Sanchez-Tapia, Hermilo, PD-0554-15

Defendant Hermilo Sanchez-Tapia was convicted of DWI after officers investigated an accident in/near the Applegate RV/mobile-home park and obtained a blood sample showing .207 BAC.
Central factual dispute at trial: whether the location of the stop/arrest was a "public place" (an element of DWI) or private property (evidence of fences and a "No Trespassing" sign was offered by defense investigator).
Defense sought an article 38.23(a) jury instruction to exclude evidence obtained during an unlawful detention if the location was private; the trial court denied the requested instruction.
During an objection about relevance, the trial judge stated in front of the jury: "The issue is not public or private property. It is a public place," which defense contended was a comment on the evidence.
On appeal, the Seventh Court of Appeals affirmed, holding (1) the public-place dispute was part of the State's case (so an article 38.23(a) instruction was not required), and (2) the judge's remark did not amount to fundamental error and was, in context, a clarification of legal terminology.

Issue	Sanchez-Tapia's Argument	State's Argument	Held
Whether an article 38.23(a) jury instruction was required on disputed fact that DWI occurred in a "public place"	The public-place dispute was a material contested fact relevant to lawfulness of the detention and thus required a 38.23(a) instruction; Hill and related authorities require affirmative defensive instructions when raised by evidence	The public-place issue was an element of the offense (State's case-in-chief), not a separate factual predicate for exclusion; the charge already defined "public place," so a 38.23(a) instruction was redundant	Court of Appeals: No error; the jury charge already covered the public-place element, so no article 38.23(a) instruction was required
Whether the trial judge's on-the-record statement that the site "is a public place" was reversible fundamental error (no contemporaneous objection)	The judge's remark amounted to a comment on the evidence and, when combined with the lack of a 38.23(a) instruction, had a synergistic effect that vitiated the presumption of innocence and warrants reversal	The judge's statement was contextualized as clarifying the statutory element (public place vs. trespass statute) and did not rise to the level of Blue fundamental error; without an objection, issue is forfeited	Court of Appeals: No reversible error; statement was not a disqualifying comment on the evidence, and Blue does not compel reversal here

Hill v. State, 765 S.W.2d 794 (Tex. Crim. App. 1989) (statutory affirmative defensive instructions required when raised by the evidence even if they negate an element of the offense)
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012) (physical character of the scene can present a material disputed fact that might require submission to the jury)
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) (three-part test for when an article 38.23(a) instruction is required)
Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality addressing when unobjected-to judicial comments qualify as fundamental error)
Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) (standards for charging the jury and applying applicable law in the charge)
United States v. Fernandez, 496 F.2d 1294 (5th Cir. 1974) (examining the synergistic effect of prosecutorial/judicial remarks together with omitted jury instructions when assessing plain/error)