IN THE

TENTH COURT OF APPEALS

No. 10-19-00250-CR

LARRY DONAL STERLING,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 18-02235-CRF-85

MEMORANDUM OPINION

Larry Donal Sterling was convicted of possession of a controlled substance, 

cocaine, with the intent to deliver, in an amount greater than one gram but less than four 

grams. See TEX. HEALTH & SAFETY CODE ANN. §481.112(c). Two prior felony convictions 

were found to be true, and Sterling was sentenced to 35 years in prison. Because the trial 

court did not abuse its discretion in denying Sterling’s motion to suppress, denying 

Sterling’s request for an article 38.23 instruction, or in overruling Sterling’s Rule 404(b) 
Sterling v. State Page 2

and 403 objections to the admission of an extraneous offense, we affirm the trial court’s 

judgment.

BACKGROUND

Officer Aaron Arms, of the Bryan Police Department, saw Sterling driving a car in 

Bryan. He confirmed Sterling did not have a valid driver license. When Sterling parked 

the car, Arms arrested Sterling and placed him in his patrol vehicle. After securing 

Sterling, Arms looked in Sterling’s car from the outside for any objects of a criminal 

nature. From the passenger side window, he saw a prescription pill bottle upside down 

in the pocket of the driver’s side door. He walked to the driver’s side and was able to see 

into the bottle and could tell the bottle contained what appeared to him to be rocks of 

crack cocaine.

Arms took the key to the car from Sterling and proceeded to search the car. He 

seized the bottle which contained four rocks of crack cocaine. The bottle had a 

prescription label in Sterling’s name on the outside. During the search of the car, Arms 

also found a clear sandwich-style bag that had five little (one-inch by one-inch) baggies 

containing powder cocaine. There were also several unused little baggies that were 

found in a Newport brand cigarette box in the center console with the cocaine. 

MOTION TO SUPPRESS

In his first issue, Sterling contends the trial court abused its discretion in denying 

Sterling’s motion to suppress. Specifically, Sterling contends video taken from Arms’s 

body cam and a photograph taken by Arms indisputably show the crack cocaine seized 
Sterling v. State Page 3

could not be seen from the outside of Sterling’s car; and thus, Sterling’s argument 

continues, Arms had no probable cause to search Sterling’s vehicle.

When reviewing a ruling on a motion to suppress, we afford almost total deference 

to the trial judge's determination of facts if those facts are supported by the record. State 

v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013); Guzman v. State, 955 S.W.2d 85, 89 

(Tex. Crim. App. 1997). Although we may review de novo "indisputable visual evidence" 

contained in a videotape, Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000), 

the deferential standard of review still applies to the review of a trial court’s assessment 

of a video. Ex parte Harvin, 500 S.W.3d 418 n.23 (Tex. Crim. App. 2016).

In reviewing a trial court's ruling on a motion to suppress, appellate courts must 

view all of the evidence in the light most favorable to the trial court's ruling. State v. 

Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). The party that prevailed is 

afforded the "strongest legitimate view of the evidence" as well as all reasonable 

inferences that can be derived from it. Id. We review a trial judge's application of search 

and seizure law to the facts de novo and will affirm the court’s ruling if the record 

reasonably supports it and is correct on any theory of law applicable to the case. State v. 

Weaver, 349 S.W.3d 521, 525 (Tex. Crim. App. 2011). 

Relying on the Court of Criminal Appeals’ opinion in Carmouche v. State, 10 S.W.3d 

323 (Tex. Crim. App. 2000), Sterling contends the video and photograph amounted to

“indisputable evidence,” which, according to Sterling, is conclusive that Arms could not 

see the crack cocaine inside the pill bottle that was upside down in the driver’s side door 

pocket in Sterling’s car. In Carmouche, a Texas Ranger testified that he asked the 
Sterling v. State Page 4

defendant if the Ranger could search the defendant again. According to the Ranger, the 

defendant threw up his hands, said “all right,” and turned around to put his hands on 

his car. The Ranger said he then reached to the area of the defendant where the informant 

said the defendant kept his drugs. The Court of Criminal Appeals determined that the 

video did not support the Ranger’s testimony. Specifically, the Court said, “the videotape 

belies [the Ranger's] testimony that appellant raised his hands and turned around in 

response to [the Ranger's] request to search. Indeed, appellant turned around and 

assumed a position to facilitate the search after he was ordered to do so by one of the 

officers. [The Ranger's] ‘request’ came after officers had appellant spread-eagled beside 

his car.” Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000). 

This is not the situation we have here. We agree that from the video and the 

picture, we cannot determine if crack cocaine is in the pill bottle. However, that is not 

“indisputable evidence,” as it was in Carmouche, that Arms could not see it. Arms testified 

that he could see what appeared to be crack cocaine and used a flashlight to further 

illuminate it before opening the vehicle door. Arms demonstrated for the trial court the 

difference in viewing the pill bottle with his flashlight on and with it off. The trial court 

found Arms’s testimony to be credible and that Arms could see what was reasonably 

believed to be crack cocaine in the pill bottle.

