In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-18-00179-CR 

BRUCE ALLEN HENRY, APPELLANT 

 

V. 

 

THE STATE OF TEXAS, APPELLEE 

 

On Appeal from the 413th District Court 

Johnson County, Texas 

Trial Court No. DC-F20100073 Counts 1-4, 

Honorable William C. Bosworth, Jr., Presiding 

 

November 27, 2018 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and PIRTLE and PARKER, JJ. 

Bruce Allen Henry, appellant, appeals his four convictions for possessing 

controlled substances. His issues involve the search of his vehicle, whether it was 

legitimate, and whether the trial court should have submitted an instruction under article

38.23(a) of the Texas Code of Criminal Procedure. We affirm.1

 

1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply 

its precedent when available in the event of a conflict between the precedents of that court and this Court. 

See TEX. R. APP. P. 41.3.
2

Issue One – Article 38.23 Instruction

Appellant initially contends that he “filed a proposed jury charge requesting that 

the jury litigate the existence of the consent to search his vehicle.” He believed himself 

entitled to the instruction because “[t]he State introduced an audio and video recording 

from the patrol car which raised a question of fact as to whether [appellant] consented to 

the search.” Since the “consent was the only justification for the search and seizure in 

this case” and the lack of consent his defense, the “omission of this required charge 

prevented [him] from having his only defensive issue considered by the jury that convicted 

him.” We overrule the issue.

Per article 38.23 of the Code of Criminal Procedure, “[n]o evidence obtained by an 

officer . . . in violation of any provisions of the Constitution or laws of the State of Texas,

or of the Constitution or laws of the United States of America, shall be admitted in 

evidence against the accused on the trial of any criminal case.” TEX. CODE CRIM. PROC. 

ANN. art. 38.23(a) (West 2018). If “the legal evidence raises an issue hereunder, the jury 

shall be instructed that if it believes, or has a reasonable doubt, that the evidence was 

obtained in violation of the provisions of this Article, then and in such event, the jury shall 

disregard any such evidence so obtained.” Id. The right to an instruction under article 

38.23(a) is limited to situations wherein there exists a disputed issue of fact that is material 

to a purported violation of a constitutional or statutory provision that would render the

evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 

2007); Shaw v. State, No. 07-16-00284-CR, 2018 Tex. App. LEXIS 3629, at *3-4 (Tex. 

App.—Amarillo May 22, 2018, pet. ref’d) (mem. op., not designated for publication). 

Moreover, there are three prerequisites that must be shown to trigger the application of 

article 38.23(a). They are: 1) the evidence heard by the jury must raise an issue of fact;
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2) it must be affirmatively contested; and 3) the contested fact issue must be material to 

the lawfulness of the conduct through which the evidence was obtained. Id. at *3.

To reiterate, appellant asserts that the only basis justifying the discovery of the 

drugs he possessed concerned his consent to search the vehicle purportedly given the 

officer. Whether he gave such consent was a material issue of fact, in his view. It was 

such an issue because the “entire video contradicts the existence of any consent to 

search.” Not only did the audio portion of the video allegedly fail to capture his assent to 

the search but also showed him to be eager to leave, shaking his head, and arguing with 

the officer. For the reasons we will explain, these circumstances did not obligate the trial 

court to submit the requested instruction.

The detaining officer testified that: 1) he had asked appellant if he had contraband 

in the truck; 2) appellant replied in the negative; 3) he (the officer) asked if appellant had 

“a problem with me just double checking”; 4) appellant’s response was that he did not; 5) 

he (the officer) reaffirmed appellant’s answer by asking “good to go?”; and 6) appellant 

replied “yes.” Aspects of this testimony were captured on the video of the stop taken from 

a camera in the patrol unit. The officer’s questions can be readily discerned from the 

recording, but the same is not true of appellant’s responses. 

Appellant’s visage cannot be seen in the video. Instead, the video portrays only a 

blurred partial silhouette of someone sitting in the driver’s seat, until appellant actually 

exits the car after purportedly acquiescing to the search. Similarly, appellant’s words 

while sitting in the truck are little more than muted, inaudible murmurings, or so the trial 

court could have reasonably concluded upon playing the video. In short, whether 

appellant actually responded affirmatively or negatively to the officer’s inquiries about 
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whether appellant would consent to a search of the vehicle cannot be discerned from the 

electronic recording. 

Next, after exiting the pickup, appellant’s words can be heard somewhat clearer. 

Yet, he still spoke at a lower volume than the officer. And, in so speaking, he said 

something about being “really late” and wanting to get tires; however, those words were 

not coupled with any reference to having authorized a search. They came after the officer 

told appellant that he (the officer) just wanted to “make sure [appellant] had nothing in 

[his] vehicle” and needed to wait for another officer to arrive. Those words resulted in 

appellant shaking his head, which gesture caused the officer to ask why he was shaking 

his head. At that point, appellant mentioned being late and needing tires. But at no time 

can appellant be heard uttering words expressly aimed at the upcoming search and his 

prior authorization to the officer to conduct it. 

