## 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. 1 560062

Before Womack, Wallach, and Walker, JJ. M emorandum Opinion by Justice Womack 

### R ICHARD 

### D AVID 

### R OBINSON 

### , Appellant

V



### .

T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION

I. I NTR ODUCTION
By in formation, t he S tate 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 over ru led

Robinson ’ s motion t o suppr e ss and request for a ju ry instruction under Texas Code of

Criminal Procedure article 38.23
, a jur y found h im guilty, a nd the trial court se ntenced

h im to ninety days in jail (

probat ed for two years ) and a fine of $1,500.

O n appeal, Robinson asserts that the trial court e rred in den ying h is motion to

suppress and requested Article 38.23 charge

. We hold that both the fac ts and the law
support the trial court ’ s ruli ng s , overrule Robinson ’ s con tentions, and a f firm the trial

court ’ s judgment.

I I. B ACKGR OUND
On August 29, 2018, Robinson purchased three bottles of Steel Res e rve 1 at a
QuikTrip i n Eule ss, Texas. Later that evening, Nichola s Kubik

- Powell (Nick)
, a

manager at the Qui k

T rip, called 9 1 1 after going outside and notic ing Robinson

unconsc ious in the driver ’ s seat of a white Ford four

- door vehicle

. Ni ck al so noticed

an emp ty Steel Res e rve bottle on the vehicle ’ s das hboard. Eule ss Police Officers

1 Steel Reserve is a brand of malt l iquor

. See Wood v. State , No. 01

- 13

- 00845

- CR, 2014 WL 5780273 , at *1 (Tex . App.

— Houston [1st Dist.] Nov. 6, 2014, p et. ref’d) (mem. op., not designated for publication)

.3

Blake Mitchell and I s i a h Moala arriv e d at the QuikT r ip sh ortly thereafter and found

Robinson unconscious in the driver ’ s seat of a white Ford four

- door truck

. The truck

wa s parked and running. Mitchel l wa lked around the t r uck and tried the do or handles

but found the doors to be locked. He then tapped on the driver ’ s

- side wi ndow, and

R obinso n awoke. Both officers inst ructed him to open the door, but Robinson did
not comply.
Mitchell then moved his patrol car directly be h ind Robinson ’ s truck to secure
the truck in place. 2 R obinson refused to co mply with the officers ’ c omma n ds that he

open t he door, even after Mitchell wa rned him that they w ould break a wi n dow to his
truck if he did not get out. Robinson told Mi t c hell to “ break it. ” Moala then broke

the rear

- seat wi n d o w o n the passenger side
, unlocked one of th e doors
, and climbed

inside

. R obinson, meanwhile, shifted his truck into reverse and backed into Mit chell ’ s

p atr ol v ehicle , then shifted into drive and drove forw a rd a short distance be f o r e
coming to an abrupt stop

. M i t c hell p ulled R obinson o ut of the truck and arrested

him. A breath test taken at the j ail showed Robins on ’ s alcohol concentration to b e
0.243 grams of alcohol per 2 1 0 liters of b reath.

A t his tri a l, Robinson moved to suppress his detention and arrest

. He ar g ued

that the officers did not have reason able s uspicion to detain him o r probable cause to

2 M itchell testified at the trial th at th is is a police tactic they call “ positiv e

c on tact ” and is mean t to minimize the impact in the event a sleep ing driver w ere to

“ just w a ke up and s la m [his] ca r in reverse or drive. ”4

arrest him. The t r ial court carried Robinson ’ s motion a nd, a f ter the close of the

evidence
, overrule d the motion and f ou nd
, “ based upon the facts and circumstance

contained in the r ecord [,] th at it was reasonable for the office rs to initiate a detention

and further [ th at

] a reasonable person in the officer ’ s po sition would have ha d
probable caus e to beli e ve the defendant had committed an offense and was subject to

arrest. ” Ro binson then reque st ed that an Article 38.23 instruction be included in the
jury charge:

I b elieve the officer said the d etention was made based on a possibly intoxicated per s on. I b elieve that the first witness, the actual 911 caller, said he didn ’ t know whether t he person w as int oxicated or not, he could have just been asleep. He didn ’ t beli e ve he was intoxicated. In fact, he doesn ’ t even s ay he was intoxica ted. Again, bo t h the o fficers testified they came and saw somebody asleep in the truck. Even at one point wh en the Stat e obje cted to my asking about him being asleep you had told them in the objection that it is a fact i ssue whether someb ody was passed o ut or asleep. W e beli e ve that portion

-- that was a determination for the jury. Was he

-- Was this a lawful de tention bas ed on him

-- the fact question of whether he

-- did he appear int o xicated. And so we would ask for th e 38.23 instructio n be given to the jury.

