                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00224-CR

BRANDON W. STAFFORD,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F45288


                          MEMORANDUM OPINION


      Appellant, Brandon Wesley Stafford, was convicted of unlawful possession of a

controlled substance in an amount more than one gram but less than four grams with

intent to deliver, a second-degree felony, and unlawful possession of less than one gram

of a controlled substance, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. §§

481.113(c), 481.116(b) (West 2010 & Supp. 2011). In three issues, Stafford argues that the

trial court erred in denying his motions to suppress and his request for an article 38.23

jury instruction. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005). We affirm.
                                   I.     BACKGROUND

        At about 11:10 a.m. on September 5, 2010, Texas Department of Public Safety

Troopers Samuel Travis Dendy and Karlton L. Cason observed a red Kia traveling

southbound on Highway 67 in Johnson County. According to Trooper Dendy, the Kia

was traveling approximately ten miles over the posted speed limit, which constituted a

violation of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 545.351

(West 2011). The troopers activated the overhead lights on their patrol car and pursued

the Kia. Once they caught up with the Kia near the intersection of Highway 67 and

South Parkway, the troopers noticed that the “back left stop lamp was defective” and

that the vehicle’s inspection sticker had expired—both of which were violations of the

Texas Transportation Code. See id. §§ 547.323, 548.051, 548.101 (West 2011).

        After the Kia parked on the shoulder of the road, Trooper Cason approached the

vehicle and attempted to make contact with the driver. Trooper Dendy approached the

front passenger window. Trooper Cason began speaking with the driver of the vehicle,

Stafford. When Trooper Cason asked Stafford where he lived, Stafford first stated that

he lived in Fort Worth, Texas. Stafford then corrected himself and said that he lived in

Cleburne, Texas.     Trooper Dendy observed the interaction between Stafford and

Trooper Cason.      Trooper Dendy testified that Stafford appeared to be unusually

nervous, which prompted the troopers to ask Stafford to exit the vehicle. Once Stafford

exited the vehicle, the troopers then sought to identify the other passengers. Leijah

Miller sat in the front passenger’s seat, and Mikala Adair was asleep in the back seat of

the vehicle. The troopers learned that the occupants of the vehicle were headed to

Stafford v. State                                                                  Page 2
Cleburne to rest after partying all night in Dallas, even though their route seemed to

take them away from Cleburne.

        Once they established the identities of the vehicle’s occupants, the troopers

returned to their patrol car to run the drivers’ licenses of the occupants. Although there

were not any active warrants out for any of the passengers, Adair and Miller both had

prior drug-related criminal histories. Suspecting that illegal drugs might be in the

vehicle, Trooper Cason returned to ask Stafford if he was transporting anything illegal

and for consent to a search of the vehicle. According to the troopers, Stafford, while

avoiding eye contact and “fidgeting around with his hands,” responded that nothing

illegal was inside the vehicle and denied consent to search because Adair was the

owner of the vehicle.

        Thereafter, the troopers spent several minutes trying to wake Adair. Trooper

Dendy stated that Adair initially appeared to be “catatonic,” but that she eventually

awoke. Trooper Dendy noticed that Adair smelled of alcohol and that she stumbled

when getting out of the vehicle. He recalled that Adair appeared to be incoherent when

she first woke up.        However, she eventually became coherent and alert.                   Once it

appeared that Adair had her wits about her and was thinking clearly, the troopers

asked for consent to search the vehicle.1 According to Trooper Dendy, Adair freely and

voluntarily consented to the search without any police pressure or coercion.



        1 Trooper Cason testified at trial that, once Adair woke up, her demeanor “changed
dramatically . . . . [H]er total mood changed. She became like as if I am right now, just really aware of
things.”


Stafford v. State                                                                                 Page 3
        After she gave the troopers consent to search the vehicle, Adair sat down on

some large rocks near the road. In searching the vehicle, the troopers found a “one-

hitter” pipe close to the ashtray in the center console area.2 Trooper Dendy noted that

the “one-hitter” pipe was a metal pipe used to smoke marihuana. He further noted that

the pipe smelled of marihuana and that there was marihuana residue inside the pipe.

After finding the “one-hitter” pipe, the troopers believed that they had probable cause

to continue searching the entire vehicle and its contents. As the troopers searched the

vehicle, Stafford “was kind of pacing, just real nervous. The closer I [Trooper Dendy]

got to the box[,] I think the more [sic] the signs of nervousness increased when [sic]

once I got towards the back of the vehicle.”

