IN THE

TENTH COURT OF APPEALS

No. 10-16-00214-CR

LUIS ARMANDO MORALES, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court No. F49824

MEMORANDUM OPINION

In three issues, appellant, Luis Armando Morales Jr., challenges his convictions for 

evading arrest with a vehicle and unlawful possession of a controlled substance.1 See TEX.

 

1 The trial court’s judgment of conviction for the unlawful-possession-of-a-controlled-substance 

count indicates that the operative statutory provision is section 481.115(c) of the Health and Safety Code. 

See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010) (“An offense under Subsection (a) is a felony 

of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including 

adulterants or dilutants, one gram or more but less than four grams.”). However, Morales was charged 

and convicted of unlawful possession of less than one gram of methamphetamine. Accordingly, the 

operative statute for this conviction is section 481.115(b), not section 481.115(c). See id. § 481.115(b) (“An 

offense . . . is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, 

including adulterants or dilutants, less than one gram.”). Because a court of appeals has authority to correct 
Morales v. State Page 2

PENAL CODE ANN. § 38.04(b)(2)(A) (West 2016); see also TEX. HEALTH & SAFETY CODE ANN.

§ 481.115(b) (West 2010). Specifically, Morales contends that the trial court erred in: (1) 

denying his requested jury-charge instructions under article 38.23 of the Code of Criminal 

Procedure, see TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005); (2) admitting evidence 

of an in-custody confession; and (3) allowing the State to make improper jury arguments. 

Because we overrule all of Morales’s issues on appeal, we affirm as modified.2

I. BACKGROUND

Morales was charged by indictment with one count of evading arrest with a 

vehicle and one count of unlawful possession of a controlled substance—

methamphetamine—in an amount less than one gram. See TEX. PENAL CODE ANN. § 

38.04(b)(2)(A); see also TEX. HEALTH & SAFETY CODE ANN. § 481.115(b). Also included in 

the indictment was a felony-enhancement paragraph detailing Morales’s prior conviction 

for engaging in organized criminal activity. The jury ultimately found Morales guilty of 

both counts and found the enhancement paragraph to be “true.” Accordingly, the jury 

assessed punishment at twenty years’ incarceration in the Institutional Division of the 

Texas Department of Criminal Justice for the evading-arrest-with-a-vehicle count and 

two years’ incarceration for the unlawful-possession-of-a-controlled-substance count. 

 

and reform a judgment to make the record speak the truth when it has information to do so, we modify the 

trial court’s judgment of conviction to reflect that the statute for the offense is section 481.115(b) of the 

Health and Safety Code. See id.; see also TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. 

Crim. App. 1993). 

2

In light of our disposition, all pending motions are dismissed as moot.
Morales v. State Page 3

The trial court ordered the sentences to run concurrently and certified Morales’s right of 

appeal. This appeal followed. 

II. JURY-CHARGE ERROR

In his first issue, Morales asserts that the trial court erred in denying his request 

for instructions in the charge pursuant to article 38.23 of the Code of Criminal Procedure. 

See TEX. CODE CRIM. PROC. ANN. art. 38.23. We disagree.

A claim of jury-charge error is reviewed using the procedure set out in Almanza v. 

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). See Barrios v. State, 283 S.W.3d 348, 350 

(Tex. Crim. App. 2009). First, we must determine whether there is error in the charge. 

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). And only if we find error do we 

then analyze that error for harm. Id.

Article 38.23(a) of the Code of Criminal Procedure provides:

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

provisions of the Constitution or laws of the State of Texas, or of the 

Constitution or laws of the United States of America, shall be admitted in 

evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the 

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

evidence was obtained in violation of the provisions of this Article, then 

and in such event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a). In Madden, the Court of Criminal Appeals 

stated that 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 
Morales v. State Page 4

statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 

504, 509-10 (Tex. Crim. App. 2007). The Madden Court further explained:

There are three requirements that a defendant must meet before he is 

entitled to a submission of a jury instruction under Article 38.23(a):

(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.

There must be a genuine dispute about a material fact. If there is no 

disputed factual issue, the legality of the conduct is determined by the trial 

judge alone, as a question of law. And if other facts, not in dispute, are 

sufficient to support the lawfulness of the challenged conduct, then the 

disputed fact issue is not submitted to the jury because it is not material to 

the ultimate admissibility of the evidence. The disputed fact must be an 

essential one in deciding the lawfulness of the challenged conduct.

Id. at 510-11.