The trial c o urt overruled this request and submitted the case to the j ury , wh o then

con v icted Robi nson

.

III. D IS CUSSION

Robinso n ’s issues on appeal center around the legality of his detention at the
QuikTrip

. T he law recogniz es three distinct types of interactio n s betwee n the police
and citizens: ( 1) consensual encounters that do not implicate the Fourth Amendment;
(2) investigat

i ve detentions that are Fo urth A mendment seizures of limited scope a nd5

duration that must be suppor ted by a reasonable suspicion of crim i nal acti vity; and

(3) arrests

— the m ost intrusive of Fourth Amendment seizures

— that are reasonable
only if supported by p robable caus e. Wade v. State , 422 S.W.3d 661, 667 (Tex. Crim.
Ap p. 2013)

.

A. R obinson ’ s Motion to Suppress

In his first issue, Rob i n s o n ar gues that the t rial court er red in failing to grant
the motion to suppress his detention and arrest. The State respond s that th e initial

interaction between Mitche ll and Robinson was a cons ensual encounter, not a

“ seizure ” under the Fourth Amendme n t , and that Mitchell developed re a s onable

suspici on to det a in Robinson during th is consensual encounter

. We apply a bifurcated standard of review to a t rial court’s rul ing on a motion to
suppress evidence. State v. Martinez , 570 S.W. 3d 278, 281 (Te x. C rim. A pp. 2019)

.

Because t he trial judge is the sole trier of fact and judge of the witn e sses’ credibility
and the weight to be given their testimony
, Wie de v. State , 214 S.W.3d 17, 24

– 25 (Tex.
Crim. App. 2007) , we defer almost totally to a trial cour t’s rulin gs on questions of
historical fact and application

- of

- law

- to

- fact questions that tur n on evaluating
credibility and demeanor, but we review de novo ap plication

- of

- law

- to

- fact questions

that do not turn on credibility and demeanor
, M artinez , 570 S. W.3 d at 2 81

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

determination we review de novo. State v. Shepp ard , 271 S.W.3d 281, 291 (Tex. Crim.
App. 2008).6

When the trial court makes expli cit fact findin gs, we de termine whether the
evidence, when viewed in the light most favorable to the trial c o urt’s ruling, supports
those findings. Johnson v. State , 414 S.W .3d 184, 192 (Te x. Crim. App. 2013)

. We then
review the trial court’s legal rulin g de novo unles s i t s exp licit fact findings that are
supported by the record are also dispositive of the leg a l ruling. State v. Kelly
,

204 S.W.3d 808, 818 (Tex. Cri m. App. 2 006)

.
When the r ecord is silent on the reasons for the trial court’s ruling, or wh en

there are no ex p licit fact findings and neither party timely requested findings and

conclusions from the t rial court, we infer the necessary fact findings that wo uld

suppo rt the trial cou rt’s ruling if the evidence, viewed in the light most favorable to

the trial cour t’s rulin g, 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 th e
implied fact f

indings supported by the record are also dispositive of the legal ruling.
Kelly
, 20 4 S.W. 3d at 819. Here, the trial court did not make explicit fact findings o ther

tha n wha t was sta ted o n the record when the trial court denied Robinson ’ s motion
,
and neit her party timely requested further findings and conclusions

.

1. At the point when Robi nson was “ sei z ed , ” Officer Mitchell had reasonab le suspicion to detain him

.
The Fourt h Amendment protects against unreasonable searches and seizures
by government offi cials. U.S. Const. amend. I V; Wiede , 214 S .W.3d at 24. A7

defendant seeking to supp r ess evidence on Fourth Amendm ent grounds 3 bears the

initial burden to produce some eviden c e that the government conducted a warrantless

search or seizure t hat he has stand ing to contest

. Rawlings v. K entucky , 448 U.S. 98,

104

– 05, 100 S. Ct. 2556, 2561 (1 9 80); State v. Martinez
, 569 S. W.3d 621, 623 (Tex.
Crim. App. 2019) . Once the defendant d o es so , the burden shifts to the State to
prove either that the se arch or seizure was con ducted pursuant to a wa rrant or was

otherwise reasonable , if warrantless

. Ma r tine z , 569 S.W.3d at 624

. There is no

evidence that Robinson was se i zed pursuant to a wa r rant , so the State bore the

burden t o show that the d e te ntion and a rres t were rea sonab l e under t h e a p p licable

s tandards.