As previously mentioned, a fact issue arises when one factual proposition is 

affirmatively contested by another bit of evidence. Shaw, 2018 Tex. App. LEXIS 3629, at

*3. For instance, when a defendant suggests that a video contained evidence creating a 

fact issue, the video must show “that appellant affirmatively did not do something that [the 

officer] said that he did do.” Madden, 242 S.W.3d at 516 (stating that “[o]nly if the video 

clearly showed that appellant affirmatively did not do something that Trooper Lily said that 

he did do, and the video clearly would have shown that conduct if it had occurred, would 

there be some affirmative evidence of a disputed historical fact”); Thomas v. State, No. 

10-11-00250-CR, 2013 Tex. App. LEXIS 6943, at *16-17 (Tex. App.—Waco June 6, 2013,

no pet.) (mem. op., not designated for publication) (stating the same). The video at bar 

did not and does not clearly and affirmatively show that appellant refused consent to the 

search or withdrew his consent once given. The purpose of appellant shaking his head 
5

and professing to being late and needing tires after having agreed to a search of the car 

is the subject of mere speculation. Maybe it was in reference to the search; maybe it was 

in reference to having to wait until another officer arrives before the search would begin 

and the delay that would cause. Speculation, however, does not equal evidence 

affirmatively contesting the officer’s testimony regarding the existence of consent. See 

Thomas, 2013 Tex. App. LEXIS 6943, at *16-17 (holding that an article 38.23(a) 

instruction was unnecessary since the “in-car video recording is not conclusive and does 

not contradict the officers’ testimony” about Thomas failing to properly signal his intent to 

turn). Appellant had opportunity to expressly object to the search if he cared to when the 

officer asked why he shook his head. Despite that opportunity, appellant said nothing 

about the search itself or his permission to conduct it. Consequently, the video did not 

create the issue of material fact needed to trigger the trial court’s duty to charge the jury 

per article 38.23(a). Id.

Issue Two – Motion to Suppress

Appellant next complains of the trial court’s denial of his motion to suppress the 

statements uttered by appellant and the contraband found as a result of the vehicle 

search. He does this by first questioning whether his consent to search the vehicle was 

voluntarily given. Then, he argues that the stop was unduly extended to garner basis for 

a search. We overrule the issue.2

 

2 Much of appellant's discussion under this topic relates to the question of preservation. Apparently, 

he said "no objection" multiple times when the State tendered into evidence at trial the contraband acquired 

during the search. A trial court's denial of a motion to suppress normally preserves for review a complaint 

about whether the evidence at issue was lawfully acquired. Kershaw v. State, No. 07-17-00282-CR, 2018 

Tex. App. LEXIS 5819, at *2-3 (Tex. App.—Amarillo July 26, 2018, no pet.) (mem. op., not designated for 

publication). Yet, uttering the words "no objection" at trial still may result in a waiver of the complaint. Id. 

Whether it does depends on if the record as a whole demonstrates that the appellant did not intend to waive 

the matter when uttering the words and the trial court did not construe the words to be a waiver. Id. We 

reviewed the record and conclude that appellant did not intend to forgo his complaint about the search. Nor 

can we say that the trial court construed the words as intent to waive. Thus, the issue was preserved. 
6

According to the record, the officer first spotted appellant’s truck in response to a 

9-1-1 call. The truck was seen at a house by a neighbor. That neighbor knew who 

normally resided there and did not recognize appellant as one of those occupants when 

he exited the abode with items in hand. 

The officer not only came upon the truck as appellant drove it but also witnessed 

appellant fail to signal a left turn at an intersection. The latter being a violation of law, see

TEX. TRANSP. CODE ANN. § 545.104(b) (West 2011) (stating that “[a]n operator intending 

to turn a vehicle right or left shall signal continuously for not less than the last 100 feet of 

movement of the vehicle before the turn”), the officer was permitted to temporarily detain 

appellant. See Strauss v. State, 121 S.W.3d 486, 490 (Tex. App.—Amarillo 2003, no 

pet.) (stating that an officer who witnessed a traffic violation has sufficient authority to stop 

the vehicle). He did so and asked for appellant’s driver’s license and insurance upon 

walking up to the driver’s side window of the stopped vehicle. That resulted in the officer 

asking several questions of appellant regarding the home which appellant had just left 

and who lived there. Appellant disclosed that he lived there apparently with his girlfriend 

and her father and had done so for about a week. During this exchange, the officer told 

appellant of the purpose of the stop, that being the traffic violation. So too do did he ask 

if appellant was carrying contraband such as drugs or stolen property. When appellant 

denied possessing contraband, the officer solicited the aforementioned consent to search

for stolen items. 