Here, witnesses testified to the following, which was undisputed:

 On July 4, 2015, Officer Matthew Cox of the Cleburne Police Department 

responded to a disturbance call and met with the complainant, Brandon McElroy, 

at his house at 803 Featherston in Cleburne, Texas;

 McElroy explained that he and Morales had gotten into a dispute and that Morales 

had said that he was going to come over and “kick his ass”;

 McElroy told Officer Cox that Morales drives a white Chevy pickup truck;

 While Officer Cox and McElroy were speaking, Morales drove by 803 Featherston 

in a white Chevy pickup truck;
Morales v. State Page 5

 Officer Cox believed that Morales driving by in the white Chevy pickup truck 

corroborated McElroy’s story, gave him reasonable suspicion, and warranted 

further investigation;

 After seeing Morales drive by, Officer Cox returned to his marked patrol unit, 

turned on his overhead lights, and began to pursue Morales for the purpose of 

temporarily detaining him to further investigate McElroy’s allegations;

 During his pursuit of Morales, Officer Cox observed Morales violate numerous 

traffic laws, including failing to stop at a stop sign, speeding, and driving down 

the wrong side of the road on Featherston;

 Eventually, Morales stopped his pickup truck in front of McElroy’s driveway, 

though the pickup truck blocked McElroy’s driveway and was parked more than 

eighteen inches from the curb, which constituted a traffic hazard;

 After stopping, Morales exited the pickup truck and closed and locked his door;

 Officer Cox exited his vehicle, drew his service weapon, and ordered Morales onto 

the ground with his hands behind his back;

 Officer Cox handcuffed Morales for evading arrest and placed him in the back seat 

of the patrol unit;

 Backup officers subsequently arrived at the scene and informed Officer Cox that a 

bag of meth-looking substance and a glass pipe were in plain view on the center 

console and driver-side floorboard of Morales’s pickup truck, respectively;

 Officer Cox discussed with the backup officers and his supervisor the best way to 

search the pickup truck for contraband;

 The officers determined that the best way to proceed was to tow and impound the 

pickup truck and, per written departmental policy, inventory the pickup truck 

before towing;

 The officers arrived at this decision because Morales was the sole occupant of the 

pickup truck when he was arrested, and because there was no one else to whom 

to release the vehicle. Additionally, the pickup truck was a hazard because it was 

sticking out in the street, and because it was blocking McElroy’s driveway. And 
Morales v. State Page 6

finally, the officers believed that the process of getting a search warrant would be 

lengthy;

 Both Officers Cox and Kasey Cowell testified that the inventory was executed as 

per departmental policy.

Despite the foregoing, Morales argues that he was entitled to an article 38.23 

instruction in the charge because the State failed to prove that an inventory policy existed, 

and because there was no showing that the officers followed an inventory policy. 

However, Sergeant Cody Bossier of the Cleburne Police Department noted that the 

department has had a written inventory policy for over twenty-five years and that it has 

remained consistent. Furthermore, both Officers Cox and Cowell provided testimony 

about the department following its inventory policy, and this testimony was not in 

dispute. Accordingly, we cannot say that Morales has directed us to evidence heard by 

the jury that raised an issue of fact that was affirmatively contested and material to the 

lawfulness of the challenged conduct—the search of his pickup truck. See id. at 510-11. 

Morales also contends that he raised a fact issue as to whether the traffic stop was 

lawful. In particular, Morales asserts that Officer Cox did not corroborate McElroy’s 

story enough to justify the traffic stop. We disagree. Officer Cox testified without 

contradiction that McElroy complained that Morales had threatened to come over and 

assault him and that Morales drove a white Chevy pickup truck. During the conversation 

at McElroy’s house, Officer Cox observed Morales driving by slowly in a white Chevy 

pickup truck, thus corroborating McElroy’s allegation. See Pipkin v. State, 114 S.W.3d 649, 
Morales v. State Page 7

654 (Tex. App.—Fort Worth 2003, no pet.) (“’Corroboration’ in this sense does not mean 

that the officer must personally observe the conduct that causes him to reasonably 

suspect that a crime is being, has been, or is about to be committed. Rather, corroboration 

refers to whether the police officer, in light of the circumstances, confirms enough facts 

to reasonably conclude that the information given to him is reliable and a temporary 

detention is justified.”); see also State v. Stolte, 991 S.W.2d 336, 341 (Tex. App.—Fort Worth 

1999, no pet.) (noting that a tip deserves great weight if the person put himself in a 

position to be held accountable for his intervention) (citing United States v. SierraHernandez, 581 F.2d 760, 763 (9th Cir.)).