A detention may be justified if a person i s re asonably 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. S tate , 622 S.W. 3d 378, 384 (Tex. Crim. App. 2 021) . An

officer conducts a lawful temporary det entio n 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 totali ty of the circum stances, the officer ha s spe cific,

3 Alt h oug h Robinson base d his motion to suppress at trial on “ b oth the United States and Texas Constit uti on[ s], ” he reli e s only on the Fo u r th Amendment t o the Unit ed States C onst

i t u tion and rel ated c ase law to su ppo rt his appellate argument on th i s point. When a n a ppellant’s argument is ba sed o n both the federal and state constituti ons bu t does not c ite any argument or authority under the st ate constitution, we review only th e feder al a rguments

. Welch v. State
, 93 S.W.3d 50, 52 & n.5 (Tex. Crim. App. 2002)

. T h erefore, w e analy ze Robinson ’ s fir s t point of error a s a f ederal

con s titutional issue only.8

articulable facts that, when combined with rati on al in ferences from those facts, would
lead him to reasonably conclude that a particular pe r son is, has been, or soon will be
engaged in criminal activity. Id

. This is an objective standard that disr egards the
detaining officer’s subje ctive intent and l oo ks so lely to whether the officer has an
objective basis for the stop. Ramirez

- Tamayo v. S t

ate , 537 S.W.3d 29, 36 (Tex. Crim.
App. 2017).

Robinson bases his position tha t the State failed to establish reasonable

suspicion i n this case o n “ the fact tha t right off the bat, the State failed to prove
through the 911 call that the officers were a c ting properly and in response to a welfare

call. ” This fact is irrelevant, howev er, because (1) the State ’ s burden to justify th e

warrantless detention at issue w as n ot to show the propriety of or subjective

motivation for the officers ’ actions but to p r o v i de an objectively reasonable basis for

the se izure, and (2) t he State d i d not need the 911 call to meet this burde n. 4

A “ sei zure ” under the Fourth Amendment d oe s not occur until (1) a
reasonable person would believe he or she was no t free to leave, and (2) the person
being seized has either yield ed to the office r ’ s show of autho rity or been physically

forc ed to yield. Johnson v. State , 912 S.W.2d 2 27, 236 (Tex

. Crim. App. 1995)

. When a

4 F or all the referenc es to Ni ck ’ s 911 ca ll, we no t e that neither party eve r offer e d the audio of the c all in t o evidence (for the record only or for all purposes). Because we hold that the police had reasonable susp ici on to det a in Robinson wh en the y did and probable cause to a rrest him wh en the y did , based on what they pers onall y ob s er v ed at the sc ene, we need n o t a ddress whatev er was said on the 911 call

.9

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

seizure. State v. Ca stleberry , 332 S .W.3d 460, 469 (T ex. Crim. App. 2011)

. Here, whe n Mitchell firs t arrived at the QuikTr ip and appro ac hed Robinson ’ s

truck , Robinson was asleep

. When Moala arrived and walked up to the truck,

Rob inson was still asleep. As th e sleeping Robi nson was una ware of the officers ’
presence outside his vehicle, he could not have yielded to any show of auth o rity
, s ee

York v. State , 342 S.W.3d 528
, 5 34 n.16 (Tex. Crim. Ap p. 2 011) (citing , with approval,
cases holding that a sleeping or unconscious suspect is no t “ seized ” because he

cannot sub mit to a “ show of authori ty ” of which he is unaware), and at this po i nt, t he
officers had not used physic a l force against hi m

. I t was not until he aw oke a nd

Mitchell tol d hi m , “ You ’ re not goin ’ anywhere
, ” and he yield ed to Mitchell ’ s authority

b y remaining in place that Robinson was “ seized. ” 5 The q uestion for the trial c our t

wa s , and f

o r us now is
, whether at that point the offic ers had specific and articulable

facts that, w hen combined with rational inferen ces from those facts, would have le d

5 Mitchell testified that, as soon as he arrived, Robi n s on was deta ined a nd w a s not free to leave. Lack of freedom to leave, thou gh, is only half of th e e qu ation for a detentio n or se i zure th at im pl icates the Fo urt h Amen d ment , and the standard is whether a reasonable person would believe that he was not free to leave

