                                  NO. 07-10-00096-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                         PANEL A

                                  FEBRUARY 17, 2011


                             DAVID HUGHES, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


           FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

           NO. 2008-451,814; HONORABLE LARRY B. "RUSTY" LADD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                         OPINION


       Appellant, David Hughes, was convicted of the offense of driving while

intoxicated (DWI)1 and sentenced to 180 days in jail; the jail time was suspended and

appellant was placed on community supervision for 18 months. Appellant raises seven

issues in his appeal. We will affirm.




       1
           See TEX. PENAL CODE ANN. § 49.04 (West 2003).
                              Factual and Procedural Background


       On July 6, 2008, Lubbock Police Officer James Woody was working the “STEP”2

program in downtown Lubbock. At approximately 1:30 a.m., Woody was working in the

“Depot District”3 when he first observed appellant. Woody was at the intersection of 19th

and Texas Avenue facing north. Woody observed appellant driving south toward 19th

on Buddy Holly Avenue. Woody saw appellant make a wide right turn by not turning as

close to the right hand curb as practicable. Woody described appellant’s turn as going

into the farthest south of the west bound lanes on 19th as opposed to the north most

west bound lane, the one closest to the curb. As appellant passed by Woody’s location,

Woody observed appellant failing to drive in a single marked lane. Woody proceeded to

turn his emergency lights on and stop appellant for the two traffic offenses he

observed.4 After stopping appellant, Woody approached appellant’s vehicle and

identified himself while advising appellant of the reason for the stop.


       Upon walking up to the driver’s side of appellant’s car, Woody could smell the

odor of an alcoholic beverage coming from the interior of the car. Woody had appellant

step from the car and asked him to perform the standard field sobriety tests. After

completing the tests, Woody placed appellant under arrest for DWI and asked if

appellant would provide a specimen of his breath for analysis. Appellant refused to

       2
       “STEP” stands for Specific Traffic Enforcement Program and is a grant funded
program to enforce specific traffic laws.
       3
       The “Depot District” was described as an entertainment district in downtown
Lubbock containing a number of restaurants and bars.
       4
         The activation of Woody’s emergency lights also activated his in-car video
recording device.
                                             2
provide a breath specimen. Woody then took appellant to University Medical Center’s

Emergency Room, and detained appellant in a lock up at that location, while he

prepared an application for a blood search warrant. After Woody filled out the affidavit

for a search warrant and swore to it before a notary public, the affidavit was faxed to a

Lubbock County Judge, acting as a magistrate. Subsequently, a search warrant signed

by the judge and an order for assistance directed to the hospital was faxed back to

Woody. A nurse then drew the blood sample from appellant and gave it to Woody.

That same night, Woody delivered the blood sample to the Texas Department of Public

Safety regional laboratory in Lubbock. Appellant was booked into the Lubbock County

Jail and charged with DWI.


       Prior to trial, appellant’s trial counsel filed a motion to suppress the blood test, a

motion to suppress the initial stop and arrest, and a motion to suppress the results of

the horizontal gaze nystagmus (HGN) test.           The trial court heard evidence and

argument on these motions on October 28, 2009. The trial court overruled the motions

to suppress the initial stop, arrest, and the results of the HGN test on that day. Further,

the trial court requested briefing from all parties on the motion to suppress the blood test

results. Subsequently, the trial court overruled the motion to suppress the results of the

blood test on December 15, 2009.


       Appellant proceeded to trial and the jury found him guilty of the offense of DWI.

Appellant was sentenced to 180 days in the Lubbock County Jail with a jury

recommendation that the jail time be suspended. The trial court placed appellant on

community supervision for a period of 18 months. This appeal followed.

                                             3
       Appellant brings forth seven issues. Appellant contends that the trial court erred:

1) by denying the motion to suppress the initial stop because there was no reasonable

suspicion that an offense was being or about to be committed, 2) by denying the motion

to suppress the blood test because there was no probable cause to justify the issuance

of the warrant, 3) by allowing the oaths in support of the search warrant to be

administered telephonically, 4) by finding the search was not unreasonable where no

exigent circumstances existed, 5) by admitting the blood test results because of the

unsanitary conditions where the blood draw was made, 6) because the State’s closing

argument constituted egregious error, 7) because inclusion of appellant’s requested

Texas Code of Criminal Procedure article 38.23 jury issue did not negate the error in

denying the motion to suppress. We will consider these issues in the order presented.


