                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-19-00250-CR

LARRY DONAL STERLING,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                           From the 85th District Court
                               Brazos County, Texas
                         Trial Court No. 18-02235-CRF-85


                           MEMORANDUM OPINION

       Larry Donal Sterling was convicted of possession of a controlled substance,

cocaine, with the intent to deliver, in an amount greater than one gram but less than four

grams. See TEX. HEALTH & SAFETY CODE ANN. §481.112(c). Two prior felony convictions

were found to be true, and Sterling was sentenced to 35 years in prison. Because the trial

court did not abuse its discretion in denying Sterling’s motion to suppress, denying

Sterling’s request for an article 38.23 instruction, or in overruling Sterling’s Rule 404(b)
and 403 objections to the admission of an extraneous offense, we affirm the trial court’s

judgment.

BACKGROUND

        Officer Aaron Arms, of the Bryan Police Department, saw Sterling driving a car in

Bryan. He confirmed Sterling did not have a valid driver license. When Sterling parked

the car, Arms arrested Sterling and placed him in his patrol vehicle. After securing

Sterling, Arms looked in Sterling’s car from the outside for any objects of a criminal

nature. From the passenger side window, he saw a prescription pill bottle upside down

in the pocket of the driver’s side door. He walked to the driver’s side and was able to see

into the bottle and could tell the bottle contained what appeared to him to be rocks of

crack cocaine.

        Arms took the key to the car from Sterling and proceeded to search the car. He

seized the bottle which contained four rocks of crack cocaine.            The bottle had a

prescription label in Sterling’s name on the outside. During the search of the car, Arms

also found a clear sandwich-style bag that had five little (one-inch by one-inch) baggies

containing powder cocaine. There were also several unused little baggies that were

found in a Newport brand cigarette box in the center console with the cocaine.

MOTION TO SUPPRESS

        In his first issue, Sterling contends the trial court abused its discretion in denying

Sterling’s motion to suppress. Specifically, Sterling contends video taken from Arms’s

body cam and a photograph taken by Arms indisputably show the crack cocaine seized




Sterling v. State                                                                       Page 2
could not be seen from the outside of Sterling’s car; and thus, Sterling’s argument

continues, Arms had no probable cause to search Sterling’s vehicle.

        When reviewing a ruling on a motion to suppress, we afford almost total deference

to the trial judge's determination of facts if those facts are supported by the record. State

v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013); Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). Although we may review de novo "indisputable visual evidence"

contained in a videotape, Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000),

the deferential standard of review still applies to the review of a trial court’s assessment

of a video. Ex parte Harvin, 500 S.W.3d 418 n.23 (Tex. Crim. App. 2016).

        In reviewing a trial court's ruling on a motion to suppress, appellate courts must

view all of the evidence in the light most favorable to the trial court's ruling. State v.

Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The party that prevailed is

afforded the "strongest legitimate view of the evidence" as well as all reasonable

inferences that can be derived from it. Id. We review a trial judge's application of search

and seizure law to the facts de novo and will affirm the court’s ruling if the record

reasonably supports it and is correct on any theory of law applicable to the case. State v.

Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011).

        Relying on the Court of Criminal Appeals’ opinion in Carmouche v. State, 10 S.W.3d

323 (Tex. Crim. App. 2000), Sterling contends the video and photograph amounted to

“indisputable evidence,” which, according to Sterling, is conclusive that Arms could not

see the crack cocaine inside the pill bottle that was upside down in the driver’s side door

pocket in Sterling’s car.   In Carmouche, a Texas Ranger testified that he asked the

Sterling v. State                                                                      Page 3
defendant if the Ranger could search the defendant again. According to the Ranger, the

defendant threw up his hands, said “all right,” and turned around to put his hands on

his car. The Ranger said he then reached to the area of the defendant where the informant

said the defendant kept his drugs. The Court of Criminal Appeals determined that the

video did not support the Ranger’s testimony. Specifically, the Court said, “the videotape

belies [the Ranger's] testimony that appellant raised his hands and turned around in

response to [the Ranger's] request to search. Indeed, appellant turned around and

assumed a position to facilitate the search after he was ordered to do so by one of the

officers. [The Ranger's] ‘request’ came after officers had appellant spread-eagled beside

his car.” Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000).

        This is not the situation we have here. We agree that from the video and the

picture, we cannot determine if crack cocaine is in the pill bottle. However, that is not

“indisputable evidence,” as it was in Carmouche, that Arms could not see it. Arms testified

that he could see what appeared to be crack cocaine and used a flashlight to further

illuminate it before opening the vehicle door. Arms demonstrated for the trial court the

difference in viewing the pill bottle with his flashlight on and with it off. The trial court

found Arms’s testimony to be credible and that Arms could see what was reasonably

believed to be crack cocaine in the pill bottle.

