                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                             _________________

                              NO. 09-17-00133-CR
                             _________________

                  JAMES DWAYNE CROWLEY, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 435th District Court
                        Montgomery County, Texas
                      Trial Cause No. 15-10-11144-CR
________________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted Appellant, James Dwayne Crowley, of aggravated robbery.

See Tex. Penal Code Ann. §§ 29.02, 29.03(a)(2) (West 2011). Crowley appeals his

conviction. In four issues, Crowley complains the trial court committed reversible

error by: (1) denying his motion to suppress a search warrant for cellular telephone

data; (2) refusing his requested article 38.23 jury instruction regarding cellular

telephone data; (3) denying his motion to suppress evidence collected from a blue
                                         1
Dodge vehicle; and (4) refusing his requested article 38.23 jury instruction regarding

evidence collected from a blue Dodge vehicle. We affirm the trial court’s judgment.

                                   I. Background

      After midnight on October 18, 2015, Crowley entered the Flying J Truck Stop

in New Caney, Texas. During the approximately five hours that followed, Crowley

entered the store multiple times and changed his attire several times. In video

surveillance from the truck stop, Crowley’s distinctive hand tattoos are visible, as

well as his wristwatch, and boots. These remained visible and consistent despite the

clothing changes.

      During those early morning hours, Crowley, wearing a short-sleeved gray

Dallas Cowboys t-shirt, was captured on camera stealing multiple items from the

store, including a flashlight and Cobra GPS units. At one point, Crowley is observed

speaking to a clerk and pointing to items on an aisle in the electronics section of the

store. After interacting with the clerk, he is then observed on video watching the

clerk disappear down a hall toward an office into a restricted area, while he remained

in the unrestricted part of the store. Later, Crowley entered the restricted area,

proceeded down the hall to the back office, grabbed an armload of merchandise,

including a Cobra GPS unit, and exited through the rear door of the store.



                                          2
      He returned to the store after 3:00 a.m., wearing the same gray Dallas

Cowboys t-shirt, but he had added a jacket and a blue Dallas Cowboys hat. Crowley

stole multiple Cobra GPS units and was recorded checking the safe. At one point in

the evening, the surveillance camera also captured him speaking with witness

Ronald Hill.

      Following the merchandise thefts, Crowley re-entered the store shortly before

5:00 a.m. wearing a different jacket and a camouflaged hat with flaps over the ears.

A little before 5:00 a.m., the surveillance cameras captured Crowley taking a glove

out of a package in the store and putting it on his right hand. He is then observed

pointing a gun at Connie Prior and another employee in the office area. Prior can be

seen opening the safe, and Crowley is seen removing two large bags of coins. As

Crowley was struggling with the bags of coins from the safe, the gun went off and a

projectile ricocheted off the floor, hitting Prior in the arm. Unable to sustain the

weight of the coins, the handle from the cloth shopping bag Crowley was using broke

and it was left on the floor in the store. Crowley dropped one of the bags of coins

outside the store but got away with one bag of coins.

      Officers responded to the scene and collected surveillance footage from the

store. Upon reviewing the footage, an officer recognized Hill, the man Crowley

spoke with briefly in the store. The officers located Hill, and after speaking with

                                         3
him, concluded James Crowley was a suspect. The lead investigator on the case,

Montgomery County Sheriff’s Office (“MCSO”) Detective Hahs, obtained an arrest

warrant for Crowley. The MCSO determined Crowley drove a blue Dodge vehicle

owned by his wife and acquired its license plate number. At the scene, they

recovered the handle from the shopping bag Crowley used and the projectile fired

from the gun.

      On October 21, 2015, Hahs and his partner received a call from MCSO

Sergeant Swilling regarding a shots-fired incident in another part of the county,

advising them that the description of the shooter matched their armed robbery

suspect. 1 On the way to the shots-fired location, Hahs observed a vehicle matching

Crowley’s vehicle traveling the opposite direction. Hahs testified he made a U-turn

and followed it until it pulled into the parking lot of a local business. The license

plate number matched the one on the vehicle owned by Crowley’s wife. Hahs

testified that because he had an arrest warrant for Crowley and was unsure who was

in the vehicle at the time, he and his partner proceeded to perform a felony takedown.

