James Dwayne Crowley v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-17-00133-CR
_________________
JAMES DWAYNE CROWLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 15-10-11144-CR
________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Appellant, James Dwayne Crowley, of aggravated robbery.
See Tex. Penal Code Ann. §§ 29.02, 29.03(a)(2) (West 2011). Crowley appeals his
conviction. In four issues, Crowley complains the trial court committed reversible
error by: (1) denying his motion to suppress a search warrant for cellular telephone
data; (2) refusing his requested article 38.23 jury instruction regarding cellular
telephone data; (3) denying his motion to suppress evidence collected from a blue
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Dodge vehicle; and (4) refusing his requested article 38.23 jury instruction regarding
evidence collected from a blue Dodge vehicle. We affirm the trial court’s judgment.
I. Background
After midnight on October 18, 2015, Crowley entered the Flying J Truck Stop
in New Caney, Texas. During the approximately five hours that followed, Crowley
entered the store multiple times and changed his attire several times. In video
surveillance from the truck stop, Crowley’s distinctive hand tattoos are visible, as
well as his wristwatch, and boots. These remained visible and consistent despite the
clothing changes.
During those early morning hours, Crowley, wearing a short-sleeved gray
Dallas Cowboys t-shirt, was captured on camera stealing multiple items from the
store, including a flashlight and Cobra GPS units. At one point, Crowley is observed
speaking to a clerk and pointing to items on an aisle in the electronics section of the
store. After interacting with the clerk, he is then observed on video watching the
clerk disappear down a hall toward an office into a restricted area, while he remained
in the unrestricted part of the store. Later, Crowley entered the restricted area,
proceeded down the hall to the back office, grabbed an armload of merchandise,
including a Cobra GPS unit, and exited through the rear door of the store.
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He returned to the store after 3:00 a.m., wearing the same gray Dallas
Cowboys t-shirt, but he had added a jacket and a blue Dallas Cowboys hat. Crowley
stole multiple Cobra GPS units and was recorded checking the safe. At one point in
the evening, the surveillance camera also captured him speaking with witness
Ronald Hill.
Following the merchandise thefts, Crowley re-entered the store shortly before
5:00 a.m. wearing a different jacket and a camouflaged hat with flaps over the ears.
A little before 5:00 a.m., the surveillance cameras captured Crowley taking a glove
out of a package in the store and putting it on his right hand. He is then observed
pointing a gun at Connie Prior and another employee in the office area. Prior can be
seen opening the safe, and Crowley is seen removing two large bags of coins. As
Crowley was struggling with the bags of coins from the safe, the gun went off and a
projectile ricocheted off the floor, hitting Prior in the arm. Unable to sustain the
weight of the coins, the handle from the cloth shopping bag Crowley was using broke
and it was left on the floor in the store. Crowley dropped one of the bags of coins
outside the store but got away with one bag of coins.
Officers responded to the scene and collected surveillance footage from the
store. Upon reviewing the footage, an officer recognized Hill, the man Crowley
spoke with briefly in the store. The officers located Hill, and after speaking with
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him, concluded James Crowley was a suspect. The lead investigator on the case,
Montgomery County Sheriff’s Office (“MCSO”) Detective Hahs, obtained an arrest
warrant for Crowley. The MCSO determined Crowley drove a blue Dodge vehicle
owned by his wife and acquired its license plate number. At the scene, they
recovered the handle from the shopping bag Crowley used and the projectile fired
from the gun.
On October 21, 2015, Hahs and his partner received a call from MCSO
Sergeant Swilling regarding a shots-fired incident in another part of the county,
advising them that the description of the shooter matched their armed robbery
suspect. 1 On the way to the shots-fired location, Hahs observed a vehicle matching
Crowley’s vehicle traveling the opposite direction. Hahs testified he made a U-turn
and followed it until it pulled into the parking lot of a local business. The license
plate number matched the one on the vehicle owned by Crowley’s wife. Hahs
testified that because he had an arrest warrant for Crowley and was unsure who was
in the vehicle at the time, he and his partner proceeded to perform a felony takedown.
The individuals exited the vehicle, but Crowley was not with them. A blue Dallas
1
Crowley was ultimately arrested by a patrolman a short distance away from
the shots-fired incident walking down the street.
