Affirmed and Opinion Filed June 15, 2015 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-00439-CR THEODORE ROOSEVELT ARTHUR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Crimin al District Court No. 3 Dallas County, Texas Trial Court Cause No. F-1258513-J 

### MEMORANDUM OPINION Before Justices Bridges, Lang, and Schenck Opinion by Justice Bridges Theodore Roosevelt Arthur appeals his convi ction for possession of marijuana in an amount of fifty pounds or less but more than five pounds. A jury convicted appellant, and the trial court sentenced him to six years’ confinement. 1 In five points of e rror, appellant argues the trial court erred in finding he gave consent to a se arch, refusing to suppress the contents of a “tin can,” refusing to instruct the jury on a lesser-incl uded offense, failing to instruct the jury to disregard the evidence if it found appellant did not consent to th e search, and fail ing to instruct the jury to disregard evidence it found to be out side the scope of the consent to search. We affirm the trial court’s judgment.

1 The record contains the State’s notice of extraneous offenses advising appellant th at evidence of the following crimes, wrongs , or acts might be introduced at trial: assault of a public servant, possession of a controlled substance, two possession of a dangerous drug offenses, two deadly conduct offenses, assault causing bodily injury--family member, and two violation of a protective order offenses.–2– Dallas police officer Karen Eguia testified she was dispatched to a residence in Dallas on July 27, 2012 because an anonymous caller reported that the residents were “growing a marijuana tree in the backyard a nd the only way to see it would be through the alley.” Eguia and her partner drove down the alley behind the resi dence and saw a marijuana plant growing more than six feet tall in the backyard. Eguia and her partner parked and got out of their patrol car. Eguia could smell the odor of marijuana, whic h she described as “like a skunk.” Eguia called her sergeant, M. Irizarry, who a rrived on the scene shortly thereaft er and verified that it was marijuana growing in the house’s backyard. Eguia heard the house’s garage door open, and sh e and the other office rs drew their guns for officer safety because they did not know who was on the other side of the garage door. Eguia saw appellant and another person trying to get in the car that was parked in the garage. Appellant and his companion complied with comm ands to come out to the driveway and get down on their stomachs. Officer s handcuffed them. Appellant’s wife, Jessica Turner, opened the door leading inside the house from the garage. Irizarry asked Turner if there were other people inside the house, and Turner said “her ch ildren and her father” were inside the house. Irizarry asked Turner for her consent to conduc t a protective sweep of the house, and Turner consented. While Eguia waited outside, Iriza rry and another officer conducted a protective sweep of the house “to check for people and any da nger.” The protective sw eep lasted “less than a minute.” Inside the house were appellant’s wi fe, Jessica Turner, two lit tle girls and an older man. Also during the protective sweep, Irizarry “saw seeds” in plain view with a digital scale on a desk. Irizarry spoke with Turner, and Turn er filled out and signed a form indicating her consent for officers to search the house. Appell ant also signed a consent to search form. Dallas narcotics Detective Lucio Cano arri ved and searched the house. Cano found “multiple” marijuana plants behind the house. Inside, he found a “greenish tin cup” that he–3– opened and found a bag of marijuana seeds and a bag of “ready to smoke marijuana.” Cano confiscated the contents of the tin cup, and he and other narcotics detectives uprooted and bagged the live marijuana plants in the backya rd. Appellant was indicted on a charge of possession of marijuana in an amount of fift y pounds or less but more than five pounds. At trial, appellant elected to represent hims elf pro se. The trial court appointed standby counsel. Appellant filed a pretrial motion to suppress. At the e nd of voir dire, appellant stated his motion to suppress “was because [of] two thi ngs: No consent and they opened up a container in my house that was closed. And th ey got pictures to prove it.” At the hearing on appellant’s motion to suppre ss, the prosecutor characterized the issues as the consent to search and the small metal co ntainer found in appellan t’s house. Eguia, the State’s only witness at the heari ng, testified to the events surr ounding the search of appellant’s house and appellant’s and Turner’s signing of consen t to search forms. Th e State also introduced a video recording of appellant and Turner signing the forms. Appellant called Turner as a witness, a nd she testified she signed the consent form because she “felt threatened” and “they threatened to take my ch ildren away.” Turner testified she requested a search warrant, and her consent “w as not freely.” Appellan t testified his consent was “forced” and officers kicked him in the h ead and stepped on him while he was lying on the ground. Appellant testified one o fficer said, “if you sell drugs in this state, you will sell drugs for me.” Appellant testified o fficers “literally stood on top of [a ppellant’s] back to look over the fence to look at the so-called alleged bush.” A ppellant claimed he made statements at the time he signed the consent form that he “signed under dur ess” and he was “totally against this consent without a search warrant.” During cross-examination, the State played a video of appellant’s in terview at the police station with Detective Dinh. In the video, appe llant stated he knew the marijuana plant was a–4– “weed” plant, but he dug it up and tried to kill it. Appellant told Dinh he did not consent to the search at first, but agreed to sign a consent form if Turner also agreed to consent. The prosecutor asked appellant whether he told Dinh about officer s abusing him, and appellant testified he “told the detective [he] was assaulted and . . . excessive force was used.” However, the video did not show appellant claiming he was abused. In re sponse to questioning regarding this discrepancy, appellant testified he “told the officer before that.” In response to appellant’s insistence that he told a different officer about the abuse, the State played a video of appellant speaking wi th another officer. Th e video did not support appellant’s claim that he spoke about abuse. Appe llant testified the versi on of the video he “left at home” showed “that officer clearly said, ‘We we nt in your house. We didn’t find anything.’” Appellant stated he had “another thing” and requested a picture of “a gold can on top of a glass table with a top on it, cl osed.” The picture of the cl osed container was produced, and appellant testified: “Tha t’s the container that was not found in my house because I don’t use that. That container came up in my house. The narcotic s team searched my house. Why didn’t they find that? And it was in my house. And there’s it with the top open here, Your Honor. It is closed.” Appellant testified the container “was not in [his] house before the officers came.” At the conclusion of the he aring, the trial court announced that the motion to suppress was denied and orally found appellant’s and Turn er’s consent was freely and voluntarily made, and the subsequent search of the house was constitutionally legal. The next day, before trial resumed, the trial cour t clarified that it had disposed of all of appellant’s motions and made the following statement: While I’ve got the floor on the consent issu e, let me make these – dictate these preliminary findings of fact and conclusions . I’ll make written ones if requested to do so. I so find, as I have, consent by Mr . Arthur and/or his wife to the search was freely and voluntarily given without coercion or threats. I base this on the – considering all the evidence in the mo tion to suppress hearing and reasonable deduction from that evidence. I resolve credibility issues in favor of the State’s–5– witnesses, who testif ied that these consents were secured without coercion. I’m well aware of the defendant’s own testim ony and his wife’s testimony that raised this issue. However, in considering te stimony but also the video without sound of the consent procedure at the alleyway of the defendant’s residence and also his interview which was recorded in I assu me Dallas County Jail, City Hall, two different police officers wher e I do not see any evidence of his alleged abuse or coercion or threats or physical violation and there being no other evidence to that effect. So I weighed all that in maki ng these determinations. So I did find consent was freely and voluntarily give n, so the issue on these matters is preserved for any appeal. Mr. Arthur, in the event you’re convict ed and desire to appeal. I believe you’ve – issues have been properly preserved. Appellant did not object to the trial court’s find ings and did not request additional findings. Eguia, Irizarry, and Cano testified regardin g the marijuana in appellant’s back yard and the subsequent search pursuant to the consent of appell ant and Turner leading to the discovery of marijuana inside the house. Turner testified she asked for a search warrant, but “no one ever responded.” Turner testified she signed the consen t form because she “felt threatened.” In his closing statement, appellant argued he tried to destroy the marijuana plan t and did not know what it was. The jury convicted appell ant, and this appeal followed. In his first and second points of error, appe llant argues the trial cour t erred in denying his motion to suppress. Specifically, appellant comp lains the trial court could not have found that Turner consented to the “prote ctive sweep” of the house as Iriza rry testified. Because it would be an abuse of discretion to c onclude Turner consented to the protective sweep, appellant argues, the resulting discovery of marijuana seeds and sc ales were fruit of the po isonous tree. Further, appellant complains of the opening of the container in which marijuana was found. Appellant did not raise the issue of consent to the protective sweep at trial. Further, though appellant mentioned the container being “cl osed,” his arguments c oncerning the container all centered on his theory that po lice put the container in his hous e, and the container was not in his house before police came. Appellant’s points of error on appeal do not comport with his objections and arguments at trial. Thus , no error is preserved for our review. See T EX
. R. A PP
. P.–6– 33.1(a)(1); Cantu v. State , 830 S.W.2d 166, 170 (Tex. App.—Dallas 1992, no pet.). We overrule appellant’s first and s econd points of error. In his third point of error, appellant argues the trial court e rred in failing to instruct the jury on lesser-included possession offenses. Appellant did not object to the court’s charge on the basis that it lacked a lesser-i ncluded offense instruction, and he did not request such an instruction. We conclude th is issue is also waived. See T EX
. R. A PP
. P. 33.1(a)(1); Tolbert v.
State , 306 S.W.3d 776, 780 (Tex. Crim . App. 2010). We overrule ap pellant’s third point of

