Richard David Robinson v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00113-CR
___________________________
RICHARD DAVID ROBINSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 9
Tarrant County, Texas
Trial Court No. 1560062
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
By information, the State 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 overruled
Robinson’s motion to suppress and request for a jury instruction under Texas Code of
Criminal Procedure article 38.23, a jury found him guilty, and the trial court sentenced
him to ninety days in jail (probated for two years) and a fine of $1,500.
On appeal, Robinson asserts that the trial court erred in denying his motion to
suppress and requested Article 38.23 charge. We hold that both the facts and the law
support the trial court’s rulings, overrule Robinson’s contentions, and affirm the trial
court’s judgment.
II. BACKGROUND
On August 29, 2018, Robinson purchased three bottles of Steel Reserve1 at a
QuikTrip in Euless, Texas. Later that evening, Nicholas Kubik-Powell (Nick), a
manager at the QuikTrip, called 911 after going outside and noticing Robinson
unconscious in the driver’s seat of a white Ford four-door vehicle. Nick also noticed
an empty Steel Reserve bottle on the vehicle’s dashboard. Euless Police Officers
Steel Reserve is a brand of malt liquor. See Wood v. State, No. 01-13-00845-CR,
1
2014 WL 5780273, at *1 (Tex. App.—Houston [1st Dist.] Nov. 6, 2014, pet. ref’d)
(mem. op., not designated for publication).
2
Blake Mitchell and Isiah Moala arrived at the QuikTrip shortly thereafter and found
Robinson unconscious in the driver’s seat of a white Ford four-door truck. The truck
was parked and running. Mitchell walked around the truck and tried the door handles
but found the doors to be locked. He then tapped on the driver’s-side window, and
Robinson awoke. Both officers instructed him to open the door, but Robinson did
not comply.
Mitchell then moved his patrol car directly behind Robinson’s truck to secure
the truck in place.2 Robinson refused to comply with the officers’ commands that he
open the door, even after Mitchell warned him that they would break a window to his
truck if he did not get out. Robinson told Mitchell to “break it.” Moala then broke
the rear-seat window on the passenger side, unlocked one of the doors, and climbed
inside. Robinson, meanwhile, shifted his truck into reverse and backed into Mitchell’s
patrol vehicle, then shifted into drive and drove forward a short distance before
coming to an abrupt stop. Mitchell pulled Robinson out of the truck and arrested
him. A breath test taken at the jail showed Robinson’s alcohol concentration to be
0.243 grams of alcohol per 210 liters of breath.
At his trial, Robinson moved to suppress his detention and arrest. He argued
that the officers did not have reasonable suspicion to detain him or probable cause to
2
Mitchell testified at the trial that this is a police tactic they call “positive
contact” and is meant to minimize the impact in the event a sleeping driver were to
“just wake up and slam [his] car in reverse or drive.”
3
arrest him. The trial court carried Robinson’s motion and, after the close of the
evidence, overruled the motion and found, “based upon the facts and circumstance
contained in the record[,] that it was reasonable for the officers to initiate a detention
and further [that] a reasonable person in the officer’s position would have had
probable cause to believe the defendant had committed an offense and was subject to
arrest.” Robinson then requested that an Article 38.23 instruction be included in the
jury charge:
I believe the officer said the detention was made based on a possibly
intoxicated person. I believe that the first witness, the actual 911 caller,
said he didn’t know whether the person was intoxicated or not, he could
have just been asleep. He didn’t believe he was intoxicated. In fact, he
doesn’t even say he was intoxicated. Again, both the officers testified
they came and saw somebody asleep in the truck. Even at one point
when the State objected to my asking about him being asleep you had
told them in the objection that it is a fact issue whether somebody was
passed out or asleep. We believe that portion -- that was a determination
for the jury. Was he -- Was this a lawful detention based on him -- the
fact question of whether he -- did he appear intoxicated. And so we
would ask for the 38.23 instruction be given to the jury.
The trial court overruled this request and submitted the case to the jury, who then
convicted Robinson.