        In the back seat, the troopers found a black bag. Inside one of the pockets of the

black bag were rolling papers, which are commonly used to roll loose-leaf tobacco or

marihuana. Inside the main compartment of the bag, Trooper Dendy found a small

box, which was locked. At this point, Trooper Dendy asked the passengers who owned

the bag. Stafford responded that the bag was his but that the box was not. Miller and

Adair both denied ownership of the box.

        Trooper Dendy shook the box and remembered that the box smelled of

marihuana.          He also asked the passengers for a key to the box; however, no one

responded to Trooper Dendy’s request for the key. Nevertheless, Trooper Dendy broke


        2 At trial, Trooper Dendy stated that the “one-hitter” pipe was sent to the Garland Crime Lab for

destruction because “[i]t wasn’t an element of the offense. We don’t keep anything drug related whether
it be contraband and/or controlled substances in our office. . . . [W]e send it to the Garland lab for
analysis and destruction so there’s a disposition and a chain of custody of that evidence.”


Stafford v. State                                                                                 Page 4
open the box and found $432 in different denominations; a clear plastic bag containing

five orange ecstasy tablets imprinted with a Superman emblem; three purple ecstasy

tablets imprinted with a rhinoceros emblem; a brownish-orange substance identified as

a Penalty Group 2 controlled substance named “dimethyltrptamine”; and handwritten

ledgers that “said Johnny owes me X amount, Suzie owes me X amount, gave so many

tabs to so and so.”3

        The troopers subsequently arrested Stafford and released the vehicle to Adair

and Miller. Stafford was transported to the Johnson County Law Enforcement Center

for booking. After escorting Stafford inside, the troopers returned to the patrol car and

found a gold key on an eight-ball key chain located in the front passenger floorboard

where Stafford had been sitting. The troopers took the key inside and successfully

inserted the key inside the keyhole of the locked box.

        Stafford was charged by indictment with one count of unlawful possession of a

controlled substance in an amount more than one gram but less than four grams with

intent to deliver (“Count 1”) and one count of unlawful possession of less than one

gram of a controlled substance with intent to deliver (“Count 2”). Prior to trial, Stafford

filed a “Motion to Suppress Evidence of the Arrest Based on Lack of Probable Cause

Based on Videotape as Presented In Whiteley v. Warden, 401 U.S. 560, 91 S. Ct. 1031, 28 L.

Ed. 2d 306 (1971)” and a “Motion to Suppress Illegally[-]Seized Evidence.” After a



        3 Law enforcement also seized Stafford’s cell phone, which, according to Trooper Dendy,
contained text messages “of a business nature in reference to, hey, can I get some, how many do you
have, I’ve got X of amount of tabs, amounts being negotiated, just different things, drug transaction
related on the cell phone.”

Stafford v. State                                                                             Page 5
hearing, the trial court denied both motions and entered findings of fact and

conclusions of law.

        Thereafter, a jury trial on this matter commenced. After hearing the evidence,

the jury found Stafford guilty in Count 1 and guilty in Count 2 of the lesser-included

offense of unlawful possession of less than one gram of a Penalty Group 2 controlled

substance.      Stafford was sentenced to six years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice (“TDCJ”) with a $500 fine in

Count 1 and one years’ incarceration in the State-Jail Division of the TDCJ with a

$10,000 fine in Count 2. The punishment in Count 2 was probated for five years, and

the punishments for both counts were ordered to run concurrently. Stafford later filed a

motion for new trial, which was overruled by operation of law. See TEX. R. APP. P.

21.8(a), (c). This appeal followed.

                             II.   STAFFORD’S MOTIONS TO SUPPRESS

        In his first two issues on appeal, Stafford challenges the trial court’s denial of his

motions to suppress. Specifically, in his first issue, Stafford asserts that the evidence did

not establish that the troopers had probable cause or reasonable suspicion to search the

vehicle. In his second issue, Stafford argues that Adair did not voluntarily consent to

the search of the vehicle.

A.      Standard of Review

        We review the trial court's ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We

Stafford v. State                                                                       Page 6
give “almost total deference” to the trial court's findings of historical fact that are

supported by the record and to mixed questions of law and fact that turn on an

evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo

the trial court's determination of the law and its application of law to facts that do not

turn upon an evaluation of credibility and demeanor. Id. When the trial court has not

made a finding on a relevant fact, we imply the finding that supports the trial court's

ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-

19 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007).

