In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-21-00113-CR

___________________________

On Appeal from County Criminal Court No. 9

Tarrant County, Texas

Trial Court No. 1560062

Before Womack, Wallach, and Walker, JJ.

Memorandum Opinion by Justice Womack

RICHARD DAVID ROBINSON, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION

I. INTRODUCTION

By information, the State charged Richard David Robinson with the offense of 

driving while intoxicated with an alcohol concentration of 0.15 or more, a Class A 

misdemeanor. See Tex. Penal Code Ann. § 49.04(d). After the trial court overruled

Robinson’s motion to suppress and request for a jury instruction under Texas Code of

Criminal Procedure article 38.23, a jury found him guilty, and the trial court sentenced 

him to ninety days in jail (probated for two years) and a fine of $1,500.

On appeal, Robinson asserts that the trial court erred in denying his motion to 

suppress and requested Article 38.23 charge. We hold that both the facts and the law 

support the trial court’s rulings, overrule Robinson’s contentions, and affirm the trial 

court’s judgment. 

II. BACKGROUND

On August 29, 2018, Robinson purchased three bottles of Steel Reserve1at a

QuikTrip in Euless, Texas. Later that evening, Nicholas Kubik-Powell (Nick), a 

manager at the QuikTrip, called 911 after going outside and noticing Robinson

unconscious in the driver’s seat of a white Ford four-door vehicle. Nick also noticed 

an empty Steel Reserve bottle on the vehicle’s dashboard. Euless Police Officers 

1Steel Reserve is a brand of malt liquor. See Wood v. State, No. 01-13-00845-CR, 

2014 WL 5780273, at *1 (Tex. App.—Houston [1st Dist.] Nov. 6, 2014, pet. ref’d)

(mem. op., not designated for publication).
3

Blake Mitchell and Isiah Moala arrived at the QuikTrip shortly thereafter and found

Robinson unconscious in the driver’s seat of a white Ford four-door truck. The truck 

was parked and running. Mitchell walked around the truck and tried the door handles 

but found the doors to be locked. He then tapped on the driver’s-side window, and 

Robinson awoke. Both officers instructed him to open the door, but Robinson did 

not comply.

Mitchell then moved his patrol car directly behind Robinson’s truck to secure 

the truck in place.2 Robinson refused to comply with the officers’ commands that he 

open the door, even after Mitchell warned him that they would break a window to his 

truck if he did not get out. Robinson told Mitchell to “break it.” Moala then broke 

the rear-seat window on the passenger side, unlocked one of the doors, and climbed 

inside. Robinson, meanwhile, shifted his truck into reverse and backed into Mitchell’s 

patrol vehicle, then shifted into drive and drove forward a short distance before 

coming to an abrupt stop. Mitchell pulled Robinson out of the truck and arrested 

him. A breath test taken at the jail showed Robinson’s alcohol concentration to be 

0.243 grams of alcohol per 210 liters of breath. 

At his trial, Robinson moved to suppress his detention and arrest. He argued

that the officers did not have reasonable suspicion to detain him or probable cause to

2Mitchell testified at the trial that this is a police tactic they call “positive 

contact” and is meant to minimize the impact in the event a sleeping driver were to 

“just wake up and slam [his] car in reverse or drive.”
4

arrest him. The trial court carried Robinson’s motion and, after the close of the 

evidence, overruled the motion and found, “based upon the facts and circumstance 

contained in the record[,] that it was reasonable for the officers to initiate a detention

and further [that] a reasonable person in the officer’s position would have had 

probable cause to believe the defendant had committed an offense and was subject to

arrest.” Robinson then requested that an Article 38.23 instruction be included in the 

jury charge:

I believe the officer said the detention was made based on a possibly 

intoxicated person. I believe that the first witness, the actual 911 caller, 

said he didn’t know whether the person was intoxicated or not, he could 

have just been asleep. He didn’t believe he was intoxicated. In fact, he 

doesn’t even say he was intoxicated. Again, both the officers testified 

they came and saw somebody asleep in the truck. Even at one point 

when the State objected to my asking about him being asleep you had 

told them in the objection that it is a fact issue whether somebody was

passed out or asleep. We believe that portion -- that was a determination 

for the jury. Was he -- Was this a lawful detention based on him -- the 

fact question of whether he -- did he appear intoxicated. And so we

would ask for the 38.23 instruction be given to the jury.

