Cornelius Jackson v. State

Affirmed and Opinion filed May 28, 2015.

In The

Fourteenth Court of Appeals

NO. 14-13-00170-CR

CORNELIUS JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No 2
Fort Bend County, Texas
Trial Court Cause No. 12-CCR-163243

OPINION
Appellant, Cornelius Jackson, appeals his conviction for driving while
intoxicated (“DWI”). In three issues, he contends (1) the evidence is insufficient to
support the conviction, (2) the trial court erred by denying appellant’s motion to
suppress, and (3) the trial court erred by refusing to submit a requested jury
instruction. We affirm.
 I. BACKGROUND

The State presented one witness at trial—Trooper Devon Wiles with the
Texas Department of Public Safety (“DPS”)—and a video recording of his
interaction with appellant. This evidence collectively showed the following:

At approximately 1:30 a.m. on July 29, 2012, Trooper Wiles was on patrol
in Fort Bend County. He clocked a Suburban driven by the twenty-one-year-old
appellant travelling eighty-three miles per hour on Highway 59 where the speed
limit is sixty-five miles per hour. After Trooper Wiles signaled for appellant to
stop, he pulled over on the right shoulder. When approaching appellant’s window,
the trooper detected a strong odor of alcohol. Appellant denied he had been
drinking and stated he was on the way to pick up his mother from a scrapbooking
party. Trooper Wiles asked appellant to step to the rear of the vehicle.

Appellant was “a little bit unsteady” while walking to the rear of the vehicle.
His clothing was “disorderly” because he wore swim trucks that were pulled down
somewhat and no shirt. At the back of the car, Trooper Wiles noticed a strong
smell of alcohol on appellant’s breath. Appellant was swaying, he leaned against a
barrier for support, some of his speech was incoherent, and his eyes were red,
glassy, and watery—all of which Trooper Wiles considered signs of intoxication.
After appellant exited the vehicle, it continued to smell strongly of alcohol.
Appellant claimed his uncle used the vehicle earlier and must have been drinking.
While at the scene, appellant agreed to give a breath specimen via a portable
instrument. At trial, Trooper Wiles was precluded from revealing the results of
that test, but he testified the results caused him to continue his DWI investigation.

Trooper Wiles discovered there were outstanding warrants for appellant’s
arrest. Trooper Wiles arrested appellant for the outstanding warrants, handcuffed
appellant, and placed him in the trooper’s car. Appellant insisted he be allowed to
2
call his mother because she owned the vehicle. Trooper Wiles replied that he was
not required to permit the call, but he did allow it. The mother asked if she could
retrieve the vehicle. Trooper Wiles told her that she had fifteen minutes to retrieve
the vehicle or it would be towed, which the trooper explained at trial was a
courtesy he was not required to extend. The mother said she would be there.

During that time period, Trooper Wiles conducted a search of the vehicle,
which he characterized as an inventory pursuant to DPS policy when a vehicle will
be impounded—in case the mother did not appear. Trooper Wiles found a
styrofoam cup containing ice and a beverage which smelled strongly of alcohol,
“stuffed” under the back seat near the driver’s side. Appellant’s mother eventually
arrived and retrieved the vehicle.

After appellant was placed in the trooper’s car, his attitude became
combative and sarcastic. He engaged in various rambling, verbal tirades against
Trooper Wiles, including repeatedly stating, “You gonna beat my ass?” “you’re not
even human,” and that “most cops” lie. This demeanor continued while he was
being transported to the jail.

At the jail, Trooper Wiles requested that appellant perform field sobriety
tests and provide a breath specimen via the Intoxilyzer 5000. Trooper Wiles read
appellant statutory warnings relative to the request for a breath specimen.
Appellant refused to submit to the field sobriety tests or provide a breath specimen,
without an attorney being present, but, according to Trooper Wiles, there is no
right to an attorney during those tests. Appellant was then arrested for DWI.

Trooper Wiles had performed at least thirty DWI investigations during the
year before trial of the present case. In Trooper Wiles’s opinion, appellant was
intoxicated when his vehicle was stopped by Trooper Wiles.