. J ohnson
, 9 12 S.W.2d at 236

. R egardless of what Mitchell subject i vely believed he was doing when he first pulle d into t hat par king lo t, b ecause he ha d not yet employed physical force, Robinson was not seized/detained until he submitted to Mi t c h ell ’ s “ show of authori ty. ” See Brendlin v. California
, 551 U.S. 249, 254

– 55 , 127 S. Ct. 2400, 2405

– 06 (2007) (“[T]here is no seiz u re with out a ct ual submissio n” to “ a show of authority
, ” and the test is whether “a reasonable person woul d have believed that he was n ot free to le ave” or whether “a reasonable person would feel free t o decline the officers’ requests or otherwise t erminat e the en count er .”).10

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

in c riminal activity

. See Johnson
, 622 S .W.3d at 384 ( setting out st andards for
reasonable suspicion

)

. Unsurprisin g

l y, Robinson and the State rely o n d i ff erent case s to sup port their

res p ective arguments ; Robinson likens his c ase to State v. Griffey , 241 S .W.3d 700 (Tex.
App.

— Austin 2007, pet. ref’d ), wh ile the State ci tes York

. Both cases ar e
distinguishable from this one, bu t the facts o f York more closely resemble the
circumstances present in Robins o n ’s case. In York
, a patrol officer observed a car

pa rked partially on the sid ewalk immediatel y in front of an Exxon store around

3:00 a.m. , w

ith the headlights on and the engin e runn ing

. 3 42 S.W.3d at 530

– 31. The

officer approached the car and saw tha t the defendant was in the car asleep with the

seat l ai d back. Id. at 5 3 1

. The Court of Crimin al A ppeals found these circumstances

sufficient to give rise to a reasonable susp icion th at wo uld permit an inve stigative

detention :
From the circumstances pre s ent here, Officer Johnson could reasonably suspect t ha t appellant was intoxicat ed. And with th e engine running, an intoxicated driver might ha ve awakened, and in his stupor, d riven in to th e store. Or he might have returned to the road, where he would po s e a threat to others who were traveling. It would b e reasonable to suspect tha t appellant pose d a danger to himself or others.

Id. at 537. These concerns prov ed r e alistic i n the i n stant case; within minutes of
waking up, Robinson backed his truck into Mitchell ’ s v ehicle, spinning his wheels s o11

hard that t he friction with the pave ment created smo ke, and then drove forward, over

the cur b, with M o ala inside his vehicle

.
The facts here are not e xactly lik e those in York ; Robinson was legally parked in
a parking space between 7:00 and 7:30 p.m., and his hea dl ights were not on.
However, Mitchell a nd Moala bo t h testified that they a lso observed an e mpty or
nearly empty Steel Reserve bott l e on the dashboard of Robinson ’ s truck

. Further,

before detaining Robinson, the of ficers could see that he was slumped ove r the
steering wheel of the truck and unresp onsive, even as they tried the door handles and

talked to one another right outside his truck. Robin son did not awa ke n until Mitchell

rappe d on the windo w right next to where he was sleepin g. Based on the total it y of

the circumstances, these facts

— in conju n ction with the fact that Robinson ’ s truck was
running and the rational infere nces from those facts

— s upport ed a reasonable
suspicion to detain Robi nson. 6

The issue in Griffey wa s w hether the police had lawfu ll y detained the defendant
based on a report f

r om a fast

- food

- restaurant manager that a person was passed out

6 Under the “ totality of the circumstances ” test , we are bound to consider the other attendant circum stanc es, including those mi litating against the trial court ’ s finding, such as th e facts that n either of the o fficers saw Robin s on co n s u m e any alcoh ol or could say ho w lo ng h is truck had been park e d in that location

. The se circumstance s, ho wever, do not vitiate the reasonable suspicion that objectively arose when t he officers witnesse d Robins on unconscious and slu mped over th e ste ering

w h eel o f a run ni ng truck with an alcohol bottle on the dashboard. Cf. York
, 342 S.W.3d at 537 ( “ Althou gh Offic er Johnson did not smell a lcohol as he approached the car, that fact did not cause reasonab le suspicion to dissi pate, in part because appel lant c o u ld still hav e been intoxica ted by drugs. ” ).12

behi nd the whe el of a vehicle in the rest aurant ’ s drive

- through lane. 24 1 S.W.3d at

70 2

. The officer testified that h e was not given any other i nf ormation other than that
someone was passed o ut behind the wh eel in the drive

- through lane. Id. However,

the defendant w as awake at the time he arr ived
, and her vehicle was sittin g next to the

drive

- through window. Id. She was arrested and charged wi th driving w h i le

intoxicated
, but the trial c o u rt granted her pretrial mot ion to s u pp ress. Id. at 702

– 03.