The trial court overruled this request and submitted the case to the jury, who then 

convicted Robinson. 

III. DISCUSSION

Robinson’s issues on appeal center around the legality of his detention at the 

QuikTrip. The law recognizes three distinct types of interactions between the police 

and citizens: (1) consensual encounters that do not implicate the Fourth Amendment; 

(2) investigative detentions that are Fourth Amendment seizures of limited scope and 
5

duration that must be supported by a reasonable suspicion of criminal activity; and 

(3) arrests—the most intrusive of Fourth Amendment seizures—that are reasonable 

only if supported by probable cause. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. 

App. 2013).

A. Robinson’s Motion to Suppress

In his first issue, Robinson argues that the trial court erred in failing to grant 

the motion to suppress his detention and arrest. The State responds that the initial 

interaction between Mitchell and Robinson was a consensual encounter, not a 

“seizure” under the Fourth Amendment, and that Mitchell developed reasonable 

suspicion to detain Robinson during this consensual encounter. 

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

suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). 

Because the trial judge is the sole trier of fact and judge of the witnesses’ credibility 

and the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. 

Crim. App. 2007), we defer almost totally to a trial court’s rulings on questions of 

historical fact and application-of-law-to-fact questions that turn on evaluating 

credibility and demeanor, but we review de novo application-of-law-to-fact questions 

that do not turn on credibility and demeanor, Martinez, 570 S.W.3d at 281. Whether 

the totality of circumstances supports reasonable suspicion or probable cause is a legal 

determination we review de novo. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. 

App. 2008).
6

When the trial court makes explicit fact findings, we determine whether the 

evidence, when viewed in the light most favorable to the trial court’s ruling, supports 

those findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We then 

review the trial court’s legal ruling de novo unless its explicit fact findings that are 

supported by the record are also dispositive of the legal ruling. State v. Kelly, 

204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

When the record is silent on the reasons for the trial court’s ruling, or when 

there are no explicit fact findings and neither party timely requested findings and 

conclusions from the trial court, we infer the necessary fact findings that would 

support the trial court’s ruling if the evidence, viewed in the light most favorable to

the trial court’s ruling, supports those findings. Johnson, 414 S.W.3d at 192; Kelly, 

204 S.W.3d at 818–19. We then review the trial court’s legal ruling de novo unless the 

implied fact findings supported by the record are also dispositive of the legal ruling. 

Kelly, 204 S.W.3d at 819. Here, the trial court did not make explicit fact findings other 

than what was stated on the record when the trial court denied Robinson’s motion,

and neither party timely requested further findings and conclusions. 

1. At the point when Robinson was “seized,” Officer Mitchell had

reasonable suspicion to detain him.

The Fourth Amendment protects against unreasonable searches and seizures 

by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. A 
7

defendant seeking to suppress evidence on Fourth Amendment grounds3 bears the 

initial burden to produce some evidence that the government conducted a warrantless 

search or seizure that he has standing to contest. Rawlings v. Kentucky, 448 U.S. 98, 

104–05, 100 S. Ct. 2556, 2561 (1980); State v. Martinez, 569 S.W.3d 621, 623 (Tex. 

Crim. App. 2019). Once the defendant does so, the burden shifts to the State to 

prove either that the search or seizure was conducted pursuant to a warrant or was 

otherwise reasonable, if warrantless. Martinez, 569 S.W.3d at 624. There is no 

evidence that Robinson was seized pursuant to a warrant, so the State bore the 

burden to show that the detention and arrest were reasonable under the applicable

standards. 

