1

In The

Court of Appeals

Ninth District of Texas at Beaumont

_________________

NO. 09-17-00133-CR

_________________

JAMES DWAYNE CROWLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 435th District Court

Montgomery County, Texas

Trial Cause No. 15-10-11144-CR

________________________________________________________________________

MEMORANDUM OPINION

A jury convicted Appellant, James Dwayne Crowley, of aggravated robbery.

See Tex. Penal Code Ann. §§ 29.02, 29.03(a)(2) (West 2011). Crowley appeals his 

conviction. In four issues, Crowley complains the trial court committed reversible 

error by: (1) denying his motion to suppress a search warrant for cellular telephone 

data; (2) refusing his requested article 38.23 jury instruction regarding cellular 

telephone data; (3) denying his motion to suppress evidence collected from a blue 
2

Dodge vehicle; and (4) refusing his requested article 38.23 jury instruction regarding 

evidence collected from a blue Dodge vehicle. We affirm the trial court’s judgment.

I. Background

After midnight on October 18, 2015, Crowley entered the Flying J Truck Stop 

in New Caney, Texas. During the approximately five hours that followed, Crowley 

entered the store multiple times and changed his attire several times. In video 

surveillance from the truck stop, Crowley’s distinctive hand tattoos are visible, as 

well as his wristwatch, and boots. These remained visible and consistent despite the

clothing changes. 

During those early morning hours, Crowley, wearing a short-sleeved gray 

Dallas Cowboys t-shirt, was captured on camera stealing multiple items from the 

store, including a flashlight and Cobra GPS units. At one point, Crowley is observed 

speaking to a clerk and pointing to items on an aisle in the electronics section of the 

store. After interacting with the clerk, he is then observed on video watching the 

clerk disappear down a hall toward an office into a restricted area, while he remained

in the unrestricted part of the store. Later, Crowley entered the restricted area, 

proceeded down the hall to the back office, grabbed an armload of merchandise, 

including a Cobra GPS unit, and exited through the rear door of the store.
3

He returned to the store after 3:00 a.m., wearing the same gray Dallas 

Cowboys t-shirt, but he had added a jacket and a blue Dallas Cowboys hat. Crowley

stole multiple Cobra GPS units and was recorded checking the safe. At one point in 

the evening, the surveillance camera also captured him speaking with witness 

Ronald Hill. 

Following the merchandise thefts, Crowley re-entered the store shortly before

5:00 a.m. wearing a different jacket and a camouflaged hat with flaps over the ears.

A little before 5:00 a.m., the surveillance cameras captured Crowley taking a glove 

out of a package in the store and putting it on his right hand. He is then observed

pointing a gun at Connie Prior and another employee in the office area. Prior can be 

seen opening the safe, and Crowley is seen removing two large bags of coins. As 

Crowley was struggling with the bags of coins from the safe, the gun went off and a 

projectile ricocheted off the floor, hitting Prior in the arm. Unable to sustain the 

weight of the coins, the handle from the cloth shopping bag Crowley was using broke 

and it was left on the floor in the store. Crowley dropped one of the bags of coins 

outside the store but got away with one bag of coins. 

Officers responded to the scene and collected surveillance footage from the 

store. Upon reviewing the footage, an officer recognized Hill, the man Crowley 

spoke with briefly in the store. The officers located Hill, and after speaking with 
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him, concluded James Crowley was a suspect. The lead investigator on the case, 

Montgomery County Sheriff’s Office (“MCSO”) Detective Hahs, obtained an arrest 

warrant for Crowley. The MCSO determined Crowley drove a blue Dodge vehicle 

owned by his wife and acquired its license plate number. At the scene, they 

recovered the handle from the shopping bag Crowley used and the projectile fired 

from the gun.

On October 21, 2015, Hahs and his partner received a call from MCSO 

Sergeant Swilling regarding a shots-fired incident in another part of the county, 

advising them that the description of the shooter matched their armed robbery 

suspect.1 On the way to the shots-fired location, Hahs observed a vehicle matching 

Crowley’s vehicle traveling the opposite direction. Hahs testified he made a U-turn

and followed it until it pulled into the parking lot of a local business. The license 

plate number matched the one on the vehicle owned by Crowley’s wife. Hahs 

testified that because he had an arrest warrant for Crowley and was unsure who was 

in the vehicle at the time, he and his partner proceeded to perform a felony takedown.

