Opinion issued May 7, 2019




                                      In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-18-00233-CR
                            ———————————
                      JEFF CRAIG JANECKA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 405th District Court
                           Galveston County, Texas
                       Trial Court Case No. 17-CR-1146


                          MEMORANDUM OPINION

      A jury found Jeff Craig Janecka guilty of possession of methamphetamine in

an amount of one gram or more but less than four grams and assessed his punishment

at 10 years’ confinement. He appeals, contending that the trial court erred by:

      (1) denying his motion to suppress evidence, specifically methamphetamine,
          obtained by the law-enforcement officer who searched his car;
      (2) failing to include an instruction in the jury charge as to whether the
          evidence against him was obtained by an illegal search of his car; and
      (3) denying his new-trial motion, which was based on an Internet video that
          allegedly showed the arresting officer planting drugs in another case.

We affirm.

                                 BACKGROUND

      A grand jury indicted Janecka for possession of methamphetamine in an

amount of one gram or more but less than four grams with the intent to deliver. See

TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.112(a). He pleaded not guilty.

                                 Motion to Suppress

      Janecka filed a pretrial motion to suppress. The trial court held a hearing on

the motion before the jury was empaneled.

      Officer C. Murphy of the Galveston Police Department testified that he

initiated a traffic stop of a speeding motorist, Janecka, who had driven outside of his

lane. When Murphy made contact, Janecka was nervous and appeared intoxicated.

Janecka was “twitching and moving uncontrollably, talking really fast, couldn’t sit

still.” Murphy also saw “a torch” or butane lighter sitting on the car’s center console

“that’s commonly used to smoke narcotics.” When Murphy asked, Janecka denied

ever using methamphetamine. But because Janecka appeared to be under the

influence of narcotics, Murphy asked if he could search his car. Janecka said “yes”

and again consented to the search of his car when Murphy asked a second time.


                                          2
      The State played part of the dash-camera video. Janecka’s response to

Murphy’s request to search his car was difficult to hear.

      Janecka testified that he did not consent to Murphy’s search of his car. He said

that he told Murphy “no” both times that Murphy asked. Janecka agreed that the

dash-camera video recorded Murphy asking “Do you mind if I search your vehicle?”

and that he replied “no.” But Janecka denied that his “no” meant that he did not mind

if Murphy searched his car.

      The trial court denied the motion to suppress.

                                        Trial

      Officer Murphy testified about the traffic stop before the jury. He said that he

stopped Janecka because he was speeding and did not stay in his lane. Janecka was

behind the wheel and a woman, later identified as Shelley Ingleheart, sat in the

passenger seat. Janecka acted nervous and Ingleheart seemed tired. Janecka’s

“responses were kind of strange,” “his speech was shaken,” and he was making

“uncontrollable jerking movements.” Based on Janecka’s behavior, Murphy

concluded that Janecka may have been intoxicated or high on drugs. Murphy saw a

butane torch on the car’s center console, the kind of torch one “would use to solder”

or do “some lightweight welding.” According to Murphy, “drug addicts” commonly

use this kind of torch “to smoke methamphetamine.” After further interaction,

Murphy concluded that Janecka “was under the influence of methamphetamine” and


                                          3
asked Janecka for consent to search his car. Janecka said “yes.” When Murphy

inquired again, asking if Janecka minded if he searched the car, Janecka said “no.”

      In the search, Murphy testified, he found “small amounts of marijuana,” a

digital scale that had some white residue on it, and small plastic bags that are

commonly used for the sale of drugs. The State introduced the scale and bags into

evidence. Defense counsel stated that she had “no objection” to their admissibility.

Murphy testified that he subsequently found a bag of “crystal methamphetamine”

inside a cup that was in a cup holder in the center console. The bag containing the

drugs was the same type as the others found in the car. After discovering the

methamphetamine, Murphy detained Janecka, questioned him further, and arrested

him. Murphy stated that he did not arrest Ingleheart because it became clear that she

“had no idea that the narcotics were present” and she “wasn’t under the influence of

them.”

      The State played part of the patrol car’s dash-camera video, as well as video

from a camera that faced the backseat of the patrol car.

      On cross-examination, Murphy conceded that he initially did not recognize

the butane lighter for what it was and that Janecka told him about it. Murphy agreed

that he left Ingleheart in the car for a period of time and that he did not have her

under observation during this period. He also agreed that the cup containing the




                                          4
methamphetamine belonged to Janecka’s passenger, and that Janecka denied that the

drugs were his.

      Sebastian Frommhold, a chemist with the Texas Department of Public

Safety’s laboratory, testified about the drugs found in Janecka’s car. During his

testimony, the State introduced these drugs into evidence, and defense counsel stated

that she had “no objection” to their admissibility. Based on the tests that Frommhold

performed, he concluded that “the crystalline substance is methamphetamine”

weighing approximately 1.14 grams.

