Affirmed and Opinion filed May 28, 2015.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00170

- CR

CORNELIUS JACKSON , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law No 2

Fort Bend County, Texas Trial Court Cause No. 1 2

- CCR

- 163243

O P I N I O N A ppellant, Cornelius Jackson, appeals his conviction for driving while
intoxicated (“DWI”) . In three issues, he contends (1) the evidence is insufficient to support the conviction, (2) the trial court erred by denying appellant’s mot ion to suppress, and (3) the trial court erred by refusing to submit a requested jury
instruction

. We affirm.2 I. B ACKGROUND The State presented one witness at trial

— Trooper Devon Wiles with the Texas Department of Public Safety (“DPS”)

— and a video recor ding of his interaction with appellant . This evidence collectively showed the following : At approximately 1:30 a.m. on July 29, 2012, Trooper Wiles was on patrol in Fort Bend County. He clocked a Suburban driven by the twenty

- one
- year
- old appellant trav elling eighty

- three miles per hour on Highway 59 where the speed
limit is sixty

- five miles per hour. After Trooper Wiles signaled for appellant to stop, he pulled over on the right shoulder. When approach ing appellant’s window, the trooper detecte d a str ong odor of alcohol. Appellant denied he had been drinking and stated he was on the way to pick up his mother from a scrapbooking party . Trooper Wiles asked appellant to step to the rear of the vehicle. Appellant was “a little bit unsteady” while walki ng to the rear of the vehicle

. His clothing was “disorderly” because he wore swim trucks that were pulled down
somewhat and no shirt . At the back of the car, Trooper Wiles noticed a strong smell of alcohol on appellant’s breath. Appellant was swaying, h e leaned against a barrier for support, some of his speech was incoherent, and his eyes were red, glassy, and watery

— all of whi ch Trooper Wiles considered signs of intoxication.
A fter appellant exited the vehicle, it continued to smell strongly of alcohol

. Appellant claimed his uncle used the vehicle earlier and must have been drinking. While at the scene, appellant agreed to give a breath specimen via a portable instrument. At trial, Trooper Wiles was precluded from revealing the results of that test, but he testified the results caused him to continue his DWI investigation.
Trooper Wiles discovered there were outstanding warrants for appellant’s

arrest. Trooper Wiles arrested appellant for the outstanding warrants , handcuffed appellant , and placed h im in the trooper’s car

. Appellant insisted he be allowed to3

call his mother because she owned the vehicle. Trooper Wiles replied that he was not required to permit the call , but he did allow it

. The mother asked if she could
retrieve the vehicle. Troo per Wiles told her that she had fifteen minutes to retrieve
the vehicle or it would be towed , which the trooper explained at trial w as a courtesy he was not required to extend. The mother said she would be there

. During that time period, Trooper Wiles c onducted a search of the vehicle,
which he characterized as an inventory pursuant to DPS policy when a vehicle will
be impounded

— in case the mother did not appear. Trooper Wiles found a styrofoam cup contain ing ice and a beverage which smelled strongly of alcohol , “stuffed” under the back seat near the driver’s side

. Appellant’s mother eventually
arrived and retrieve d the vehicle.
After appellant was placed in the trooper’s car, his attitude became combative and sarcastic. He engaged in various rambling , verbal tirades against Trooper Wiles, including repeatedly stating, “You gonna beat my ass ? ” “you’re not
even human , ” and that “most cops” lie. This demeanor continued while he was being transported to the jail.

A t the jail, Trooper Wiles requested tha t appellant perform field sobriety tests and provide a breath specimen via the Intoxilyzer 5000. Trooper Wiles read appellant statutory warnings relative to t he request for a breath specimen

. Appellant refused to submit to the field sobriety tests or pro vide a breath specimen , without an attorney being present, but, according to Trooper Wiles, there is no right to an attorney during those tests. Appellant was then arrested for DWI.
Trooper Wiles had perform ed at least thirty DWI investi g ations during t he year before trial of the present case. In Trooper Wiles’s opinion, appellant was
intoxicated when his vehicle was stopped by Trooper Wiles

.4

Additionally, the State presented a completed DPS “Property Inventory” form, which included the following entry under the list of items found in the
vehicle : “ 1 O pen W hite C up A lcoholic B ev .”
Appellant filed a pre

- trial motion to suppress evidence regarding the cup containing an alcoholic beverage found in the vehicle. During trial, but before the
evidence was a dmitted, the court heard and denied the motion to suppress.
A jury found appellant guilty of DWI. The trial court assessed punishment at 180 days in jail, probated for eighteen months, and a fine.