The individuals exited the vehicle, but Crowley was not with them. A blue Dallas 

 1 Crowley was ultimately arrested by a patrolman a short distance away from 

the shots-fired incident walking down the street.
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Cowboys hat matching the one Crowley wore the night of the armed robbery was 

observed in plain view on the deck of the rear window. 

Hahs testified the driver of the vehicle, John Colletti, said he borrowed the car 

from Crowley, and there was no evidence connecting the individuals in the vehicle 

to the crime. Colletti offered to ride with detectives and take them to the gun used 

during the robbery. Hahs testified that because Colletti left with them, and none of 

the other individuals owned the car or had been given permission to drive, they 

impounded the vehicle. Due to it being impounded, department policy required Hahs 

to conduct an inventory search of the vehicle, which he briefly did at the location of 

the felony takedown. During the inventory, Hahs located a GPS box consistent with 

the ones taken from the truck stop, as well as drug paraphernalia. Hahs confirmed 

he did not have a warrant to search the vehicle.

Detective Hahs testified that it appeared Colletti had information that might 

be useful to the investigation. Colletti took them to an RV park to the residence of 

Terry Goad. As soon as detectives told Goad why they were there, he directed them 

to a gun in the glove box of his motor home. The officers located a .380 pistol and 

magazine in the glove box and took the items as evidence. Goad confirmed he 

purchased the gun from Crowley on October 21, 2015, several days after the robbery.
6

Later in the investigation, Hahs obtained a search warrant to retrieve data from 

Crowley’s cell phone. The judge signed the warrant at 3:23 p.m. on October 27, 

2015. However, the return is dated August 7, 2009. At trial, Hahs testified he 

executed the search warrant “immediately” and acknowledged the wrong date on the 

return was a clerical error.

The primary focus of the State’s case was video surveillance footage from the 

store that captured the crime on film and photographs retrieved from those 

surveillance videos. The State’s ballistics expert testified regarding the tests 

performed and concluded that the projectile retrieved as evidence from the store was 

fired from the gun Crowley sold to Goad. Moreover, DNA obtained from the 

shopping bag handle also linked Crowley to the crime. Evidence obtained from the 

blue Dodge included the blue Dallas Cowboys hat and a GPS unit from the trunk. 

Cell phone data from Crowley’s phone showed multiple searches seeking 

information regarding the aggravated robbery at the Flying J and searches for 

criminal defense attorneys in the days after the robbery. 

Following two hearings, the trial court denied Crowley’s motion to suppress 

the evidence seized from the vehicle and the cell phone data. The trial judge also 

denied Crowley’s requested article 38.23 jury instruction. The jury convicted 

Crowley of aggravated robbery, and Crowley elected to have the trial judge 
7

determine punishment. Crowley pled true to all six enhancements and the trial judge, 

having found four of the enhancements true, sentenced Crowley to life in prison. 

II. Motion to Suppress: Issues One and Three2

Crowley contends the trial court committed reversible error by denying his 

motion to suppress the evidence seized from the vehicle and the cell phone data.

Prior to trial, he filed a motion to suppress. In the motion to suppress, Crowley 

specifically argued that the “Sworn Inventory And Return is insufficient, false, and 

blatantly defective on its face and taints all aspects of the search and notice 

requirements” under article 18.06. See Tex. Code of Crim. Proc. Ann. art. 18.06

(West Supp. 2018).3 He further contends his 4th, 5th, and 14th Amendment rights 

were violated because the return was not verified in a timely manner.

Crowley also moved to suppress the GPS unit and GPS box located within the 

vehicle. He contends the evidence was seized as a result of a warrantless search, was 

illegal, did not comply with the Texas Code of Criminal Procedure and is a violation 

of his 4th, 5th, and 14th Amendment rights. Crowley did not address the hat in the 

 2 For purposes of organization and clarity, we address the suppression issues 

together and the jury instruction issues together.

3 We cite to the current versions of the applicable provisions of the Code of 

Criminal Procedure, as any amendments do not affect the outcome of this appeal.
8

motion to suppress or at the suppression hearing, but he argues on appeal the Dallas 

Cowboys hat should have been suppressed as well.

