### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00441- CR

Juan B . P once, Appellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY

NOS . C-1 -CR- 09- 1000 03 & C-1 -CR- 09- 1000 04 HO NORAB LE J. DAVID P HI LLIP S, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A municipal court jury found appellant J uan B. Ponce g uilty of failing to notify the depar tment of publ ic s afe ty

of a c hang e of a ddress for his driver’s license, for which he was fined $200, and of failing to maintain fi n an cial responsibility , for which he was fined $350. See Tex. Transp. Code Ann. § 521.054 (West Supp. 2009), § 521.461 (West 2007), § 601.191 (West 1999). Ponce appe aled to the c ounty court a t law, which a ffirme d the convictions. See Tex. Gov’t Code 1 Ann. § 30.00014 (West Supp. 2009). Ponce then appea led to this Court. See id

. § 30.00027 (West 2004). We aff

irm the judg ment.

I n its brief to the county court at law, the State urg ed that appellant did not perf ect his appea l by 1 filing a notice of appea l. See Tex. Gov’t Code Ann. § 30.00014(d) (West Supp. 2009). The county court’s opinion does not addr ess this issue. Appellant proper ly perf ecte d his appea l to this Court.Offic er Hollie Fr anklin stopp ed ap p el lant afte r a radioe d chec k of hi s car ’s l icense

plate number reve aled that his vehicle re g istration had expired. Fr anklin testified that her first ac t afte r stopping appellant was to ask him for his driver’s license and proof of insurance

. She then noticed that the reg istration sticker on the windshield was curr ent. Appellant testified, on the other hand, that Fr anklin chec ked the reg istration sticker and rema rked that it was curr ent before she asked him for his license and proof of insurance

. Fr anklin issued citations afte r lear ning that the addre ss on appellant’ s driver’ s license wa s a y ear out of date a

nd that he did not have liability insurance

. I n his first issue on ap p eal, appellant contends that Fr anklin violated his Four th Amendment rig hts by continuing to detain him afte r she saw that his vehicle reg istration was

curr ent. The coun ty court at law conclude d that this issue was not prese rved for appea l beca use Ponce did not object to Fr anklin’s testimony o r otherwise seek to preve nt the admission of any evidenc e alleg edly obtained in violation of the Four th Amendment. See Tex. Code Crim. Proc. Ann.
art. 38.23(a) (West 2005) (evide nce obtained in violation of the constitution is inadmissible). This conclusion is corr ect. A defe ndant who does not obje ct to the admission of evidenc e cannot claim
t h at it was unlawfully obtained. Holmes v. State , 248 S.W .3d 194, 200 (Tex. Crim. App. 2008). I ssue one is over

ruled. Appellant makes two contentions in his second issue. First, h e as s er ts that the question of whether his F ourth Amendment rig hts w ere violated was not proper ly prese nted to the jury in the trial cou rt ’s charg e. The county court at law conclude d that insofar as Ponce is complaining o f t h e co urt’s failure to instruct the jury pursuant to article 38.23(a) , no err or is p re s ented beca

use Ponce did not reque st an instruction or object to its absenc e. Ther e i s s o m e

2authority , howeve r, sug g esting that an article 38.23 instruction must be g iven on the co u rt ’s own

motion whene ver there is a disputed issue o f fa ct m ater ial to whether evidenc e was lawfully obtained. See Pi ck

en s v. State , 165 S.W .3d 675, 680-81 (Tex. Crim. App. 2005); Perry v. State , 158 S.W .3d 438, 443 n.1 (Tex. Crim. App. 2004); see also Holmes , 248 S.W .3d at 202 (holding that objection to admission of evidenc e is not prer equisite to article 38.23 instruction). We conclude that the disputed fac t—whether Fr anklin asked to see Ponce’s driv er ’s l icense and proof of insurance befor e or afte r noticing that his vehicle reg istration was curr ent—was not materia l. During a routine
t raf fic stop, an office r may demand identification, a valid driver’ s license, and proof of insuran ce from the driver, and the office r may detain the driver in order to ch ec k fo r outstanding war rants. W alter v. State , 28 S

. W

. 3 d 5 3 8, 542 (Tex. Crim. App. 2000); Davis v. State , 947 S.W .2d 240, 245 n.6 (Tex. Crim. App. 1997). This portion of issue two is overruled.

Ponce also contends under issue two that the evide n ce i s fac tually insufficient to sustain t h e co n v i ct i ons. The evidenc e will be deeme d fac tually insufficient if, when viewed in a neutra l light, the evide nce suppor ting the ve rdict is so wea

k as to make the finding of g uilt clearly wrong or manifestly unjust, or if the verdic t i s aga inst the g rea t weig ht and preponde ranc e of the available evidence. W

atson v. State , 204 S.W .3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. Stat e , 23 S.W .3d 1, 11 (Tex. Crim. App. 2000). L ike the county court at law, we conclude that the evidence o f gu i lt was factually sufficie nt in light of Ponce’s own testimony admitting that, on the day in question, he did not have insurance and his driver’ s license did not show his true addre ss. The re mainder of

issue two is overrule d.

3The judg ments of conviction ar e af firmed.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: Apr il 29, 2010 Do Not Publish

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