No harsh or threatening words were imparted by the officer during the verbal 

exchange. His handgun remained holstered. His posture (as depicted in the video) could 

reasonably be interpreted as neither threatening nor aggressive, while the tone of his 

voice remained businesslike. Nor was the officer discourteous to appellant before 
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securing consent to search or while escorting appellant from the truck to the front of the 

police vehicle. Admittedly, appellant was asked to end a call that he was apparently 

making on a cell phone as the two walked to the back of the truck. And though the officer 

conducted a pat-down search of appellant during the short journey to the front of the 

police unit, the officer explained why he opted to do so and asked if his explanation made 

sense. Finally, the time transpiring between the point at which appellant pulled into a 

parking lot in response to the officer’s emergency lights and appellant consenting to a 

search of his vehicle was seconds shy of four minutes. 

A temporary detention pursuant to a traffic stop may last no longer than necessary 

to effectuate the purpose of the initial stop. Strauss, 121 S.W.3d at 490-91; accord Davis 

v. State, 947 S.W.2d 240, 244-45 (Tex. Crim. App. 1997) (so holding). During that 

detention, however, the officer may conduct a brief and minimally intrusive investigation. 

Strauss, 121 S.W.3d at 490-91. So too may he ask for identification and the production 

of a valid driver’s license and proof of insurance, check for outstanding warrants, ask 

about the driver’s destination and purpose for the trip, direct the driver to exit the vehicle,

and “most importantly, once the purpose of the stop has been effectuated and the officer’s 

suspicions allayed, he may still ask the driver if he possesses any illegal contraband and 

then solicit his voluntary consent to search the vehicle.” Id. at 491. The officer at bar 

receiving a call about a possible burglary, seeing the driver of the vehicle involved commit 

a traffic violation, stopping the vehicle, asking for a driver’s license and proof of insurance,

explaining to appellant the purpose of the stop, asking questions which apparently 

touched upon why appellant was at the house which he just left, asking appellant about 

the names of the homeowners, inquiring into whether appellant possessed contraband,
8

and seeking permission to search the vehicle all within four minutes of the initial stop falls 

within the realm of permissibility described in Strauss.3 

The brevity of time involved, the officer’s generally courteous and professional 

demeanor before soliciting consent, the officer’s disclosure of the reasons underlying the 

stop, the lack of any formal show of force, the officer securing permission to search and 

reconfirming that he had such permission before appellant exited the truck, the officer’s 

explanation of why he wanted to search, and the absence of any overt attempt by 

appellant to object to the search or withdraw his consent are indicia pertinent to assessing 

the validity of appellant’s consent. See Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. 

App. 2012) (stating that the validity of consent is assessed by considering the totality of 

the circumstances and factors including whether the accused was advised of his 

constitutional rights, the length of the detention, the duration and repetitiveness of the 

questions, the accused’s awareness of whether he could decline to answer questions,

and the kind of psychological impact the questioning had on the accused). It may be that 

the officer failed to inform appellant that he did not have to answer any questions or agree 

to the search, as suggested by appellant. Yet, the detention was temporary and part of 

a traffic stop. In those situations, the detainee’s freedom is not so curtailed as to require 

the officer to mirandize the detainee. See Carmona v. State, No. 07-17-00018-CR, 2018 

Tex. App. LEXIS 6185, at *5-6 (Tex. App.—Amarillo Aug. 7, 2018 no pet.) (mem. op., not 

designated for publication) (stating that “[a]lthough a traffic stop ‘significantly curtails the 

 

3To the extent that appellant suggests the traffic violation was merely a pretext for conducting an 

impermissible search, we note that the pretext arrest doctrine was rejected by our Court of Criminal Appeals 

years ago in Garcia v. State, 827 S.W.2d 937 (Tex. Crim. App. 1992). That court reaffirmed its holding in 

Garcia through the more recent opinion in Walter v. State, 28 S.W.3d 538 (Tex. Crim. App. 2000). Because 

the officer witnessed an actual traffic violation occur, he had legitimate basis to stop appellant. Id. at 543 

(reaffirming that as long as an actual violation occurs law enforcement officials are free to enforce the law 

and detain a person for violating it regardless of the officer's subjective motivation).
9

“freedom of action”‘ of a vehicle’s driver, individuals temporarily detained pursuant to a 

traffic stop are not ‘in custody’ for Miranda purposes”). In asking for and receiving consent 

and then reverifying appellant’s consent by querying if he was “good to go,” the officer’s

conduct could be viewed as affording appellant opportunity to change his mind and think 

about his decision, and the record does not reflect that appellant changed his mind 

regarding the search despite being in a hurry. 

In short, the totality of the circumstances provided the trial court clear and 

convincing evidence upon which to reject the notion that appellant’s consent was 

involuntary or a mere acquiescence to a show of authority. Rather, they provided clear 

and convincing evidence upon which to conclude that appellant’s consent was voluntary. 

Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006) (stating that the State 

must prove by clear and convincing evidence that consent was given voluntarily). Thus,

we cannot say that the trial court abused its discretion in denying the motion to suppress. 

See State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018) (stating that an 

appellate court reviews a trial court’s ruling on a motion to suppress under the standard 

of abused discretion).

We overrule each of appellant’s issues and affirm his four convictions.

Brian Quinn 

Chief Justice

Do not publish.