A detention may be justified if a person is reasonably suspected of criminal 

activity based on specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 

1879–80 (1968); Johnson v. State, 622 S.W.3d 378, 384 (Tex. Crim. App. 2021). An 

officer conducts a lawful temporary detention when he reasonably suspects that an 

individual is violating the law. See Johnson, 622 S.W.3d at 384. Reasonable suspicion 

exists when, based on the totality of the circumstances, the officer has specific, 

3Although Robinson based his motion to suppress at trial on “both the United 

States and Texas Constitution[s],” he relies only on the Fourth Amendment to the 

United States Constitution and related case law to support his appellate argument on 

this point. When an appellant’s argument is based on both the federal and state 

constitutions but does not cite any argument or authority under the state constitution, 

we review only the federal arguments. Welch v. State, 93 S.W.3d 50, 52 & n.5 (Tex. 

Crim. App. 2002). Therefore, we analyze Robinson’s first point of error as a federal 

constitutional issue only. 
8

articulable facts that, when combined with rational inferences from those facts, would 

lead him to reasonably conclude that a particular person is, has been, or soon will be 

engaged in criminal activity. Id. This is an objective standard that disregards the 

detaining officer’s subjective intent and looks solely to whether the officer has an 

objective basis for the stop. Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim. 

App. 2017). 

Robinson bases his position that the State failed to establish reasonable 

suspicion in this case on “the fact that right off the bat, the State failed to prove 

through the 911 call that the officers were acting properly and in response to a welfare 

call.” This fact is irrelevant, however, because (1) the State’s burden to justify the 

warrantless detention at issue was not to show the propriety of or subjective 

motivation for the officers’ actions but to provide an objectively reasonable basis for 

the seizure, and (2) the State did not need the 911 call to meet this burden.4

A “seizure” under the Fourth Amendment does not occur until (1) a 

reasonable person would believe he or she was not free to leave, and (2) the person

being seized has either yielded to the officer’s show of authority or been physically 

forced to yield. Johnson v. State, 912 S.W.2d 227, 236 (Tex. Crim. App. 1995). When a 

4For all the references to Nick’s 911 call, we note that neither party ever offered 

the audio of the call into evidence (for the record only or for all purposes). Because

we hold that the police had reasonable suspicion to detain Robinson when they did 

and probable cause to arrest him when they did, based on what they personally 

observed at the scene, we need not address whatever was said on the 911 call.
9

suspect refuses to yield to physical force or an officer’s show of authority, there is no 

seizure. State v. Castleberry, 332 S.W.3d 460, 469 (Tex. Crim. App. 2011). 

Here, when Mitchell first arrived at the QuikTrip and approached Robinson’s 

truck, Robinson was asleep. When Moala arrived and walked up to the truck, 

Robinson was still asleep. As the sleeping Robinson was unaware of the officers’

presence outside his vehicle, he could not have yielded to any show of authority, see 

York v. State, 342 S.W.3d 528, 534 n.16 (Tex. Crim. App. 2011) (citing, with approval, 

cases holding that a sleeping or unconscious suspect is not “seized” because he 

cannot submit to a “show of authority” of which he is unaware), and at this point, the

officers had not used physical force against him. It was not until he awoke and 

Mitchell told him, “You’re not goin’ anywhere,” and he yielded to Mitchell’s authority 

by remaining in place that Robinson was “seized.”

5

 The question for the trial court

was, and for us now is, whether at that point the officers had specific and articulable 

facts that, when combined with rational inferences from those facts, would have led 

5Mitchell testified that, as soon as he arrived, Robinson was detained and was

not free to leave. Lack of freedom to leave, though, is only half of the equation for a 

detention or seizure that implicates the Fourth Amendment, and the standard is 

whether a reasonable person would believe that he was not free to leave. Johnson, 

912 S.W.2d at 236. Regardless of what Mitchell subjectively believed he was doing 

when he first pulled into that parking lot, because he had not yet employed physical 

force, Robinson was not seized/detained until he submitted to Mitchell’s “show of 

authority.” See Brendlin v. California, 551 U.S. 249, 254–55, 127 S. Ct. 2400, 2405–06