We will uphold the trial court's ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006).

        When a trial judge makes explicit fact findings regarding a motion to suppress,

an “appellate court [must first] determine whether the evidence (viewed in the light

most favorable to the trial court's ruling) supports these fact findings.”       Kelly, 204

S.W.3d at 818. “The appellate court then reviews the trial court's legal ruling[s] de novo

unless the trial court's supported-by-the-record explicit fact findings are also dispositive

of the legal ruling.” Id.

        In a hearing on a motion to suppress evidence based on an alleged Fourth

Amendment violation, the initial burden of producing evidence that rebuts the

presumption of proper police conduct is on the defendant. Ford v. State, 158 S.W.3d 488,

492 (Tex. Crim. App. 2005); see State v. Dietiker, 345 S.W.3d 422, 424 (Tex. App.—Waco

2011, no pet.). The defendant's burden may be satisfied by establishing that a search or

Stafford v. State                                                                     Page 7
seizure occurred without a warrant. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at

424. After this showing is made by the defendant, the State assumes the burden of

demonstrating that the search or seizure was conducted pursuant to a warrant or was

reasonable. Ford, 158 S.W.3d at 492; see Dietiker, 345 S.W.3d at 424. In this proceeding,

the State stipulated that the stop was made without a warrant and, thus, assumed the

burden of proof regarding whether reasonable suspicion for the detention existed. See

Ford, 158 S.W.3d at 492.

B.      Applicable Law

        On appeal, Stafford appears to challenge not only the search of the vehicle but

also the propriety of the initial stop. The Fourth Amendment to the United States

Constitution provides, in part, that “the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. CONST. amend. IV. As a general rule, searches conducted without a

warrant are deemed unreasonable unless the situation presents an exception to the

warrant requirement. Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim. App. 2010). One

such exception is the Terry stop. See Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20

L. Ed. 2d 889 (1968). Consistent with Terry, a police officer may stop and briefly detain

a person for investigative purposes if the officer has reasonable suspicion supported by

articulable facts that criminal activity may be afoot, even if the officer lacks evidence

rising to the level of “probable cause.” 392 U.S. at 29, 88 S. Ct. at 1884; see Davis v. State,

947 S.W.2d 240, 244 (Tex. Crim. App. 1997).



Stafford v. State                                                                        Page 8
        A determination of reasonable suspicion is made by considering the totality of

the circumstances. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). In Foster

v. State, the court of criminal appeals repeated the standard for warrantless traffic stops:

        A law enforcement officer may stop and briefly detain a person for
        investigative purposes on less information than is constitutionally
        required for probable cause to arrest. In order to stop or briefly detain an
        individual, an officer must be able to articulate something more than an
        inchoate and unparticularized suspicion or hunch. Specifically, the police
        officer must have some minimal level of objective justification for making
        the stop, i.e., when the officer can point to specific and articulable facts
        which, taken together with rational inferences from those facts, reasonably
        warrant [the] intrusion. The reasonableness of a temporary detention
        must be examined in terms of the totality of the circumstances.

326 S.W.3d 609, 613 (Tex. Crim. App. 2010) (internal quotations omitted); see Garcia v.

State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (noting that reasonable suspicion exists

if the officer has specific articulable facts that, when combined with rational inferences

from those facts, would lead him to reasonably suspect that a particular person has

engaged in or is, or soon will be, engaging in illegal conduct).

C.      Was the stop justified?

        Here, Trooper Dendy testified that he observed Stafford driving in excess of the

posted speed limit and that the “back left stop lamp” was inoperable—both of which

constitute violations of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. §§

545.351, 547.323. Because of these violations, we conclude that the troopers had more

than an inchoate and unparticularized suspicion or hunch to effectuate a temporary

detention. See Foster, 326 S.W.3d at 613; Garcia, 43 S.W.3d at 530.




Stafford v. State                                                                      Page 9
D.      Was the prolonged detention reasonable?

        Next, Stafford complains that the troopers were not authorized to search the

vehicle for contraband because the search did not “relate to the circumstances that

justified the interference (speeding and defective tail light). Therefore, the officers had

no basis for the seizure or detention” (emphasis in original).