Furthermore, while pursuing Morales with his overhead lights activated, Officer 

Cox saw Morales continue driving, rather than immediately pulling over, and violating 

several traffic laws, including speeding, failing to stop at a stop sign, and driving on the 

wrong side of the road. See TEX. PENAL CODE ANN. § 38.04; Mayfield v. State, 219 S.W.3d 

538, 541 (Tex. App.—Texarkana 2007, no pet.) (“There is evidence that Mayfield was 

driving, that the officer had cause to stop him for a traffic violation, that the officer was 

in a marked squad car with emergency lights flashing and siren sounding, and that 

Mayfield did not stop for an extended period of time. The statute does not require highspeed fleeing, or even effectual fleeing. It requires only an attempt to get away from a 

known officer of the law. Thus, under the law, fleeing slowly is still fleeing.”); see also

TEX. TRANSP. CODE ANN. § 544.010(a), (c) (West 2011) (providing that the operator of a 
Morales v. State Page 8

vehicle shall stop when approaching an intersection with a stop sign); id. § 545.352(a) 

(West Supp. 2016) (“A speed in excess of the limits established by Subsection (b) or under 

another provision of this subchapter is prima facie evidence that the speed is not 

reasonable and prudent and that the speed is unlawful.”). Therefore, considering the 

totality of the circumstances, Officer Cox had reasonable suspicion to initiate the traffic 

stop of Morales. See Pipkin, 114 S.W.3d at 653-54 (“To initiate an investigative stop, the 

investigating officer must possess a reasonable suspicion based on specific articulable 

facts that, in light of the officer’s experience and general knowledge, would lead the 

officer to the reasonable conclusion that criminal activity is underway and the detained 

person is connected to the activity.”). Moreover, Morales has not directed us to evidence 

demonstrating a fact issue that was material and affirmatively contested with regard to 

the traffic stop. See Madden, 242 S.W.3d at 510-11. 

Based on the foregoing, we conclude that the trial court did not err in failing to 

include an article 38.23 instruction in the jury charge. See id.; Barrios, 283 S.W.3d at 350; 

Ngo, 175 S.W.3d at 743; see also TEX. CODE CRIM. PROC. ANN. art. 38.23. We overrule 

Morales’s first issue.

III. MORALES’S CONFESSION

In his second issue, Morales argues that the trial court erred in admitting evidence 

of his in-custody confession obtained in violation of article 38.22 of the Code of Criminal 
Morales v. State Page 9

Procedure and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See 

TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2016).

The record reflects that Morales filed a motion to suppress all oral statements he 

made to any law enforcement officers or others in connection with this case and any 

testimony by law enforcement officers or others concerning such statements. At the 

hearing on his motion to suppress, Morales identified two incriminating statements that 

he made to Officer Cox and argued that the statements were not voluntarily made 

because they were the product of non-Mirandized, custodial interrogation. The trial court 

overruled Morales’s objections to the proffered evidence.

During the State’s case-in-chief, Officer Cox testified that he drew his service 

weapon and commanded Morales to get on the ground with his hands behind his back 

when Morales exited his pickup truck. Officer Cox handcuffed Morales and placed him 

under arrest for evading arrest with a vehicle. While the handcuffs were being placed on 

him, Morales identified himself as the brother of Officer Cox’s brother-in-law in an 

attempt to “make it personal. That way I would cut him a break or go lighter on him or 

whatever.” Officer Cox stated that he knew who Morales was and that Morales should 

not have evaded. Morales responded, “I know,” and asked for Officer Cox to “[c]ut him 

a break, not take him to jail.”

Later, the following exchange occurred between the State and Officer Cox:
Morales v. State Page 10

[Prosecutor]: All right. Thank you. Now before you searched the 

vehicle, did Mr. Morales call you over to the vehicle he 

was sitting in in the back of the patrol car?

[Officer Cox]: Yes.

Q: And what did he ask you, if anything?

A: He asked me what we were doing with the vehicle.

Q: And what did you tell him?

A: I told him we were going to tow it and that we were 

going to inventory it and that the bag of meth was 

going to catch him another charge.

Q: In response to that, what did he say?

A: He said, [i]t was just a baggy and a pipe.

Q: Did that indicate to you that he knew a baggy and a 

pipe were in the vehicle?

A: Yes.

Q: Did he deny at that point knowing the baggy and the 

pipe were in the vehicle?

A: No.