(2007) (“[T]here is no seizure without actual submission” to “a show of authority,”

and the test is whether “a reasonable person would have believed that he was not free 

to leave” or whether “a reasonable person would feel free to decline the officers’ 

requests or otherwise terminate the encounter.”).
10

them to reasonably conclude that Robinson was, had been, or soon would be engaged 

in criminal activity. See Johnson, 622 S.W.3d at 384 (setting out standards for

reasonable suspicion). 

Unsurprisingly, Robinson and the State rely on different cases to support their

respective arguments; Robinson likens his case to State v. Griffey, 241 S.W.3d 700 (Tex. 

App.—Austin 2007, pet. ref’d), while the State cites York. Both cases are 

distinguishable from this one, but the facts of York more closely resemble the 

circumstances present in Robinson’s case. In York, a patrol officer observed a car 

parked partially on the sidewalk immediately in front of an Exxon store around 

3:00 a.m., with the headlights on and the engine running. 342 S.W.3d at 530–31. The 

officer approached the car and saw that the defendant was in the car asleep with the 

seat laid back. Id. at 531. The Court of Criminal Appeals found these circumstances

sufficient to give rise to a reasonable suspicion that would permit an investigative 

detention:

From the circumstances present here, Officer Johnson could reasonably 

suspect that appellant was intoxicated. And with the engine running, an 

intoxicated driver might have awakened, and in his stupor, driven into 

the store. Or he might have returned to the road, where he would pose 

a threat to others who were traveling. It would be reasonable to suspect 

that appellant posed a danger to himself or others.

Id. at 537. These concerns proved realistic in the instant case; within minutes of 

waking up, Robinson backed his truck into Mitchell’s vehicle, spinning his wheels so
11

hard that the friction with the pavement created smoke, and then drove forward, over 

the curb, with Moala inside his vehicle.

The facts here are not exactly like those in York; Robinson was legally parked in 

a parking space between 7:00 and 7:30 p.m., and his headlights were not on. 

However, Mitchell and Moala both testified that they also observed an empty or 

nearly empty Steel Reserve bottle on the dashboard of Robinson’s truck. Further, 

before detaining Robinson, the officers could see that he was slumped over the 

steering wheel of the truck and unresponsive, even as they tried the door handles and 

talked to one another right outside his truck. Robinson did not awaken until Mitchell 

rapped on the window right next to where he was sleeping. Based on the totality of 

the circumstances, these facts—in conjunction with the fact that Robinson’s truck was 

running and the rational inferences from those facts—supported a reasonable

suspicion to detain Robinson.6 

The issue in Griffey was whether the police had lawfully detained the defendant

based on a report from a fast-food-restaurant manager that a person was passed out 

6Under the “totality of the circumstances” test, we are bound to consider the 

other attendant circumstances, including those militating against the trial court’s 

finding, such as the facts that neither of the officers saw Robinson consume any 

alcohol or could say how long his truck had been parked in that location. These 

circumstances, however, do not vitiate the reasonable suspicion that objectively arose 

when the officers witnessed Robinson unconscious and slumped over the steering 

wheel of a running truck with an alcohol bottle on the dashboard. Cf. York, 

342 S.W.3d at 537 (“Although Officer Johnson did not smell alcohol as he 

approached the car, that fact did not cause reasonable suspicion to dissipate, in part 

because appellant could still have been intoxicated by drugs.”).
12

behind the wheel of a vehicle in the restaurant’s drive-through lane. 241 S.W.3d at

702. The officer testified that he was not given any other information other than that 

someone was passed out behind the wheel in the drive-through lane. Id. However,

the defendant was awake at the time he arrived, and her vehicle was sitting next to the 

drive-through window. Id. She was arrested and charged with driving while 

intoxicated, but the trial court granted her pretrial motion to suppress. Id. at 702–03. 