      Ingleheart also testified. She met Janecka on the Internet and had been

speaking with him online for five or six weeks before the day of the traffic stop. He

picked her up that day and the two of them went to a bar and grill. This was the first

time that they had met in person. After spending about an hour at the grill, they went

for a drive in Janecka’s car, which ended when Murphy stopped them. Ingleheart

testified that the drugs Murphy found in her cup were not hers. But she did not see

Janecka put anything in her cup.

      Ingleheart also testified that she and Janecka texted after his arrest. In these

texts, Janecka accused Murphy of being “dirty.” When Ingleheart texted that the

drugs were found in Janecka’s car, he replied: “Yeah, by accident. I was halfway to

you when I noticed. I can’t say I’m sorry enough.” Janecka also wrote that Murphy

“had no probable cause to search my car. I never gave him consent.”


                                          5
      After these three witnesses testified, the State rested.

      Outside the presence of the jury, the court held a hearing concerning an

Internet video that had come to the defense’s attention during trial. This video

allegedly showed Murphy planting drugs in another, unrelated traffic stop. The trial

court ruled that the video was inadmissible.

      The defense then rested without presenting any evidence.

      The trial court gave the parties its proposed jury charge, and neither the State

nor the defense objected to it. The charge submitted both possession of

methamphetamine with intent to deliver and the lesser-included offense of

possession to the jury. It did not include an instruction as to whether Janecka

consented to the search of his car.

      The jury found Janecka guilty of the lesser-included offense of possession of

methamphetamine in an amount of one gram or more but less than four grams. See

TEX. HEALTH & SAFETY CODE §§ 481.102(6), 481.115(a). It assessed his punishment

at 10 years of confinement.

                               Motion For New Trial

      Janecka moved for a new trial, contending that the trial court erred in refusing

to allow the defense to introduce the Internet video about Officer Murphy’s

purported attempt to plant drugs during another traffic stop and in disallowing the

defense from questioning Murphy about the incident.


                                           6
      The trial court held a hearing, during which the defense introduced the video.

The video is about four and a half minutes long. It has no audio. It shows a traffic

stop and arrest, and was filmed by an unidentified person from the window of a home

on the street where the traffic stop occurred. As defense counsel conceded at the

hearing, it is not self-evident from the video that the arresting officer planted

evidence. Defense counsel merely represented that the video showed “some things

that might be consistent with that” allegation.

      Murphy testified at the hearing. He agreed that he was the officer in the video.

But he stated that the video had been edited or altered so that it did not accurately

reflect the events that occurred. According to Murphy, the Galveston Police

Department investigated the events underlying the video and found that the claims

against him were false.

      The trial court denied Janecka’s new-trial motion.

                                   DISCUSSION

I.    Motion to Suppress

      Janecka contends that the trial court erred in denying his motion to suppress

the evidence found by Officer Murphy during the search of Janecka’s car. The State

responds that Janecka failed to preserve this issue for review.




                                          7
      A.     Error preservation

      An adverse ruling on a motion to suppress evidence ordinarily preserves error

without the need for further objection when the evidence is introduced at trial.

Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). But when a

defendant affirmatively states that he has “no objection” to the admissibility of the

evidence when the State offers it at trial, he forfeits the right to challenge the adverse

ruling on his motion on appeal, unless the record otherwise shows that he did not

intend to abandon the position advanced in his suppression motion. Stairhime v.

State, 463 S.W.3d 902, 906 (Tex. Crim. App. 2015); Thomas, 408 S.W.3d at 881–

82, 884–85. If the record is ambiguous as to whether the defendant intended

abandonment, then his statement that he has “no objection” to the evidence waives

any error. Stairhime, 463 S.W.3d at 906; Thomas, 408 S.W.3d at 885–86.

      B.     Analysis

      Defense counsel twice stated during trial that she had “no objection” to the

admission of evidence obtained by Officer Murphy during his search of Janecka’s

car. Counsel first did so during Murphy’s testimony, when the State offered into

evidence the digital scale and plastic bags. Counsel did so again during Frommhold’s

testimony, when the State offered into evidence the methamphetamine. The record

does not qualify defense counsel’s statement of “no objection” in any fashion; nor is

there any indication that the trial court understood that Janecka intended to preserve


                                            8
the suppression issue for appeal. When the trial court asked counsel if they had any

objections to its proposed charge, which omitted an instruction as to whether Janecka

consented to Murphy’s search, defense counsel responded that she had no objection

to it. Janecka therefore forfeited review of the trial court’s denial of his motion to

suppress. See Stairhime, 463 S.W.3d at 906; Thomas, 408 S.W.3d at 885–86.