I I. S UFFICIENCY OF THE E VIDENCE In his first issue, app ellant contends the evidence is insufficient to support
his conviction. When reviewing the sufficiency of the evidence, we view all evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences the refrom, whether any rational fact finder could have found the elements of the offense beyond a reasonable doubt. Gear v.
State , 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). This standard gives full play to the responsibility of the trier of fact fairly t o resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate
facts. Id. Circumstantial evidence is as probative as direct evidence in establishing guilt. Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)

. Each fact need not point directly and independently to guilt, as long as the cumulative force of all incriminating circumstances is sufficient to support the conviction. Id.
A person commits DWI if he “i s intoxicated while operating a moto r vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a) (West, Westlaw through 2013 3d C.S.). Relative to this case, “ i ntoxicated” means “ not having the normal use of5

mental or physical faculties by reason of the introduction of alcohol . . . into the body

. ” See i d. § 49.01(2) (West, Westlaw through 2013 3d C.S.).
Based on the following, the jury could have found beyond a reasonable
doubt that appellant was intoxicated when stopped by Trooper Wiles :

 A ppellant’s excessive speed, disorderly clothing, unsteady gait and stance , incoherent speech, red, glassy, and watery eyes , and combative behavior

. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010) ( recogniz ing evid ence rais ing inference of i ntoxicat ion include s erratic driving, post

- driving behavior such as stumbling, swaying, slurring or mumbling words, and bloodshot eyes) ; Cotton v. State, 686 S.W.2d 140, 142

– 43 & 142 n.3 (Tex. C rim

. A pp. 1985) (identifying characteristics that may constitute evidence of intoxication to includ e slurred speech, bloodshot eyes, unsteady balance, and s taggering gait ) ;

 The fact that appellant’s breath smelled strongly of alcohol , and a cup containing a fresh alcoholic beverage was found in his vehicle

— together with a reasonable inference that appellant hi d it under the back seat when he realized he was being stopped ; s ee Cotton , 686 S.W.2d at 142 n.3 ( including the odor of alcohol on the person or his breath as characteristic that may constitute evidence of intoxication) ;

 Trooper Wiles’s opin i on , based on the above

- cited facts and his experience , that appellant was intoxicated and more specifically had lost “the normal use of his mental and/or physical faculties.” See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979) (holding officer’s opinion that defendant was intoxicated was legally sufficient to support DWI conviction when base d on officer’s experience and observed facts, including defendant swerved his car across lane

- divider, he appeared disorderly, his speech was “mush

- mouthed,” his eyes were red, his breath smelled of alcohol, and he swayed when walking or standing) ; Henderson v. State , 29 S.W.3d 616, 622 (Tex. App.

— Houston [1st Dist.] 2000, pet. ref ’ d) ( stating testimony of a police officer that an individual is intoxicated is probative evidence of intoxication) ; and

 Appellant ’s refus al to submit to the Intoxilyzer 5000 breath test and field sobriety tests

. See Bartlett v. State , 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (recognizing defendant’s refusal to submit to breath test is relevant to show consc iousness of guilt); Barraza v. State, 733 S.W.2d 379, 381 (Tex. App.

— Corpus Christi 1987) , aff ’ d, 790 S.W.2d 654 (Tex.6

Crim. App. 1990) (holding there is no significant difference between refusal to take field

- sobriety test and refusa l to perform breath test for evidentiary purposes); see also Tex. Transp. Code Ann. § 724.061 (West, Westlaw through 2013 3d C.S.) (“A person’s refusal of a request by an officer to submit to the taking of a specimen of breath or blood, whether the refusal was express or the result of an intentional failure to give the specimen, may be introduced into evidence at the person’ s trial.”)