The Austin Court of Appeals affirmed, holding that Griffey was unlawfully detained 

in violation of her rights under the Fourth Amendment. Id. at 707. 

Contrary to what Robinson asserts in his brief, the facts in Griffey do not 

“align[] with the case at bar.” The information relayed from Nick to the officers via

911 and the officers’ subjective motivation in detaining Robinson are immaterial 

because, like in York, and unlike in Griffey, what the police personally observed

prior to detaining Robinson sufficed to provide reasonable suspicion for a lawful 

investigative detention.7 See York, 342 S.W.3d at 537 n.31 (distinguishing Griffey). For 

this reason, we need not address Robinson’s arguments on the “welfare check” or 

“community caretaking” issue.

8 The State did not have to show that the officers were

7Robinson contends in his brief that his “detention/seizure must be justified by

specific criminal law violations,” but this does not correctly state the law. An officer 

with reasonable suspicion or probable cause to suspect criminal activity is afoot does 

not need the additional justification of a law violation to make a lawful investigative 

detention. Crittenden v. State, 899 S.W.2d 668, 672 (Tex. Crim. App. 1995).

8As part of his “community caretaking” function, a police officer may stop and 

assist an individual whom a reasonable person—given the totality of the 
13

engaged in a community-caretaking function when they detained Robinson because 

they had reasonable suspicion to detain him, and therefore their reasons for being at 

the QuikTrip before the seizure do not matter. Police officers are as free as any other 

citizen to approach other citizens to ask for information or cooperation. See Wade, 

422 S.W.3d at 667. 

2. The police had probable cause to arrest Robinson.

A warrantless arrest, as opposed to a detention, is unreasonable per se unless it 

fits into one of a “few specifically established and well delineated exceptions.” Torres

v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005) (quoting Minnesota v. Dickerson, 

508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993)). A police officer may arrest an 

individual without a warrant only if probable cause exists with respect to that 

individual and the arrest falls within one of the exceptions set out in the Code of 

Criminal Procedure. Torres, 182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann. 

arts. 14.01–.03, 14.04.

To have probable cause for a warrantless arrest, an officer must reasonably 

believe, based on facts and circumstances within the officer’s personal knowledge––

circumstances—would believe is in need of help. Wright v. State, 7 S.W.3d 148, 151 

(Tex. Crim. App. 1999). Police sometimes call this a “welfare check.” See, e.g., Leming

v. State, 493 S.W.3d 552, 555 (Tex. Crim. App. 2016). Mitchell testified that he knew 

he was dispatched to the QuikTrip “either for an intoxicated subject or a welfare 

check,” but he could not remember exactly what dispatch said. Robinson has argued 

both at trial and on appeal that Mitchell was not exercising his community-caretaking 

function. 
14

whether through direct observation, from reasonably trustworthy information, or 

both—that a person has committed or is committing an offense. State v. Woodard, 

341 S.W.3d 404, 412 (Tex. Crim. App. 2011); Torres, 182 S.W.3d at 901–02. The 

officer must base probable cause on specific, articulable facts rather than the officer’s 

mere opinion. Torres, 182 S.W.3d at 902. We use the “totality of the circumstances” 

test to determine whether probable cause existed for a warrantless arrest. Id.

Having concluded that the officers lawfully detained Robinson based on 

reasonable suspicion, we also conclude that the officers had probable cause for the 

arrest. After being detained, Robinson stymied the officers’ efforts to investigate by 

refusing to answer their questions or comply with their commands to open his door, 

turn off the truck’s engine, and crack his window. He grabbed a canned beverage and 

took a drink, dripping it onto his shirt. Moala testified that, based on his training and 

experience, this was a possible sign of intoxication. Mitchell observed that 

Robinson’s eyes were “bloodshot and watery,” and his movements were “really, really 

lethargic.” Additionally, Robinson kept insisting that he was on “private property,”

indicating that he was confused about where he was. These facts reinforced the 

officers’ reasonable suspicion that Robinson was, had been, or soon would be 

engaged in criminal activity and justified his continued detention. See York, 

342 S.W.3d at 537–38 (holding that reasonable suspicion was not negated, but was 

reinforced, by defendant’s behavior, including fact that he was confused about his 

location). 
15

Robinson further evinced that he was intoxicated to the degree that he might

endanger himself or others by shifting his truck into reverse and ramming into

Mitchell’s patrol unit, then shifting into drive and speeding off, over the curb, after