The individuals exited the vehicle, but Crowley was not with them. A blue Dallas




      1
        Crowley was ultimately arrested by a patrolman a short distance away from
the shots-fired incident walking down the street.

                                          4
Cowboys hat matching the one Crowley wore the night of the armed robbery was

observed in plain view on the deck of the rear window.

      Hahs testified the driver of the vehicle, John Colletti, said he borrowed the car

from Crowley, and there was no evidence connecting the individuals in the vehicle

to the crime. Colletti offered to ride with detectives and take them to the gun used

during the robbery. Hahs testified that because Colletti left with them, and none of

the other individuals owned the car or had been given permission to drive, they

impounded the vehicle. Due to it being impounded, department policy required Hahs

to conduct an inventory search of the vehicle, which he briefly did at the location of

the felony takedown. During the inventory, Hahs located a GPS box consistent with

the ones taken from the truck stop, as well as drug paraphernalia. Hahs confirmed

he did not have a warrant to search the vehicle.

      Detective Hahs testified that it appeared Colletti had information that might

be useful to the investigation. Colletti took them to an RV park to the residence of

Terry Goad. As soon as detectives told Goad why they were there, he directed them

to a gun in the glove box of his motor home. The officers located a .380 pistol and

magazine in the glove box and took the items as evidence. Goad confirmed he

purchased the gun from Crowley on October 21, 2015, several days after the robbery.



                                          5
      Later in the investigation, Hahs obtained a search warrant to retrieve data from

Crowley’s cell phone. The judge signed the warrant at 3:23 p.m. on October 27,

2015. However, the return is dated August 7, 2009. At trial, Hahs testified he

executed the search warrant “immediately” and acknowledged the wrong date on the

return was a clerical error.

      The primary focus of the State’s case was video surveillance footage from the

store that captured the crime on film and photographs retrieved from those

surveillance videos. The State’s ballistics expert testified regarding the tests

performed and concluded that the projectile retrieved as evidence from the store was

fired from the gun Crowley sold to Goad. Moreover, DNA obtained from the

shopping bag handle also linked Crowley to the crime. Evidence obtained from the

blue Dodge included the blue Dallas Cowboys hat and a GPS unit from the trunk.

Cell phone data from Crowley’s phone showed multiple searches seeking

information regarding the aggravated robbery at the Flying J and searches for

criminal defense attorneys in the days after the robbery.

      Following two hearings, the trial court denied Crowley’s motion to suppress

the evidence seized from the vehicle and the cell phone data. The trial judge also

denied Crowley’s requested article 38.23 jury instruction. The jury convicted

Crowley of aggravated robbery, and Crowley elected to have the trial judge

                                          6
determine punishment. Crowley pled true to all six enhancements and the trial judge,

having found four of the enhancements true, sentenced Crowley to life in prison.

                 II. Motion to Suppress: Issues One and Three2

      Crowley contends the trial court committed reversible error by denying his

motion to suppress the evidence seized from the vehicle and the cell phone data.

Prior to trial, he filed a motion to suppress. In the motion to suppress, Crowley

specifically argued that the “Sworn Inventory And Return is insufficient, false, and

blatantly defective on its face and taints all aspects of the search and notice

requirements” under article 18.06. See Tex. Code of Crim. Proc. Ann. art. 18.06

(West Supp. 2018).3 He further contends his 4th, 5th, and 14th Amendment rights

were violated because the return was not verified in a timely manner.

      Crowley also moved to suppress the GPS unit and GPS box located within the

vehicle. He contends the evidence was seized as a result of a warrantless search, was

illegal, did not comply with the Texas Code of Criminal Procedure and is a violation

of his 4th, 5th, and 14th Amendment rights. Crowley did not address the hat in the




      2
        For purposes of organization and clarity, we address the suppression issues
together and the jury instruction issues together.
      3
        We cite to the current versions of the applicable provisions of the Code of
Criminal Procedure, as any amendments do not affect the outcome of this appeal.
                                           7
motion to suppress or at the suppression hearing, but he argues on appeal the Dallas

Cowboys hat should have been suppressed as well.