3
 Additionally, the State presented a completed DPS “Property Inventory”
form, which included the following entry under the list of items found in the
vehicle: “1 Open White Cup Alcoholic Bev.”

Appellant filed a pre-trial motion to suppress evidence regarding the cup
containing an alcoholic beverage found in the vehicle. During trial, but before the
evidence was admitted, the court heard and denied the motion to suppress.

A jury found appellant guilty of DWI. The trial court assessed punishment
at 180 days in jail, probated for eighteen months, and a fine.

II. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends the evidence is insufficient to support
his conviction. When reviewing the sufficiency of the evidence, we view all
evidence in the light most favorable to the verdict and determine, based on that
evidence and any reasonable inferences therefrom, whether any rational fact finder
could have found the elements of the offense beyond a reasonable doubt. Gear v.
State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). This standard gives full play
to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,
weigh the evidence, and draw reasonable inferences from basic facts to ultimate
facts. Id. Circumstantial evidence is as probative as direct evidence in establishing
guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact need
not point directly and independently to guilt, as long as the cumulative force of all
incriminating circumstances is sufficient to support the conviction. Id.

A person commits DWI if he “is intoxicated while operating a motor vehicle
in a public place.” Tex. Penal Code Ann. § 49.04(a) (West, Westlaw through 2013
3d C.S.). Relative to this case, “intoxicated” means “not having the normal use of

4
mental or physical faculties by reason of the introduction of alcohol . . . into the
body.” See id. § 49.01(2) (West, Westlaw through 2013 3d C.S.).

Based on the following, the jury could have found beyond a reasonable
doubt that appellant was intoxicated when stopped by Trooper Wiles:

 Appellant’s excessive speed, disorderly clothing, unsteady gait and
stance, incoherent speech, red, glassy, and watery eyes, and combative
behavior. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App.
2010) (recognizing evidence raising inference of intoxication includes
erratic driving, post-driving behavior such as stumbling, swaying,
slurring or mumbling words, and bloodshot eyes); Cotton v. State, 686
S.W.2d 140, 142–43 & 142 n.3 (Tex. Crim. App. 1985) (identifying
characteristics that may constitute evidence of intoxication to include
slurred speech, bloodshot eyes, unsteady balance, and staggering gait);
 The fact that appellant’s breath smelled strongly of alcohol, and a cup
containing a fresh alcoholic beverage was found in his vehicle—together
with a reasonable inference that appellant hid it under the back seat when
he realized he was being stopped; see Cotton, 686 S.W.2d at 142 n.3
(including the odor of alcohol on the person or his breath as characteristic
that may constitute evidence of intoxication);
 Trooper Wiles’s opinion, based on the above-cited facts and his
experience, that appellant was intoxicated and more specifically had lost
“the normal use of his mental and/or physical faculties.” See Annis v.
State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (holding officer’s
opinion that defendant was intoxicated was legally sufficient to support
DWI conviction when based on officer’s experience and observed facts,
including defendant swerved his car across lane-divider, he appeared
disorderly, his speech was “mush-mouthed,” his eyes were red, his breath
smelled of alcohol, and he swayed when walking or standing);
Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d) (stating testimony of a police officer that an individual is
intoxicated is probative evidence of intoxication); and
 Appellant’s refusal to submit to the Intoxilyzer 5000 breath test and field
sobriety tests. See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim.
App. 2008) (recognizing defendant’s refusal to submit to breath test is
relevant to show consciousness of guilt); Barraza v. State, 733 S.W.2d
379, 381 (Tex. App.—Corpus Christi 1987), aff’d, 790 S.W.2d 654 (Tex.
5
 Crim. App. 1990) (holding there is no significant difference between
refusal to take field-sobriety test and refusal to perform breath test for
evidentiary purposes); see also Tex. Transp. Code Ann. § 724.061 (West,
Westlaw through 2013 3d C.S.) (“A person’s refusal of a request by an
officer to submit to the taking of a specimen of breath or blood, whether
the refusal was express or the result of an intentional failure to give the
specimen, may be introduced into evidence at the person’s trial.”).
Appellant cites several factors as purportedly negating he was intoxicated:
contrary to Trooper’s Wiles testimony, the video shows appellant was not
“slurring, swaying, or stumbling”; he did not weave or drive erratically; he
signaled and safely pulled over when Trooper Wiles activated his lights; he had no
difficulty locating his proof of insurance; he coherently provided his name and
address; and Trooper Wiles did not perform any field sobriety tests at the scene.

