                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-18-00179-CR


                              BRUCE ALLEN HENRY, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 413th District Court
                                       Johnson County, Texas
                             Trial Court No. DC-F20100073 Counts 1-4,
                            Honorable William C. Bosworth, Jr., Presiding

                                         November 27, 2018

                                 MEMORANDUM OPINION
                        Before QUINN, C.J., and PIRTLE and PARKER, JJ.

        Bruce Allen Henry, appellant, appeals his four convictions for possessing

controlled substances. His issues involve the search of his vehicle, whether it was

legitimate, and whether the trial court should have submitted an instruction under article

38.23(a) of the Texas Code of Criminal Procedure. We affirm.1




         1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply

its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.
        Issue One – Article 38.23 Instruction

       Appellant initially contends that he “filed a proposed jury charge requesting that

the jury litigate the existence of the consent to search his vehicle.” He believed himself

entitled to the instruction because “[t]he State introduced an audio and video recording

from the patrol car which raised a question of fact as to whether [appellant] consented to

the search.” Since the “consent was the only justification for the search and seizure in

this case” and the lack of consent his defense, the “omission of this required charge

prevented [him] from having his only defensive issue considered by the jury that convicted

him.” We overrule the issue.

       Per article 38.23 of the Code of Criminal Procedure, “[n]o evidence obtained by an

officer . . . 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.” TEX. CODE CRIM. PROC.

ANN. art. 38.23(a) (West 2018). If “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.” Id. The right to an instruction under article

38.23(a) is limited to situations wherein there exists a disputed issue of fact that is material

to a purported violation of a constitutional or statutory provision that would render the

evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App.

2007); Shaw v. State, No. 07-16-00284-CR, 2018 Tex. App. LEXIS 3629, at *3-4 (Tex.

App.—Amarillo May 22, 2018, pet. ref’d) (mem. op., not designated for publication).

Moreover, there are three prerequisites that must be shown to trigger the application of

article 38.23(a). They are: 1) the evidence heard by the jury must raise an issue of fact;


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2) it must be affirmatively contested; and 3) the contested fact issue must be material to

the lawfulness of the conduct through which the evidence was obtained. Id. at *3.

       To reiterate, appellant asserts that the only basis justifying the discovery of the

drugs he possessed concerned his consent to search the vehicle purportedly given the

officer. Whether he gave such consent was a material issue of fact, in his view. It was

such an issue because the “entire video contradicts the existence of any consent to

search.” Not only did the audio portion of the video allegedly fail to capture his assent to

the search but also showed him to be eager to leave, shaking his head, and arguing with

the officer. For the reasons we will explain, these circumstances did not obligate the trial

court to submit the requested instruction.

       The detaining officer testified that: 1) he had asked appellant if he had contraband

in the truck; 2) appellant replied in the negative; 3) he (the officer) asked if appellant had

“a problem with me just double checking”; 4) appellant’s response was that he did not; 5)

he (the officer) reaffirmed appellant’s answer by asking “good to go?”; and 6) appellant

replied “yes.” Aspects of this testimony were captured on the video of the stop taken from

a camera in the patrol unit. The officer’s questions can be readily discerned from the

recording, but the same is not true of appellant’s responses.

       Appellant’s visage cannot be seen in the video. Instead, the video portrays only a

blurred partial silhouette of someone sitting in the driver’s seat, until appellant actually

exits the car after purportedly acquiescing to the search. Similarly, appellant’s words

while sitting in the truck are little more than muted, inaudible murmurings, or so the trial

court could have reasonably concluded upon playing the video.             In short, whether

appellant actually responded affirmatively or negatively to the officer’s inquiries about




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whether appellant would consent to a search of the vehicle cannot be discerned from the

electronic recording.

       Next, after exiting the pickup, appellant’s words can be heard somewhat clearer.

Yet, he still spoke at a lower volume than the officer. And, in so speaking, he said

something about being “really late” and wanting to get tires; however, those words were

not coupled with any reference to having authorized a search. They came after the officer

told appellant that he (the officer) just wanted to “make sure [appellant] had nothing in

[his] vehicle” and needed to wait for another officer to arrive. Those words resulted in

appellant shaking his head, which gesture caused the officer to ask why he was shaking

his head. At that point, appellant mentioned being late and needing tires. But at no time

can appellant be heard uttering words expressly aimed at the upcoming search and his

prior authorization to the officer to conduct it.