        Accordingly, viewing the evidence in the light most favorable to the trial court’s

ruling and giving almost total deference to the trial court’s determination of historical

facts, we find the trial court did not abuse its discretion in denying Sterling’s motion to

suppress. Sterling’s first issue is overruled.

Sterling v. State                                                                      Page 4
ARTICLE 38.23 INSTRUCTION

        Related to his first issue, in his fourth issue, Sterling argues the trial court erred in

refusing to submit an article 38.23 instruction in the charge to the jury and that Sterling

was harmed by the refusal. Sterling argues in this issue that there was a factual dispute

as to whether Arms could see the contents of the pill bottle from outside of Sterling’s

vehicle, explaining that if Arms could not see into the pill bottle, the search was illegal,

thus requiring an article 38.23 instruction.

        Article 38.23 of the Code of Criminal Procedure provides that no evidence

obtained by an officer in violation of the laws of Texas or the United States shall be

admitted in evidence against an accused on the trial of any criminal case. TEX. CODE CRIM.

PROC. ANN. art. 38.23(a). Further, article 38.23 states that where the legal evidence raises

this issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that

the evidence was obtained in violation of the law, it shall disregard the evidence obtained.

Id.

        A defendant's right to the submission of a jury instruction under article 38.23(a) 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). There are three requirements that must be met to be

entitled to an instruction pursuant to article 38.23: (1) the 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.

Sterling v. State                                                                         Page 5
        Accordingly, there must be a genuine dispute about a material fact. Id. If there is

no disputed factual issue, the legality of the conduct is determined by the trial judge

alone, as a question of law. Id. To raise a disputed fact issue warranting an article 38.23

jury instruction, there must be some affirmative evidence that puts the existence of that

fact into question. Id. at 513. A cross-examiner's questions do not create a conflict in the

evidence, although the witnesses's answers to those questions might. Id.

        Sterling points to Defense Exhibit 1, a photograph which Arms sponsored and

agreed was fair and accurate, as the evidence of a factual dispute because, according to

Sterling, the photograph itself contradicts Arms’s testimony by “show[ing] that Arms

was unable to see the rocks of crack cocaine in the pill bottle while outside the car and

looking through the windshield.” However, Sterling never pursued this alleged “factual

dispute” during trial. He never elicited testimony regarding whether the photograph

contradicted Arms’s testimony or testimony that would challenge Arms’s credibility

regarding whether Arms could see in the pill bottle without opening the door of Sterling’s

vehicle to get a closer look. Sterling never did anything to affirmatively contest the fact that

Arms could see into the pill bottle other than introduce Defense Exhibit 1. This is not

enough. See Madden v. State, 242 S.W.3d 504, 513-516 (Tex. Crim. App. 2007).1 Thus,

because there is no affirmatively contested factual dispute, the trial court did not err in

failing to submit an article 38.23 instruction.

        Sterling’s fourth issue is overruled.



1
 Judge Cochran gives a very thorough explanation in this opinion of what constitutes a disputed fact issue
sufficient to warrant an article 38.23 jury instruction.

Sterling v. State                                                                                  Page 6
EXTRANEOUS OFFENSE EVIDENCE

        In his second and third issues, Sterling asserts the trial court abused its discretion

in admitting into evidence an extraneous drug offense over Sterling’s objections. The

evidence consisted of an indictment and judgment regarding a charge of, and Sterling’s

plea of guilty to, possession of a controlled substance and testimony from the arresting

officer regarding the facts of the discovery of the controlled substance.

        A trial court's ruling on the admissibility of extraneous offense evidence is

reviewed under an abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343

(Tex. Crim. App. 2009).

Rule 404(b)

        Outside the presence of the jury, the State informed the Court that it would

introduce evidence of an extraneous offense, a conviction for possession of cocaine in

2006, to rebut Sterling’s defensive theory that the cocaine found in this case was not his

and under the “doctrine of chances” theory of admissibility.2 Sterling argued against the

admissibility of evidence of this offense stating he did not present a theory that the

cocaine in this case was not his; he only questioned whether there were sufficient links to

prove possession. Sterling also argued that the conviction was too similar to the case

being tried, and it implied that if Sterling possessed cocaine before, he possessed it again

this time.




2
  “The ‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat themselves
inadvertently or by happenstance.” De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009).

Sterling v. State                                                                          Page 7
        Rule of Evidence 404(b) generally provides that "[e]vidence of a crime, wrong, or

other act is not admissible to prove a person's character in order to show that on a

particular occasion the person acted in accordance with the character." TEX. R. EVID.

404(b)(1). However, the evidence may be admitted for another purpose, such as to prove

the defendant's intent, plan, preparation, or other state of mind. Id. (b)(2). Further,

admitting evidence of extraneous offenses is permissible "to rebut a defensive issue that

negates one of the elements of the offense." De La Paz, 279 S.W.3d at 343; Hinojosa v. State,

554 S.W.3d 795, 798 (Tex. App.—Waco 2018, no pet.).

        On appeal, Sterling argues that the extraneous offense evidence (1) was admitted

as propensity evidence and (2) did not have common characteristics with the offense

charged.

