Braggs v. State
In Braggs v. State, 951 S.W.2d 877, 881 (Tex. App.--Texarkana 1997, pet. ref'd), the court held that an article 38.23 instruction was defective:
This Court recently addressed this issue in Davis v. State, 905 S.W.2d 655, 663-64 (Tex. App.--Texarkana 1995, pet. ref'd).
As in Davis, the instruction here consists only of an abstract proposition of law drawn directly from Article 38.23.
The jury charge does not instruct the jury on the law governing probable cause.
The charge does not apply the legal concept to the evidence involved, nor does it ask the jury to resolve the disputed fact issues that either justify or invalidate the officer's conduct. Id.
The charge is defective. Ibid.
Braggs, complained that the trial court failed to include a definition of probable cause.
The court of appeals's holding that the trial court erred by failing to instruct on the law of probable cause seems to be in response to Braggs's complaint.
The Court explained that the explanation, or abstract portion of the charge was required. It is true that we have held that a jury charge should contain the abstract portion of the charge and the application portion.