The video does not contradict Trooper Wiles’s testimony. Trooper Wiles
never testified appellant was “stumbling” but that he was “a little bit unsteady”; the
jury could perceive from the video that this description was accurate. The video is
not entirely clear on whether appellant swayed; but it indicates appellant attempted
to lean on a barrier, consistent with the trooper’s description that such action was
intended to keep from swaying. The jury was free to believe Trooper Wiles who
was in a better position to observe appellant’s stance. Additionally, Trooper Wiles
did not testify that appellant slurred his speech but rather that he was incoherent
because some of his speech was difficult to understand. The video confirms there
were instances in which appellant rambled incoherently about various matters.
Appellant cites no authority that the other factors he outlines are dispositive on
whether he was intoxicated. We defer to the jury’s role to weigh these factors
against those cited above which support a finding that appellant was intoxicated.
See Gear, 340 S.W.3d at 746.

6
 In summary, the evidence is sufficient to support appellant’s conviction for
DWI. We overrule his first issue.

III. MOTION TO SUPPRESS

In his second issue, appellant argues the trial court erred by denying
appellant’s motion to suppress the evidence that a cup containing an alcoholic
beverage was found in his vehicle. Appellant contends the warrantless search of
his vehicle violated the United States and Texas Constitutions and did not satisfy
the exception for a lawful inventory search.

Before the State presented Trooper Wiles’s testimony regarding the cup, the
trial court held a hearing, outside the jury’s presence, on the motion to suppress.
After hearing evidence, the trial court denied the motion. Then, the information
regarding the cup was admitted via three separate avenues: (1) Trooper Wiles’s
testimony; (2) the video;1 and (3) the inventory sheet.

A. Standard of Review and Applicable Law

We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). We give almost total deference to the trial court’s findings of historical fact
that are supported by the record and its application of the law to facts if the
resolution of those questions turns on an evaluation of credibility and demeanor.
Id. We review de novo the trial court’s application of the law to the facts when the
issue does not turn on credibility and demeanor. Id. The trial court is the
exclusive trier of fact and judge of the credibility of the witnesses and the weight to
be given to their testimony at the suppression hearing. State v. Ross, 32 S.W.3d
853, 855 (Tex. Crim. App. 2000). In reviewing a trial court’s ruling on a motion to
1
While conducting the inventory, Trooper Wiles announced on the recording that he
found an open container with ice and a strong smell of alcohol.

7
suppress, we must view the evidence in the light most favorable to the ruling.
State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. U.S. Const. amend. IV.2 A warrantless search
of property is presumptively unreasonable subject to a few specifically defined and
well-established exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim.
App. 2003). An inventory search of an automobile pursuant to a lawful
impoundment is such an exception and does not implicate the policies underlying
the warrant requirement. See Colorado v. Bertine, 479 U.S. 367, 371 (1987);
Moskey v. State, 333 S.W.3d 696, 700 (Tex. App.—Houston [1st Dist.] 2010, no
pet.) (citing South Dakota v. Opperman, 428 U.S. 364, 375–76 (1976); Benavides
v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. 1980)). An inventory search
protects (1) the owner’s property while the vehicle is in police custody, (2) the
police against claims or disputes over lost, stolen, or vandalized property, and (3)
the police from possible danger. Bertine, 479 U.S. at 372. Issues of probable
cause are irrelevant because an inventory is not conducted to investigate criminal
activity but instead to fulfill the above listed purposes. See id. at 371–72.