The Austin Court of Appeals affi rmed, holding that Griffey was unlawfully detained
in violation of her rights under the F ourth A mendment. Id. at 70 7

. Contrary to what Robinson as se r t s in his b rief
, the fact s i n Griff

e y do not

“ al ign[] w ith the case at bar

. ” Th e in formation re l a y ed from Nick to the officers via

911 and the officers ’ sub j ective motivation in detaining Robinson are imm ate r i al

becaus e, l ike in York
, and unlike in Gri f fey
, what the police pe rsonally observed
prior to detaining Robinson sufficed to prov ide reasonable s u spicion for a lawful
investigative detention. 7 See York
, 342 S.W.3d at 537 n.31 (distinguishing Griffey ). For

this re as on, we n eed not a ddress Robinson ’ s arguments on t he “ welfare ch eck ” or

“ community caretaking ” issue

. 8 The State did n ot have to show that the officer s were

7 Robinson con t e nd s in his brief that his “ detention/seizure m ust b e justified by sp e cific criminal law violations
, ” but this does n ot correc t l y state the law. An officer with reasonable suspicion o r prob able ca u se to suspect criminal acti vity is afoot does not need the add itional justification of a law violation to make a l a wful investigative detention. Crittenden v. State , 89 9 S.W.2d 668, 672 (Tex. Crim. App. 1995)

.

8 As part of his “ co mmunity care taking ” funct i on , a polic e officer may st op and assist an in dividual whom a reasonable person

—given the totality of the13

engaged in a community

- caretaking function when th ey detained Robinson because
they ha d reasonabl e suspicion to deta in him, and the r efore their re a s ons for be ing at

the Qui kTri p 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 W ade
,

422 S.W.3d at 667

.

2

. The polic e 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 estab lished a nd well delineated exceptions.” Torres

v. State , 182 S.W.3d 89 9, 901 (Tex. Crim. App. 2005) (quoting Minnesota v. Dickerson
,

508 U. S. 3 66, 372, 113 S. Ct. 2130, 2135 (1993 ) ) . A po l ice officer may arrest an
individual without a warrant only if probabl e cau se exist s with respect to that

individual and the arrest falls with in one o f th e exceptions set out in the Code of

Criminal Procedure

. Torres , 182 S.W.3d at 901; see Tex. C ode Cri m . Proc. Ann.

arts. 14.01

– .0 3 , 14.0 4

. To have probable cause for a war rantl ess arre st, an officer must reasonably

believe
, based on facts and circumst ance s within the officer’s personal knowledge

––

c ircum st a nces

—

would bel ie ve is in need of help. Wright v. Stat e , 7 S.W.3d 148, 151 (Tex. Crim. App. 1999)

. P olice sometime s call this a “ wel fare ch e ck

. ” See, e.g. , Leming

v. State , 493 S.W.3d 5 52, 555 (Tex. Crim. App. 2016) . Mitchell testified that he k new h e w as dispatched to the QuikTrip “ either for an intoxicat ed subject or a welfare check
, ” but he could not remember exa ctly what di spatch said. Robinson has a rgued bo th at trial and on appeal that Mi t c hell was not exercising his community

- c areta ki n g f unction

.14

whether through direct observation
, from reas onably trustw o rthy information , or

both

— that a person has committed or is committing an o ffense. State v. Woodard
,

341 S.W.3d 404, 412 (Tex. Crim. App . 201 1); Torr es , 182 S.W.3d a t 901

– 02. The

offic er must base probable cause on specific, articulable fac ts rat her tha n the officer’s
mere opinion. Torres

, 182 S.W.3d at 902. We use the “ total ity of t he circumstances”
test to determine whether probable c ause existed for a warrantles s arrest. Id.

Havi ng concluded tha t the officers lawfully detained Robinso n based on

re a s onable suspicion, we also conclude that the officers had probable cau se fo r the

ar rest. After being detained, Robinson stymied the offi cers ’ efforts to investigate by
refusing to answe r their questio ns or comply with their commands to open his door,

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

to ok a drink, dr ipping it onto h is shirt. Moala testifi ed th at, based on his training and

exp er i e nce, this was a possible sign of intoxication. Mitchell o b ser v ed that

R obinson ’ s eyes were “ bloodshot and watery, ” and his movements were “ really, really
lethargic

. ” Additionally , Robinson kept in s i sting t hat he was o n “ private p r o per ty, ”
indicating that he was confused about where h e was