                                            Initial Stop


       Appellant’s first issue contends that the trial court erred in overruling the motion

to suppress the evidence acquired after the initial stop because the officer who made

the stop did not have sufficient articulable facts that rose to the level of reasonable

suspicion to support stopping appellant.


Standard of Review


       We apply a bifurcated standard of review to the trial court’s ruling on a motion to

suppress. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010). We must

give almost total deference to the trial court’s determination of historical facts. See id.

The trial judge is the sole trier of fact and the judge of the credibility of any witnesses’

testimony and the weight to be assigned to that testimony. See id. When we review an
                                             4
application-of-law-to-fact question not turning on the credibility and demeanor of the

witnesses, we review the trial court’s rulings de novo.          See Wiede v. State, 214

S.W.3d.17, 25 (Tex.Crim.App. 2007). When the record is silent as to the reasons for

the trial judge’s ruling, or when there are no explicit fact findings and neither party timely

requested findings and conclusions, we imply the necessary findings that would support

the trial court’s ruling if evidence, when viewed in the light most favorable to the trial

court’s ruling, supports those findings. See State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex.Crim.App. 2008).


Law


       Initially, we note that the evidence reflects that the initial stop in question was

made without a warrant, which satisfies the initial burden of a defendant to rebut the

presumption of proper police conduct when challenging a search or seizure.               See

Torres v. State, 182 S.W.3d 899, 902 (Tex.Crim.App. 2005). The burden then shifts to

the State to demonstrate that the government acted reasonably. See id.           Torres dealt

with an application of the Fourth Amendment to the United States Constitution while in

the case before the Court, appellant, along with a Fourth Amendment challenge, also

alleges a violation of Article I, Section 9 of the Texas Constitution.5 Appellant has not

argued that article I, section 9 affords him greater protection that is distinct from that of

the Fourth Amendment, and, therefore, we treat them as providing the same protection

and will consider them jointly. See Franks v. State, 241 S.W.3d 135, 141 (Tex.App.—


       5
         Even though appellant’s issue contains a reference to the “State Constitution,”
we do not find any citations to cases expressly dealing with alleged violations of Article
I, Section 9 of the Texas Constitution.
                                              5
Austin 2007, pet. ref’d).   Hulit v. State, 982 S.W.2d 431, 436 (Tex.Crim.App. 1998),

concluded that, if an appellant makes a state constitutional argument, then the proper

inquiry is “the reasonableness of the search or seizure under the totality of the

circumstances.”


Analysis


       At the suppression hearing, Woody testified that he first observed appellant

headed toward 19th Street. Appellant stopped at the intersection of 19th Street and

Buddy Holly Avenue and turned right onto 19th Street. Woody said that while making

the right turn, appellant turned into the south most lane of 19th Street, as opposed to the

north most lane, which would have been as close as practicable to the curb. See TEX.

TRANSP. CODE ANN. § 545.101(a) (West 1999).6 Woody also testified that from his

vantage point it was obvious that appellant intended to turn into the far left lane after

completing the right turn. This would have been the south most lane of 19th Street.

According to Woody, this meant appellant did not turn as close as practicable to the

curb, and, therefore, violated the statute. Appellant then drove past Woody’s location

and Woody pulled into the lane behind appellant’s vehicle.          While driving behind

appellant, Woody testified that he observed appellant fail to drive in a single marked

lane. At this time, Woody decided to stop appellant for the two traffic offenses he had

observed. It is from this testimony that appellant bases his claim that the trial court

erred in overruling his motion to suppress.


       6
         Tex. Transp. Code. § 545.101(a) provides that “to make a right turn at an
intersection, an operator shall make both the approach and the turn as closely as
practicable to the right-hand curb or edge of the roadway.”
                                              6
       Appellant complains that the trial court lacked specific, articulable facts that rose

to the level of reasonable suspicion to support the initial stop.          To support this

proposition, appellant analyzes the two traffic offenses that the officer testified to seeing

appellant commit, individually. That is to say, appellant’s analysis is not based on the

totality of the circumstances, but rather takes a piece-meal approach. See Neal v.