Moala had climbed inside the truck. And, once the officers had witnessed Robinson 

operate the truck, they could legally arrest him based on probable cause that he was

driving while intoxicated. See Tex. Code Crim. Proc. Ann. art. 14.01 (authorizing 

peace officer to arrest offender without warrant for any offense committed in 

presence or within view of officer); Tex. Penal Code Ann. § 49.04(a) (stating that 

person commits offense of driving while intoxicated if he operates motor vehicle in 

public place while intoxicated). We overrule Robinson’s first issue. 

B. The Jury Charge

In his second issue, Robinson argues that the trial court erred in refusing to 

give the jury a charge under Article 38.23 of the Texas Code of Criminal Procedure.

The State responds that this issue is not preserved for our review and, alternatively,

that the trial court did not err in denying Robinson’s requested jury instruction

because the evidence did not raise the issue.

The State’s preservation argument is misplaced. We must review “all alleged 

jury-charge error . . . regardless of preservation in the trial court.” Kirsch v. State, 
16

357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In reviewing a jury charge, we first 

determine whether error occurred; if not, then our analysis ends. Id.9 

Article 38.23(a) provides,

No evidence obtained by an officer or other person in violation of 

any provisions of . . . the Constitution . . . 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. To be entitled to an Article 38.23(a) 

instruction, the defendant must show that (1) a party raised an issue of historical fact 

in front of the jury, (2) a party contested the fact by affirmative evidence at trial, and 

(3) the fact is material to the constitutional or statutory violation that the defendant 

has identified as rendering the particular evidence inadmissible. Robinson v. State, 

377 S.W.3d 712, 719 (Tex. Crim. App. 2012). Accordingly, although a fact issue on a 

defensive theory may be raised “from any source, and the evidence may be strong, 

weak, contradicted, unimpeached, or unbelievable,” an Article 38.23 jury instruction 

must be included in the jury charge only if there is a factual dispute about how the 

9Alcocer v. State, 256 S.W.3d 398 (Tex. App.—San Antonio 2008, no pet.), the 

case on which the State relies in support of its preservation argument, was decided 

prior to Kirsch. In Kirsch, the Court of Criminal Appeals concluded that failure to 

preserve error is not a proper basis for a court of appeals to decline to address an 

appellate complaint of alleged error in the jury charge. 357 S.W.3d at 649. 
17

evidence was obtained. White v. State, 201 S.W.3d 233, 248 (Tex. App.—Fort Worth 

2006, pet. ref’d) (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)). 

Robinson’s brief does not clearly articulate the exact factual dispute that he 

believes entitled him to an Article 38.23 instruction. He argues that “the jury should 

have been allowed to deliberate whether the officers were acting in good faith” and

that “the record reflects two alternate and very different theories for the officers’ 

arrival at the scene,” which he claims “in of itself triggers the right to an Art. 38.23 

instruction.” In support of this argument, he directs us to the following language 

from the Court of Criminal Appeals’ opinion in Robinson:

And if there is a dispute about whether a police officer was genuinely 

mistaken, or was not telling the truth, about a material historical fact 

upon which his assertion of probable cause or reasonable suspicion 

hinges, an instruction under Article 38.23(a) would certainly be

appropriate.

Robinson, 377 S.W.3d at 721. We have already concluded that the reasons for the 

officers’ arrival at the QuikTrip were immaterial to the legality of Robinson’s arrest.