. The se facts reinforced the

officers ’ reasonable suspicion th at Robinso n was, had been
, or soon would be

en gaged in criminal activity and j ustified his continued detention

. See York
,

342 S.W.3d at 537

– 38 (holding that reasonable suspicio n w as not n egated, but was

reinf o rced, by defendan t ’ s behavior, including fact that he was confuse d about his
location)

.15

Ro b inson f

urther e v inced th at he was intoxi cated to the d egree that he might
endanger hi mself o r o t hers by shifting his truc k into r everse and ramming into

Mitchell ’ s pa t r o l unit, then shifting into drive and speeding off, over the curb, after

Moala had clim bed inside the truck. And, once the office rs had witnessed Robinson

opera te the truck
, they could legally arrest him based o n p robable cause that he was
driving while intoxicated. See Tex. Code Crim. Proc. Ann. art

. 14.01 ( a utho rizing

peace officer to arrest offender without warrant for a ny off en se comm i tted i n

presence o r wit h in view of officer); Tex. Penal Code An n. § 49.04( a) ( stating that

pe r s on commits offense of driving while intoxicated if he operates motor vehicle in
publ ic plac e whi le intoxicated). We over r u le Robinson ’ s fi r st issue.

B. The Jury Charge

In his seco n d issue, Ro binson argues that the t rial court err e d in refusing to
gi ve the jury a charge u n der Article 38.23 of the Texas Code of Criminal Procedure

. The State responds that this issue is not preserved for our re v iew and
, alternatively
,
that t h e tr i al c our t did not err in d enying Robi nson ’ s requested jury instructi on

because the ev

i de n ce did not raise the issue

.

T he Sta te ’ s preserv ation argument is misplaced. We must review “all alleged

jury

- charge error .

. . regardl ess of preservation in the tr ial c ourt. ” Kirs ch v . State
,16

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

determine whet her error oc curred; if not, then our analysis ends. Id. 9

Article 38

. 23 (a) provides
,
No evidence o btained by an officer or othe r per son i n viola tion of any provisions of

. . . the Constitution

. . . shall be admitted in evidence against the accused on t he tr ial of any criminal case.
In any case where the lega l evidence raises an issue hereunder, the ju ry shall be instructed that i f it belie ves, or has a reasonable doubt, that the e vidence was obtained in violation of the provisions of this Article,

t hen and i n such event, the jury shall disregard any such evid ence so obtained.

Tex. Code Crim. Proc. Ann. art. 38

. 23

. To be entitled to an A r ti cle 38. 23(a )

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

in front o f th e jury, (2) a party contested the fact by affirmative ev idence at trial, and

(3) the fact is material to the constitutional or sta tutor y v io lation that the defendant

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

377 S.W.3d 712, 719 (Tex. Crim. App. 201 2 ). Accordingly, al though a fact issue on a
defensive theory may be raised “from any source, and t he ev idence may be strong,

weak, contradicted, unimpeached, or unbeliev able,” an Article 38.23 jury instruction

must be i ncluded in t he jury charge only if there is a factual di spute about how the

9 Alcocer v. St

ate , 256 S.W.3d 398 (Tex. App.

— San Antonio 2008, no pet. )
, th e

ca se on wh ich the St a t e re lies in support of its pres erva tio n argument, w as decided prio r to Kirsch

. In Kirsch
, the Court of Crimi nal A pp e als conclud ed tha t failure to preserve error is not a proper basis for a court of appeals to decline to address an appellate co mp l aint of alleg ed error in the jury charge

. 3 57 S .W.3d at 649

.17

evidence was obtained. Wh ite v. State , 201 S.W.3d 233 , 248 (Tex . App.

— Fort Worth
2006, pet. ref’d) ( quotin g Garza v. State , 126 S.W.3d 79, 85 (Tex. Crim. App. 2004 ) )

.
Robins on ’ s brief doe s not clearly articulate the exact factual disp ute that he

be l i eves entitled him to an Artic le 38.23 instruction. He ar gues t h at “ the ju ry should

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

th at “ the re cord reflects two alternate and very differen t theories for the office rs’

arrival at the s cene , ” which he claim s “ in of itself t rigge rs th e right to a n Art. 38.23

instruct ion. ” In support of this argument
, he directs us to the f ollo wing langua g e

f r om the Court of Crimi nal A ppeals ’ opinion in Robinson :

And if there is a d ispute about whether a police officer was ge nuine ly mistaken
, or was n ot telling t he truth, about a material historical fact upon which his assertion of probable cau se or reasonable suspicion hi nges, an instruc tion under Article 38.23(a) would certainly be appropriate

.
Robinson , 377 S.W.3d at 721

. We have al ready conc luded th at the re ason s for the

office rs’ arr

iva l at the QuikTrip were immaterial to t h e legalit y of Ro bin s on ’ s arr e st.