. Appellant cites several factors as purportedly negating he was intoxicated: contrary to Trooper’s Wiles testimony, the video sh ows appellant was not “slurring, swaying, or stumbling”; he did not weav e or driv e erratically; he signaled and safely pulled over when Trooper Wiles activated his lights; he had no difficulty locating his proof of insurance; he coherently provided his nam e and address; and Trooper Wiles did not perform any field sobriety tests at the scene. The video does not contradict Trooper Wiles’s testimony. Trooper Wiles never testified appellant was “stumbling” but that he was “a little bit unsteady ” ; the jury co uld perceive from the video that this description was accurate. The video is not entirely clear on whether appellant sway ed ; but it indicates appellant attempted to lean on a barrier, consistent with the trooper’s description that such action was
intended to keep from swaying . The jury was free to believe Trooper Wiles who was in a better position to observe appellant’s stance. Additionally , Trooper Wiles did not testify that appellant slurred his speech but rather that he was incoherent
because some of his speech was difficult to understand. The video confirms there were instances in which appellant rambled incoherently about various matters. Appellant cites no authority that the other factors he outlines are dispositive on
whether he was intoxicated. We defer to the jury’s role to weigh th e se factors against those cited above which support a finding that appellant was intoxicated.
See Gear , 340 S.W.3d at 746

.7

In summary , the evidence is sufficient to support appellant’s conviction for
DWI . We overru le hi s first issue.

I II. M OTION TO S UPPRESS In his second issue, appellant argues the trial court erred by denying appellant’s motion to suppress the evidence that a cup containing an alcoholic beverage was found in his vehicle. Appellant cont ends the wa rrantless search of
his vehicle violat ed the United States and Texas Constitutions and did not satisfy the exception for a lawful inventory search

. Before the State presented Trooper Wiles’s testimony regarding the cup , the trial court held a hearing, outs ide the jury’s presence, on the motion to suppress. After hearing evidence, the trial court denied the motion. The n, the information regarding the cup was admitted via three separate avenues : (1) Trooper Wiles’s testimony ; (2) the video ; 1 and (3) the inv entory sheet.

A. Standard of Review and Applicable Law

We review a trial court ’ s ruling on a motion to suppress under a bifurcated
standard of review

. Amador v. State , 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) . We giv e almost total deference to the trial court ’ s findings of historical fact that are supported by the record and its application of the law to facts if the resolution of those questions turns on an evaluation of credibility and demeanor.
Id. We review d

e novo the trial court ’ s application of the law to the facts when the issue does not turn on credibility and demeanor

. Id. The trial court is the exclusive trier of fact and judge of the credibility of the witnesses and the weight to be given to their te stimony at the suppression hearing. State v. Ross , 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)

. In reviewing a trial court ’ s ruling on a motion to

1 While conducting the inventory, Trooper Wiles announce d on the recording that h e found an open container with ice and a strong smell of alcohol.8

suppress, we must view the evidence in the light most favorable to the ruling. State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)

. The Fourth Amendment to the United States Constitution protect s against
unreasonable searches and seizures

. U.S. Const. amend. IV

. 2 A warrantless sea rch of property is presumptively unreasonable subject to a few specifically defined and
well

- established exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003)

. An inventory search of an automobile purs uant to a lawful impoundment is such a n exception and does not implicate the policies underlying
th e warrant requirement. See Colorado v. Bertine , 479 U.S. 367, 37 1 ( 1987 ) ; Moskey v. Sta te , 333 S.W.3d 696, 700 (Tex. App.

— Houston [1st Dist.] 2010, no pet.) (citing South Dakota v. Opperman , 428 U.S. 364, 375

– 76 (1976) ; Benavides v. State, 600 S.W.2d 809, 810 (Tex. C rim. App. 1980) )

. An inventory search protects (1) the owner’s property while the vehicle is in police custody, (2) the police against claims or disputes over lost , stolen , or vandalized property, and (3) the police from possible danger. Bertine , 479 U .S. at 37 2

. Issues of probable cause are irrelevant because an inventory is not conducted to investigate criminal activity but instead to fulfill the above listed purposes. See id. at 37 1

– 72.
Before an inventory search is lawful, there must be a lawful i mpoundment.
Benavides , 600 S.W.2d at 810

. Among other situations, an automobile may be impounded if the driver is removed from the automobile and placed under
custodial arrest and no other alternatives are available to e ns ure the protection of
the vehicle. Id. at 811 ; Josey v. State , 981 S.W.2d 831, 842 (Tex. App.