Before an inventory search is lawful, there must be a lawful impoundment.
Benavides, 600 S.W.2d at 810. Among other situations, an automobile may be
impounded if the driver is removed from the automobile and placed under
custodial arrest and no other alternatives are available to ensure the protection of
the vehicle. Id. at 811; Josey v. State, 981 S.W.2d 831, 842 (Tex. App.—Houston

2
Appellant also generally asserts the search violated the Texas Constitution, which
likewise protects against unreasonable searches and seizures. See Tex. Const. art. I, § 9.
Appellant does not argue his state claim separately from his federal claim or contend the state
constitution affords greater protections than the federal constitution. Consequently, we will
analyze the claim solely under Fourth Amendment law. See Manns v. State, 122 S.W.3d 171,
192 n.97 (Tex. Crim. App. 2003).

8
[14th Dist.] 1998, pet. ref’d). Our court has outlined some factors that may be
considered to determine the reasonableness of impoundment: (1) whether someone
was available at the scene of the arrest to whom the police could have given
possession of the vehicle; (2) whether the vehicle was impeding the flow of traffic
or was a danger to public safety; (3) whether the vehicle was locked; (4) whether
the detention of the arrestee would likely be of such duration as to require police to
take protective measures; (5) whether there was some reasonable connection
between the arrest and the vehicle; and (6) whether the vehicle was used in the
commission of another crime. Josey, 981 S.W.2d at 842.

To satisfy the exception, the inventory search must be conducted in good
faith and pursuant to a reasonable standardized police procedure. Moskey, 333
S.W.3d at 700 (citing Bertine, 479 U.S. at 374). The search must be designed to
produce an inventory of the vehicle’s contents and may not be used as a “‘ruse for
a general rummaging in order to discover incriminating evidence.’” Id. (quoting
Florida v. Wells, 495 U.S. 1, 4 (1990)). The State bears the burden to establish
that the police conducted a lawful inventory search. Id. (citing Gauldin v. State,
683 S.W.2d 411, 415 (Tex. Crim. App. 1984), overruled on other grounds by
Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); Evers v. State, 576
S.W.2d 46, 50 & n.5 (Tex. Crim. App. 1978)). The State meets its burden by
demonstrating an inventory policy exists and the officers followed the policy. Id.
(citing Moberg v. State, 810 S.W.2d 190, 195 (Tex. Crim. App. 1991)). Moreover,
an inventory search is not rendered unlawful because it is conducted prior to actual
impoundment. See Daniels v. State, 600 S.W.2d 813, 815 (Tex. Crim. App. 1980).

9
B. Analysis

We conclude the State proved the inventory search in the present case was
lawful.3 The trial court issued findings of fact and conclusions of law relative to
denial of appellant’s motion suppress. The following findings are pertinent to the
trial court’s determination that the inventory was lawful:

15. Trooper Wiles . . . arrested Defendant for outstanding warrants.
17. At the Defendant’s request, Trooper Wiles contacted the
Defendant’s mother, who was the owner of the vehicle
Defendant was driving. Trooper Wiles had a conversation with
the Defendant's mother and indicated to her that he would give
her 15 minutes to arrive at the scene to pick up the vehicle,
rather than having it towed.
18. Soon after this conversation with the Defendant’s mother,
Trooper Wiles decided to inventory the car, just in case the
Defendant’s mother did not come.
19. During the inventory search, Trooper Wiles discovered a cup on
the floorboard of the back seat of the vehicle, behind the
driver’s seat, containing a liquid that was pink in color, with ice
cubes still intact and had an odor of alcohol that the Trooper
characterized as “strong.”

3
The State contends appellant failed to preserve his complaint because he stated “no
objection” when the videotape and inventory form were offered. The Texas Court of Criminal
Appeals has held that, although a motion to suppress preserves error without the need to object
when the challenged evidence is subsequently offered at trial, a defendant waives his complaint
if he affirmatively states “no objection” when the evidence is offered. See, e.g. Gearing v. State,
685 S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds by Woods v. State,
956 S.W.2d 33 (Tex. Crim. App. 1997). However, the court more recently clarified that this
principle is “context-dependent”: if the whole record plainly demonstrates the defendant did not
intend, and the trial court did not construe, the “no objection” assertion to abandon the earlier
preserved complaint, the complaint is not waived. See Thomas v. State, 408 S.W.3d 877, 885
(Tex. Crim. App. 2013). Arguably, because appellant did not abandon his motion to suppress
relative to Trooper Wiles’s testimony, appellant did not intend to abandon the motion relative to
the videotape and inventory form, which essentially mirrored the trooper’s testimony regarding
the cup. Regardless, we need not decide whether appellant preserved error because we conclude
the trial court did not err by denying the motion to suppress.