         During the suppression hearing, the State first argued the items were identified

as the result of a valid inventory search. Additionally, the State argued in the

suppression hearing it had probable cause, because the vehicle matched the

description of the one driven by Crowley, and the Dallas Cowboys hat identical to

the one surveillance cameras captured Crowley wearing was in plain view on the

rear window deck of the vehicle. The State contended that the hat in plain view

matching the hat from the surveillance video led to probable cause for the stolen

items.

         In denying the motion to suppress in its entirety, the trial judge stated on the

record,

         I agree that items might not have been seized or taken out until a later
         date; however, I did hear testimony to support that he identified those
         items . . . there at the location of the traffic stop, and that stop was
         conducted based on arrest warrants (sic) – that Detective Hahs had in
         his possession that was legally obtained. So I’m going to deny your
         motion to suppress in its totality.

A. Standard of Review

         We review a trial court’s denial of a motion to suppress under a bifurcated

standard. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016) (citing

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)). We review a trial
                                         8
court’s findings of fact for abuse of discretion and the trial court’s application of the

law to the facts de novo. Id. If a trial judge does not make explicit findings of fact,

we review the evidence in the light most favorable to the trial court’s ruling. Walter

v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000) (citing Carmouche v. State, 10

S.W.3d 323, 327–28 (Tex. Crim. App. 2000)). If the trial court makes explicit fact

findings, we view the evidence in the light most favorable to the trial court’s ruling

and determine if it supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.

Crim. App. 2006). We then review the trial court’s legal ruling de novo. Id. at 819.

We uphold the trial court’s ruling if supported by the record and correct under any

theory of law applicable to the case, even if the reason provided by the trial court is

wrong. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (citing

State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Romero v. State, 800

S.W.2d 539, 543 (Tex. Crim. App. 1990)). We give almost total deference to the

trial court’s implied findings, particularly those based on an evaluation of witness

credibility and demeanor. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010). At a suppression hearing, the trial court is the sole trier of fact and judge

of the witnesses’ credibility. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.

App. 2007). The trial court may choose to believe or disbelieve part or all of the

witnesses’ testimony. Ross, 32 S.W.3d at 855.

                                           9
B. Analysis

      1. Cellular Telephone Data

      A judge or magistrate must sign and date a search warrant. Tex. Code Crim.

Proc. Ann. art. 18.04 (West Supp. 2018). The magistrate must include the date and

hour the warrant issues. Tex. Code Crim. Proc. Ann. art. 18.07(b) (West Supp.

2018). Generally, a warrant must be executed within three days of its issuance,

excluding the date of issuance and the date of execution. Id. art. 18.07(a)(3).

“[P]urely technical discrepancies in dates or times do not automatically vitiate the

validity” of a search warrant. Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App.

1990). The court must determine whether there is evidence to support a finding that

the discrepancy is “merely a clerical or technical error.” See id.; Arredondo v. State,

No. 14-16-00110-CR, 2017 WL 592234, *4 (Tex. App.—Houston [14th Dist.] Feb.

14, 2017, no pet.) (mem. op., not designated for publication). This evidence is

usually provided through the testimony of a knowledgeable witness. Green, 799

S.W.3d at 760. Technical defects in a warrant can be cured by explanatory testimony.

See id.; Rougeau v. State, 738 S.W.2d 651, 663 (Tex. Crim. App. 1987), overruled

on other grounds, Harris v. State, 784 S.W.2d 5 (1989); Lyons v. State, 503 S.W.2d

254, 255–56 (Tex. Crim. App. 1973); Martinez v. State, 285 S.W.2d 221, 222 (Tex.

Crim. App. 1955).

                                          10
        Crowley asserts on appeal that an incorrect date on the return invalidated the

entire warrant for the cellular telephone data because it is unknown if the warrant

was executed within the three-day timeline. We disagree. The judge signed the

warrant, included the date October 27, 2015, and the time. However, the return

attached to the warrant was dated August 7, 2009. During the suppression hearing

and in front of the jury, Detective Hahs testified he signed the return. He further

testified that it was a “clerical error,” and he printed the document without realizing

he had not changed the date on the return. We conclude this testimony provided

evidence from which the trial court could conclude the incorrect date on the return

was purely clerical, and therefore the warrant itself was not invalid. See Green; 799

S.W.3d at 760; Martinez, 285 S.W.2d at 222. Furthermore, to the extent Crowley

attempts to argue on appeal that the warrant was not executed or returned timely,

Detective Hahs testified that he executed the warrant “immediately” after it issued.