— Houston

2 A ppellant also generally asserts the search violated the Texas Constitution, which likewise protects against unreasonable searches and seizures. See Tex. Const. art. I, § 9. Appellant does not argue his state claim separately from his federal claim or contend the state constitution affords greater protections than the federal constitution . Consequently, we will analyze the claim solely under Fourth A mendment law. See Manns v. State , 122 S.W.3d 171, 192 n.97 (Tex. Crim. App. 2003)

.9

[14 th Dist.] 1998, pet. ref ’ d) . Our court has outline d some factors that may be
consid ered to determine the reasonableness of impoundment: (1) whether someone was available at the scene of the arrest to whom the police could have given possession of the vehicle; (2) whether the vehicle was impeding the flow of traffic or was a danger to pub lic safety; (3) whether the vehicle was locked; (4) whether the detention of the arrestee would likely be of such duration as to require police to take protective measures; (5) whether there was some reasonable connection
between the arrest and the vehicle ; and (6) whether the vehicle was used in the
commission of another crime. Josey , 981 S.W.2d at 842

.
To satisfy th e exception, the inventory search must be conducted in good faith and pursuant to a reasonable standardized police procedure. Moskey , 333
S.W.3d at 700 ( citing Bertine , 479 U.S. at 37 4 ). The search must be designed to produce an inventory of the vehicle ’ s contents and may not be used a s a “‘ruse for a general rummaging in order to discover incriminating evidence.’ ” Id. (quoting
Florida v. Wells , 495 U.S. 1, 4 (1990) ). The State bears the burden to establish that the police conducted a lawful inventory search. Id. (citing Gauldin v. State , 683 S.W.2d 411, 415 (Tex. Crim. App. 1984) , overruled on other grounds by
Heitman v. State , 815 S.W.2d 681 (Tex. Crim. App. 1991) ; Evers v. State , 57 6 S.W.2d 46, 50 & n.5 (Tex. Crim. App. 1978) )

. The State meets its burden by demonstrating an inventory policy exists and the officers followed the policy. Id. (citing Moberg v. State , 810 S.W.2d 190, 195 (Tex. Crim. App. 1991) ). Moreover,

a n inventory search is not rendered unlawful because it is conducted prior to actual impoundment. See Daniels v. State , 600 S.W.2d 813, 81 5 (Tex. Crim. App. 1980)

.10

B

. Analysis

We conclude the State proved the inventory search in the present case was
lawful. 3 The trial court issued findings of fact and conclusions of law relative to denial of appellant’s motion suppress. The following findings are pertinent to the
trial court’s determination that t he inventory w as lawful :
15. Trooper Wiles . . . arrested Defendant for outstanding warrants. 17. At the Defendant ’ s request, Trooper Wiles contacted the Defendant ’ s mother, who was the owner of the vehicle Defendant was driving. Trooper Wiles had a conv ersation with the Defendant's mother and indicated to her that he would give her 15 minutes to arrive at the scene to pick up the vehicle, rather than having it towed. 18. Soon after this conversation with the Defendant ’ s mother, Trooper Wiles decided to inventory the car, just in case the Defendant ’ s mother did not come. 19. During the inventory search, Trooper Wiles discovered a cup on the floorboard of the back seat of the vehicle, behind the driver ’ s seat, containing a liquid that was pink in color, with ice cubes still intact and had an odor of alcohol that the Trooper characterized as “strong.”