During the suppression hearing, the State first argued the items were identified 

as the result of a valid inventory search. Additionally, the State argued in the 

suppression hearing it had probable cause, because the vehicle matched the 

description of the one driven by Crowley, and the Dallas Cowboys hat identical to 

the one surveillance cameras captured Crowley wearing was in plain view on the 

rear window deck of the vehicle. The State contended that the hat in plain view 

matching the hat from the surveillance video led to probable cause for the stolen 

items.

In denying the motion to suppress in its entirety, the trial judge stated on the 

record, 

I agree that items might not have been seized or taken out until a later 

date; however, I did hear testimony to support that he identified those 

items . . . there at the location of the traffic stop, and that stop was 

conducted based on arrest warrants (sic) – that Detective Hahs had in 

his possession that was legally obtained. So I’m going to deny your 

motion to suppress in its totality.

A. Standard of Review

We review a trial court’s denial of a motion to suppress under a bifurcated 

standard. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016) (citing

Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)). We review a trial 
9

court’s findings of fact for abuse of discretion and the trial court’s application of the 

law to the facts de novo. Id. If a trial judge does not make explicit findings of fact, 

we review the evidence in the light most favorable to the trial court’s ruling. Walter 

v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000) (citing Carmouche v. State, 10 

S.W.3d 323, 327–28 (Tex. Crim. App. 2000)). If the trial court makes explicit fact 

findings, we view the evidence in the light most favorable to the trial court’s ruling 

and determine if it supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex. 

Crim. App. 2006). We then review the trial court’s legal ruling de novo. Id. at 819. 

We uphold the trial court’s ruling if supported by the record and correct under any 

theory of law applicable to the case, even if the reason provided by the trial court is 

wrong. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (citing 

State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Romero v. State, 800 

S.W.2d 539, 543 (Tex. Crim. App. 1990)). We give almost total deference to the 

trial court’s implied findings, particularly those based on an evaluation of witness 

credibility and demeanor. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. 

App. 2010). At a suppression hearing, the trial court is the sole trier of fact and judge 

of the witnesses’ credibility. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. 

App. 2007). The trial court may choose to believe or disbelieve part or all of the 

witnesses’ testimony. Ross, 32 S.W.3d at 855. 
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B. Analysis

1. Cellular Telephone Data

A judge or magistrate must sign and date a search warrant. Tex. Code Crim. 

Proc. Ann. art. 18.04 (West Supp. 2018). The magistrate must include the date and 

hour the warrant issues. Tex. Code Crim. Proc. Ann. art. 18.07(b) (West Supp. 

2018). Generally, a warrant must be executed within three days of its issuance, 

excluding the date of issuance and the date of execution. Id. art. 18.07(a)(3). 

“[P]urely technical discrepancies in dates or times do not automatically vitiate the 

validity” of a search warrant. Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App. 

1990). The court must determine whether there is evidence to support a finding that 

the discrepancy is “merely a clerical or technical error.” See id.; Arredondo v. State, 

No. 14-16-00110-CR, 2017 WL 592234, *4 (Tex. App.—Houston [14th Dist.] Feb. 

14, 2017, no pet.) (mem. op., not designated for publication). This evidence is 

usually provided through the testimony of a knowledgeable witness. Green, 799 

S.W.3d at 760. Technical defects in a warrant can be cured by explanatory testimony. 

See id.; Rougeau v. State, 738 S.W.2d 651, 663 (Tex. Crim. App. 1987), overruled 

on other grounds, Harris v. State, 784 S.W.2d 5 (1989); Lyons v. State, 503 S.W.2d 

254, 255–56 (Tex. Crim. App. 1973); Martinez v. State, 285 S.W.2d 221, 222 (Tex. 

Crim. App. 1955). 
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Crowley asserts on appeal that an incorrect date on the return invalidated the 

entire warrant for the cellular telephone data because it is unknown if the warrant 

was executed within the three-day timeline. We disagree. The judge signed the 

warrant, included the date October 27, 2015, and the time. However, the return 

attached to the warrant was dated August 7, 2009. During the suppression hearing 

and in front of the jury, Detective Hahs testified he signed the return. He further 

testified that it was a “clerical error,” and he printed the document without realizing 

he had not changed the date on the return. We conclude this testimony provided 

evidence from which the trial court could conclude the incorrect date on the return

was purely clerical, and therefore the warrant itself was not invalid. See Green; 799 

S.W.3d at 760; Martinez, 285 S.W.2d at 222. Furthermore, to the extent Crowley 

attempts to argue on appeal that the warrant was not executed or returned timely, 

Detective Hahs testified that he executed the warrant “immediately” after it issued. 