10
 30. Trooper Wiles[] testified that there were tow trucks near the site
of the traffic stop, therefore it was unnecessary for him to make
a call for a tow truck.
31. It was not reasonable to expect the Trooper to wait 15 minutes
for the Defendant’s mother to arrive, then take an additional 15-
30 minutes to inventory the vehicle once he realized that she
was not coming. The State asserted that while waiting for the
Defendant’s mother to come, Trooper Wiles did the inventory
search. Trooper Wiles had every intent to impound the vehicle
if Defendant’s mother had not shown up.
32. When Defendant was arrested for the outstanding warrants,
Trooper Wiles followed DPS policy. Trooper Wiles completed
the standard inventory form and attached it to his offense
report, which was then submitted to the District Attorney’s
office.
(internal record references omitted).

The following conclusions of law are pertinent to the trial court’s
determination that the inventory was lawful:

6. . . . The Defendant was arrested for outstanding warrants. At
the time of his arrest, there were no alternatives other than
impoundment present at the time Trooper Wiles conducted the
inventory search. An inventory policy is currently in effect for
the [DPS] and Trooper Wiles adhered to that policy, based on
the completion of the HQ-109 Inventory sheet.
9. Defendant’s arrest was lawful because the officer discovered
the Defendant had outstanding Texas warrants for his arrest.
10. Impoundment of Defendant’s vehicle was lawful, because there
were no reasonable alternatives to impoundment. No one else
was available at the scene at the time of arrest to take
possession of the vehicle, and Trooper Wiles was reasonable in
his belief that the person who claimed that she would show up
to take possession of the vehicle may not arrive in a timely
manner. At least one of the factors listed in Josey weigh in
favor of a lawful impoundment. (emphasis in original)

11
 11. The State established that DPS has a policy in place for
inventory procedures and that Trooper Wiles followed that
policy in his inventory search. The inventory search was not a
“ruse for a general rummaging in order to discover
incriminating evidence.” Instead, the inventory search was
conducted by Trooper Wiles in good faith that he was taking
custody of the vehicle pursuant to DPS procedures. Trooper
Wiles completed the HQ-109 inventory sheet in compliance
with the DPS’ inventory policy.
12. The State satisfied its burden to demonstrate that Trooper Wiles
conducted a valid inventory search, conducted in accordance
with his agency’s policy on inventories. The driver was
arrested for outstanding warrants. [The] State asserted that
although there were available alternatives other than
impounding the Defendant’s vehicle, that alternative was not at
the roadside at the time the trooper conducted his inventory. If
the alternative did not show up within the time allotted by the
trooper as a courtesy to the Defendant’s mother, then the
trooper was ready to continue the lawful traffic stop and arrest
and have the car impounded.
(internal legal citations omitted).

Appellant proffers several reasons that the trial court erred by concluding the
intended impoundment and inventory were valid.

Appellant apparently challenges the trial court’s finding that Trooper Wiles
intended to impound the vehicle. However, the finding is supported by the record.
Trooper Wiles’s testimony at the suppression hearing was essentially the same as
his trial testimony, and relevant portions of the video were admitted. In summary,
during their phone conversation, appellant’s mother asked if she could retrieve the
vehicle, Trooper Wiles replied that she had fifteen minutes or else it would be
towed, and the mother said she would be there. Trooper Wiles testified he was not
required to allow her to retrieve the vehicle and he started the inventory in case she
did not arrive or took too long and he needed to impound it. His testimony made

12
clear his search was intended as an inventory pursuant to impoundment and he was
not looking for “anything in particular.” He can be heard on the videotape telling
his dispatcher he intends to conduct the inventory in case the mother does not
arrive.