3 The State contends appellant failed to preserve his complaint because he stated “no objection” when the videotape and inventory form we re offered. The Texas Court of Criminal Appeals has held that, although a motion to suppress preserves error without the need to object when the challenged evidence is subsequently offered at trial, a defendant waives his complaint if he affirmatively sta tes “no objection” when the evidence is offered. See, e.g. Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985) , overruled on other grounds by Woods v. State, 956 S.W.2d 33 (Tex. Crim. App. 1997) . However, the court more r ecently clarified that this principle is “context

- dependent” : if the whole record plainly demonstrates the defendant did not intend, and the trial court did not construe, the “no objection” assertion to abandon the earlier preserved complaint , the complain t is not waived. See Thomas v. State , 408 S.W.3d 877, 885 (Tex. Crim. App. 2013) . Arguably, because appellant did not abandon his motion to suppress relative to Trooper Wiles’s testimony, appellant did not intend to abandon the motion relati ve to the videotape and inventory form , which essentially mirror ed the trooper’s testimony regarding the cup

. Regardless, we need not decide whether appellant preserved error because we conclude the trial court did not err by deny ing the motion to suppress.11

30. Trooper Wiles [] testified that there were tow trucks near the site of the traffic stop, therefore it was unnecessary for him to make a call for a tow t ruck. 31. It was not reasonable to expect the Trooper to wait 15 minutes for the Defendant ’ s mother to arrive, then take an additional 15

- 30 minutes to inventory the vehicle once he realized that she was not coming. The State asserted that while waiting for the Defendant ’ s mother to come, Trooper Wiles did the inventory search. Troo p er Wiles had ever y intent to impound the vehicle if Defendant ’ s mother had not shown up. 32. When Defendant was arrested for the outstanding warrants, Trooper Wiles followed DPS policy. Trooper Wiles completed the standard inventory form and attached it to his offense report, which was then submitted to the District Attorney ’ s office. (internal record references omitted).

The following conclusions of law are pertinent to th e trial court’s
determination that the inventory was lawful :

6.

. . . The Defendant was arrested for outstanding warrants. At the time of his arrest, there were no alternatives other than impoundment present at the time Trooper Wiles conducted the invento ry search. An inventory policy is currently in effect for the [DPS] and Trooper Wiles adhered to that policy, based on the completion of the HQ

- 109 Inventory sheet. 9. Defendant’s arrest was lawful because the officer discovered the Defendant had outstand ing Texas warrants for his arrest. 10. Impoundment of Defendant ’ s vehicle was lawful, because there

were no r easonable alternatives to impoundment. No one else was available at the scene at the time of arrest to take possession of the vehicle, and Troo per Wiles was reasonable in his belief that the person who claimed that she would show up to t a ke possess io n of the veh ic le may not arrive in a ti mely

manner. At least one of the factors listed in Josey weigh in favor of a lawful impoundment. (emphasis in original)12

11. The State established that DPS has a policy in place for inventory procedures and that Trooper Wiles followed that policy in his inventory search. The inventory search was not a

“ ruse for a general rummaging in order to discover incriminati ng evidence. ” I n stead, the in ventory search was conducted by T rooper W i les in good faith that he was taking custody of the vehicle pursuant to DPS procedures. Trooper Wiles completed the HQ

- 109 inventory sheet in compliance with the DPS ’ inventory policy

. 12. The State sa ti sf

i ed its burden to demonstrate that Trooper Wiles conducted a valid inventory search, conducted in accordance with his agency ’ s policy on in vento rie s. The d ri ver was arrested for outstand in g warrants. [ The] State asserted that althou gh there were available alternatives other than impounding the Defendant ’ s vehicle, that alternative was not at the roadside at the time the trooper conducted his inventory. If the alternative did not show up within the time allotted by the trooper as a c ourtesy to the Defendant ’ s mother, then the trooper was ready to continue the lawful traffic stop and arrest and have the car impounded. (internal legal citations omitted).
Appellant proffers several reasons that the trial court erred by concluding the
int ended impoundment and inventory were valid. Appellant apparently challenges the trial court’s finding that Trooper Wiles intended to impound the vehicle. However, the finding is supported by the record. Trooper Wiles’s testimony at the suppression hear ing was essentially the same as his trial testimony , and relevant portions of the video were admitted