Crowley did not offer any evidence to contradict this testimony or obtain

clarification from Detective Hahs about the meaning of “immediately.” We conclude

the trial court did not err in denying the motion to suppress the cellular telephone

data.




                                          11
      2. Hat Seized from the Vehicle

      Despite his argument on appeal that the hat and any DNA evidence from the

hat should have been suppressed as well, Crowley failed to make this argument in

his motion to suppress or during the suppression hearing.4 The trial judge inquired

multiple times regarding the specific evidence seized from the vehicle, and Crowley

only mentioned the GPS unit and GPS box. Because he failed to urge for suppression

of the hat during trial, we find he has waived any complaint regarding the admission

of that evidence. See Tex. R. App. P. 33.1; Rothstein v. State, 267 S.W.3d 366, 373

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (citations omitted) (noting that

to preserve a complaint, a party must present the trial court with a timely request,

objection, or motion stating the specific grounds, and the appellate argument must

comport with the objection made at trial). 5

      3. GPS Units Seized from the Vehicle

      While Crowley argues the evidence seized from the vehicle was obtained

illegally and without a warrant, the State asserts Detective Hahs lawfully impounded


      4
        The record does not indicate the hat at issue was tested for DNA.
      5
        This was supported by the State’s photographs admitted at trial, which depict
the hat in plain view through the vehicle’s back windshield. Even if we assume
Crowley preserved error, neither the hat’s observation or seizure invaded his
privacy, as it was in plain view when the car was pulled over pursuant to a valid
arrest warrant. See Horton v. Cal., 496 U.S. 128, 133–34 (1990) (citations omitted);
Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citations omitted).
                                         12
the vehicle and conducted an inventory of the vehicle. The Fourth Amendment of

the United States Constitution and Article I, Section 9 of the Texas Constitution

protect individuals against unreasonable searches and seizures. U.S. CONST. amend.

IV; Tex. Const. art. I, § 9; State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App.

2013). Generally, a search without a warrant is considered unreasonable subject to a

few established exceptions. See Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim.

App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).

      Assuming without deciding the trial court erred in denying Crowley’s motion

to suppress the GPS unit and box found in the vehicle, we must determine whether

Crowley was harmed by the denial of the motion to suppress. See Tex. R. App. P.

44.2(a). We will reverse unless we determine beyond a reasonable doubt the

admission of the GPS evidence did not contribute to the guilty verdict. See id. Said

another way, the critical inquiry is whether there is a “reasonable possibility” the

error might have contributed to the conviction. See Mosley v. State, 983 S.W.2d 249,

259 (Tex. Crim. App. 1998) (citing Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim.

App. 1996)). An error does not contribute to the conviction if the jury’s verdict

would be the same even if the erroneous evidence had not been admitted. Clay v.

State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (quoting Neder v. United States,

527 U.S. 1, 15–18 (1999)). In determining whether constitutional error in the

                                        13
admission of evidence is harmless, we consider these factors: (1) the importance of

the evidence to the State’s case; (2) whether the evidence was cumulative of other

evidence; (3) the presence or absence of other evidence corroborating or

contradicting the evidence on material points; (4) the overall strength of the State’s

case; and (5) any factor, as revealed by the record, that may shed light on the

probable impact of the error on the average juror. Id. (citing Davis v. State, 203

S.W.3d 845, 852 (Tex. Crim. App. 2006)).

      The GPS unit and box retrieved from the vehicle were not critical to the State’s

case. This evidence was cumulative of other evidence, specifically the surveillance

video which captured Crowley in the act of stealing GPS units. A jury could have

convicted Crowley on the surveillance video alone, which depicted him casing the

store for hours, attempting to disguise himself, stealing multiple items, and pointing

a gun at store employees while making them open the safe so he could retrieve bags

of coins. In addition to the surveillance video, DNA from the shopping bag handle

left at the scene connected Crowley to the scene. Finally, ballistics tests on a gun

located in the possession of a man who testified he purchased it from Crowley days

after the robbery, established that the projectile retrieved at the scene was fired from

the same gun. Based on these factors, we conclude there was other overwhelming

evidence of guilt that made the admission of the GPS evidence harmless.