See Ramirez-Tamayo, 537 S.W.3d at 36 (explaining that the reasonable-suspicion

standard “disregards the actual subjective intent of the arresting officer”). Therefore, 

Robinson has not pointed out any fact that is “material to the constitutional or 

statutory violation that [he] has identified as rendering the particular evidence 

inadmissible.” See Robinson, 377 S.W.3d at 719. In other words, what Robinson calls 

the “miscommunication or misinformation” among Nick, the 911 dispatcher, and the 

police was not a “material historical fact” in this case. 
18

Robinson’s argument at trial was clearer. During the charge conference, 

defense counsel based his request for the Article 38.23 instruction on “the fact 

question of whether [Robinson appeared] intoxicated.” He attempted to support his 

argument by telling the trial court, “Even at one point[,] when the State objected to 

my asking about him being asleep[,] you had told them in the objection that it is a fact

issue whether somebody was passed out or asleep.” The closest thing we can find in

the record to what trial counsel was apparently referencing is this colloquy when 

Moala was on the witness stand:

[PROSECUTOR]: Judge, I’m gonna object to that question. The 

Defense is vacillating back and forth between the term asleep and passed 

out.

THE COURT: What’s your objection?

[PROSECUTOR]: My objection is that it’s assuming a fact that hasn’t 

been proved.

THE COURT: Would you restate your last question.

[DEFENSE ATTORNEY]: Judge, my question was as he was there 

asleep in his truck he was no danger to himself.

[PROSECUTOR]: That’s assuming a fact not in evidence.

THE COURT: That’s a conclusion for the jury.

So new question, please.

[DEFENSE ATTORNEY]: So is it sustained?

THE COURT: He can answer the question. Go ahead, officer, and 

answer the question again.

A. (THE WITNESS) I’m sorry. Can you repeat that question again?
19

Q. Yeah. So as he was there asleep in his truck he presented no danger 

to himself, did he?

A. I disagree.

If the trial court had intended to rule that whether Robinson was asleep or 

passed out was a fact issue for the jury to resolve, then we need not review that ruling

because Robinson has not made it an issue in his appeal, and in any event, the terms 

“passed out” and “asleep” are similar; the point is that Robinson was unconscious, 

and the jury saw a video of how he appeared and could draw its own conclusions.

The only issue of historical fact to which Robinson has pointed that is material to 

how the challenged evidence was obtained is whether he appeared intoxicated. We

have searched the record10 to determine whether either party contested this fact by 

affirmative evidence at trial and have found the following excerpts pertinent to this

issue:

[PROSECUTOR:] [Once defendant was awake], did you notice any 

signs of intoxication?

[MITCHELL:] His eyes were bloodshot and watery. His movements 

were really, really lethargic. The fact he was passed out and slumped 

over at the wheel was a hint that there could definitely be some 

intoxication. There was empty alcohol. There may have been a little bit 

10In the argument on his second issue, Robinson contends that “[t]he defense 

had raised [this] issue in very clear terms,” without providing any subsequent citations 

to the record. An appellant’s brief must contain “a clear and concise argument for the 

contentions made, with appropriate citations ... to the record.” Tex. R. App. 

P. 38.1(i). We have, in the past, dismissed arguments as inadequately briefed when an 

appellant has failed to cite the record. See, e.g., Turro v. State, 950 S.W.2d 390, 401 

(Tex. App.—Fort Worth 1997, pet. ref’d). 
20

of alcohol left in the Miller Lite -- not Miller Lite -- Steel Reserve bottle.

So all of those things led me to believe that he was probably intoxicated.

. . . With the belief that he was probably intoxicated, we didn’t 

want him to have the opportunity to drive off or walk off. . . .

. . . .

[DEFENSE ATTORNEY:] Okay. So let me go back to the call. The

information you received just said a possibly intoxicated person, right?

[MITCHELL:] Uh-huh.

[DEFENSE ATTORNEY:] An older white male who was drinking a 

beer and appeared to be passed out. That’s the information you got, 

right?