. In summary, during their phone conversation, appellant’s mother asked if she could retrieve the
vehicle , Trooper Wiles replied that she had fifteen minu tes or else it would be towed, and the mother said she would be there. Trooper Wiles testified he was not required to allow her to retrieve the vehicle and he start ed the inventory in case she did not arrive or took too long and he needed to impound it

. His testimony made13

clear his search was intended as an inventory pursuant to impoundment and he was not looking for “anything in particular.” He can be heard on the videotape telling his dispatcher he intends to conduct the inventory in case the mother do es not arrive. Appellant presented no evidence disputing Trooper Wiles’s testimony,
which the trial court was free to believe. See Ross , 32 S.W.3d at 855 . Appellant relies on the fact that Trooper Wiles had not called a tow truck as demonstrating
the in ventory was a “ruse” for searching for evidence. However, Trooper Wiles explained at the suppression hearing, as the trial court found, that he did not need to call a tow truck because some were already gathered at the scene and one would
be available as soon as he summoned.

A ppellant also contends there was a reasonable alternative to impoundment
because Trooper Wiles gave appellant’s mother fifteen minutes to arrive and
retrieve the vehicle. It is undisputed Trooper Wiles had this conversation with the mother; thus, we review as a question of law the trial court’s conclusion that there

was no reasonable alternative to impoundment despite th at conversation

. We agree
with the trial court’s conclusion. As the trial court noted, the pertinent factor previo usly set forth by o u r court is whether there was an alternative to impoundment “at the scene.” See Josey , 981 S.W.2d at 842

. Undisputedly, appellant was alone at the scene , and there was no one else present to take

posses sion of the vehicle immediately after hi s ar r est

. Further, a sister court addressed a similar issue when upholding a conviction for possession of cocaine. In Yaws v. State , 38 S.W.3d 720 , 722 (Tex. App.

— Texarkana 2001, pet ref’d) , officer s arrested the de fendant for an outstanding

warrant . An officer found cocaine when, pursuant to department policy, he inventoried the defendant’s truck in order to impound it. Id. The officers’14

testimony demonstrated the search was intended as an inventory and not
“inve stigatory” because they did not suspect the truck contained drugs. See id. at 722, 725. The defendant had asked a deputy to call the defendant’s wife, stating
she could arrive and retrieve the truck within fifteen minutes, but the officer
refused. Id. The court of appeals held the impoundment was proper because there was no other person “on the scene” who could take possession of the truck. Id. at
724.
The defendant complained that the officers ignored the “ reasonable
alternative ” of his wife retriev ing the truck within fifteen minutes. Id. When rejecting this complaint, the court recognized that Texas court s (1) have generally
found i m poundment to be rea s onable if a driver was alone when arrested or passengers could not show they were licensed driv ers, and (2) have not required
the p o lice to contact a relati v e or friend of the defendant to come to the scene and take possession of the vehicle. Id

. (citing Stephen v. State , 677 S.W.2d 42, 43

– 44 (Tex. Crim. App. 1984) ; Backer v. State , 656 S.W.2d 463, 464 (Tex. Crim. App. 1983) ; Daniels , 600 S.W.2d at 814

– 15 ) )

. T he defendant emphasized the officers had actual knowledge the defendant’s wife could arrive w ithin fifteen minutes
because he provided that information. See id. at 725. The court concluded the defendant’s statement did not amount to actual knowledge on the officers’ part. Id. Nonetheless, the court held that , even if the officers believed the wife was fifteen minutes away, the court declined to impose a requirement that they contact her “because it could result in the police remaining at the scene longer than reasonabl y necessary.” Id.
Applying this principle to the present case, Trooper Wil es was not required to allow appellant to contact his mother to retrieve the vehicle, much less wait on her to do so, even after voluntarily extending that courtesy. The mother’s stating15

she would appear within fifteen minutes did not amount to actual kno wledge on the part of Trooper Wiles that she would do so, particularly in the middle of the night. In fact, the mother did not arrive in fifteen minutes although she did eventually
arrive

