       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-99-00384-CR



                                  Quincy Lee Wray, Appellant


                                                v.


                                  The State of Texas, Appellee




   FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT
           NO. 99R-029, HONORABLE DAN R. BECK, JUDGE PRESIDING




                A jury found appellant Quincy Lee Wray guilty of possessing more than 400 grams

of cocaine. See Tex. Health & Safety Code Ann. § 481.115(a), (f) (West Supp. 2000). The district

court assessed punishment at imprisonment for twenty years. We will affirm.

                On February 3, 1999, Fayette County Deputy Sheriff Jeffrey Head received a report

that a white Suburban had driven away from a fast-food restaurant/gas station in LaGrange without

paying for gasoline. Shortly thereafter, Head saw and stopped a Suburban matching the description

of the suspect vehicle. The Suburban was registered to and driven by Wray. Also in the vehicle were

Willie Winn, three women, and an infant.1 Wray told Head that he had mistakenly believed that one



   1
       Codefendant Winn’s appeal is before us in cause number 03-99-00385-CR.
of the women had paid for the gas, and agreed to return to the station. At the gas station, after Wray

paid for the gasoline and that matter was considered closed, Head asked Wray for permission to

search the Suburban. Wray refused to consent to the search. Head then told Wray that he and the

others were free to leave, but that the Suburban was to be detained pending the arrival of a drug-

sniffing dog. The dog arrived some time later and alerted on the Suburban. Head left Wray and his

companions in the company of other officers while he went to obtain a search warrant. In a

subsequent search of the Suburban pursuant to a warrant, marihuana and cocaine were found in the

console between the front seats.

                In his first point of error, Wray contends the district court erred by overruling his

motion to suppress evidence. In the motion, appellant urged that the evidence found during the

search of the Suburban was the fruit of an unlawful warrantless detention. Although the motion to

suppress was filed prior to trial, it was not presented to the district court for a pretrial ruling. Instead,

Wray brought the motion to the court’s attention after the testimony of Head and several other

witnesses, and it was overruled at that time after brief argument by counsel outside the jury’s

presence.

                A motion to suppress will preserve error in the admission of evidence without further

objection at trial if the motion is overruled by the court following a pretrial hearing. See Writt v.

State, 541 S.W.2d 424, 426 (Tex. Crim. App. 1976). If no pretrial hearing is held on the motion, the

defendant must object to the evidence at trial in order to preserve error. See Ross v. State, 678

S.W.2d 491, 493 (Tex. Crim. App. 1984). To preserve error in the admission of evidence, a trial

objection must be timely. See Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1). To be timely, an

                                                     2
objection must be made before the evidence is admitted or as soon as the ground for objection

becomes apparent. See Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995); Ethington

v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).

                Head and three other officers testified without objection to the stop of the Suburban,

the return to the gas station, the detention of the Suburban pending arrival of the drug dog, the dog’s

alert to the vehicle, the further detention to await the search warrant, the search of the interior of the

vehicle, the discovery of marihuana and cocaine in the console, and the positive field test of the

cocaine. Only then did Wray’s counsel raise the matter of the “previously filed . . . motion to

suppress which was not advanced until now . . . .” Reviewing the testimony to that point, counsel

urged that Head had no constitutional basis for detaining the Suburban for the purpose of the canine

sweep.2 But having previously permitted Head and the other officers to testify to the discovery of

the cocaine and other contraband without objection, counsel’s argument was untimely. The court’s

ruling on the motion to suppress came too late to preserve error. See Thomas v. State, 884 S.W.2d

215, 216-17 (Tex. App.—El Paso 1994, pet. ref’d). Point of error one is overruled.

                By his second point of error, Wray contends the district court erred by refusing to

instruct the jury to disregard the evidence seized during the search if it found that the seizure was

unlawful. In any case in which the issue is raised, the jury should be instructed to disregard evidence


   2
     While a canine sweep does not constitute a search, such a sweep may be performed during an
investigative detention only if there is reasonable suspicion of criminal activity to justify that
detention. See Walter v. State, 997 S.W.2d 853, 858 (Tex. App.—Austin 1999, pet. granted).
Wray’s contention was and is that Head had no legitimate basis for continuing to detain him after he
paid for the gasoline. We express no opinion on the merits of this contention.


                                                    3
that it believes, or has a reasonable doubt, was obtained in violation of the constitution or laws of

Texas or of the United States. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West Supp. 2000).

                A jury instruction pursuant to article 38.23(a) 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); Broadnax v. State, 995

S.W.2d 900, 902 (Tex. App.—Austin 1999, no pet.). When there is no conflicting testimony

regarding the relevant facts, the admissibility of the disputed evidence is a question of law and no jury

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

Broadnax, 995 S.W.2d at 902.

                Both Wray and Winn testified, but neither contradicted Officer Head’s factual recital

in any pertinent respect. In his brief, Wray argues that some of the inferences Head drew from the

actions and statements of Wray and Winn were not justified by the record as a whole. This is another

way of saying that the circumstances did not support a reasonable suspicion of criminal behavior

adequate to support the detention of the Suburban for a canine drug sweep. This is not a factual

issue, but a legal one. We hold that there were no factual disputes relevant to the propriety of the

seizure of the incriminating evidence and that the district court did not err by refusing the article

38.23 instruction. Point of error two is overruled.

                The district court’s judgment erroneously states that Wray waived trial by jury and

pleaded guilty. The judgment is modified to reflect that Wray was convicted by a jury following a

plea of not guilty. As modified, the judgment of conviction is affirmed.




                                                   4
                                            Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Modified and, as Modified, Affirmed

Filed: September 21, 2000

Do Not Publish




                                               5