Crowley did not offer any evidence to contradict this testimony or obtain 

clarification from Detective Hahs about the meaning of “immediately.” We conclude 

the trial court did not err in denying the motion to suppress the cellular telephone 

data.
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2. Hat Seized from the Vehicle

Despite his argument on appeal that the hat and any DNA evidence from the 

hat should have been suppressed as well, Crowley failed to make this argument in 

his motion to suppress or during the suppression hearing.4 The trial judge inquired 

multiple times regarding the specific evidence seized from the vehicle, and Crowley 

only mentioned the GPS unit and GPS box. Because he failed to urge for suppression 

of the hat during trial, we find he has waived any complaint regarding the admission 

of that evidence. See Tex. R. App. P. 33.1; Rothstein v. State, 267 S.W.3d 366, 373 

(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (citations omitted) (noting that 

to preserve a complaint, a party must present the trial court with a timely request, 

objection, or motion stating the specific grounds, and the appellate argument must 

comport with the objection made at trial).5

3. GPS Units Seized from the Vehicle

While Crowley argues the evidence seized from the vehicle was obtained 

illegally and without a warrant, the State asserts Detective Hahs lawfully impounded 

 4 The record does not indicate the hat at issue was tested for DNA.

5 This was supported by the State’s photographs admitted at trial, which depict 

the hat in plain view through the vehicle’s back windshield. Even if we assume

Crowley preserved error, neither the hat’s observation or seizure invaded his 

privacy, as it was in plain view when the car was pulled over pursuant to a valid 

arrest warrant. See Horton v. Cal., 496 U.S. 128, 133–34 (1990) (citations omitted); 

Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citations omitted).
13

the vehicle and conducted an inventory of the vehicle. The Fourth Amendment of 

the United States Constitution and Article I, Section 9 of the Texas Constitution 

protect individuals against unreasonable searches and seizures. U.S. CONST. amend. 

IV; Tex. Const. art. I, § 9; State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 

2013). Generally, a search without a warrant is considered unreasonable subject to a 

few established exceptions. See Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. 

App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). 

Assuming without deciding the trial court erred in denying Crowley’s motion 

to suppress the GPS unit and box found in the vehicle, we must determine whether 

Crowley was harmed by the denial of the motion to suppress. See Tex. R. App. P. 

44.2(a). We will reverse unless we determine beyond a reasonable doubt the 

admission of the GPS evidence did not contribute to the guilty verdict. See id. Said 

another way, the critical inquiry is whether there is a “reasonable possibility” the 

error might have contributed to the conviction. See Mosley v. State, 983 S.W.2d 249, 

259 (Tex. Crim. App. 1998) (citing Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim. 

App. 1996)). An error does not contribute to the conviction if the jury’s verdict 

would be the same even if the erroneous evidence had not been admitted. Clay v. 

State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (quoting Neder v. United States, 

527 U.S. 1, 15–18 (1999)). In determining whether constitutional error in the 
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admission of evidence is harmless, we consider these factors: (1) the importance of 

the evidence to the State’s case; (2) whether the evidence was cumulative of other 

evidence; (3) the presence or absence of other evidence corroborating or 

contradicting the evidence on material points; (4) the overall strength of the State’s 

case; and (5) any factor, as revealed by the record, that may shed light on the 

probable impact of the error on the average juror. Id. (citing Davis v. State, 203 

S.W.3d 845, 852 (Tex. Crim. App. 2006)).

The GPS unit and box retrieved from the vehicle were not critical to the State’s 

case. This evidence was cumulative of other evidence, specifically the surveillance 

video which captured Crowley in the act of stealing GPS units. A jury could have 

convicted Crowley on the surveillance video alone, which depicted him casing the 

store for hours, attempting to disguise himself, stealing multiple items, and pointing 

a gun at store employees while making them open the safe so he could retrieve bags 

of coins. In addition to the surveillance video, DNA from the shopping bag handle 

left at the scene connected Crowley to the scene. Finally, ballistics tests on a gun 

located in the possession of a man who testified he purchased it from Crowley days 

after the robbery, established that the projectile retrieved at the scene was fired from 

the same gun. Based on these factors, we conclude there was other overwhelming 

evidence of guilt that made the admission of the GPS evidence harmless. 
15

The trial court did not err in denying Crowley’s motion to suppress the cellular 

telephone data, and Crowley waived any complaint about the hat. With other 

overwhelming evidence of guilt, even if the trial court erred in denying the motion 

to suppress the GPS box and unit seized from the vehicle, such error was harmless. 