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Cowboys hat matching the one Crowley wore the night of the armed robbery was
observed in plain view on the deck of the rear window.
Hahs testified the driver of the vehicle, John Colletti, said he borrowed the car
from Crowley, and there was no evidence connecting the individuals in the vehicle
to the crime. Colletti offered to ride with detectives and take them to the gun used
during the robbery. Hahs testified that because Colletti left with them, and none of
the other individuals owned the car or had been given permission to drive, they
impounded the vehicle. Due to it being impounded, department policy required Hahs
to conduct an inventory search of the vehicle, which he briefly did at the location of
the felony takedown. During the inventory, Hahs located a GPS box consistent with
the ones taken from the truck stop, as well as drug paraphernalia. Hahs confirmed
he did not have a warrant to search the vehicle.
Detective Hahs testified that it appeared Colletti had information that might
be useful to the investigation. Colletti took them to an RV park to the residence of
Terry Goad. As soon as detectives told Goad why they were there, he directed them
to a gun in the glove box of his motor home. The officers located a .380 pistol and
magazine in the glove box and took the items as evidence. Goad confirmed he
purchased the gun from Crowley on October 21, 2015, several days after the robbery.
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Later in the investigation, Hahs obtained a search warrant to retrieve data from
Crowley’s cell phone. The judge signed the warrant at 3:23 p.m. on October 27,
2015. However, the return is dated August 7, 2009. At trial, Hahs testified he
executed the search warrant “immediately” and acknowledged the wrong date on the
return was a clerical error.
The primary focus of the State’s case was video surveillance footage from the
store that captured the crime on film and photographs retrieved from those
surveillance videos. The State’s ballistics expert testified regarding the tests
performed and concluded that the projectile retrieved as evidence from the store was
fired from the gun Crowley sold to Goad. Moreover, DNA obtained from the
shopping bag handle also linked Crowley to the crime. Evidence obtained from the
blue Dodge included the blue Dallas Cowboys hat and a GPS unit from the trunk.
Cell phone data from Crowley’s phone showed multiple searches seeking
information regarding the aggravated robbery at the Flying J and searches for
criminal defense attorneys in the days after the robbery.
Following two hearings, the trial court denied Crowley’s motion to suppress
the evidence seized from the vehicle and the cell phone data. The trial judge also
denied Crowley’s requested article 38.23 jury instruction. The jury convicted
Crowley of aggravated robbery, and Crowley elected to have the trial judge
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determine punishment. Crowley pled true to all six enhancements and the trial judge,
having found four of the enhancements true, sentenced Crowley to life in prison.
II. Motion to Suppress: Issues One and Three2
Crowley contends the trial court committed reversible error by denying his
motion to suppress the evidence seized from the vehicle and the cell phone data.
Prior to trial, he filed a motion to suppress. In the motion to suppress, Crowley
specifically argued that the “Sworn Inventory And Return is insufficient, false, and
blatantly defective on its face and taints all aspects of the search and notice
requirements” under article 18.06. See Tex. Code of Crim. Proc. Ann. art. 18.06
(West Supp. 2018).3 He further contends his 4th, 5th, and 14th Amendment rights
were violated because the return was not verified in a timely manner.
Crowley also moved to suppress the GPS unit and GPS box located within the
vehicle. He contends the evidence was seized as a result of a warrantless search, was
illegal, did not comply with the Texas Code of Criminal Procedure and is a violation
of his 4th, 5th, and 14th Amendment rights. Crowley did not address the hat in the
2
For purposes of organization and clarity, we address the suppression issues
together and the jury instruction issues together.
3
We cite to the current versions of the applicable provisions of the Code of
Criminal Procedure, as any amendments do not affect the outcome of this appeal.
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motion to suppress or at the suppression hearing, but he argues on appeal the Dallas
Cowboys hat should have been suppressed as well.
During the suppression hearing, the State first argued the items were identified
as the result of a valid inventory search. Additionally, the State argued in the
suppression hearing it had probable cause, because the vehicle matched the
description of the one driven by Crowley, and the Dallas Cowboys hat identical to
the one surveillance cameras captured Crowley wearing was in plain view on the
rear window deck of the vehicle. The State contended that the hat in plain view
matching the hat from the surveillance video led to probable cause for the stolen
items.
