruling demurrer to sentencing allegation is granted as the prosecution cannot legally criminalize behavior based on the fact that it is gang related and then increase punishment for that behavior simply by again alleging the same gang-related fact."

California Appellate Districts, March 04, 2008
People v. Short, No. C055359

"Denial of motion to modify victim restitution order imposed on defendant for conviction of driving under the influence of alcohol and causing great bodily injury, which occurred while defendant drove his employer's vehicle, is reversed where the order must be offset by money the victim received from the employer's insurer to settle a personal injury civil action the victim filed against defendant and the employer."

California Appellate Districts, March 04, 2008
People v. Stone, No. F051812

"Conviction for attempted murder with premeditation and deliberation, as well as attempting to dissuade a witness, is reversed where: 1) the trial court incorrectly instructed the jury on attempted murder; 2) the prosecutor misstated the law on that subject during argument; and 3) the evidence was insufficient to support the attempted murder conviction."

California Appellate Districts, March 05, 2008
People v. Duncan, No. D050458

"Driving with an upside down license plate constitutes a violation of Vehicle Code section 5201, which requires that the license plate be clearly legible."

Texas Criminal Court of Appeals, March 05, 2008
Ex parte Thompson, No. 75,720

"Application for habeas corpus relief from sentences assessed against applicant in thirteen criminal contempt judgments is granted where only one contempt was shown on the facts of the case. Where, as here, a witness indicates outside the jury's presence that he will not answer any questions and afterwards consistently maintains that position before the jury by refusing to answer any questions (except for introducing himself), Supreme Court precedent establishes, as a matter of due process, that only one contempt occurs."

Texas Criminal Court of Appeals, March 05, 2008
Azeez v. State of Texas, No. 010-07

"A court of appeals judgment affirming appellant's conviction is reversed and remanded where: 1) the trial court erred in allowing appellant to be prosecuted under Section 38.10 of the Penal Code; 2) the court of appeals erred in allowing the appellant to be punished more severely than he could have been under a Transportation Code provision; and 3) a County Court at Law erred in holding that the appellant's objections to prosecution under the Penal Code were untimely and therefore 'waived.' "

Texas Criminal Court of Appeals, March 05, 2008
Holmes v. State of Texas, No. 1050-07

"A defendant who affirmatively states, "No objection," when evidence is offered, waives his right to complain on appeal that the evidence was, as a matter of law, illegally obtained under Article 38.23. However, that same defendant may still request and receive a jury instruction under Article 38.23 if the evidence raises a contested factual issue that is material to the lawfulness of obtaining the evidence"