       As previously mentioned, a fact issue arises when one factual proposition is

affirmatively contested by another bit of evidence. Shaw, 2018 Tex. App. LEXIS 3629, at

*3. For instance, when a defendant suggests that a video contained evidence creating a

fact issue, the video must show “that appellant affirmatively did not do something that [the

officer] said that he did do.” Madden, 242 S.W.3d at 516 (stating that “[o]nly if the video

clearly showed that appellant affirmatively did not do something that Trooper Lily said that

he did do, and the video clearly would have shown that conduct if it had occurred, would

there be some affirmative evidence of a disputed historical fact”); Thomas v. State, No.

10-11-00250-CR, 2013 Tex. App. LEXIS 6943, at *16-17 (Tex. App.—Waco June 6, 2013,

no pet.) (mem. op., not designated for publication) (stating the same). The video at bar

did not and does not clearly and affirmatively show that appellant refused consent to the

search or withdrew his consent once given. The purpose of appellant shaking his head


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and professing to being late and needing tires after having agreed to a search of the car

is the subject of mere speculation. Maybe it was in reference to the search; maybe it was

in reference to having to wait until another officer arrives before the search would begin

and the delay that would cause.                Speculation, however, does not equal evidence

affirmatively contesting the officer’s testimony regarding the existence of consent. See

Thomas, 2013 Tex. App. LEXIS 6943, at *16-17 (holding that an article 38.23(a)

instruction was unnecessary since the “in-car video recording is not conclusive and does

not contradict the officers’ testimony” about Thomas failing to properly signal his intent to

turn). Appellant had opportunity to expressly object to the search if he cared to when the

officer asked why he shook his head. Despite that opportunity, appellant said nothing

about the search itself or his permission to conduct it. Consequently, the video did not

create the issue of material fact needed to trigger the trial court’s duty to charge the jury

per article 38.23(a). Id.

        Issue Two – Motion to Suppress

        Appellant next complains of the trial court’s denial of his motion to suppress the

statements uttered by appellant and the contraband found as a result of the vehicle

search. He does this by first questioning whether his consent to search the vehicle was

voluntarily given. Then, he argues that the stop was unduly extended to garner basis for

a search. We overrule the issue.2


        2 Much of appellant's discussion under this topic relates to the question of preservation. Apparently,
he said "no objection" multiple times when the State tendered into evidence at trial the contraband acquired
during the search. A trial court's denial of a motion to suppress normally preserves for review a complaint
about whether the evidence at issue was lawfully acquired. Kershaw v. State, No. 07-17-00282-CR, 2018
Tex. App. LEXIS 5819, at *2-3 (Tex. App.—Amarillo July 26, 2018, no pet.) (mem. op., not designated for
publication). Yet, uttering the words "no objection" at trial still may result in a waiver of the complaint. Id.
Whether it does depends on if the record as a whole demonstrates that the appellant did not intend to waive
the matter when uttering the words and the trial court did not construe the words to be a waiver. Id. We
reviewed the record and conclude that appellant did not intend to forgo his complaint about the search. Nor
can we say that the trial court construed the words as intent to waive. Thus, the issue was preserved.

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       According to the record, the officer first spotted appellant’s truck in response to a

9-1-1 call. The truck was seen at a house by a neighbor. That neighbor knew who

normally resided there and did not recognize appellant as one of those occupants when

he exited the abode with items in hand.

       The officer not only came upon the truck as appellant drove it but also witnessed

appellant fail to signal a left turn at an intersection. The latter being a violation of law, see

TEX. TRANSP. CODE ANN. § 545.104(b) (West 2011) (stating that “[a]n operator intending

to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of

movement of the vehicle before the turn”), the officer was permitted to temporarily detain

appellant. See Strauss v. State, 121 S.W.3d 486, 490 (Tex. App.—Amarillo 2003, no

pet.) (stating that an officer who witnessed a traffic violation has sufficient authority to stop

the vehicle). He did so and asked for appellant’s driver’s license and insurance upon

walking up to the driver’s side window of the stopped vehicle. That resulted in the officer

asking several questions of appellant regarding the home which appellant had just left

and who lived there. Appellant disclosed that he lived there apparently with his girlfriend

and her father and had done so for about a week. During this exchange, the officer told

appellant of the purpose of the stop, that being the traffic violation. So too do did he ask

if appellant was carrying contraband such as drugs or stolen property. When appellant

denied possessing contraband, the officer solicited the aforementioned consent to search

for stolen items.

       No harsh or threatening words were imparted by the officer during the verbal

exchange. His handgun remained holstered. His posture (as depicted in the video) could

reasonably be interpreted as neither threatening nor aggressive, while the tone of his

voice remained businesslike.       Nor was the officer discourteous to appellant before


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securing consent to search or while escorting appellant from the truck to the front of the

police vehicle.    Admittedly, appellant was asked to end a call that he was apparently

making on a cell phone as the two walked to the back of the truck. And though the officer

conducted a pat-down search of appellant during the short journey to the front of the

police unit, the officer explained why he opted to do so and asked if his explanation made

sense.     Finally, the time transpiring between the point at which appellant pulled into a

parking lot in response to the officer’s emergency lights and appellant consenting to a

search of his vehicle was seconds shy of four minutes.