See Ramirez

- Tamayo
, 537 S.W.3d at 36 (explaining that the re a s onable

- suspicion

standard “ disregards the actual subj ect ive inte nt of the arres ting officer ” )

. Therefore,
Robinson has not pointe d out any f act that is “ material to the constitutional or

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

in admissible

. ” See Robinson , 377 S.W.3 d at 719. In other w ords, what Robins on calls

the “ miscommunication or misinformation ” among Nick , the 911 dispatch er, and the
police w as not a “ material histor ical fact ” in this c ase.18

Robinson ’ s argument at tria l was clearer. D u ring the charge co nfere nce,

d efens e co u nsel based h i s request for the Article 38.23 instruction o n “ the fact
question of whether [R o bi nson appeared ] int o xicated. ” He attemp t e d to support his

argument by tellin g the trial court, “ Even at one point [,] when the Sta te ob j ected to

m y asking about him be ing a sleep[,] you had told them in the objection that it is a fact

issue whether som ebody was passed out or aslee p. ” The closest thing we can find in

the record to what trial counsel wa s apparently referenc i ng is this collo quy when

Moala was on t he witnes s sta nd :
[ PROSECU TOR

] : Judge, I ’ m gonna object to that question. The Def ense is vacillating back and forth between t h e term asleep and passed

out.

THE COURT: What ’ s your objection?
[ PRO SECUTOR

] : My objection is t hat it ’ s as suming a fact that hasn ’ t bee n pro ved.

THE COU RT: Would you restate your last question.
[ DEFENSE ATTORNEY ] : Judge, my question was as he was there asl eep in hi s truck he was no danger to himself.
[ PROSECUTOR

] : That ’ s a ssuming a fact not in evide nce.

THE CO URT: That ’ s a conclusion for t he jury.

So new question, please.
[ DEFENSE ATTORNEY ] : So is it sustained?

T HE COURT: He can answer the q uestion. Go ahe ad, officer, and

answ er the question again.

A. (THE WITNESS) I ’ m sor ry. Can you repeat th at qu estion agai n?19

Q. Yeah. So as h e was there asleep in his truck he presented no danger to himself, did he?

A. I disag ree.

If th e t rial court had i ntended to rule that whether Robinson was as leep or
passed out was a fact issue f o r the ju r y to resolve, t hen we need not revie w that ruling

becau se Robinson has not made it an issue in his appeal
, and in any ev en t , the terms

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

and the jury saw a video of how he ap peare d and could dr aw its own conclusions

.

The on ly iss ue of histor ical fact to which R o bi nson has pointed that is mater ial to

how the challenged evi dence was obtain ed is whether he appeared int o xicated

. We

have searched the record 10 to determine whether eithe r party con tested this fact by

affirmative ev

idence at trial an d have found the following excerpts p er t i nent to this

issue :
[ PROSECUTOR: ] [ Once d efendant was awa ke ] , did you notice any signs of in toxication?
[ MITCH ELL : ] His eyes were bloodshot and wat ery. His moveme nts were really, really lethargi c. Th e fact he wa s pas sed out and slumped over at the wheel was a hint t hat there could definitely be some intoxicati on. There was empty alcohol. Ther e may have be en a little bit

10 In the arg u m ent on his secon d i ss u e , Robinson conten d s tha t “ [t]he defense had raised [this] issue in very clear te rms, ” without providing any subsequent citations to the recor d. A n a ppellant ’ s brief must contain “ a clear and conc ise arg u ment for the contentions ma de, with appropriate citations

... to th e recor d. ” Tex. R. App. P. 38.1(i). We have, in the pa s t , dismissed arguments as inadequately briefed whe n an appella nt ha s faile d to cite the record

. See, e.g.
, Turro v. State , 9 5 0 S.W.2d 3 9 0 , 401 (Tex. App

. — Fort Wort h 199 7, pet. ref’d)

.20

of alcohol left in the Mil ler L ite

-- not Miller Lite

-- Steel Reserve bot tle. So all of th ose things led me to believe that he was probably intox icated.