In denying the motion to suppress in its entirety, the trial judge stated on the
record,
I agree that items might not have been seized or taken out until a later
date; however, I did hear testimony to support that he identified those
items . . . there at the location of the traffic stop, and that stop was
conducted based on arrest warrants (sic) – that Detective Hahs had in
his possession that was legally obtained. So I’m going to deny your
motion to suppress in its totality.
A. Standard of Review
We review a trial court’s denial of a motion to suppress under a bifurcated
standard. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016) (citing
Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)). We review a trial
8
court’s findings of fact for abuse of discretion and the trial court’s application of the
law to the facts de novo. Id. If a trial judge does not make explicit findings of fact,
we review the evidence in the light most favorable to the trial court’s ruling. Walter
v. State, 28 S.W.3d 538, 540 (Tex. Crim. App. 2000) (citing Carmouche v. State, 10
S.W.3d 323, 327–28 (Tex. Crim. App. 2000)). If the trial court makes explicit fact
findings, we view the evidence in the light most favorable to the trial court’s ruling
and determine if it supports those findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006). We then review the trial court’s legal ruling de novo. Id. at 819.
We uphold the trial court’s ruling if supported by the record and correct under any
theory of law applicable to the case, even if the reason provided by the trial court is
wrong. See Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003) (citing
State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Romero v. State, 800
S.W.2d 539, 543 (Tex. Crim. App. 1990)). We give almost total deference to the
trial court’s implied findings, particularly those based on an evaluation of witness
credibility and demeanor. See Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.
App. 2010). At a suppression hearing, the trial court is the sole trier of fact and judge
of the witnesses’ credibility. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.
App. 2007). The trial court may choose to believe or disbelieve part or all of the
witnesses’ testimony. Ross, 32 S.W.3d at 855.
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B. Analysis
1. Cellular Telephone Data
A judge or magistrate must sign and date a search warrant. Tex. Code Crim.
Proc. Ann. art. 18.04 (West Supp. 2018). The magistrate must include the date and
hour the warrant issues. Tex. Code Crim. Proc. Ann. art. 18.07(b) (West Supp.
2018). Generally, a warrant must be executed within three days of its issuance,
excluding the date of issuance and the date of execution. Id. art. 18.07(a)(3).
“[P]urely technical discrepancies in dates or times do not automatically vitiate the
validity” of a search warrant. Green v. State, 799 S.W.2d 756, 759 (Tex. Crim. App.
1990). The court must determine whether there is evidence to support a finding that
the discrepancy is “merely a clerical or technical error.” See id.; Arredondo v. State,
No. 14-16-00110-CR, 2017 WL 592234, *4 (Tex. App.—Houston [14th Dist.] Feb.
14, 2017, no pet.) (mem. op., not designated for publication). This evidence is
usually provided through the testimony of a knowledgeable witness. Green, 799
S.W.3d at 760. Technical defects in a warrant can be cured by explanatory testimony.
See id.; Rougeau v. State, 738 S.W.2d 651, 663 (Tex. Crim. App. 1987), overruled
on other grounds, Harris v. State, 784 S.W.2d 5 (1989); Lyons v. State, 503 S.W.2d
254, 255–56 (Tex. Crim. App. 1973); Martinez v. State, 285 S.W.2d 221, 222 (Tex.
Crim. App. 1955).
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Crowley asserts on appeal that an incorrect date on the return invalidated the
entire warrant for the cellular telephone data because it is unknown if the warrant
was executed within the three-day timeline. We disagree. The judge signed the
warrant, included the date October 27, 2015, and the time. However, the return
attached to the warrant was dated August 7, 2009. During the suppression hearing
and in front of the jury, Detective Hahs testified he signed the return. He further
testified that it was a “clerical error,” and he printed the document without realizing
he had not changed the date on the return. We conclude this testimony provided
evidence from which the trial court could conclude the incorrect date on the return
was purely clerical, and therefore the warrant itself was not invalid. See Green; 799
S.W.3d at 760; Martinez, 285 S.W.2d at 222. Furthermore, to the extent Crowley
attempts to argue on appeal that the warrant was not executed or returned timely,
Detective Hahs testified that he executed the warrant “immediately” after it issued.