III. DISCUSSION
Robinson’s issues on appeal center around the legality of his detention at the
QuikTrip. The law recognizes three distinct types of interactions between the police
and citizens: (1) consensual encounters that do not implicate the Fourth Amendment;
(2) investigative detentions that are Fourth Amendment seizures of limited scope and
4
duration that must be supported by a reasonable suspicion of criminal activity; and
(3) arrests—the most intrusive of Fourth Amendment seizures—that are reasonable
only if supported by probable cause. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim.
App. 2013).
A. Robinson’s Motion to Suppress
In his first issue, Robinson argues that the trial court erred in failing to grant
the motion to suppress his detention and arrest. The State responds that the initial
interaction between Mitchell and Robinson was a consensual encounter, not a
“seizure” under the Fourth Amendment, and that Mitchell developed reasonable
suspicion to detain Robinson during this consensual encounter.
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).
Because the trial judge is the sole trier of fact and judge of the witnesses’ credibility
and the weight to be given their testimony, Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007), we defer almost totally to a trial court’s rulings on questions of
historical fact and application-of-law-to-fact questions that turn on evaluating
credibility and demeanor, but we review de novo application-of-law-to-fact questions
that do not turn on credibility and demeanor, Martinez, 570 S.W.3d at 281. Whether
the totality of circumstances supports reasonable suspicion or probable cause is a legal
determination we review de novo. State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim.
App. 2008).
5
When the trial court makes explicit fact findings, we determine whether the
evidence, when viewed in the light most favorable to the trial court’s ruling, supports
those findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We then
review the trial court’s legal ruling de novo unless its explicit fact findings that are
supported by the record are also dispositive of the legal ruling. State v. Kelly,
204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
When the record is silent on the reasons for the trial court’s ruling, or when
there are no explicit fact findings and neither party timely requested findings and
conclusions from the trial court, we infer the necessary fact findings that would
support the trial court’s ruling if the evidence, viewed in the light most favorable to
the trial court’s ruling, 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 the
implied fact findings supported by the record are also dispositive of the legal ruling.
Kelly, 204 S.W.3d at 819. Here, the trial court did not make explicit fact findings other
than what was stated on the record when the trial court denied Robinson’s motion,
and neither party timely requested further findings and conclusions.
1. At the point when Robinson was “seized,” Officer Mitchell had
reasonable suspicion to detain him.
The Fourth Amendment protects against unreasonable searches and seizures
by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. A
6
defendant seeking to suppress evidence on Fourth Amendment grounds3 bears the
initial burden to produce some evidence that the government conducted a warrantless
search or seizure that he has standing to contest. Rawlings v. Kentucky, 448 U.S. 98,
104–05, 100 S. Ct. 2556, 2561 (1980); State v. Martinez, 569 S.W.3d 621, 623 (Tex.
Crim. App. 2019). Once the defendant does so, the burden shifts to the State to
prove either that the search or seizure was conducted pursuant to a warrant or was
otherwise reasonable, if warrantless. Martinez, 569 S.W.3d at 624. There is no
evidence that Robinson was seized pursuant to a warrant, so the State bore the
burden to show that the detention and arrest were reasonable under the applicable
standards.
A detention may be justified if a person is reasonably 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. State, 622 S.W.3d 378, 384 (Tex. Crim. App. 2021). An
officer conducts a lawful temporary detention 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 totality of the circumstances, the officer has specific,
3
Although Robinson based his motion to suppress at trial on “both the United
States and Texas Constitution[s],” he relies only on the Fourth Amendment to the
United States Constitution and related case law to support his appellate argument on
this point. When an appellant’s argument is based on both the federal and state
constitutions but does not cite any argument or authority under the state constitution,
we review only the federal arguments. Welch v. State, 93 S.W.3d 50, 52 & n.5 (Tex.
Crim. App. 2002). Therefore, we analyze Robinson’s first point of error as a federal
constitutional issue only.