II.   Jury Charge Error

      Janecka contends that Officer Murphy’s warrantless search of his car was

illegal because it was conducted without his consent. He further contends that the

trial court erred in failing to instruct the jury to disregard the evidence found by

Murphy if the jury believed that Murphy’s search was illegal. The State implicitly

concedes that the trial court erred in omitting this instruction from the charge but

responds that Janecka did not object to the charge and did not suffer the egregious

harm required for reversal as a result of the instruction’s omission.

      A.     Standard of review and applicable law

      When the evidence raises an issue as to whether particular evidence was

illegally obtained, the trial court must instruct the jury to disregard that particular

evidence if the jury believes, or has a reasonable doubt, that the evidence was

illegally obtained. TEX. CODE CRIM. PROC. art. 38.23(a); Pickens v. State, 165

S.W.3d 675, 680 (Tex. Crim. App. 2005). The evidence justifying an instruction

under article 38.23(a) can arise from any source, even if it is weak, contradicted by


                                          9
other evidence, or unbelievable. Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim.

App. 2012). A defendant is entitled to this instruction even if he did not object to the

admission of the evidence he asserts was illegally obtained. See Holmes v. State, 248

S.W.3d 194, 202 (Tex. Crim. App. 2008). When, however, the defendant fails to

object to the omission of an article 38.23(a) instruction from the charge, our review

is confined to determining whether he suffered egregious harm as a result of its

omission. See Gelinas v. State, 398 S.W.3d 703, 705–06 (Tex. Crim. App. 2013);

see also Pickens, 165 S.W.3d at 680 (jury charge error that defendant did not object

to merits reversal only when error caused him egregious harm).

      Harm is egregious if it deprives the defendant of a fair and impartial trial.

Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). This stringent standard

is satisfied only if the jury-charge error “affects the very basis of the case, deprives

the defendant of a valuable right, or vitally affects a defensive theory.” Marshall v.

State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). In assessing the impact of

charge error, we consider the charge as a whole, the state of the evidence, counsels’

arguments, and any other relevant information in the record. Id. The record must

show that the defendant suffered actual, as opposed to theoretical, harm. Villareal v.

State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Neither party bears the burden

to show egregious harm or its absence. Marshall, 479 S.W.3d at 843.




                                          10
      B.     Analysis

      The trial court erred in omitting an article 38.23(a) instruction. Officer

Murphy testified that Janecka consented to the search of his car. The State also

introduced a text message written by Janecka in which he disputed consent. The

evidence therefore raised an issue as to whether Murphy obtained the

methamphetamine, digital scale, and plastic bags by illegally searching the car. See

generally Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (consent is

exception to general rule that search requires warrant issued on probable cause);

Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000) (same).

      The jury charge omitted an instruction as to Janecka’s consent and the legal

effect of a search made without consent. Thus, the relevant law was entirely missing

from the jury’s instructions, which weighs in favor of Janecka’s claim of egregious

harm but not heavily so. See Villareal, 453 S.W.3d at 433 (omission of instruction

weighed in favor of harm but only somewhat because correct instruction still would

have allowed jury to draw conclusion adverse to defendant’s position).

      While the evidence raised the issue of whether Janecka consented to Murphy’s

search of his car, Janecka’s consent was not vigorously contested at trial. Janecka’s

brief text message was the lone evidence before the jury suggesting that he might

not have consented to the search, and it was introduced by the State, not Janecka. On

direct examination, Murphy said that Janecka consented. Though defense counsel


                                         11
cross-examined Murphy about the search, she did not question him on the issue of

Janecka’s consent. The state of the evidence therefore does not weigh in favor of

Janecka’s claim of egregious harm. See id. at 439 (mere existence of conflict in

evidence didn’t support conclusion that defendant suffered egregious harm;

evidence favoring defendant’s position was weak and thus absence of instruction

likely didn’t alter verdict).

       Defense counsel raised Janecka’s non-consent in both her opening statement

and closing argument, but she did so only in passing. Defense counsel did not

explicitly argue that the search was illegal as a result of Janecka’s ostensible refusal

to consent or suggest to the jury how the illegality of Murphy’s search should inform

the verdict. In closing argument, defense counsel devoted more time to Ingleheart’s

credibility and Murphy’s discovery of the methamphetamine in her cup. Janecka’s

defense was that the drugs did not belong to him or that the State had failed to prove

beyond a reasonable doubt that he possessed them. Counsels’ arguments therefore

likewise do not weigh in favor of Janecka’s claim of egregious harm. See id. at 440–

42 (absence of instruction did not go to vital aspect of case given that instruction

concerned only a secondary defensive theory and was not the center of the arguments

made to the jury).

       No other information in the record sheds light on the issue of harm.