[MITCHELL:] Yes, according to the report.

[DEFENSE ATTORNEY:] Okay. And, again, that’s what you say is

accurate, right?

[MITCHELL:] Yes, sir.

[DEFENSE ATTORNEY:] Okay. But, again, dispatch didn’t say

intoxicated person, right?

[MITCHELL:] I don’t know. I can’t remember the exact words of what 

they said.

[DEFENSE ATTORNEY:] Okay. But that’s why you detained 

Richard, right?

[MITCHELL:] Right.

. . . .

[DEFENSE ATTORNEY:] . . . But when we talk about passed out, 

that’s somebody sleeping, right?

[MITCHELL:] Right. Unconscious.
21

[DEFENSE ATTORNEY:] Possibly unconscious, but just sleeping, 

right?

[MITCHELL:] Yes, sir.

[DEFENSE ATTORNEY:] In all of your years, you have come across

sleeping persons several times, right?

[MITCHELL:] Uh-huh.

[DEFENSE ATTORNEY:] Some dealing with intoxication, some not?

[MITCHELL:] Correct.

. . . .

[DEFENSE ATTORNEY:] And other than him sleeping in the truck, 

you didn’t see any other level of stress, right?

[MITCHELL:] No.

[DEFENSE ATTORNEY:] And so then just as he was asleep in the 

truck, he didn’t present a danger to himself, right, just sleeping in his 

truck?

[MITCHELL:] Just based off of him being asleep?

[DEFENSE ATTORNEY:] Yes.

[MITCHELL:] Or being intoxicated and being asleep?

[DEFENSE ATTORNEY:] Being asleep in his truck.

[MITCHELL:] Just being asleep, no.

[DEFENSE ATTORNEY:] Right. Because when you approached, you 

had no idea whether he was intoxicated.

[MITCHELL:] Correct.

. . .
22

[MOALA:] And so when I got there, the call was supposed to be in 

regards to a white Ford pickup truck. I was looking for the white Ford 

pickup truck. And when I got there and saw a white Ford pickup truck, 

I saw -- I saw a subject in there who was slouched over which matched 

the description on the call. It was a subject possibly intoxicated.

. . . .

[PROSECUTOR:] Okay. And then based on your training and

experience -- I know you’re not an officer anymore, but it hasn’t been 

that long. Based on your training and experience, is someone dripping a 

drink on their shirt a possible sign of intoxication?

[MOALA:] Oh, yes.

Based on this record, no evidence tends to show that Robinson did not appear 

intoxicated when the police detained him, and no evidence conflicts with the officers’

testimony or the video showing how Robinson appeared at that moment. The 

officers’ admissions that they did not know with certainty whether Robinson was 

intoxicated or not when they approached his vehicle is not affirmative evidence that

Robinson did not appear intoxicated, which is what he needed to get his requested 

instruction. See White v. State, 549 S.W.3d 146, 154 n.21 (Tex. Crim. App. 2018)

(stating that appellant did not establish that there was an issue of fact in dispute 

because he presented no evidence controverting the evidence presented by the State);

Madden v. State, 242 S.W.3d 504, 515 (Tex. Crim. App. 2007) (“Appellant’s questions 

on cross-examination cannot, by themselves, raise a disputed fact issue. There must

be some affirmative evidence to raise a fact issue.”); Garza, 126 S.W.3d at 86 (“Vague 
23

suggestions by appellant’s counsel that the officers were on a fishing expedition, 

without more, do not rise to the level of creating a fact issue.”). 

Because Robinson has not shown that the evidence raised a factual dispute that

was material to how the evidence against him was obtained, the trial court did not err

in refusing to give the jury an Article 38.23 charge. Robinson, 377 S.W.3d at 722; 

Madden, 242 S.W.3d at 518. We overrule Robinson’s second issue. 

IV. CONCLUSION

Having overruled Robinson’s issues, we affirm the trial court’s judgment.

/s/ Dana Womack

Dana Womack

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: August 18, 2022