7
articulable facts that, when combined with rational inferences from those facts, would
lead him to reasonably conclude that a particular person is, has been, or soon will be
engaged in criminal activity. Id. This is an objective standard that disregards the
detaining officer’s subjective intent and looks solely to whether the officer has an
objective basis for the stop. Ramirez-Tamayo v. State, 537 S.W.3d 29, 36 (Tex. Crim.
App. 2017).
Robinson bases his position that the State failed to establish reasonable
suspicion in this case on “the fact that right off the bat, the State failed to prove
through the 911 call that the officers were acting properly and in response to a welfare
call.” This fact is irrelevant, however, because (1) the State’s burden to justify the
warrantless detention at issue was not to show the propriety of or subjective
motivation for the officers’ actions but to provide an objectively reasonable basis for
the seizure, and (2) the State did not need the 911 call to meet this burden.4
A “seizure” under the Fourth Amendment does not occur until (1) a
reasonable person would believe he or she was not free to leave, and (2) the person
being seized has either yielded to the officer’s show of authority or been physically
forced to yield. Johnson v. State, 912 S.W.2d 227, 236 (Tex. Crim. App. 1995). When a
4
For all the references to Nick’s 911 call, we note that neither party ever offered
the audio of the call into evidence (for the record only or for all purposes). Because
we hold that the police had reasonable suspicion to detain Robinson when they did
and probable cause to arrest him when they did, based on what they personally
observed at the scene, we need not address whatever was said on the 911 call.
8
suspect refuses to yield to physical force or an officer’s show of authority, there is no
seizure. State v. Castleberry, 332 S.W.3d 460, 469 (Tex. Crim. App. 2011).
Here, when Mitchell first arrived at the QuikTrip and approached Robinson’s
truck, Robinson was asleep. When Moala arrived and walked up to the truck,
Robinson was still asleep. As the sleeping Robinson was unaware of the officers’
presence outside his vehicle, he could not have yielded to any show of authority, see
York v. State, 342 S.W.3d 528, 534 n.16 (Tex. Crim. App. 2011) (citing, with approval,
cases holding that a sleeping or unconscious suspect is not “seized” because he
cannot submit to a “show of authority” of which he is unaware), and at this point, the
officers had not used physical force against him. It was not until he awoke and
Mitchell told him, “You’re not goin’ anywhere,” and he yielded to Mitchell’s authority
by remaining in place that Robinson was “seized.”5 The question for the trial court
was, and for us now is, whether at that point the officers had specific and articulable
facts that, when combined with rational inferences from those facts, would have led
5
Mitchell testified that, as soon as he arrived, Robinson was detained and was
not free to leave. Lack of freedom to leave, though, is only half of the equation for a
detention or seizure that implicates the Fourth Amendment, and the standard is
whether a reasonable person would believe that he was not free to leave. Johnson,
912 S.W.2d at 236. Regardless of what Mitchell subjectively believed he was doing
when he first pulled into that parking lot, because he had not yet employed physical
force, Robinson was not seized/detained until he submitted to Mitchell’s “show of
authority.” See Brendlin v. California, 551 U.S. 249, 254–55, 127 S. Ct. 2400, 2405–06
(2007) (“[T]here is no seizure without actual submission” to “a show of authority,”
and the test is whether “a reasonable person would have believed that he was not free
to leave” or whether “a reasonable person would feel free to decline the officers’
requests or otherwise terminate the encounter.”).
9
them to reasonably conclude that Robinson was, had been, or soon would be engaged
in criminal activity. See Johnson, 622 S.W.3d at 384 (setting out standards for
reasonable suspicion).
Unsurprisingly, Robinson and the State rely on different cases to support their
respective arguments; Robinson likens his case to State v. Griffey, 241 S.W.3d 700 (Tex.