State, 256 S.W.3d 264, 280 (Tex.Crim.App. 2008). Further, the analysis put forth by

appellant keys in on what offenses the officer subjectively thought appellant had

committed and not what the evidence objectively reveals. See Garcia v. State, 43

S.W.3d 527, 530 (Tex.Crim.App. 2001) (officer’s subjective motives and justification for

the stop is irrelevant to the validity of the stop). Finally, appellant’s analysis does not

follow the chronology of events; rather, he analyzes the second offense first. This is

apparently done because appellant considers this the weaker of the reasons stated to

stop appellant.


       We view this issue as turning upon the credibility of the officer’s testimony about

whether or not appellant made a wide right turn. Woody testified that appellant made

that wide turn while appellant testified he did not. However, appellant’s analysis would

have this Court second guess the trial court about a matter that turned on the credibility

of the witness. This we cannot do, as we are cautioned to give almost total deference

to the trial court’s determination of historical facts that turn on the credibility of the

witness. Valtierra, 310 S.W.3d at 447. After hearing this testimony, the trial court

overruled appellant’s motion to suppress. The trial court did not file any written findings

of fact, therefore, we imply the necessary findings that would support the trial court’s

ruling if evidence, when viewed in the light most favorable to the trial court’s ruling,
                                             7
supports those findings. See Garcia-Cantu, 253 S.W.3d at 241. Since we find there is

evidence to support the trial court’s implied finding of a violation of a traffic law, a wide

right turn, there are specific articulable facts upon which to base a temporary detention

of appellant. See State v. Patterson, 291 S.W.3d 121, 123 (Tex.App.—Amarillo 2009,

no pet.) (holding that a traffic violation can constitute reasonable basis for detention).

Accordingly, appellant’s first issue is overruled.


                                   Issuance of Search Warrant


       Appellant’s second issue contends that the trial court committed reversible error

when it refused to suppress the evidence of the blood analysis based upon the issuance

of a search warrant. This is so, according to appellant, for a number of reasons which

we will answer in turn.     Appellant first contends that the affidavit in support of the

issuance of the warrant did not contain specific enough information to rise to the level of

probable cause. Next, appellant contends that the affiant did not personally appear

before the magistrate who issued the warrant and that such failure to appear before the

magistrate was a violation of appellant’s rights under the constitutions of the United

States and the State of Texas.


Standard of Review


       When a trial court is reviewing the magistrate’s determination of probable cause

to support the issuance of a search warrant, there are no credibility determinations,

rather the trial court is constrained to the four corners of the affidavit. Hankins v. State,

132 S.W.3d 380, 388 (Tex.Crim.App. 2004).             Accordingly, when we review the

magistrate’s decision to issue a warrant, we apply a highly deferential standard. See
                                              8
Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App. 2007). We apply this deferential

standard because we have a constitutional preference for searches to be conducted

pursuant to a warrant as opposed to warrantless searches. Id. (citing Illinois v. Gates,

462 U.S. 213, 234-37, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).          As long as the

magistrate had a substantial basis for concluding that probable cause existed, we will

uphold the magistrate’s probable cause determination. Gates, 462 U.S. at 236. We are

also reminded that reviewing courts should not invalidate a search warrant by

interpreting the affidavit in a hyper-technical manner, rather than in a common sense

manner. Id.; Rodriguez, 232 S.W.3d at 59.


Probable Cause


      Probable cause exists when the totality of the facts and circumstances presented

to the magistrate support the conclusion that there is a fair probability or substantial

chance that contraband or evidence of a crime will be found at the specified location.

Flores v. State, 319 S.W.3d 697, 702 (Tex.Crim.App. 2010). Our duty is not to act as a

rubber stamp for the magistrate or the trial court, however, the decision of the

magistrate should carry the day in a doubtful or marginal case, even when the reviewing

court might reach a different conclusion in a de novo review. Id.


      Our review of the affidavit shows that Officer Woody was, on the day in question,

a commissioned peace officer employed by the Lubbock Police Department. Woody

requested the issuance of a search warrant to search for evidence in human blood.

Further, on July 6, 2008, at approximately 1:37 a.m., Woody initiated a traffic stop of

appellant.   The affidavit lists the traffic offenses for which appellant was stopped.

