Jacob Rhodes v. State, 01-15-00810-CR

Early morning confrontation in a neighborhood park: deputies found Jacob Rhodes and friend after a disturbance report; both appeared upset.
Rhodes asked deputies for a ride to a nearby house; Deputy Sneed told him department policy required a search for anyone riding in the patrol car backseat.
Deputies testified Rhodes consented (said “oh, okay” and raised his hands); Sneed searched Rhodes and found a loaded handgun in his front pocket; Rhodes was arrested.
Rhodes was charged and convicted of unlawfully carrying a weapon (Tex. Penal Code § 46.02); sentence: one year in county jail, suspended, with community supervision.
On appeal Rhodes argued two jury-charge errors: (1) omission of an Article 38.23 instruction to disregard unlawfully obtained evidence (consent dispute); and (2) inclusion of an instruction reflecting a repealed statutory presumption for the "traveling" defense.
Court of Appeals reviewed whether factual conflict warranted an Article 38.23 instruction and whether the inclusion of the repealed-presumption instruction caused reversible harm; both issues were resolved against Rhodes and conviction was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by omitting an Article 38.23 instruction to disregard evidence allegedly obtained unlawfully	Rhodes: deputies’ testimony conflicted about whether he consented to search, raising a factual dispute entitling him to the instruction	State: deputies consistently testified Rhodes consented; no affirmative conflicting evidence on material fact of consent	No error: no genuine disputed fact on consent; Article 38.23 instruction not warranted
Whether including a jury instruction based on a repealed statutory presumption for the traveling defense was error and harmful	Rhodes: instruction tracked repealed statutory presumption and could mislead jury to require the presumption for acquittal, causing harm	State: other correct traveling instructions were given; presumption (now repealed) would only have benefitted Rhodes and evidence did not support traveling defense	Error in including presumption language but harmless: jury could find traveling without presumption and evidence could not reasonably support traveling defense

Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) (purpose and requirements of jury charge)
Serrano v. State, 464 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2015) (standards for Article 38.23 instruction and two-step charge-error review)
Rodriguez v. State, 456 S.W.3d 271 (Tex. App.—Houston [1st Dist.] 2015) (preservation and harm standards for jury-charge error)
Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008) (affirmative evidence requirement to raise factual dispute for Article 38.23)
Sanchez v. State, 122 S.W.3d 347 (Tex. App.—Texarkana 2003) (factors and examples delineating "traveling" defense)
Soderman v. State, 915 S.W.2d 609 (Tex. App.) (limits on travel exemption; loitering/deviation defeats defense)