        An investigative detention may last no longer than is necessary to effectuate the

purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d

229 (1983); Davis, 947 S.W.2d at 243. Once the purpose has been satisfied, the stop may

not be used for an unrelated “‘fishing expedition.’” Davis, 947 S.W.2d at 243 (quoting

Ohio v. Robinette, 519 U.S. 33, 41, 117 S. Ct. 417, 422, 136 L. Ed. 2d 347 (1996) (Ginsburg,

J., concurring)). The propriety of the stop’s duration is judged by assessing whether the

police diligently pursued a means of investigation that was likely to dispel or confirm

their suspicions quickly. James v. State, 102 S.W.3d 162, 170 (Tex. App.—Fort Worth

2003, pet. ref’d) (citing Davis, 947 S.W.2d at 245; Perez v. State, 818 S.W.2d 512, 517 (Tex.

App.—Houston [1st Dist.] 1991, no pet.)).

        “On a routine traffic stop, police officers may request certain information from a

driver, such as a driver’s license and car registration, and may conduct a computer

check on that information.” Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004).

Police officers may also ask “the driver of the stopped car to step out of the vehicle and

onto the side of the road” and ask about the driver’s destination and purpose for the

trip. Estrada v. State, 30 S.W.3d 599, 603 (Tex. App.—Austin 2000, pet. ref’d) (citing

Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330, 333-34, 54 L. Ed. 2d 331 (1977));

Stafford v. State                                                                     Page 10
Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.—Amarillo 2003, pet. ref’d); Nuttall v.

State, 87 S.W.3d 219, 222 (Tex. App.—Amarillo 2002, no pet.). And, once the purpose of

the stop has been effectuated and the police officer’s suspicions allayed, the police

officer may still ask the driver of the stopped vehicle if he possesses any illegal

contraband and then solicit his voluntary consent to search the vehicle. Strauss, 121

S.W.3d at 491 (citing Spight v. State, 76 S.W.3d 761, 767-68 (Tex. App.—Houston [1st

Dist.] 2002, no pet.)).

        In the instant case, Trooper Cason asked Stafford where he lived, and Stafford

first responded “Fort Worth” but later changed his answer to “Cleburne.” As noted in

the trial court’s findings of fact, “Trooper Dendy observed the defendant act

nervously.” In fact, Trooper Dendy testified that throughout their interaction, Stafford

refused to make eye contact with the officers; that he was fidgety; and that he paced

back and forth once he was asked to exit the vehicle. In addition, the troopers learned

that the three passengers had been partying all night and were returning to Cleburne to

rest. Furthermore, when checking for warrants, the troopers discovered that the two

other passengers, Adair and Miller, both had prior drug-related arrests.                          These

circumstances constituted articulable facts from which a reasonable officer could

reasonably infer that Stafford or one of the other passengers may have been

transporting contraband; thus, we conclude that these facts justified further

investigation.4 See Foster, 326 S.W.3d at 613; see also Garcia, 43 S.W.3d at 530.


        4 At the hearing on Stafford’s motion to suppress, Trooper Dendy provided the following
testimony with regard to “indicators” that he observed to give him reasonable suspicion to further detain
Stafford:

Stafford v. State                                                                                Page 11
E.      Was consent to search the vehicle given voluntarily?

        In furtherance of their investigation, the troopers asked Stafford whether he was

transporting contraband and then asked for consent to search the vehicle. See Strauss,

121 S.W.3d at 491; Spight, 76 S.W.3d at 767-68. Stafford denied that he was transporting

contraband, and as noted in the trial court’s findings of fact, Stafford informed the

troopers that the vehicle belonged to Adair. The troopers then tried to wake Adair, who

was asleep in the back seat of the vehicle. Though Trooper Dendy testified that Adair

appeared to be “catatonic,” the troopers were able to wake Adair and requested that she

exit the vehicle. However, when exiting the vehicle, Adair stumbled, which Stafford

argues is a clear indicator that Adair was intoxicated and not able to voluntarily answer

the troopers’ questions. After giving Adair time to compose herself, the troopers asked

whether she owned the vehicle, to which she responded in the affirmative.                              The

troopers next asked for permission to search the vehicle. Adair consented to the search,

and as a result of the search, the troopers found drugs and drug paraphernalia in the

vehicle and inside a bag that Stafford owned.