                                          14
      The trial court did not err in denying Crowley’s motion to suppress the cellular

telephone data, and Crowley waived any complaint about the hat. With other

overwhelming evidence of guilt, even if the trial court erred in denying the motion

to suppress the GPS box and unit seized from the vehicle, such error was harmless.

We overrule issues one and three.

               III. Article 38.23 Instruction: Issues Two and Four

      Crowley argues on appeal that the trial court erred in refusing his requested

38.23 instruction pertaining to cellular telephone data and in refusing his requested

38.23 instruction pertaining to evidence seized from the vehicle. See Tex. Code

Crim. Proc. Ann. art. 38.23 (West 2018). While Crowley characterizes these as

“requested” instructions, the record reveals the defense’s requested instruction was

very generic and did not address the cellular telephone data evidence in conjunction

with the article 38.23 instruction.

A. Standard of Review

      Under Almanza, we utilize a two-step process in reviewing jury charge error.

See Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether there was

error in the charge. See Ngo, 175 S.W.3d at 743. Second, we examine whether the

appellant was harmed by the error. See id. The level of harm required for reversal

                                         15
depends upon whether the appellant preserved the error by objecting at the trial court

level. Id. If the appellant objected to the charge, we will reverse if we find some

harm. See id. (citing Almanza, 686 S.W.2d at 171). However, if the appellant failed

to object to the charge, we will not reverse unless egregious harm is established by

the record. See id. at 743–44.

B. Analysis

      Article 38.23 provides that evidence obtained in violation of the laws or

Constitution of the United States or Texas may not be admitted in a criminal case.

Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal v. State, 390 S.W.3d 302, 306

(Tex. Crim. App. 2012). A jury instruction should be submitted if a fact issue is

raised about whether such a violation occurred. Tex. Code Crim. Proc. Ann. art.

38.23(a); Hamal, 390 S.W.3d at 306. The instruction requires the jury to disregard

evidence that it finds was obtained in violation of the laws or United States or Texas

Constitution. Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 S.W.3d at 306.

A defendant must show the following to be entitled to an article 38.23 jury

instruction: “(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) the contested factual

issue must be material to the lawfulness of the challenged conduct.” Hamal, 390



                                          16
S.W.3d at 306 (citing Spence v. State, 325 S.W.3d 646, 653–54 (Tex. Crim. App.

2010); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008)).

      A jury instruction can operate “only if there is a contested issue of fact about

the obtaining of the evidence . . . . There is no issue for the jury when the question

is one of law only.” Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)

(citing Bell v. State, 938 S.W.2d 35, 38 (Tex. Crim. App. 1996)). The Court of

Criminal Appeals has explained,

      [i]f 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 v. State, 242 S.W.3d 504, 510–11 (Tex. Crim. App. 2007) (internal citations

omitted).

      1. Article 38.23 Instruction Regarding Cellular Telephone Data

      At trial, Detective Hahs acknowledged the clerical error in the return, which

contained the wrong date. He further testified the warrant was executed

“immediately” after it was issued. Crowley asserts on appeal that “immediately” is

subject to interpretation, and there is no way to ascertain if he executed the warrant

within the three days allowed. See Tex. Code of Crim. Proc. Ann. art. 18.06(a). There

                                         17
was no fact issue raised about whether the date was incorrect at trial or whether

Detective Hahs failed to execute the warrant in a timely manner. Crowley did not

bring any witness to contradict Detective Hahs’s testimony. He also did not inquire

or seek clarification on cross-examination of the word “immediately.” None of these

facts were disputed. Whether the warrant and return were invalid was solely a legal

question. Pierce, 32 S.W.3d at 251. As such, Crowley was not entitled to an article

38.23 instruction for the cellular telephone data because he did not meet the

requirements which would entitle him to the instruction. See Hamal, 390 S.W.3d at

306; Madden, 242 S.W.3d at 510–11. We overrule issue two.

      2. Article 38.23 Instruction Regarding Evidence from the Vehicle

      In Garza v. State, the Court of Criminal Appeals addressed a similar scenario.