We overrule issues one and three.

III. Article 38.23 Instruction: Issues Two and Four

Crowley argues on appeal that the trial court erred in refusing his requested 

38.23 instruction pertaining to cellular telephone data and in refusing his requested 

38.23 instruction pertaining to evidence seized from the vehicle. See Tex. Code 

Crim. Proc. Ann. art. 38.23 (West 2018). While Crowley characterizes these as 

“requested” instructions, the record reveals the defense’s requested instruction was 

very generic and did not address the cellular telephone data evidence in conjunction 

with the article 38.23 instruction. 

A. Standard of Review

Under Almanza, we utilize a two-step process in reviewing jury charge error. 

See Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Almanza v. State, 

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether there was 

error in the charge. See Ngo, 175 S.W.3d at 743. Second, we examine whether the 

appellant was harmed by the error. See id. The level of harm required for reversal 
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depends upon whether the appellant preserved the error by objecting at the trial court 

level. Id. If the appellant objected to the charge, we will reverse if we find some 

harm. See id. (citing Almanza, 686 S.W.2d at 171). However, if the appellant failed 

to object to the charge, we will not reverse unless egregious harm is established by 

the record. See id. at 743–44.

B. Analysis

Article 38.23 provides that evidence obtained in violation of the laws or 

Constitution of the United States or Texas may not be admitted in a criminal case. 

Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal v. State, 390 S.W.3d 302, 306 

(Tex. Crim. App. 2012). A jury instruction should be submitted if a fact issue is 

raised about whether such a violation occurred. Tex. Code Crim. Proc. Ann. art. 

38.23(a); Hamal, 390 S.W.3d at 306. The instruction requires the jury to disregard 

evidence that it finds was obtained in violation of the laws or United States or Texas 

Constitution. Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 S.W.3d at 306. 

A defendant must show the following to be entitled to an article 38.23 jury 

instruction: “(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) the contested factual 

issue must be material to the lawfulness of the challenged conduct.” Hamal, 390 
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S.W.3d at 306 (citing Spence v. State, 325 S.W.3d 646, 653–54 (Tex. Crim. App. 

2010); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008)).

A jury instruction can operate “only if there is a contested issue of fact about 

the obtaining of the evidence . . . . There is no issue for the jury when the question 

is one of law only.” Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)

(citing Bell v. State, 938 S.W.2d 35, 38 (Tex. Crim. App. 1996)). The Court of 

Criminal Appeals has explained,

[i]f there is no disputed factual issue, the legality of the conduct is 

determined by the trial judge alone, as a question of law. And if other 

facts, not in dispute, are sufficient to support the lawfulness of the 

challenged conduct, then the disputed fact issue is not submitted to the 

jury because it is not material to the ultimate admissibility of the 

evidence. The disputed fact must be an essential one in deciding the 

lawfulness of the challenged conduct.

Madden v. State, 242 S.W.3d 504, 510–11 (Tex. Crim. App. 2007) (internal citations 

omitted).

1. Article 38.23 Instruction Regarding Cellular Telephone Data

At trial, Detective Hahs acknowledged the clerical error in the return, which 

contained the wrong date. He further testified the warrant was executed 

“immediately” after it was issued. Crowley asserts on appeal that “immediately” is 

subject to interpretation, and there is no way to ascertain if he executed the warrant 

within the three days allowed. See Tex. Code of Crim. Proc. Ann. art. 18.06(a). There 
18

was no fact issue raised about whether the date was incorrect at trial or whether 

Detective Hahs failed to execute the warrant in a timely manner. Crowley did not 

bring any witness to contradict Detective Hahs’s testimony. He also did not inquire 

or seek clarification on cross-examination of the word “immediately.” None of these 

facts were disputed. Whether the warrant and return were invalid was solely a legal 

question. Pierce, 32 S.W.3d at 251. As such, Crowley was not entitled to an article 

38.23 instruction for the cellular telephone data because he did not meet the 

requirements which would entitle him to the instruction. See Hamal, 390 S.W.3d at 

306; Madden, 242 S.W.3d at 510–11. We overrule issue two.

2. Article 38.23 Instruction Regarding Evidence from the Vehicle

In Garza v. State, the Court of Criminal Appeals addressed a similar scenario. 