        Regarding his first argument, Sterling only states in his brief that the evidence was

inadmissible “on the issues of intent, knowledge, or to rebut a defense which simply held

the State to its burden of proof.” Prior to this statement, he cites to general authority

regarding the admission of extraneous offense evidence, but then cites to nothing specific

to support why the extraneous offense could not be admissible to show either intent or

knowledge, or particularly, to rebut a defensive theory, especially when the trial court

focused on permitting the State’s use of the offense in that manner. Further, he provides

no additional argument in support of this one statement. Accordingly, this part of

Sterling’s argument is improperly briefed and presents nothing for review. See TEX. R.

APP. P. 38.1(i). See also Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) ("It is



Sterling v. State                                                                       Page 8
incumbent upon appellant to cite specific legal authority and to provide legal arguments

based upon that authority.").3

        As to Sterling’s second argument that the extraneous offense did not have

common characteristics with the charged offense, this argument does not comport with

the argument Sterling made at trial. There, Sterling complained that the offenses were

too similar. Thus, this part of Sterling’s argument is not preserved for our review. See

Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d 459,

464 (Tex. Crim. App. 2009).

        Sterling’s second issue is overruled.

Rule 403

        Sterling also argued to the trial court and argues on appeal that the extraneous

offense was inadmissible because its probative value was substantially outweighed by

the danger of unfair prejudice.4

        Evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice. See TEX. R. EVID. 403. But this rule favors the admission



3
  In his reply brief, Sterling cites to the petition for discretionary review granted in Work v. State, No. 03-18-
00244-CR, 2018 Tex. App. LEXIS 3683 (Tex. App.—Austin May 24, 2018, pet. granted) (not designated for
publication) to speculate that the State’s arguments for admissibility of the extraneous offense are called
into question and that a “favorable outcome to the granted petition” “will further support the argument
[that] Sterling’s prior conviction was inadmissible….” We will not speculate as to how the opinion in Work,
if one issues, will affect this appeal.

4
  Sterling states in his brief that “[t]his point of error concerns the same extraneous offense evidence
complained of in his second point of error.” However, in the discussion of the factors used in the review
of a Rule 403 issue, Sterling uses phrases such as “extraneous drug acts,” “unending parade of [extraneous
offense] exhibits and testimony,” and “horde of [extraneous] evidence admitted” as reasons for why the
factors weigh in favor of exclusion. However, only one extraneous drug offense was objected to by Sterling
under Rule 403 and that is the only extraneous offense that we review pursuant to the Rule 403 factors.

Sterling v. State                                                                                         Page 9
of relevant evidence, and such evidence is presumed to be more probative than

prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Majors v. State, 554

S.W.3d 802, 808 (Tex. App.—Waco 2018, no pet.). All testimony and physical evidence

will likely be prejudicial to one party or the other. Jones v. State, 944 S.W.2d 642, 653 (Tex.

Crim. App. 1996). It is only when there exists a clear disparity between the degree of

prejudice of the offered evidence and its probative value that Rule 403 is applicable. Id.

        During his opening and by his cross-examination of Arms, Sterling suggested to

the jury that because items from at least one other person, a female, were also in the car,

the cocaine powder found in a cigarette package in the console of the car may not have

been his. The extraneous offense evidence at issue here casts doubt on Sterling’s position

because, as in this case, the evidence was also found in a cigarette package. Thus, the

evidence was probative and necessary. The presentation of the conviction did not

consume an inordinate amount of time and was not repetitive of evidence already

admitted.5 Further, the jury was instructed that it could not consider the evidence for

any purpose other than to determine “motive, opportunity, intent, knowledge, lack of

mistake or accident, or to rebut any defensive theory….” While the admission of a prior

conviction will always be prejudicial, there was nothing here that suggested the jury

would be distracted from the main issue or would use the evidence for an improper

purpose.




5
 The indictment and judgment had been preadmitted and took almost no time to publish to the jury; and
the officer’s direct testimony on the issue was very brief.

Sterling v. State                                                                            Page 10
        Based on our review of the record, the trial court, after balancing the various Rule

403 factors, could have reasonably concluded that the probative value of the extraneous

offense evidence was not substantially outweighed by the danger of unfair prejudice.

Accordingly, the trial court did not abuse its discretion in admitting evidence of Sterling’s

possession of a controlled substance conviction and testimony thereof, over Sterling's

Rule 403 objection.

        Sterling’s third issue is overruled.

CONCLUSION

        Having overruled each issue presented on appeal, the trial court’s judgment is

affirmed.

                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed February 26, 2020
Do not publish
[CRPM]




Sterling v. State                                                                     Page 11