        The indicators were upon the initial approach, the way he was acting when he spoke
        with Trooper Cason; a lot of inconsistency about where he lived and what was going on
        with that situation; mostly, you know, just the fidgeting. He wouldn’t look him in the
        eyes when he spoke to him. That was the initial stuff. Once we got him out of the
        vehicle, just real nervousness, pacing back and forth, moving around. Also, when we ran
        criminal histories of everyone inside the vehicle, two of them within a year had been
        arrested for narcotics charges, which heightened me to believe that there was [sic]
        narcotics in there. Also, the—Mikala’s situation was a huge factor for wanting to check
        on her safety and to hold the vehicle up longer to assess that situation. Then when
        speaking about consent, once it was denied, that extended things a lot farther and further
        led us to believe that there was something in there.

Stafford v. State                                                                                    Page 12
        It is not unreasonable per se to request consent to search after completion of a

traffic stop. Leach v. State, 35 S.W.3d 232, 235 (Tex. App.—Austin 2000, no pet.) (holding

that reasonable suspicion to continue detention and search is not required under

Robinette for valid consent to search following the resolution of the original reason for

the stop); Simpson, 29 S.W.3d at 327; see also Spight, 76 S.W.3d at 768 (holding that the

denial of a motion to suppress based on “prolonged detention” was not an abuse of

discretion where appellant gave consent to search with no indication from the

patrolman that compliance was required).

        A police officer may approach a citizen without probable cause or even

reasonable suspicion to ask questions or obtain consent to search. Leach, 35 S.W.3d at

235 (citing Royer, 460 U.S. at 497-98, 103 S. Ct. at 1324); see Maxwell v. State, 73 S.W.3d

278, 281 (Tex. Crim. App. 2002) (stating that another exception to the warrant

requirement arises when a person voluntarily consents to a search).              Likewise,

reasonable suspicion is not required for a police officer to request consent to search an

automobile after the reason for an initial stop is concluded as long as the message is not

conveyed that compliance is required. Leach, 35 S.W.3d at 235; Simpson, 29 S.W.3d at

327; see also Spight, 76 S.W.3d at 767 (noting that the constitutional proscriptions against

warrantless searches and seizures do not come into play when a person gives voluntary

consent).

        The validity of consent to search is a question of fact to be determined from all

the circumstances. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000); see also

Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854

Stafford v. State                                                                    Page 13
(1973) (holding that the test for valid consent to search requires the consent to be

voluntary, and voluntariness is a question of fact to be determined from all the

circumstances). To be valid, consent to search must be positive and unequivocal and

must not be the product of duress or coercion, either express or implied. Carmouche, 10

S.W.3d at 331. The federal constitution requires the State to prove the validity of the

consent by a preponderance of the evidence, but the Texas Constitution requires the

State to make the same showing by clear and convincing evidence. Guevara v. State, 97

S.W.3d 579, 582 (Tex. Crim. App. 2003). Accordingly, we review the evidence under the

more protective Texas standard. See State v. Ibarra, 953 S.W.2d 242, 244-45 (Tex. Crim.

App. 1997).

        Voluntariness of consent is determined by looking at the totality of all the

surrounding circumstances—both the characteristics of the accused and the details of

the interrogation. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000) (citing

Schneckloth, 412 U.S. at 226, 93 S. Ct. at 2041). By looking at the circumstances leading

up to the search, the reaction of the accused to pressure, and any other factor deemed

relevant, a trial court can determine whether the statement of consent was given

voluntarily.        Id. In determining voluntariness, the factors considered by the court

include: (1) whether the consenting person was in custody; (2) whether the person was

arrested at gunpoint; (3) whether the person had the option of refusing consent; (4) the

constitutional advice given to the person; (5) the length of the detention; (6) the

repetitiveness of the questioning; and (7) the use of physical punishment. Id. Courts

may also consider the consenting person’s age, education, and intelligence. Id.

Stafford v. State                                                                  Page 14
        Trooper Dendy testified at the hearing on Stafford’s motions to suppress that

Adair was alert, coherent, and appeared to be thinking and speaking clearly when she

gave consent to search the vehicle. Moreover, the trial court, in its findings of fact,

specifically mentioned that “[w]hen Ms. Adair consented to the search of her vehicle[,]

Trooper Dendy observed that she was alert, coherent, and appeared to be thinking and

speaking clearly.” Nonetheless, in his second issue, Stafford argues that the record does

not demonstrate that Adair was alert, coherent, and thinking and speaking clearly as to

voluntarily give consent to search the vehicle.

        Nothing in the record indicates that Adair was in custody at the time she

consented to the search, that she was arrested at gunpoint, that she was subjected to

physical punishment, or that she was repeatedly asked for consent to search the vehicle.