                                            9
Woody then states that, while talking to appellant, he smelled an odor of an alcoholic

beverage and observed that appellant’s speech was slurred, his eyes were bloodshot

and heavy, his balance when standing was swayed, and his walking appeared to have a

staggering gait to it. The affidavit then relates that appellant advised Woody, “I can’t get

a D.W.I.”   The affidavit goes on to state that appellant was requested to take certain

field sobriety tests and appellant agreed to do so. The results of the tests are stated in

the affidavit. As to each test given, the affidavit begins “I/ ___ observed” and then the

results. This is read to indicate that the officer filing out the affidavit gave the tests

personally and observed the various matters described for each test. The affidavit then

states that, as a result of observing appellant during the traffic stop and while

performing the field sobriety tests, the officer formed the opinion that appellant was

intoxicated. The officer also informs the magistrate that he requested a specimen of

appellant’s breath, but appellant refused to give the specimen.         Finally, the officer

requests that the magistrate issue a search warrant and swears to the affidavit before a

notary public.


       With the information contained in the affidavit, we must now answer the question

of whether or not there is probable cause, giving deference to the original decision of

the magistrate, to support the magistrate’s decision to issue the warrant in question. In

our opinion, there is sufficient probable cause. When this affidavit is viewed in a non-

technical, common sense manner, there is more than a fair probability or substantial

chance that evidence of a crime will be found within the blood of appellant. Id. The

affidavit describes the results of the standard field sobriety tests, and based upon those

results, a commissioned peace officer can form the opinion that appellant was
                                            10
intoxicated.   There is nothing within the four corners of the affidavit that points to

anything other than probable cause to support the magistrate’s determination. Hankins,

132 S.W.3d at 388.


       Appellant contends that the affidavit is insufficient for a number of different

reasons. Initially, he contends that the affidavit does not state specific articulable facts

to authorize a stop of appellant. Such an analysis misplaces the analysis of a motion to

suppress based upon a lack of reasonable suspicion with the analysis of probable

cause to issue a search warrant.       The issue of reasonable suspicion was properly

submitted to the trial court in the form of a motion to suppress and has been decided

adversely to appellant. Nowhere in article 18.01(b), the search warrant article, can

appellant find support for his contention regarding reasonable suspicion to stop him.

Rather, appellant simply asserts that the affidavit in question should have specifically

set forth the evidence supporting the initial stop because article 18.01(b) uses the

phrase “unless sufficient facts are presented.” See TEX. CODE CRIM. PROC. ANN. art.

18.01(b) (West Supp. 2010).7 The requirements of an “evidentiary,” article 18.02(10),

search warrant are covered in article 18.01(c).      See arts. 18.01(c), 18.02(10).     Art.

18.01(c) simply provides that the sworn affidavit required by art. 18.01(b) must set forth

sufficient facts to establish probable cause that “a specific offense has been

committed.”8 Art. 18.01(c). The affidavit in question clearly sets forth the offense of

DWI and, by doing so, meets the requirements of art. 18.01(c). Id. The failure to detail

       7
         Further reference to the Texas Code of Criminal Procedure Annotated shall be
by reference to “article ___” or “art. ___.”
       8
        The article further enumerates other requirements not germane to this
argument.
                                            11
the operative facts of the initial stop is not fatal to the magistrate’s overall determination

that probable cause to issue the warrant existed because the issue is not reasonable

suspicion to detain appellant, rather it is probable cause to authorize the issuance of a

search warrant following the detention.


       Appellant continues his attack on the warrant by contending that paragraph 3 of

the affidavit is insufficient because it said the item to be possessed and concealed was

blood that constituted evidence and that belonged to appellant, but did not state how

that particular blood draw would constitute evidence of DWI. The essence of this and

the remaining arguments of appellant is to request us to hyper-technically construe the

language of the affidavit. See Rodriguez, 232 S.W.3d at 59. Such an analysis denies

this Court, as the reviewing court, the right to interpret the affidavit in a commonsensical

and realistic manner, recognizing that the magistrate may draw reasonable inferences.

Id. at 61. The affidavit states that the suspected offense is DWI and that a specimen of

appellant’s breath had been requested and refused. The affidavit then states that

appellant is the person arrested, and that blood is the property being concealed.

Further, the affidavit states that the property constitutes evidence. It takes no great leap

of faith or unknown intuitiveness to realize that the magistrate knows that the blood is

being requested to analyze it for the presence of blood alcohol for use in a prosecution

for DWI. This is a reasonable inference the magistrate can draw from this affidavit. Id.