Appellant presented no evidence disputing Trooper Wiles’s testimony,
which the trial court was free to believe. See Ross, 32 S.W.3d at 855. Appellant
relies on the fact that Trooper Wiles had not called a tow truck as demonstrating
the inventory was a “ruse” for searching for evidence. However, Trooper Wiles
explained at the suppression hearing, as the trial court found, that he did not need
to call a tow truck because some were already gathered at the scene and one would
be available as soon as he summoned.

Appellant also contends there was a reasonable alternative to impoundment
because Trooper Wiles gave appellant’s mother fifteen minutes to arrive and
retrieve the vehicle. It is undisputed Trooper Wiles had this conversation with the
mother; thus, we review as a question of law the trial court’s conclusion that there
was no reasonable alternative to impoundment despite that conversation. We agree
with the trial court’s conclusion. As the trial court noted, the pertinent factor
previously set forth by our court is whether there was an alternative to
impoundment “at the scene.” See Josey, 981 S.W.2d at 842. Undisputedly,
appellant was alone at the scene, and there was no one else present to take
possession of the vehicle immediately after his arrest.

Further, a sister court addressed a similar issue when upholding a conviction
for possession of cocaine. In Yaws v. State, 38 S.W.3d 720, 722 (Tex. App.—
Texarkana 2001, pet ref’d), officers arrested the defendant for an outstanding
warrant. An officer found cocaine when, pursuant to department policy, he
inventoried the defendant’s truck in order to impound it. Id. The officers’

13
testimony demonstrated the search was intended as an inventory and not
“investigatory” because they did not suspect the truck contained drugs. See id. at
722, 725. The defendant had asked a deputy to call the defendant’s wife, stating
she could arrive and retrieve the truck within fifteen minutes, but the officer
refused. Id. The court of appeals held the impoundment was proper because there
was no other person “on the scene” who could take possession of the truck. Id. at
724.

The defendant complained that the officers ignored the “reasonable
alternative” of his wife retrieving the truck within fifteen minutes. Id. When
rejecting this complaint, the court recognized that Texas courts (1) have generally
found impoundment to be reasonable if a driver was alone when arrested or
passengers could not show they were licensed drivers, and (2) have not required
the police to contact a relative or friend of the defendant to come to the scene and
take possession of the vehicle. Id. (citing Stephen v. State, 677 S.W.2d 42, 43–44
(Tex. Crim. App. 1984); Backer v. State, 656 S.W.2d 463, 464 (Tex. Crim. App.
1983); Daniels, 600 S.W.2d at 814–15)). The defendant emphasized the officers
had actual knowledge the defendant’s wife could arrive within fifteen minutes
because he provided that information. See id. at 725. The court concluded the
defendant’s statement did not amount to actual knowledge on the officers’ part. Id.
Nonetheless, the court held that, even if the officers believed the wife was fifteen
minutes away, the court declined to impose a requirement that they contact her
“because it could result in the police remaining at the scene longer than reasonably
necessary.” Id.

Applying this principle to the present case, Trooper Wiles was not required
to allow appellant to contact his mother to retrieve the vehicle, much less wait on
her to do so, even after voluntarily extending that courtesy. The mother’s stating

14
she would appear within fifteen minutes did not amount to actual knowledge on the
part of Trooper Wiles that she would do so, particularly in the middle of the night.
In fact, the mother did not arrive in fifteen minutes although she did eventually
arrive. Requiring Trooper Wiles to wait to determine whether the mother would
appear before beginning impoundment procedures would have resulted in the
trooper remaining at the scene longer than reasonably necessary. See id.

Finally, appellant suggests that, contrary to the trial court’s finding, Trooper
Wiles failed to follow DPS guidelines. However, Trooper Wiles testified during
trial that the DPS guidelines call for an inventory if a vehicle will be impounded
and require the officer to complete an inventory sheet.4 As discussed above, we
conclude Trooper Wiles’s decision to commence impoundment procedures was
proper at the time he conducted the inventory although he did not ultimately
impound it. Appellant suggests Trooper Wiles failed to complete a written
inventory report. But, appellant ignores the trooper’s testimony that he completed
the DPS standard inventory sheet, consistent with his customary practice, and it
was admitted at trial.