See Reasor, 12 S.W.3d at 818. Moreover, Stafford does not direct us to any evidence

indicating that Adair’s consent was the product of duress or coercion. See Carmouche, 10

S.W.3d at 331. Further, the record evidence demonstrates that Adair had the option of

refusing to consent to the search.     And perhaps more importantly, the trial court

included in its findings of fact that Adair was alert, coherent, and thinking and

speaking clearly—a finding which hinged upon the trial court’s determination of the

credibility and demeanor of Trooper Dendy. Because this finding hinged upon Trooper

Dendy’s credibility and demeanor and because the record evidence does not

demonstrate that Adair’s consent was given involuntarily, we give “almost total

deference” to the trial court’s finding. See Guzman, 955 S.W.2d at 89.




Stafford v. State                                                                 Page 15
        Based on the foregoing, we conclude that the trial court did not abuse its

discretion in denying Stafford’s motions to suppress.         See Crain, 315 S.W.3d at 48;

Guzman, 955 S.W.2d at 88-89. Accordingly, we overrule Stafford’s first two issues on

appeal.

                         III.   ARTICLE 38.23 AND JURY INSTRUCTIONS

        In his third issue, Stafford contends that the trial court erred in failing to give an

article 38.23 jury instruction because there was a dispute with regard to whether the

troopers: (1) had probable cause to search the vehicle; and (2) obtained voluntary

consent from Adair.

A.      Applicable Law

        Article 38.23 of the Texas Code of Criminal Procedure provides the following:

              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 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).

        An article 38.23 instruction is required when there are factual disputes as to how

the evidence was obtained. See Bell v. State, 938 S.W.2d 35, 48 (Tex. Crim. App. 1996);

Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986); Hall v. State, 649 S.W.2d 627,

628 (Tex. Crim. App. 1983). In fact, the Texas Court of Criminal Appeals has held that


Stafford v. State                                                                       Page 16
there are three requirements that must be met before a trial court is required to include

an article 38.23 instruction in the jury charge: (1) the evidence heard by the jury must

raise an issue of fact regarding whether evidence was illegally obtained; (2) the

evidence on that fact must be affirmatively contested; and (3) the contested factual issue

must be material to the lawfulness of the challenged conduct in obtaining the evidence.

Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). To raise a disputed fact

warranting an article 38.23 instruction, there must be some affirmative evidence that

contravenes the existence of that fact. Madden, 242 S.W.3d at 513. “A cross-examiner’s

questions do not create a conflict in the evidence, although the witness’s answers to

those questions might. . . . Furthermore, the jury’s right to disbelieve a witness’s

testimony in whole or part does not create a factual dispute.” Cadoree v. State, 331

S.W.3d 514, 521 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (citing Madden, 242

S.W.3d at 513; Shpikula v. State, 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d)).

        When there is no conflicting testimony regarding the relevant facts, no jury

instruction is required. See Lackey v. State, 638 S.W.2d 439, 455 (Tex. Crim. App. 1982);

see also Estrada, 30 S.W.3d at 605. And,

        If there is no disputed factual issue, the legality of the conduct is
        determined by the trial judge alone, as a question of law. And if other
        facts, not in dispute are sufficient to support the lawfulness of the
        challenged conduct, then the disputed fact issue is not submitted to the
        jury because it is not material to the ultimate admissibility of the evidence.
        The disputed fact must be an essential one in deciding the lawfulness of
        the challenged conduct.

Madden, 242 S.W.3d at 510-11 (internal citations omitted).

Stafford v. State                                                                        Page 17
B.      Discussion

        Prior to the reading of the indictment and the commencement of the State’s case-

in-chief, Stafford’s counsel requested that an article 38.23 instruction be included in the

jury charge concerning whether the troopers had probable cause to search the vehicle in

light of the destruction of the “one-hitter” marihuana pipe that was allegedly found in

the ashtray in the center console of the vehicle. The trial court responded that this was a

matter that needed to be addressed once the evidence had been developed. Stafford’s

counsel asked whether she could discuss in her opening statement the issue of probable

cause, as well as the voluntariness of Adair’s consent to search.         The trial court

responded that the attorneys, in their opening statements, could discuss what they

believed the evidence would show. At the close of the evidence in the guilt-innocence

phase, the trial court revisited Stafford’s request for an article 38.23 jury instruction.

After a lengthy discussion, the trial court denied Stafford’s request.