Accordingly, viewing the evidence in the light most favorable to the trial court’s 

ruling and giving almost total deference to the trial court’s determination of historical 

facts, we find the trial court did not abuse its discretion in denying Sterling’s motion to 

suppress. Sterling’s first issue is overruled.
Sterling v. State Page 5

ARTICLE 38.23 INSTRUCTION

Related to his first issue, in his fourth issue, Sterling argues the trial court erred in 

refusing to submit an article 38.23 instruction in the charge to the jury and that Sterling 

was harmed by the refusal. Sterling argues in this issue that there was a factual dispute 

as to whether Arms could see the contents of the pill bottle from outside of Sterling’s 

vehicle, explaining that if Arms could not see into the pill bottle, the search was illegal, 

thus requiring an article 38.23 instruction. 

Article 38.23 of the Code of Criminal Procedure provides that no evidence 

obtained by an officer in violation of the laws of Texas or the United States shall be 

admitted in evidence against an accused on the trial of any criminal case. TEX. CODE CRIM.

PROC. ANN. art. 38.23(a). Further, article 38.23 states that where the legal evidence raises 

this issue, the jury shall be instructed that if it believes, or has a reasonable doubt, that 

the evidence was obtained in violation of the law, it shall disregard the evidence obtained. 

Id. 

A defendant's right to the submission of a jury instruction under article 38.23(a) 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, 242 S.W.3d 

504, 509-10 (Tex. Crim. App. 2007). There are three requirements that must be met to be 

entitled to an instruction pursuant to article 38.23: (1) the 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. 
Sterling v. State Page 6

Accordingly, there must be a genuine dispute about a material fact. Id. If there is 

no disputed factual issue, the legality of the conduct is determined by the trial judge 

alone, as a question of law. Id. 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 

fact into question. Id. at 513. A cross-examiner's questions do not create a conflict in the 

evidence, although the witnesses's answers to those questions might. Id.

Sterling points to Defense Exhibit 1, a photograph which Arms sponsored and 

agreed was fair and accurate, as the evidence of a factual dispute because, according to 

Sterling, the photograph itself contradicts Arms’s testimony by “show[ing] that Arms 

was unable to see the rocks of crack cocaine in the pill bottle while outside the car and 

looking through the windshield.” However, Sterling never pursued this alleged “factual 

dispute” during trial. He never elicited testimony regarding whether the photograph 

contradicted Arms’s testimony or testimony that would challenge Arms’s credibility

regarding whether Arms could see in the pill bottle without opening the door of Sterling’s 

vehicle to get a closer look. Sterling never did anything to affirmatively contest the fact that 

Arms could see into the pill bottle other than introduce Defense Exhibit 1. This is not 

enough. See Madden v. State, 242 S.W.3d 504, 513-516 (Tex. Crim. App. 2007).

1 Thus, 

because there is no affirmatively contested factual dispute, the trial court did not err in 

failing to submit an article 38.23 instruction.

Sterling’s fourth issue is overruled.

 

1

Judge Cochran gives a very thorough explanation in this opinion of what constitutes a disputed fact issue 

sufficient to warrant an article 38.23 jury instruction.
Sterling v. State Page 7

EXTRANEOUS OFFENSE EVIDENCE

In his second and third issues, Sterling asserts the trial court abused its discretion 

in admitting into evidence an extraneous drug offense over Sterling’s objections. The 

evidence consisted of an indictment and judgment regarding a charge of, and Sterling’s 

plea of guilty to, possession of a controlled substance and testimony from the arresting 

officer regarding the facts of the discovery of the controlled substance.

A trial court's ruling on the admissibility of extraneous offense evidence is 

reviewed under an abuse-of-discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 

(Tex. Crim. App. 2009).

Rule 404(b)

Outside the presence of the jury, the State informed the Court that it would 

introduce evidence of an extraneous offense, a conviction for possession of cocaine in 

2006, to rebut Sterling’s defensive theory that the cocaine found in this case was not his 

and under the “doctrine of chances” theory of admissibility.2 Sterling argued against the 

admissibility of evidence of this offense stating he did not present a theory that the 

cocaine in this case was not his; he only questioned whether there were sufficient links to 

prove possession. Sterling also argued that the conviction was too similar to the case 

being tried, and it implied that if Sterling possessed cocaine before, he possessed it again 

this time. 

 

2

“The ‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat themselves 

inadvertently or by happenstance.” De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009).
Sterling v. State Page 8

Rule of Evidence 404(b) generally provides that "[e]vidence of a crime, wrong, or 

other act is not admissible to prove a person's character in order to show that on a 

particular occasion the person acted in accordance with the character." TEX. R. EVID. 

404(b)(1). However, the evidence may be admitted for another purpose, such as to prove 

the defendant's intent, plan, preparation, or other state of mind. Id. (b)(2). Further, 

admitting evidence of extraneous offenses is permissible "to rebut a defensive issue that 

negates one of the elements of the offense." De La Paz, 279 S.W.3d at 343; Hinojosa v. State, 

554 S.W.3d 795, 798 (Tex. App.—Waco 2018, no pet.).

On appeal, Sterling argues that the extraneous offense evidence (1) was admitted 

as propensity evidence and (2) did not have common characteristics with the offense 

charged. 