                                          12
       On this record, the state of the evidence and the arguments of counsel are the

decisive considerations as to whether Janecka suffered egregious harm from the

omission of an article 38.23(a) instruction. The jury heard minimal evidence

suggesting that Janecka did not consent. It was of a type and quality—a perfunctory

text message—less likely to be credited by the jury over Murphy’s contrary live

testimony and neither side emphasized it. Defense counsel likewise focused her jury

argument on matters other than Janecka’s consent to the search of his car,

specifically whether the drugs belonged to him. In sum, whether Janecka consented

to or refused Murphy’s request to search his car was not the focus of trial and

therefore most likely would not have been the focus of the jury’s deliberations even

if an article 38.23(a) instruction had been included in the charge. We thus hold that

Janecka was not egregiously harmed by the omission of this instruction.

III.   New-Trial Motion

       Janecka contends that the trial court erred in denying his new-trial motion

based on a video that he says may show Murphy planting evidence in another case.

He argues that exclusion of this evidence deprived him of his constitutional right to

confront Murphy at trial. Citing Rule 608(b) of the Rules of Evidence, the State

responds that specific instances of alleged misconduct are inadmissible and that the

Confrontation Clause does not require the video’s admission.




                                         13
      A.     Standard of review and applicable law

      We review a trial court’s ruling on a motion for new trial for an abuse of

discretion. Briggs v. State, 560 S.W.3d 176, 183–84 (Tex. Crim. App. 2018). Under

this deferential standard, we view the evidence in the light most favorable to the

ruling. Id. at 184. A trial court abuses its discretion only if no reasonable view of the

record could support its ruling. Id. Thus, we must uphold its ruling if it is correct on

any applicable legal theory, even if the trial court relied on an invalid one. Id.

      The Confrontation Clause of the Sixth Amendment of the United States

Constitution gives a defendant a right to cross-examine the witnesses against him.

Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). Notwithstanding this

constitutional guarantee, a trial court retains broad discretion to impose reasonable

limits on cross-examination to prevent prejudice, confusion of the issues, and the

injection of collateral matters. Id. Trial courts must evaluate confrontation claims on

a case-by-case basis and should balance the probative value of the evidence sought

to be introduced against the risks its admission may entail. Id.

      Excepting certain criminal convictions, “a party may not inquire into or offer

extrinsic evidence to prove specific instances of the witness’s conduct in order to

attack or support the witness’s character for truthfulness.” TEX. R. EVID. 608(b); see

also TEX. R. EVID. 404(b)(1) (evidence of crimes and other wrongs inadmissible to

prove that witness acted in conformity with bad character). If the Confrontation


                                           14
Clause conflicts with the rules of evidence, the Constitution controls. Lopez, 18

S.W.3d at 222–23. Thus, when an evidentiary rule makes evidence inadmissible, we

must consider whether the Confrontation Clause requires admissibility. Id. at 225.

      B.     Analysis

      Evidence as to Officer Murphy’s alleged misconduct during an unrelated

traffic stop generally would be inadmissible. TEX. R. EVID. 404(b)(1), 608(b); e.g.,

Canada v. State, 547 S.W.3d 4, 20–21 (Tex. App.—Austin 2017, no pet.) (trial court

did not abuse discretion in excluding prior complaints made against officer). We

thus must balance the probative value of the video against the risks entailed by its

introduction to determine whether the Confrontation Clause nonetheless required its

admission in this case. See Lopez, 18 S.W.3d at 225.

      The trial court reasonably could have found that the video’s probative value

was low or nonexistent. It concerns an unrelated traffic stop. The video lacks audio,

and Murphy testified that it did not accurately depict the encounter and seemed to

have been edited. The defense conceded that the video did not establish that Murphy

had planted drugs during the other traffic stop, and Murphy testified that the

department investigated the allegation and cleared him of any wrongdoing. The

record is devoid of evidence that Murphy planted the drugs in Janecka’s car. At trial,

Janecka did not suggest through cross-examination or argument that Murphy had

done so. Indeed, Janecka acknowledged in his text message to Ingleheart that the


                                         15
drugs belonged to him. On this record, the Confrontation Clause did not require the

video’s admission. See id. at 225–26 (Confrontation Clause did not require

admission of complainant’s prior false accusation of physical abuse that had little in

common with complainant’s current allegation of sex abuse against defendant);

Tollett v. State, 422 S.W.3d 886, 893 (Tex. App.—Houston [14th Dist.] 2014, pet

ref’d) (Confrontation Clause did not require trial court to allow cross-examination

of police officer about his firing).

      The exclusion of the video at trial was a reasonable exercise of the trial court’s

discretion. We thus hold that the trial court did not abuse its discretion in denying

Janecka’s motion for new trial, which was premised on the video’s admissibility.

                                   CONCLUSION

      We affirm the judgment of the trial court.




                                                Gordon Goodman
                                                Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           16