. Requiring Trooper Wiles to wait to determine whether the mother w ould

appear before beginning impoundment procedures would have resulted in the trooper remaining at the scene longer than reasonably necessary. See id.
Finally, a ppellant suggests that, contrary to the trial court’s finding, Trooper
Wiles failed to follow DPS guidelines

. However, Trooper Wiles testified during

tr i al that the DPS guidelines call for an inventory if a vehicle will be impounded
and require the officer to complete an inventory sheet

. 4 As discussed above , we conclude Trooper Wiles’s decision to commence impoundment procedures was proper at the time he conducted the inventory although he did not ultimately impound it. Appellant suggests Trooper Wiles failed to complete a written inventory report . But , appellant ignores the trooper ’s testi mony that he complete d the DPS standard inventory sheet, consistent with his customary practice, and it
was admitted at trial.

4 During the suppression hearing, Trooper Wiles did not express ly stat e what the DPS

“ guidelines ” are . Instead, he subsequently provided such testimony before the jury. As a general rule, if the trial court is never asked to e xercise its discretionary authority to reopen the suppression hearing, appellate review of its ruling on a motion to suppress is limited to th e evidence presented at the pretrial hearing

— the evidence before the court at the time of its decision. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012) . As an exception, if the parties consensually broach the suppression issue again before the fact

- finder at trial, the appellate court should also consider the evidenc e adduced before the fact

- finder in reviewing the propriety of the ruling on the motion to suppress

. Id. In this case, the parties consensually broached before the jury the issue regarding legality of the inventory search because it was appellant who eli cited the testimony from Trooper Wiles regarding the guidelines. Accordingly, we consider that testimony in our review.16

In summary, because the cup was found during a lawful inventory search, the trial court did not err by denying appellant’s motion to suppress. We overrule
his second issue.

I V

. R EQUESTED J URY I NSTRUCTION In his third issue, appellant contends the trial court erred by refusing to submit a jury instruction pursuant to Texas Code of Crim inal Procedure article
38.23

. A. Applicable Law an d Standard of Review Article 38.23 provides in pertinent part: (a) No evidence obtained by an officer or other person 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. In any case where 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. Tex. Code Crim. Proc. Ann. art. 38.23 (a) (West, Westlaw through 2013 3d C.S.)

A defendant ’ s right to submissio n of a jury instruction under article 38.23 is “limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.” Madden v. State , 24 2 S.W.3d 504, 5 09

– 10 (Tex. Crim. App. 2007)

. Before a defendant is entitled to
such an instruction , (1) 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. Id. at 510

. T here must be a genuine dispute about a17

material issue of fact before an article 38.23 instruction is warranted; if there is no disputed fact issue, the legality of the conduct is determined by the court alone, as
a matter of law. Id. at 510

. In order for there to be a conflict in the evidence that raises a disputed fact issue, th ere must be some affirmative evidence in the record that puts the existence of that fact in question. Id. at 513

. We review a trial court ’ s refusal to submit an instruction in the jury charge for abuse of discretion. See
Wesbrook v. State , 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)

. Ap pellant generally asserts on appeal that he was entitled to a jury instruction regarding the legality of the inventory search . However, he fails t o identify any contested question of fact on that issue. At trial, he seemed to request

an a rticle 38.23 instruction on whether there was an alternative to impoundment and whether Trooper Wiles followed DPS guidelines

. Consequently, we construe his appel late complaint as challenging the trial court ’s deni al of that reque s t. There was no contested question of fact on the issue of whether there was a reasonable alternative to impoundment. As mentioned above, the facts pertinent to that issue were undispu ted

— i.e., the contents of Trooper Wiles ’s telephone
conversation with appellant’s mother. The trial court was presented with a legal
issue on whether there was no reasonable altern ative to impoundment despite that

c onversation. Further, there was no affi rmative evidence in the record controverting Trooper Wiles’s testimony that he followed the DPS guidelines. Accordingly, we conclude the trial court did not err by denying appellant’s request
for an a rticle 38.23 instruction. We overrule appellant’s thir d issue.18

We affirm the trial court’s judgment.

/s/ John Donovan Justice

Panel consists of Justices Christopher , Donovan , and Wise

. Publish

— Tex. R. App. P. 47.2( b).