4
During the suppression hearing, Trooper Wiles did not expressly state what the DPS
“guidelines” are. Instead, he subsequently provided such testimony before the jury. As a general
rule, if the trial court is never asked to exercise its discretionary authority to reopen the
suppression hearing, appellate review of its ruling on a motion to suppress is limited to the
evidence presented at the pretrial hearing—the evidence before the court at the time of its
decision. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012). As an exception, if the
parties consensually broach the suppression issue again before the fact-finder at trial, the
appellate court should also consider the evidence adduced before the fact-finder in reviewing the
propriety of the ruling on the motion to suppress. Id. In this case, the parties consensually
broached before the jury the issue regarding legality of the inventory search because it was
appellant who elicited the testimony from Trooper Wiles regarding the guidelines. Accordingly,
we consider that testimony in our review.

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 In summary, because the cup was found during a lawful inventory search,
the trial court did not err by denying appellant’s motion to suppress. We overrule
his second issue.

IV. REQUESTED JURY INSTRUCTION

In his third issue, appellant contends the trial court erred by refusing to
submit a jury instruction pursuant to Texas Code of Criminal Procedure article
38.23.

A. Applicable Law and Standard of Review

Article 38.23 provides in pertinent part:
(a) No evidence obtained by an officer or other person in violation of
any provisions of the Constitution or laws of the State of Texas, or of
the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal
case.
In any case where the legal evidence raises an issue hereunder, the
jury shall be instructed that if it believes, or has a reasonable doubt,
that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such
evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23 (a) (West, Westlaw through 2013 3d C.S.)

A defendant’s right to submission of a jury instruction under article 38.23 is
“limited to disputed issues of fact that are material to his claim of a constitutional
or statutory violation that would render evidence inadmissible.” Madden v. State,
242 S.W.3d 504, 509–10 (Tex. Crim. App. 2007). Before a defendant is entitled to
such an instruction, (1) evidence heard by the jury must raise an issue of fact, (2)
the evidence on that fact must be affirmatively contested, and (3) that contested
factual issue must be material to the lawfulness of the challenged conduct in
obtaining the evidence. Id. at 510. There must be a genuine dispute about a

16
material issue of fact before an article 38.23 instruction is warranted; if there is no
disputed fact issue, the legality of the conduct is determined by the court alone, as
a matter of law. Id. at 510. In order for there to be a conflict in the evidence that
raises a disputed fact issue, there must be some affirmative evidence in the record
that puts the existence of that fact in question. Id. at 513. We review a trial court’s
refusal to submit an instruction in the jury charge for abuse of discretion. See
Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).

Appellant generally asserts on appeal that he was entitled to a jury
instruction regarding the legality of the inventory search. However, he fails to
identify any contested question of fact on that issue. At trial, he seemed to request
an article 38.23 instruction on whether there was an alternative to impoundment
and whether Trooper Wiles followed DPS guidelines. Consequently, we construe
his appellate complaint as challenging the trial court’s denial of that request.

There was no contested question of fact on the issue of whether there was a
reasonable alternative to impoundment. As mentioned above, the facts pertinent to
that issue were undisputed—i.e., the contents of Trooper Wiles’s telephone
conversation with appellant’s mother. The trial court was presented with a legal
issue on whether there was no reasonable alternative to impoundment despite that
conversation. Further, there was no affirmative evidence in the record
controverting Trooper Wiles’s testimony that he followed the DPS guidelines.
Accordingly, we conclude the trial court did not err by denying appellant’s request
for an article 38.23 instruction. We overrule appellant’s third issue.

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 We affirm the trial court’s judgment.

/s/ John Donovan
Justice

Panel consists of Justices Christopher, Donovan, and Wise.
Publish — Tex. R. App. P. 47.2(b).

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