         A temporary detention pursuant to a traffic stop may last no longer than necessary

to effectuate the purpose of the initial stop. Strauss, 121 S.W.3d at 490-91; accord Davis

v. State, 947 S.W.2d 240, 244-45 (Tex. Crim. App. 1997) (so holding). During that

detention, however, the officer may conduct a brief and minimally intrusive investigation.

Strauss, 121 S.W.3d at 490-91. So too may he ask for identification and the production

of a valid driver’s license and proof of insurance, check for outstanding warrants, ask

about the driver’s destination and purpose for the trip, direct the driver to exit the vehicle,

and “most importantly, once the purpose of the stop has been effectuated and the officer’s

suspicions allayed, he may still ask the driver if he possesses any illegal contraband and

then solicit his voluntary consent to search the vehicle.” Id. at 491. The officer at bar

receiving a call about a possible burglary, seeing the driver of the vehicle involved commit

a traffic violation, stopping the vehicle, asking for a driver’s license and proof of insurance,

explaining to appellant the purpose of the stop, asking questions which apparently

touched upon why appellant was at the house which he just left, asking appellant about

the names of the homeowners, inquiring into whether appellant possessed contraband,




                                               7
and seeking permission to search the vehicle all within four minutes of the initial stop falls

within the realm of permissibility described in Strauss.3

        The brevity of time involved, the officer’s generally courteous and professional

demeanor before soliciting consent, the officer’s disclosure of the reasons underlying the

stop, the lack of any formal show of force, the officer securing permission to search and

reconfirming that he had such permission before appellant exited the truck, the officer’s

explanation of why he wanted to search, and the absence of any overt attempt by

appellant to object to the search or withdraw his consent are indicia pertinent to assessing

the validity of appellant’s consent. See Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim.

App. 2012) (stating that the validity of consent is assessed by considering the totality of

the circumstances and factors including whether the accused was advised of his

constitutional rights, the length of the detention, the duration and repetitiveness of the

questions, the accused’s awareness of whether he could decline to answer questions,

and the kind of psychological impact the questioning had on the accused). It may be that

the officer failed to inform appellant that he did not have to answer any questions or agree

to the search, as suggested by appellant. Yet, the detention was temporary and part of

a traffic stop. In those situations, the detainee’s freedom is not so curtailed as to require

the officer to mirandize the detainee. See Carmona v. State, No. 07-17-00018-CR, 2018

Tex. App. LEXIS 6185, at *5-6 (Tex. App.—Amarillo Aug. 7, 2018 no pet.) (mem. op., not

designated for publication) (stating that “[a]lthough a traffic stop ‘significantly curtails the



        3To  the extent that appellant suggests the traffic violation was merely a pretext for conducting an
impermissible search, we note that the pretext arrest doctrine was rejected by our Court of Criminal Appeals
years ago in Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992). That court reaffirmed its holding in
Garcia through the more recent opinion in Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000). Because
the officer witnessed an actual traffic violation occur, he had legitimate basis to stop appellant. Id. at 543
(reaffirming that as long as an actual violation occurs law enforcement officials are free to enforce the law
and detain a person for violating it regardless of the officer's subjective motivation).

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“freedom of action”‘ of a vehicle’s driver, individuals temporarily detained pursuant to a

traffic stop are not ‘in custody’ for Miranda purposes”). In asking for and receiving consent

and then reverifying appellant’s consent by querying if he was “good to go,” the officer’s

conduct could be viewed as affording appellant opportunity to change his mind and think

about his decision, and the record does not reflect that appellant changed his mind

regarding the search despite being in a hurry.

       In short, the totality of the circumstances provided the trial court clear and

convincing evidence upon which to reject the notion that appellant’s consent was

involuntary or a mere acquiescence to a show of authority. Rather, they provided clear

and convincing evidence upon which to conclude that appellant’s consent was voluntary.

Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006) (stating that the State

must prove by clear and convincing evidence that consent was given voluntarily). Thus,

we cannot say that the trial court abused its discretion in denying the motion to suppress.

See State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018) (stating that an

appellate court reviews a trial court’s ruling on a motion to suppress under the standard

of abused discretion).

       We overrule each of appellant’s issues and affirm his four convictions.



                                                                Brian Quinn
                                                                Chief Justice
       Do not publish.




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