       Appellant then contends that the affidavit is insufficient because, in paragraphs 6,

7, and 8, there are blanks which generally have something in front of a blank followed

by the specific observation or field sobriety tests. Appellant’s complaint is that, “There

                                             12
are two circled hash marks written at the beginning of each blank. No description of

what this symbol means or what it represents appears in the affidavit.”             Further,

appellant complains that there is no explanation as to how any of the observations and

field sobriety tests listed in the paragraphs constitute signs of intoxication.


       Again, the essence of appellant’s argument is to granulate and to analyze the

affidavit in a hyper-technical manner so as to reduce the overall impact of the affidavit

on the issue of probable cause. We, on the other hand, are told to use the totality of the

circumstances in reviewing the determination of probable cause.             See Flores, 319

S.W.3d at 702.


       Our review of the first complaint reveals, regarding those strange slash marks,

that they are nothing more than the letter “I” followed by a slash mark, indicating that the

officer who prepared the affidavit made the following observations personally and did

not get the information from another officer.        The complaint about the relationship

between the observations and field sobriety tests and intoxication go to the weight of

such evidence and possibly the credibility of a witness so testifying, but not to the issue

before the magistrate, which was probable cause. From this affidavit, there is more

than sufficient evidence presented to the magistrate to demonstrate a fair probability or

substantial chance that contraband or evidence of a crime will be found at the location

the warrant is directed to, the appellant’s blood. Id.




                                              13
Personal Appearance


      Appellant further contends that the affidavit is insufficient because the affiant did

not personally appear before the magistrate. Appellant contends that, since the printed

form of the warrant contained the language that the affiant “did heretofore this day

subscribe and swore to said affidavit before me” which the evidence demonstrates that

the affiant, Woody, actually swore to the affidavit before Officer Opaitz and not the

magistrate, the affidavit constitutes perjury and should not be used to issue a warrant.


      Appellant’s contention is simply wrong and the law he provides to support this

position is neither accurate nor controlling. First, appellant asserts that art. 18.01(b)

requires an affidavit in support of a search warrant to be sworn to. Art. 18.01(b). This is

accurate. However, the record supports the fact that the affidavit was sworn to as

required. Nonetheless, appellant, without citation or authority, asserts that Texas law

requires the affiant to personally appear before the individual administering the oath.

The implication being left is that since Woody did not appear before the magistrate, the

oath is invalid. However, Woody did appear before a notary and swore to the affidavit;

therefore, the affidavit in support of the warrant was sworn to in the manner required by

the statute. Id. So, we are left with the question what, if any, are the consequences of

the language in the warrant stating that the affiant appeared and swore to the affidavit

before the magistrate personally?


      Initially, we observe that art. 18.01(b) simply requires that a sworn affidavit be

filed in every instance where a warrant is requested. Id. Next, we note that, when the

Texas Court of Criminal Appeals was faced with the issue of a search warrant affidavit

                                            14
that had been sworn to but not signed, the Court held that the lack of a signature of the

affiant did not vitiate the legal effect of the warrant based upon that affidavit. Smith v.

State, 207 S.W.3d 787, 793 (Tex.Crim.App. 2006). From this we conclude that the

extra wording contained in the warrant issued based upon Woody’s affidavit did not

impact the legality of the warrant.


       Having concluded that there was probable cause to issue the warrant and that

the additional language contained in the warrant did not impact the warrant’s validity, we

overrule appellant’s second issue.


                                Administration of the Oath


       Appellant’s third issue is that the trial court committed egregious error because a

warrant was issued based upon the sworn oath in support of the affidavit being

submitted by telephone or facsimile. Appellant’s contention is not supported in the

record. The oath was given by Officer Opaitz, acting in his capacity as a notary public,

to Woody. The additional language contained in the warrant appears to be a part of a

standard form that is not applicable to this particular fact pattern. Thus, we are faced

with a request to invalidate a warrant based upon an alleged error that does not impact

the probable cause finding made by the magistrate. Time and again we are counseled

to look at the totality of the circumstances, and not base our review on a technical

application of the law. See Schornick v. State, No. 02-10-00183-CR, 2010 Tex.App.