. . . With the belief that he was pro bably intoxicated, we didn ’ t want h im to have th e 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 perso n, right?
[ MITCH ELL : ] Uh

- huh.
[ DEFENSE ATTORNEY: ] An older white m ale who was drinking a beer and appeared to b e passed ou t. That ’ s the information you got, righ t?
[ MI TCH ELL : ] Ye s, according to the report.
[ DEFENSE ATTORNEY: ] Okay. And, again, that ’ s wha t you say is

acc urate, r ight?
[ MITCH ELL : ] Yes, sir.
[ DEFENSE ATTOR

NEY: ] Oka y. But, again, dispatch didn ’ t say intoxicated person, right?
[ MITCH ELL : ] I don ’ t know. I can ’ t re member the exact words of what they said.
[ DEFENSE A TTORNEY: ] Okay. But that ’ s w hy you detained Richard, right?
[ MITCH ELL : ] Right.

. . . . [ DEFENSE ATTORNEY: ]

. . . But when we t alk about p asse d out, that ’ s somebody sleeping, right?
[ MITCH E LL : ] Right. Unconscious.21

[ DEFENSE ATTORNEY: ] Possibly unconscious, but just sleepin g, right?
[ MITCH ELL : ] Yes, sir.
[ DEFENSE ATTORNEY: ] In all of your y ears, you have come across sleeping pe rsons several ti mes, rig ht?
[ MITCH ELL : ] Uh

- huh.
[ DEFENS E ATTOR

NEY: ] Some dealing with intoxication , some not?
[ MITCH ELL : ] Correct.

. . . . [ DEFENSE ATTORN EY: ] And other than him sleeping in the t ruck, you did n ’ t see any other level of stress, r ight?
[ MITCH ELL : ] No.
[ DEFENSE ATTORNEY: ] And so then just as he was asleep in t he truck, he didn ’ t pres ent a danger to h imself, right, just sleeping in his truck?
[ M ITCH ELL : ] Just based off of him being asl eep?
[ DEFENSE ATTORNEY: ] Yes.
[ MITCH ELL : ] Or bein g int oxicated an d being asleep?
[ DEFENSE ATTORNEY: ] Being asleep in his truc k.
[ MITCH ELL : ] Just being asleep, no.
[ DEFENS E ATTORNEY: ] Right. Because when you approac hed , you had no idea whether he was intox icated.
[ MITC H ELL : ] Correct.

. . .22

[ MOALA : ] And so w hen 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 w hite Ford pickup truck, I saw

-- I sa w a subject in there who was slouche d ove r which mat ched the description on the call. It was a subj ect pos sibly intoxi cated.

. . . . [ PROSECUTOR: ] O kay. And then based on your training and exp erience

-- I know you ’ re not a n officer any more, but it hasn ’ t been that long. Ba sed on y our t raining and experience, is someone dripping a drink on their shi rt a po ssible sign of intoxication?
[ MOALA : ] Oh, yes

.
Based on this record, no evide nce tends to show that Robinson did not appear

intoxicated when the police detained him, a nd no evidence c onflicts with the officers ’

testimony or the v

ideo showing how Robinso n app eared a t that moment

. The

off icers ’ admissions that t he y d id not know with certainty whether Robinson was

intoxicated or not wh en they approached his vehicle is not affi rmative evi dence that

Robinson did not appea r intoxicated , which is what h e neede d to get his requested

instruction. See White v. State
, 549 S.W .3d 146, 154 n. 2 1 (Tex. Crim. App. 2018 )
(stating that appellant did not establish that there was an is sue of f act in disp ute
because he presented no evide nce controver ting the evidence presen ted by the S tate );

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

on cross

- examination cannot, by themselves, raise a disputed fact i ssue. There must

be some affirmative evidenc e to raise a fact issue. ” ); Garza
, 126 S. W.3d at 86 ( “ Vague23

suggestions by ap pellant ’ s counsel that the of ficers were on a fishing expedition,
without more, do not rise to the level of creating a fact issue. ” ).

Beca use Robinso n has not shown that the evide nce raised a fac tual dispute tha t

was m aterial to h ow the evidence against him was obtained
, the trial c ourt did not err

in r e fu s i ng to give the jury an Article 38.23 charge

. Robinson , 377 S.W.3d at 722;

Madde n , 2 4 2 S.W.3d at 518. We over r u le Robinson ’ s s ec on d issue

.

IV. C O NCLUSION
Having overrul ed Ro binson ’ s issues
, we affi rm the trial court ’ s judgment.

/s/ Dana Womack

Dan a Womack Justi c e

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered : August 18 , 2022