error. In his fourth point of error, appellant argues the trial court erred in failing to instruct the jury, pursuant to article 38.23 of th e code of criminal procedure, to disregard the evidence if it found appellant refused to c onsent to the search. The court’s charge instructed the jury to di sregard the evidence if it failed to find beyond a reasonable doubt that Turner co nsented to the search. At th e charge confer ence, appellant objected to this instruction and stated the instru ction “should be Ms. Turn er and Mr. Arthur and instead of Ms. Turner.” The tria l court responded that there had been no evidence raised before the jury regarding appellant’s cons ent or lack of consent. The trial judge noted that “We heard extensively in front of the Court” but the issue was not raised in front of the jury. To raise a disputed fact issue warranting an article 38.23 jury instruction, there must be some affirmative evidence that puts the existence of that f act into question. Madden v. State , 242 S.W.3d 504, 513 (Tex. Crim. App. 2007). Because there was no such evidence putting the existence of appellant’s consent into question, the trial court di d not err in leaving appe llant’s name out of the article 38.23 instruction. See id. We overrule appellant’s fourth point of error. In his fifth point of error, appellant complain s the trial court erred in failing to instruct the jury to disregard evidence it found to be outside the scope of the consent to search. Appellant–7– did not request an instruction regarding the scope of the consent. Accordingly, this issue presents nothing for our review. See T EX
. R. A PP
. P. 33.1(a)(1). We overrule appellant’s fifth point of error. We affirm the trial court’s judgment.

Do Not Publish T EX
. R. A PP
. P. 47.2(b) 140439F.U05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THEODORE ROOSEVELT ARTHUR, Appellant No. 05-14-00439-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3, Dallas County, Texas Trial Court Cause No. F-1258513-J. Opinion delivered by Justice Bridges. Justices Lang and Schenck participating.
Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered June 15, 2015.