App.—Austin 2007, pet. ref’d), while the State cites York. Both cases are
distinguishable from this one, but the facts of York more closely resemble the
circumstances present in Robinson’s case. In York, a patrol officer observed a car
parked partially on the sidewalk immediately in front of an Exxon store around
3:00 a.m., with the headlights on and the engine running. 342 S.W.3d at 530–31. The
officer approached the car and saw that the defendant was in the car asleep with the
seat laid back. Id. at 531. The Court of Criminal Appeals found these circumstances
sufficient to give rise to a reasonable suspicion that would permit an investigative
detention:
From the circumstances present here, Officer Johnson could reasonably
suspect that appellant was intoxicated. And with the engine running, an
intoxicated driver might have awakened, and in his stupor, driven into
the store. Or he might have returned to the road, where he would pose
a threat to others who were traveling. It would be reasonable to suspect
that appellant posed a danger to himself or others.
Id. at 537. These concerns proved realistic in the instant case; within minutes of
waking up, Robinson backed his truck into Mitchell’s vehicle, spinning his wheels so
10
hard that the friction with the pavement created smoke, and then drove forward, over
the curb, with Moala inside his vehicle.
The facts here are not exactly like those in York; Robinson was legally parked in
a parking space between 7:00 and 7:30 p.m., and his headlights were not on.
However, Mitchell and Moala both testified that they also observed an empty or
nearly empty Steel Reserve bottle on the dashboard of Robinson’s truck. Further,
before detaining Robinson, the officers could see that he was slumped over the
steering wheel of the truck and unresponsive, even as they tried the door handles and
talked to one another right outside his truck. Robinson did not awaken until Mitchell
rapped on the window right next to where he was sleeping. Based on the totality of
the circumstances, these facts—in conjunction with the fact that Robinson’s truck was
running and the rational inferences from those facts—supported a reasonable
suspicion to detain Robinson.6
The issue in Griffey was whether the police had lawfully detained the defendant
based on a report from 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 circumstances, including those militating against the trial court’s
finding, such as the facts that neither of the officers saw Robinson consume any
alcohol or could say how long his truck had been parked in that location. These
circumstances, however, do not vitiate the reasonable suspicion that objectively arose
when the officers witnessed Robinson unconscious and slumped over the steering
wheel of a running truck with an alcohol bottle on the dashboard. Cf. York,
342 S.W.3d at 537 (“Although Officer Johnson did not smell alcohol as he
approached the car, that fact did not cause reasonable suspicion to dissipate, in part
because appellant could still have been intoxicated by drugs.”).
11
behind the wheel of a vehicle in the restaurant’s drive-through lane. 241 S.W.3d at
702. The officer testified that he was not given any other information other than that
someone was passed out behind the wheel in the drive-through lane. Id. However,
the defendant was awake at the time he arrived, and her vehicle was sitting next to the
drive-through window. Id. She was arrested and charged with driving while
intoxicated, but the trial court granted her pretrial motion to suppress. Id. at 702–03.
The Austin Court of Appeals affirmed, holding that Griffey was unlawfully detained
in violation of her rights under the Fourth Amendment. Id. at 707.
Contrary to what Robinson asserts in his brief, the facts in Griffey do not
“align[] with the case at bar.” The information relayed from Nick to the officers via
911 and the officers’ subjective motivation in detaining Robinson are immaterial
because, like in York, and unlike in Griffey, what the police personally observed
prior to detaining Robinson sufficed to provide reasonable suspicion for a lawful
investigative detention.7 See York, 342 S.W.3d at 537 n.31 (distinguishing Griffey). For
this reason, we need not address Robinson’s arguments on the “welfare check” or
“community caretaking” issue.8 The State did not have to show that the officers were
7
Robinson contends in his brief that his “detention/seizure must be justified by
specific criminal law violations,” but this does not correctly state the law. An officer
with reasonable suspicion or probable cause to suspect criminal activity is afoot does
not need the additional justification of a law violation to make a lawful investigative
detention. Crittenden v. State, 899 S.W.2d 668, 672 (Tex. Crim. App. 1995).