        At trial, Trooper Dendy testified that, after Adair gave consent to search the

vehicle, he found the “one-hitter” marihuana pipe in the vehicle’s ashtray located in the

center console. Trooper Cason corroborated Trooper Dendy’s testimony and added

that the pipe had marihuana residue in it and that it smelled of marihuana. Because the

pipe constituted drug paraphernalia and because they smelled the odor of marihuana in

the pipe, the troopers established probable cause to conduct a warrantless search of the

vehicle and all containers inside the vehicle for contraband. See Neal v. State, 256 S.W.3d

264, 282 (Tex. Crim. App. 2008) (noting that a police officer may lawfully search an


Stafford v. State                                                                   Page 18
automobile if he has probable cause to believe that the vehicle contains evidence of a

crime); Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (stating that probable

cause to search “exists where the known facts and circumstances are sufficient to

warrant a man of reasonable prudence in the belief that contraband or evidence of a

crime will be found”); see also United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157,

2173, 72 L. Ed. 2d 572 (1982) (holding that, if the automobile exception applies, police

may search “every part of the vehicle and its contents that may conceal the object of the

search”). With regard to the destruction of the pipe, Trooper Dendy testified that it was

sent to the Garland Crime Lab to be destroyed because it “wasn’t an element of the

offense.” Trooper Dendy explained that this is regularly done and that none of the

passengers were charged with an offense pertaining to the pipe.

        Stafford did not offer any evidence to refute the consistent testimony provided

by Troopers Dendy and Cason with regard to the pipe and the development of probable

cause to search the vehicle. Madden, 242 S.W.3d at 513. In fact, other than cross-

examining witnesses, Stafford did not present any evidence at trial. Accordingly, we

cannot say that there is a disputed fact issue concerning the discovery of the pipe that

warranted an article 38.23 instruction. See id.; Lackey, 638 S.W.2d at 455; see also Cadoree,

331 S.W.3d at 521; Estrada, 30 S.W.3d at 605.

        With regard to the voluntariness of Adair’s consent, Troopers Dendy and Cason

both testified that Adair was given time to regain her composure inside the vehicle once

she finally woke up. Trooper Cason added that after Adair was removed from the

vehicle, she was given two or three minutes before she was asked for consent to search.

Stafford v. State                                                                     Page 19
Troopers Dendy and Cason recalled that Adair was alert and coherent when she gave

consent. Trooper Cason stated that Adair’s eyes were not red and blood-shot, and she

did not slur her speech.

        On appeal, Stafford merely asserts that:

        The officer’s own statements [sic] that one minute the owner of the vehicle
        was intoxicated, catatonic, and nonresponsive. Then, he later states that
        she was alert, awake, and coherent to give a [sic] consent to search the
        vehicle. By virtue of the answers given by the police officer, a conflict is
        created and a fact affirmatively contested.

However, as stated earlier, Stafford did not offer any evidence to refute the consistent

testimony of Troopers Dendy and Cason. See Madden, 242 S.W.3d at 513. Stafford’s

argument in this issue relies upon the questioning of the cross-examiner and attempts to

intrude upon the jury’s right to believe or disbelieve witnesses’ testimony in whole or in

part to create a factual dispute. As stated in Cadoree, neither approach creates a conflict

in the evidence. See 331 S.W.3d at 521.

        After reviewing the evidence, we cannot say that there is a disputed fact issue

concerning Adair’s consent that warranted an article 38.23 instruction. See Madden, 242

S.W.3d at 513; Lackey, 638 S.W.2d at 455; see also Cadoree, 331 S.W.3d at 521; Estrada, 30

S.W.3d at 605. We therefore overrule Stafford’s third issue.5

                                            IV.      CONCLUSION




        5 We also find it noteworthy that the trial court, in its findings of fact and conclusions of law with

respect to Stafford’s motions to suppress, determined that “[i]t has been shown by clear and convincing
evidence that Mikala Adair freely and voluntarily consented to the search of the vehicle” and that
“Trooper Dendy had probable cause to search every part of the vehicle and its contents that may have
concealed the object of the search.”

Stafford v. State                                                                                     Page 20
        Having overruled all of Stafford’s issues on appeal, we affirm the judgments of

the trial court.



                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed June 27, 2012
Do not publish
[CR25]

*(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the trial
court’s judgment. A separate opinion will not issue.)




Stafford v. State                                                                    Page 21