Crowley did not offer any evidence to contradict this testimony or obtain
clarification from Detective Hahs about the meaning of “immediately.” We conclude
the trial court did not err in denying the motion to suppress the cellular telephone
data.
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2. Hat Seized from the Vehicle
Despite his argument on appeal that the hat and any DNA evidence from the
hat should have been suppressed as well, Crowley failed to make this argument in
his motion to suppress or during the suppression hearing.4 The trial judge inquired
multiple times regarding the specific evidence seized from the vehicle, and Crowley
only mentioned the GPS unit and GPS box. Because he failed to urge for suppression
of the hat during trial, we find he has waived any complaint regarding the admission
of that evidence. See Tex. R. App. P. 33.1; Rothstein v. State, 267 S.W.3d 366, 373
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (citations omitted) (noting that
to preserve a complaint, a party must present the trial court with a timely request,
objection, or motion stating the specific grounds, and the appellate argument must
comport with the objection made at trial). 5
3. GPS Units Seized from the Vehicle
While Crowley argues the evidence seized from the vehicle was obtained
illegally and without a warrant, the State asserts Detective Hahs lawfully impounded
4
The record does not indicate the hat at issue was tested for DNA.
5
This was supported by the State’s photographs admitted at trial, which depict
the hat in plain view through the vehicle’s back windshield. Even if we assume
Crowley preserved error, neither the hat’s observation or seizure invaded his
privacy, as it was in plain view when the car was pulled over pursuant to a valid
arrest warrant. See Horton v. Cal., 496 U.S. 128, 133–34 (1990) (citations omitted);
Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citations omitted).
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the vehicle and conducted an inventory of the vehicle. The Fourth Amendment of
the United States Constitution and Article I, Section 9 of the Texas Constitution
protect individuals against unreasonable searches and seizures. U.S. CONST. amend.
IV; Tex. Const. art. I, § 9; State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App.
2013). Generally, a search without a warrant is considered unreasonable subject to a
few established exceptions. See Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim.
App. 2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).
Assuming without deciding the trial court erred in denying Crowley’s motion
to suppress the GPS unit and box found in the vehicle, we must determine whether
Crowley was harmed by the denial of the motion to suppress. See Tex. R. App. P.
44.2(a). We will reverse unless we determine beyond a reasonable doubt the
admission of the GPS evidence did not contribute to the guilty verdict. See id. Said
another way, the critical inquiry is whether there is a “reasonable possibility” the
error might have contributed to the conviction. See Mosley v. State, 983 S.W.2d 249,
259 (Tex. Crim. App. 1998) (citing Wilson v. State, 938 S.W.2d 57, 60 (Tex. Crim.
App. 1996)). An error does not contribute to the conviction if the jury’s verdict
would be the same even if the erroneous evidence had not been admitted. Clay v.
State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (quoting Neder v. United States,
527 U.S. 1, 15–18 (1999)). In determining whether constitutional error in the
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admission of evidence is harmless, we consider these factors: (1) the importance of
the evidence to the State’s case; (2) whether the evidence was cumulative of other
evidence; (3) the presence or absence of other evidence corroborating or
contradicting the evidence on material points; (4) the overall strength of the State’s
case; and (5) any factor, as revealed by the record, that may shed light on the
probable impact of the error on the average juror. Id. (citing Davis v. State, 203
S.W.3d 845, 852 (Tex. Crim. App. 2006)).
The GPS unit and box retrieved from the vehicle were not critical to the State’s
case. This evidence was cumulative of other evidence, specifically the surveillance
video which captured Crowley in the act of stealing GPS units. A jury could have
convicted Crowley on the surveillance video alone, which depicted him casing the
store for hours, attempting to disguise himself, stealing multiple items, and pointing
a gun at store employees while making them open the safe so he could retrieve bags
of coins. In addition to the surveillance video, DNA from the shopping bag handle
left at the scene connected Crowley to the scene. Finally, ballistics tests on a gun
located in the possession of a man who testified he purchased it from Crowley days
after the robbery, established that the projectile retrieved at the scene was fired from
the same gun. Based on these factors, we conclude there was other overwhelming
evidence of guilt that made the admission of the GPS evidence harmless.