Shortly thereafter, the State offered State’s Exhibit 2, a DVD of the video from 

Officer Cox’s body camera, into evidence. At this time, defense counsel stated, “we 

would renew our objections previously enumerated.” The trial court overruled counsel’s 

objections, and the State played the video for the jury. During the playing of the video, 

the complained-of incriminating statements were again heard.
Morales v. State Page 11

On appeal, Morales complains about Officer Cox’s testimony regarding the 

incriminating statements. However, as shown above, Morales did not object to Officer 

Cox’s testimony regarding the incriminating statements. “A timely and specific objection 

is required to preserve error for appeal.” Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim. 

App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A). “An objection is timely if it is made as soon 

as the ground for the objection becomes apparent, i.e., as soon as the defense knows or 

should know that an error has occurred.” Grant v. State, 345 S.W.3d 509, 512 (Tex. App.—

Waco 2011, pet. ref’d) (citing Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008)). 

Moreover, “a party must object each time the inadmissible evidence is offered or obtain 

a running objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (citing 

Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)). “An error in the admission 

of evidence is cured where the same evidence comes in elsewhere without objection.” Id.

(citing Ethington, 819 S.W.2d at 858); see Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 

2004). Because Morales did not object when Officer Cox testified during the State’s case 

in chief about the incriminating statements, any error in the admission of the complainedof evidence was cured. See Lane, 151 S.W.3d at 193; Valle, 109 S.W.3d at 509; Grant, 345 

S.W.3d at 512. We overrule Morales’s second issue.
Morales v. State Page 12

IV. JURY ARGUMENT

In his third issue, Morales complains about the State’s closing argument during 

the guilt-innocence phase of trial. Specifically, Morales complains about the following 

statements:

And why did Luis Morales run? Because of that bag of meth, the bag of 

poison right next to him in his truck. Why did he run the stop signs? Why 

did he speed? Why did he lock everyone out of his truck as soon as he 

pulled over? Why did he throw those keys behind the Cadillac? Why did 

four other police officers have to come off of their beat to leave parts of our 

community with less protection? Why did Rodney, the tow truck driver, 

have to come pull the white Chevy pickup truck out of the street, out from 

in front of the driveway at 803 Featherston? So Luis Morales or because 

Luis Morales was trying to protect that bag of dope, that bag of poison 

sitting next to him in his pickup truck.

. . . .

And I want to say one other thing. This little comment about how it’s only 

.09 grams of meth—we had officers tell you meth is bad business. It gets in 

families and it ruins them. It gets into peoples’ lives and they become less 

than they were, right? They stop working. They lose their job. It just infests 

and it infects and it’s a poison, and yet multiple officers say something—

and I hope you picked up on it—they said when meth is involved other 

crimes are involved. Meth is underlying so many of our crimes. And you 

may have—that may have not registered or you just thought whatever, it’s 

just an officer talking, but this case is a perfect example. Because he had 

meth he was going to evade. Well, it was either that or because he had 

warrants out, but I think it’s safe to assume it’s because he had meth. Why 

do I say that? Because he locked the doors as soon as he got out of that 

vehicle.

The record does not reflect that Morales objected to these statements in the trial court.

Texas courts have held that a “defendant’s failure to object to a jury argument or 

a defendant’s failure to pursue to an adverse ruling his objection to a jury argument 
Morales v. State Page 13

forfeits his right to complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d 

73, 89 (Tex. Crim. App. 1996); see Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) 

(“[W]e will not review the propriety of the prosecutor’s arguments, [when] appellant 

failed to object to those arguments at trial.”); Morris v. State, 460 S.W.3d 190, 197 (Tex. 

App.—Houston [14th Dist.] 2015, no pet.); see also Freeman v. State, No. 11-13-00232-CR, 

2015 Tex. App. LEXIS 8515, at *10 (Tex. App.—Eastland Aug. 13, 2015, no pet.) (mem. op., 

not designated for publication). Therefore, because Morales failed to object to the 

complained-of statements made in the State’s argument, we conclude that Morales has 

forfeited his right to complain about this issue on appeal. See TEX. R. APP. P. 33.1; Mays, 

318 S.W.3d at 394; Cockrell, 933 S.W.2d at 89; Morris, 460 S.W.3d at 197; see also Freeman, 

2015 Tex. App. LEXIS 8515, at *10. Accordingly, we overrule Morales’s third issue.

V. CONCLUSION

Because the trial court’s judgment references the wrong statute for the unlawfulpossession-of-a-controlled-substance count, we modify that judgment to show that the 

statute corresponding with the charged offense is section 481.115(b) of the Health and 

Safety Code. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b); see also TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). We affirm the trial 

court’s judgments in all other respects.

AL SCOGGINS

Justice
Morales v. State Page 14

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed as modified

Opinion delivered and filed June 14, 2017

Do not publish

[CR25]