LEXIS 9007, at *5-*7 (Tex.App.—Fort Worth Nov. 4, 2010, no pet. h.) (memo. op., not

designated for publication) (holding that purely technical discrepancies do not

automatically vitiate the validity of a search warrant) (citing Green v. State, 799 S.W.2d

                                            15
756, 759 (Tex.Crim.App. 1990)). Further, the case cited by appellant, Smith, 207

S.W.3d 787, does not stand for the proposition put forth by appellant. Smith determined

that an affidavit filed without the signature of the affiant, which had in fact been sworn

to, would support the search warrant subsequently issued. Id. at 793. Judge Cochran’s

opinion does, in fact, contain the statements referred to by appellant; however, these

statements are not necessary to the holding of the Court and are, therefore, dicta;

furthermore, the opinion does not support appellant’s basic proposition. Id. at 792-93.

We, therefore, overrule appellant’s third issue.


                                 Exigent Circumstances


       Appellant’s fourth issue contends that there were no exigent circumstances that

warranted the intrusion of a blood draw, and that the police did not use the least

intrusive means to obtain the evidence required. As a result, appellant contends that

the ruling of the trial court that the search was not unreasonable was egregious error.


       First, the cases submitted by appellant to support this contention are not cases in

which search warrants had issued. Rather, they were uniformly warrantless searches.

See Schmerber v. California, 384 U.S. 757, 758-59, 88 S.Ct. 1826, 16 L.Ed.2d 908

(1966); Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 11 L.Ed.2d 777

(1964). There is a decided preference in the law for a search warrant. See Rodriguez,

232 S.W.3d at 61 (citing Gates, 462 U.S. at 236). Also, exigent circumstances are one

of the exceptions to the warrant requirement of the constitutions of Texas and the

United States. See Gutierrez v. State, 221 S.W.3d 680, 685 (Tex.Crim.App. 2007).

Therefore, it is clear that there is no requirement for exigent circumstances to authorize

                                            16
a blood draw based upon a warrant issued after finding probable cause. Therefore,

appellant’s fourth issue is overruled.


                            Unsanitary Blood Draw Conditions


       Appellant’s fifth issue contends that the trial court erred in admitting the blood

evidence because of the unsanitary conditions where the blood draw occurred.

Appellant does not cite the Court to a portion of the record where an objection was

made to the blood draw because of the lack of sanitary conditions. We have reviewed

the record and do not find such an objection. Further, we have reviewed the motion to

suppress the blood evidence and it does not object to the blood test evidence based

upon the lack of sanitary conditions of the blood draw.


       Appellant’s complaint has not been preserved for appeal. See TEX. R. APP. P.

33.1(a), Fuller v. State, 253 S.W.3d 220, 232 (Tex.Crim.App. 2008).         Accordingly,

appellant’s issue on appeal has been waived. Id. Therefore, we overrule appellant’s

fifth issue.


                        Closing Argument of the State’s Attorney


       Appellant’s sixth issue contends that the State committed egregious error when,

during final arguments, the State made an improper jury argument.           The gist of

appellant’s position is that the State’s attorney struck at appellant through his

characterization of appellant’s trial attorney. Although appellant cites the Court to the

portion of the record where the alleged transgression occurred, he does not cite the



                                           17
Court to any portion of the record where trial counsel objected to the alleged improper

jury argument.


       Because appellant failed to object to the argument, nothing has been preserved

for appeal. See TEX. R. APP. P. 33.1(a), Fuller, 253 S.W.3d at 232. As in the previous

issue, appellant’s issue on appeal has been waived. Id. Appellant’s sixth issue is,

therefore, overruled.


                                  Article 38.23 Instruction


       In appellant’s final issue, he contends that the inclusion of the art. 38.23

instruction in the jury charge did not negate the error of the trial court in refusing to grant

the pretrial motion to suppress the initial stop and detention. This issue appears to be

nothing more than an attempt to recast the very first issue regarding the reasonable

suspicion to stop appellant initially. We have already ruled against appellant on this

issue. Additionally, the record reveals that appellant never lodged any objection to the

art. 38.23 instruction given to the jury. Therefore, to the extent appellant’s issue is an

attempt to complain about the trial court giving the instruction, the same has been

waived because appellant did not preserve the issue. See TEX. R. APP. P. 33.1(a),

Fuller, 253 S.W.3d at 232. Accordingly, appellant’s final issue is overruled.




                                              18
                                    Conclusion


      Having overruled each of appellant’s issues, the judgment of the trial court is

affirmed.




                                                    Mackey K. Hancock
                                                         Justice




Publish.




                                         19