126 S.W.3d 79 (Tex. Crim. App. 2004). In that case, a vehicle was impounded after 

the appellant’s van was stopped when he made an illegal turn. Id. at 81. Officers 

determined the appellant had two outstanding arrest warrants. Id. After arresting 

him, officers performed an inventory search of appellant’s van finding drug 

paraphernalia and cocaine. Id. The appellant moved to suppress the evidence, which 

the trial judge denied. Id. There, the court found that appellant did not controvert the 

facts to which the officers testified. Id. at 87 (citing Thomas v. State, 884 S.W.2d 
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215, 218 (Tex. App.—El Paso 1994, pet. ref’d)). The Court concluded no fact issue 

arose as to the legality of the search. Id.

The same is true here. Detective Hahs maintained he had a valid arrest warrant 

when he and his partner stopped the vehicle and performed a felony takedown. They 

impounded the vehicle to protect its contents, because the owner of the vehicle, 

Crowley’s wife, was not present, and the driver who borrowed the car left the scene 

with detectives. Hahs further testified MCSO policy dictated he inventory the 

vehicle, which he did. 

During cross-examination, Crowley’s counsel attempted to raise a fact issue 

by asking if Crowley was actually in custody at the time the vehicle was stopped. 

Detective Hahs responded he believed he was, but there is no indication Hahs was 

aware of that fact at the time he stopped the vehicle. Hahs was on the way to a shotsfired call because the suspect matched Crowley’s description and on the way there, 

he observed the vehicle at issue. The takedown ensued, and he testified repeatedly 

he was looking for Crowley when he stopped the vehicle. 

Defense counsel asked multiple questions about the impounding of the vehicle 

and whether the other individuals on the scene had licenses and could have driven 

the vehicle. Detective Hahs responded that he did not know who they were, and they 

had not been given permission to drive the vehicle.
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The questions by defense counsel are nothing more than mere insinuations the 

officer may have veered from the impound and inventory policy. See id. at 87 (“Mere 

insinuations by appellant’s attorney that no inventory slip was made, in light of the 

testimony by each officer that such a slip did indeed exist, did not raise a fact issue 

as to the existence of the inventory slip.”) Here, Crowley failed to show Detective 

Hahs strayed from the boundaries set in the MSCO rules, and the rules were not even 

introduced into evidence. See id. at 86. Without evidence of the content of the rules, 

Crowley’s counsel “did nothing more than hint at the mere possibility that the 

officers may have breached the [MCSO] rules.” See id.

Crowley did not call any of the vehicle’s occupants at the time of the stop to 

testify and cast doubt on the detective’s version of events, nor did he call the other 

officer at the scene to testify. Crowley did not inquire about an inventory slip or the 

actual content of the MCSO policy. With respect to the timing of Crowley’s arrest, 

no evidence was adduced to show Detective Hahs was aware Crowley was in 

custody at the time he stopped the vehicle. Just as with the cellular telephone data, 

there was not a disputed factual issue raised with the circumstances of the vehicular

stop and subsequent search and seizure of the evidence. The only matter in question

was whether the undisputed circumstances gave detectives the legal right to search 

the vehicle, which is a question of law. See Pierce, 32 S.W.3d at 251; Garza, 126 
21

S.W.3d at 86. Accordingly, Crowley was not entitled to an article 38.23 instruction 

regarding the evidence seized from the vehicle. See Madden, 242 S.W.3d at 510–11; 

Garza, 126 S.W.3d at 86–87. We overrule issue four.

IV. Conclusion

The trial court did not err in denying the motion to suppress the cellular 

telephone data. Crowley failed to preserve error for his complaint that the hat should 

have been suppressed. Assuming without deciding the trial court erred in denying 

the motion to suppress GPS evidence from the vehicle, such error was harmless in 

light of the other overwhelming evidence of guilt in this case. The trial court did not 

err in refusing to include Crowley’s requested article 38.23 jury instruction, as he 

failed to raise a disputed issue of fact entitling him to such an instruction. Having 

overruled all of Crowley’s issues, we affirm the judgment of the trial court.

AFFIRMED.

 ________________________________

 CHARLES KREGER 

 Justice

 

Submitted on August 2, 2018

Opinion Delivered February 27, 2019

Do Not Publish 

Before McKeithen, C.J., Kreger, and Horton, JJ.