Regarding his first argument, Sterling only states in his brief that the evidence was 

inadmissible “on the issues of intent, knowledge, or to rebut a defense which simply held 

the State to its burden of proof.” Prior to this statement, he cites to general authority 

regarding the admission of extraneous offense evidence, but then cites to nothing specific 

to support why the extraneous offense could not be admissible to show either intent or 

knowledge, or particularly, to rebut a defensive theory, especially when the trial court 

focused on permitting the State’s use of the offense in that manner. Further, he provides 

no additional argument in support of this one statement. Accordingly, this part of 

Sterling’s argument is improperly briefed and presents nothing for review. See TEX. R.

APP. P. 38.1(i). See also Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) ("It is 
Sterling v. State Page 9

incumbent upon appellant to cite specific legal authority and to provide legal arguments 

based upon that authority.").3

As to Sterling’s second argument that the extraneous offense did not have 

common characteristics with the charged offense, this argument does not comport with 

the argument Sterling made at trial. There, Sterling complained that the offenses were 

too similar. Thus, this part of Sterling’s argument is not preserved for our review. See

Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d 459, 

464 (Tex. Crim. App. 2009).

Sterling’s second issue is overruled.

Rule 403

Sterling also argued to the trial court and argues on appeal that the extraneous 

offense was inadmissible because its probative value was substantially outweighed by 

the danger of unfair prejudice.4

Evidence may be excluded if its probative value is substantially outweighed by 

the danger of unfair prejudice. See TEX. R. EVID. 403. But this rule favors the admission 

 

3

In his reply brief, Sterling cites to the petition for discretionary review granted in Work v. State, No. 03-18-

00244-CR, 2018 Tex. App. LEXIS 3683 (Tex. App.—Austin May 24, 2018, pet. granted) (not designated for 

publication) to speculate that the State’s arguments for admissibility of the extraneous offense are called 

into question and that a “favorable outcome to the granted petition” “will further support the argument 

[that] Sterling’s prior conviction was inadmissible....” We will not speculate as to how the opinion in Work, 

if one issues, will affect this appeal.

4 Sterling states in his brief that “[t]his point of error concerns the same extraneous offense evidence 

complained of in his second point of error.” However, in the discussion of the factors used in the review 

of a Rule 403 issue, Sterling uses phrases such as “extraneous drug acts,” “unending parade of [extraneous 

offense] exhibits and testimony,” and “horde of [extraneous] evidence admitted” as reasons for why the 

factors weigh in favor of exclusion. However, only one extraneous drug offense was objected to by Sterling 

under Rule 403 and that is the only extraneous offense that we review pursuant to the Rule 403 factors.
Sterling v. State Page 10

of relevant evidence, and such evidence is presumed to be more probative than 

prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007); Majors v. State, 554 

S.W.3d 802, 808 (Tex. App.—Waco 2018, no pet.). All testimony and physical evidence 

will likely be prejudicial to one party or the other. Jones v. State, 944 S.W.2d 642, 653 (Tex. 

Crim. App. 1996). It is only when there exists a clear disparity between the degree of 

prejudice of the offered evidence and its probative value that Rule 403 is applicable. Id.

During his opening and by his cross-examination of Arms, Sterling suggested to 

the jury that because items from at least one other person, a female, were also in the car, 

the cocaine powder found in a cigarette package in the console of the car may not have 

been his. The extraneous offense evidence at issue here casts doubt on Sterling’s position 

because, as in this case, the evidence was also found in a cigarette package. Thus, the 

evidence was probative and necessary. The presentation of the conviction did not 

consume an inordinate amount of time and was not repetitive of evidence already 

admitted.5 Further, the jury was instructed that it could not consider the evidence for 

any purpose other than to determine “motive, opportunity, intent, knowledge, lack of

mistake or accident, or to rebut any defensive theory....” While the admission of a prior 

conviction will always be prejudicial, there was nothing here that suggested the jury 

would be distracted from the main issue or would use the evidence for an improper 

purpose. 

 

5 The indictment and judgment had been preadmitted and took almost no time to publish to the jury; and 

the officer’s direct testimony on the issue was very brief.
Sterling v. State Page 11

Based on our review of the record, the trial court, after balancing the various Rule 

403 factors, could have reasonably concluded that the probative value of the extraneous 

offense evidence was not substantially outweighed by the danger of unfair prejudice. 

Accordingly, the trial court did not abuse its discretion in admitting evidence of Sterling’s 

possession of a controlled substance conviction and testimony thereof, over Sterling's 

Rule 403 objection.

Sterling’s third issue is overruled.

CONCLUSION

Having overruled each issue presented on appeal, the trial court’s judgment is 

affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Neill

Affirmed

Opinion delivered and filed February 26, 2020

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