

Opinion filed July 19,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-11-00246-CR 
                                                    __________
 
                            JESSE
HAROLD CRISWELL, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 29th District Court
 
                                                         Palo
Pinto County, Texas
 
                                                      Trial
Court Cause No. 14463
 

 
                                            M
E M O R A N D U M   O P I N I O N
Jesse
Harold Criswell appeals his conviction by a jury of felony boating while
intoxicated.  The trial court set his punishment at eight years confinement in
the Texas Department of Criminal Justice, Institutional Division; assessed a
fine of $3,000; and placed Criswell on community supervision for eight years. 
In a sole issue on appeal, Criswell contends that the trial court erred by not
granting him a jury instruction, based on Article 38.23 of the Texas Code of
Criminal Procedure, to the effect that, if the jury has a reasonable doubt that
evidence of Criswell’s intoxication was lawfully obtained, it may not consider that
evidence.  See Tex. Code Crim.
Proc. Ann. art. 38.23 (West 2005).  We affirm.
There are three requirements that a defendant must meet
before being entitled to the submission of a jury instruction under Article
38.23(a) of the Texas Code of Criminal Procedure:
            (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. 
 
Madden v. State, 242
S.W.3d 504, 510 (Tex. Crim. App. 2007).
Steven
Cantu testified that he is a game warden for the
State of Texas.  He indicated that he is authorized by Texas law to detain
individuals operating a vessel and make a safety inspection, checking for a
wearable life jacket on board, a Type IV flotation or ring boom, a fire
extinguisher, a certificate of number card showing the owner of the boat, and a
whistle or a horn.  He stated that, on August 14, 2010, after eating supper
with other officers at a restaurant on Possum Kingdom Lake, they called
Criswell over as he was coming in from the east side on the no-wake zone. 
He related that they helped Criswell as he started toward the dock and that
that was when he and others started conducting the water safety check.  Officer
Cantu identified Criswell as the person who was operating the boat.  He stated
that Criswell was on the boat when he conducted the water safety check.
Officer Cantu related that, when he asked Criswell if he
had been drinking, Criswell responded that he had had about five beers and a
shot of what was called a “red-headed slut.”  Officer Cantu testified that he
observed some open containers in the boat and some empty ones that were on the
bow of the boat that fell onto the floor.  He indicated that, when Criswell
stated that he had been drinking, he asked Criswell to step out of the boat and
then started a series of what are called float tests.  He stated that float
tests are to build clues to show if there are any signs of intoxication.  He
also indicated that a breath test was administered to Criswell.  The breath
test showed an alcohol concentration of 0.136.
Cliff Swofford testified that he also is a game warden.  He
indicated that, when Criswell was stopped, he was operating the boat.  He
insisted that Criswell was approaching the dock while he and Officer Cantu were
standing on the dock.  He related that there is no requirement that he be in a
boat or have a blue light on a boat activated in order to stop another boat.  He
said the only requirement is that someone be observed operating a vessel.  He
stated that he observed Criswell operating the vessel.  Officer Swofford
also testified that, while conducting a safety inspection, officers have a duty
to investigate any other criminal activity that is discovered.  He stated that,
typically, water safety inspections are not conducted on boats that are docked.
Missael Orono testified
that, on the occasion in question, he was riding in the boat with Criswell and
Criswell’s son.  He testified that Criswell was off the boat and tying up
at the dock when officers approached him.  He indicated that he did not
see any officer waving at Criswell.  Orono acknowledged that Criswell was
the one driving the boat as it approached the dock.   Orono acknowledged
that he did not know whether the officers saw the boat as it came motoring into
the dock.
Criswell testified that, as he was approaching the dock,
there were no law enforcement officers waving him over.  He indicated that he
voluntarily docked the boat himself.  He insisted that, as the officers
approached him, he was standing next to the fuel pump.  He indicated that he
was approached by Officer Cantu, who started asking him if he had been
drinking.   He insisted that Officer Cantu never told him he was
going to conduct a water safety check and never conducted one in his presence. 
He acknowledged that he could not testify under oath that the officers did not
see him.  He acknowledged operating the boat.
Criswell presented a motion to suppress the results of a
breath/blood test on the basis that there was no probable cause or reasonable
suspicion to investigate him and on the basis that the procedures required
under Sections 31.121 and 31.124 of the Texas Parks and Wildlife Code were not
followed.  Tex. Parks & Wild. Code
Ann. § 31.121 (West Supp. 2011), § 31.124 (West 2002).  He did not
specify any particular provision that was not followed, nor did he specify why
there was no probable cause.  The trial court, in overruling the motion, found
as a matter of law that the Texas Parks and Wildlife Code, which allows a water
safety enforcement officer to stop and board a boat, does not require that the
stopping and boarding of the vessel be on the water.
The disputed evidence to which we are referred by Criswell
is a fact issue as to whether the game warden approaching Criswell waved
him over to the boat and conducted a water safety inspection or whether the
game warden approached Criswell while his boat was docked.  While this issue was affirmatively contested, Criswell has not shown that
the dispute is relevant to the lawfulness of the challenged conduct in
obtaining the evidence.  That being the case, the trial court did not err in
denying an Article 38.23 instruction to the jury.  In his brief, Criswell
concludes that the disputed evidence raises a factual
issue bearing on the question of probable cause, but he makes no argument and
presents no authority as to what bearing the factual issue has on the issue of probable
cause.  Nor does Criswell present any argument or authority that the dispute
would have any bearing on the issue as to whether the officers properly
followed procedures under Sections 31.124 or 31.121 of the Texas Parks and
Wildlife Code.  We overrule Criswell’s sole issue on appeal. 
The judgment of the trial court is affirmed.
 
                                                                                    PER
CURIAM
 
July 19, 2012
Do not publish.  See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill.[1]




[1]John G. Hill, Former Chief Justice, Court of Appeals,
2nd District of Texas at Fort Worth, sitting by assignment.