14
The trial court did not err in denying Crowley’s motion to suppress the cellular
telephone data, and Crowley waived any complaint about the hat. With other
overwhelming evidence of guilt, even if the trial court erred in denying the motion
to suppress the GPS box and unit seized from the vehicle, such error was harmless.
We overrule issues one and three.
III. Article 38.23 Instruction: Issues Two and Four
Crowley argues on appeal that the trial court erred in refusing his requested
38.23 instruction pertaining to cellular telephone data and in refusing his requested
38.23 instruction pertaining to evidence seized from the vehicle. See Tex. Code
Crim. Proc. Ann. art. 38.23 (West 2018). While Crowley characterizes these as
“requested” instructions, the record reveals the defense’s requested instruction was
very generic and did not address the cellular telephone data evidence in conjunction
with the article 38.23 instruction.
A. Standard of Review
Under Almanza, we utilize a two-step process in reviewing jury charge error.
See Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985). First, we determine whether there was
error in the charge. See Ngo, 175 S.W.3d at 743. Second, we examine whether the
appellant was harmed by the error. See id. The level of harm required for reversal
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depends upon whether the appellant preserved the error by objecting at the trial court
level. Id. If the appellant objected to the charge, we will reverse if we find some
harm. See id. (citing Almanza, 686 S.W.2d at 171). However, if the appellant failed
to object to the charge, we will not reverse unless egregious harm is established by
the record. See id. at 743–44.
B. Analysis
Article 38.23 provides that evidence obtained in violation of the laws or
Constitution of the United States or Texas may not be admitted in a criminal case.
Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal v. State, 390 S.W.3d 302, 306
(Tex. Crim. App. 2012). A jury instruction should be submitted if a fact issue is
raised about whether such a violation occurred. Tex. Code Crim. Proc. Ann. art.
38.23(a); Hamal, 390 S.W.3d at 306. The instruction requires the jury to disregard
evidence that it finds was obtained in violation of the laws or United States or Texas
Constitution. Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 S.W.3d at 306.
A defendant must show the following to be entitled to an article 38.23 jury
instruction: “(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) the contested factual
issue must be material to the lawfulness of the challenged conduct.” Hamal, 390
16
S.W.3d at 306 (citing Spence v. State, 325 S.W.3d 646, 653–54 (Tex. Crim. App.
2010); Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008)).
A jury instruction can operate “only if there is a contested issue of fact about
the obtaining of the evidence . . . . There is no issue for the jury when the question
is one of law only.” Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000)
(citing Bell v. State, 938 S.W.2d 35, 38 (Tex. Crim. App. 1996)). The Court of
Criminal Appeals has explained,
[i]f 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.
Madden v. State, 242 S.W.3d 504, 510–11 (Tex. Crim. App. 2007) (internal citations
omitted).
1. Article 38.23 Instruction Regarding Cellular Telephone Data
At trial, Detective Hahs acknowledged the clerical error in the return, which
contained the wrong date. He further testified the warrant was executed
“immediately” after it was issued. Crowley asserts on appeal that “immediately” is
subject to interpretation, and there is no way to ascertain if he executed the warrant
within the three days allowed. See Tex. Code of Crim. Proc. Ann. art. 18.06(a). There
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was no fact issue raised about whether the date was incorrect at trial or whether
Detective Hahs failed to execute the warrant in a timely manner. Crowley did not
bring any witness to contradict Detective Hahs’s testimony. He also did not inquire
or seek clarification on cross-examination of the word “immediately.” None of these
facts were disputed. Whether the warrant and return were invalid was solely a legal
question. Pierce, 32 S.W.3d at 251. As such, Crowley was not entitled to an article
38.23 instruction for the cellular telephone data because he did not meet the
requirements which would entitle him to the instruction. See Hamal, 390 S.W.3d at
306; Madden, 242 S.W.3d at 510–11. We overrule issue two.
2. Article 38.23 Instruction Regarding Evidence from the Vehicle
In Garza v. State, the Court of Criminal Appeals addressed a similar scenario.
