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). 
2 

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. 
3 

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. 
4 

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 
5 

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. 
6 

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.” 
7 

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, 
8 

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
9 

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. 
10 

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 nontechnical, 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 
11 

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. 
12 

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 
13 

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. 
14 

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 
15 

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 
16 

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 
17 

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 
18 

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. 
19 

Conclusion 

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

affirmed. 

 Mackey K. Hancock 

 Justice 

Publish.