126 S.W.3d 79 (Tex. Crim. App. 2004). In that case, a vehicle was impounded after

the appellant’s van was stopped when he made an illegal turn. Id. at 81. Officers

determined the appellant had two outstanding arrest warrants. Id. After arresting

him, officers performed an inventory search of appellant’s van finding drug

paraphernalia and cocaine. Id. The appellant moved to suppress the evidence, which

the trial judge denied. Id. There, the court found that appellant did not controvert the

facts to which the officers testified. Id. at 87 (citing Thomas v. State, 884 S.W.2d



                                          18
215, 218 (Tex. App.—El Paso 1994, pet. ref’d)). The Court concluded no fact issue

arose as to the legality of the search. Id.

      The same is true here. Detective Hahs maintained he had a valid arrest warrant

when he and his partner stopped the vehicle and performed a felony takedown. They

impounded the vehicle to protect its contents, because the owner of the vehicle,

Crowley’s wife, was not present, and the driver who borrowed the car left the scene

with detectives. Hahs further testified MCSO policy dictated he inventory the

vehicle, which he did.

      During cross-examination, Crowley’s counsel attempted to raise a fact issue

by asking if Crowley was actually in custody at the time the vehicle was stopped.

Detective Hahs responded he believed he was, but there is no indication Hahs was

aware of that fact at the time he stopped the vehicle. Hahs was on the way to a shots-

fired call because the suspect matched Crowley’s description and on the way there,

he observed the vehicle at issue. The takedown ensued, and he testified repeatedly

he was looking for Crowley when he stopped the vehicle.

      Defense counsel asked multiple questions about the impounding of the vehicle

and whether the other individuals on the scene had licenses and could have driven

the vehicle. Detective Hahs responded that he did not know who they were, and they

had not been given permission to drive the vehicle.

                                              19
      The questions by defense counsel are nothing more than mere insinuations the

officer may have veered from the impound and inventory policy. See id. at 87 (“Mere

insinuations by appellant’s attorney that no inventory slip was made, in light of the

testimony by each officer that such a slip did indeed exist, did not raise a fact issue

as to the existence of the inventory slip.”) Here, Crowley failed to show Detective

Hahs strayed from the boundaries set in the MSCO rules, and the rules were not even

introduced into evidence. See id. at 86. Without evidence of the content of the rules,

Crowley’s counsel “did nothing more than hint at the mere possibility that the

officers may have breached the [MCSO] rules.” See id.

      Crowley did not call any of the vehicle’s occupants at the time of the stop to

testify and cast doubt on the detective’s version of events, nor did he call the other

officer at the scene to testify. Crowley did not inquire about an inventory slip or the

actual content of the MCSO policy. With respect to the timing of Crowley’s arrest,

no evidence was adduced to show Detective Hahs was aware Crowley was in

custody at the time he stopped the vehicle. Just as with the cellular telephone data,

there was not a disputed factual issue raised with the circumstances of the vehicular

stop and subsequent search and seizure of the evidence. The only matter in question

was whether the undisputed circumstances gave detectives the legal right to search

the vehicle, which is a question of law. See Pierce, 32 S.W.3d at 251; Garza, 126

                                          20
S.W.3d at 86. Accordingly, Crowley was not entitled to an article 38.23 instruction

regarding the evidence seized from the vehicle. See Madden, 242 S.W.3d at 510–11;

Garza, 126 S.W.3d at 86–87. We overrule issue four.

                                   IV. Conclusion

      The trial court did not err in denying the motion to suppress the cellular

telephone data. Crowley failed to preserve error for his complaint that the hat should

have been suppressed. Assuming without deciding the trial court erred in denying

the motion to suppress GPS evidence from the vehicle, such error was harmless in

light of the other overwhelming evidence of guilt in this case. The trial court did not

err in refusing to include Crowley’s requested article 38.23 jury instruction, as he

failed to raise a disputed issue of fact entitling him to such an instruction. Having

overruled all of Crowley’s issues, we affirm the judgment of the trial court.

      AFFIRMED.



                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice

Submitted on August 2, 2018
Opinion Delivered February 27, 2019
Do Not Publish

Before McKeithen, C.J., Kreger, and Horton, JJ.


                                          21