126 S.W.3d 79 (Tex. Crim. App. 2004). In that case, a vehicle was impounded after
the appellant’s van was stopped when he made an illegal turn. Id. at 81. Officers
determined the appellant had two outstanding arrest warrants. Id. After arresting
him, officers performed an inventory search of appellant’s van finding drug
paraphernalia and cocaine. Id. The appellant moved to suppress the evidence, which
the trial judge denied. Id. There, the court found that appellant did not controvert the
facts to which the officers testified. Id. at 87 (citing Thomas v. State, 884 S.W.2d
18215, 218 (Tex. App.—El Paso 1994, pet. ref’d)). The Court concluded no fact issue
arose as to the legality of the search. Id.The same is true here. Detective Hahs maintained he had a valid arrest warrant
when he and his partner stopped the vehicle and performed a felony takedown. They
impounded the vehicle to protect its contents, because the owner of the vehicle,
Crowley’s wife, was not present, and the driver who borrowed the car left the scene
with detectives. Hahs further testified MCSO policy dictated he inventory the
vehicle, which he did.
During cross-examination, Crowley’s counsel attempted to raise a fact issue
by asking if Crowley was actually in custody at the time the vehicle was stopped.
Detective Hahs responded he believed he was, but there is no indication Hahs was
aware of that fact at the time he stopped the vehicle. Hahs was on the way to a shots-
fired call because the suspect matched Crowley’s description and on the way there,
he observed the vehicle at issue. The takedown ensued, and he testified repeatedly
he was looking for Crowley when he stopped the vehicle.
Defense counsel asked multiple questions about the impounding of the vehicle
and whether the other individuals on the scene had licenses and could have driven
the vehicle. Detective Hahs responded that he did not know who they were, and they
had not been given permission to drive the vehicle.
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The questions by defense counsel are nothing more than mere insinuations the
officer may have veered from the impound and inventory policy. See id. at 87 (“Mere
insinuations by appellant’s attorney that no inventory slip was made, in light of the
testimony by each officer that such a slip did indeed exist, did not raise a fact issue
as to the existence of the inventory slip.”) Here, Crowley failed to show Detective
Hahs strayed from the boundaries set in the MSCO rules, and the rules were not even
introduced into evidence. See id. at 86. Without evidence of the content of the rules,
Crowley’s counsel “did nothing more than hint at the mere possibility that the
officers may have breached the [MCSO] rules.” See id.Crowley did not call any of the vehicle’s occupants at the time of the stop to
testify and cast doubt on the detective’s version of events, nor did he call the other
officer at the scene to testify. Crowley did not inquire about an inventory slip or the
actual content of the MCSO policy. With respect to the timing of Crowley’s arrest,
no evidence was adduced to show Detective Hahs was aware Crowley was in
custody at the time he stopped the vehicle. Just as with the cellular telephone data,
there was not a disputed factual issue raised with the circumstances of the vehicular
stop and subsequent search and seizure of the evidence. The only matter in question
was whether the undisputed circumstances gave detectives the legal right to search
the vehicle, which is a question of law. See Pierce, 32 S.W.3d at 251; Garza, 126
20
S.W.3d at 86. Accordingly, Crowley was not entitled to an article 38.23 instruction
regarding the evidence seized from the vehicle. See Madden, 242 S.W.3d at 510–11;
Garza, 126 S.W.3d at 86–87. We overrule issue four.
IV. Conclusion
The trial court did not err in denying the motion to suppress the cellular
telephone data. Crowley failed to preserve error for his complaint that the hat should
have been suppressed. Assuming without deciding the trial court erred in denying
the motion to suppress GPS evidence from the vehicle, such error was harmless in
light of the other overwhelming evidence of guilt in this case. The trial court did not
err in refusing to include Crowley’s requested article 38.23 jury instruction, as he
failed to raise a disputed issue of fact entitling him to such an instruction. Having
overruled all of Crowley’s issues, we affirm the judgment of the trial court.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on August 2, 2018
Opinion Delivered February 27, 2019
Do Not Publish
Before McKeithen, C.J., Kreger, and Horton, JJ.
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