8
As part of his “community caretaking” function, a police officer may stop and
assist an individual whom a reasonable person—given the totality of the
12
engaged in a community-caretaking function when they detained Robinson because
they had reasonable suspicion to detain him, and therefore their reasons for being at
the QuikTrip 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 Wade,
422 S.W.3d at 667.
2. The police 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 established and well delineated exceptions.” Torres
v. State, 182 S.W.3d 899, 901 (Tex. Crim. App. 2005) (quoting Minnesota v. Dickerson,
508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993)). A police officer may arrest an
individual without a warrant only if probable cause exists with respect to that
individual and the arrest falls within one of the exceptions set out in the Code of
Criminal Procedure. Torres, 182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann.
arts. 14.01–.03, 14.04.
To have probable cause for a warrantless arrest, an officer must reasonably
believe, based on facts and circumstances within the officer’s personal knowledge––
circumstances—would believe is in need of help. Wright v. State, 7 S.W.3d 148, 151
(Tex. Crim. App. 1999). Police sometimes call this a “welfare check.” See, e.g., Leming
v. State, 493 S.W.3d 552, 555 (Tex. Crim. App. 2016). Mitchell testified that he knew
he was dispatched to the QuikTrip “either for an intoxicated subject or a welfare
check,” but he could not remember exactly what dispatch said. Robinson has argued
both at trial and on appeal that Mitchell was not exercising his community-caretaking
function.
13
whether through direct observation, from reasonably trustworthy information, or
both—that a person has committed or is committing an offense. State v. Woodard,
341 S.W.3d 404, 412 (Tex. Crim. App. 2011); Torres, 182 S.W.3d at 901–02. The
officer must base probable cause on specific, articulable facts rather than the officer’s
mere opinion. Torres, 182 S.W.3d at 902. We use the “totality of the circumstances”
test to determine whether probable cause existed for a warrantless arrest. Id.Having concluded that the officers lawfully detained Robinson based on
reasonable suspicion, we also conclude that the officers had probable cause for the
arrest. After being detained, Robinson stymied the officers’ efforts to investigate by
refusing to answer their questions or comply with their commands to open his door,
turn off the truck’s engine, and crack his window. He grabbed a canned beverage and
took a drink, dripping it onto his shirt. Moala testified that, based on his training and
experience, this was a possible sign of intoxication. Mitchell observed that
Robinson’s eyes were “bloodshot and watery,” and his movements were “really, really
lethargic.” Additionally, Robinson kept insisting that he was on “private property,”
indicating that he was confused about where he was. These facts reinforced the
officers’ reasonable suspicion that Robinson was, had been, or soon would be
engaged in criminal activity and justified his continued detention. See York,
342 S.W.3d at 537–38 (holding that reasonable suspicion was not negated, but was
reinforced, by defendant’s behavior, including fact that he was confused about his
location).
14
Robinson further evinced that he was intoxicated to the degree that he might
endanger himself or others by shifting his truck into reverse and ramming into
Mitchell’s patrol unit, then shifting into drive and speeding off, over the curb, after
Moala had climbed inside the truck. And, once the officers had witnessed Robinson
operate the truck, they could legally arrest him based on probable cause that he was
driving while intoxicated. See Tex. Code Crim. Proc. Ann. art. 14.01 (authorizing
peace officer to arrest offender without warrant for any offense committed in
presence or within view of officer); Tex. Penal Code Ann. § 49.04(a) (stating that
person commits offense of driving while intoxicated if he operates motor vehicle in
public place while intoxicated). We overrule Robinson’s first issue.
B. The Jury Charge
In his second issue, Robinson argues that the trial court erred in refusing to
give the jury a charge under Article 38.23 of the Texas Code of Criminal Procedure.
The State responds that this issue is not preserved for our review and, alternatively,
that the trial court did not err in denying Robinson’s requested jury instruction
because the evidence did not raise the issue.
The State’s preservation argument is misplaced. We must review “all alleged
jury-charge error . . . regardless of preservation in the trial court.” Kirsch v. State,
15
357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In reviewing a jury charge, we first
determine whether error occurred; if not, then our analysis ends. Id.9
Article 38.23(a) provides,
No evidence obtained by an officer or other person in violation of
any provisions of . . . the Constitution . . . 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. To be entitled to an Article 38.23(a)
instruction, the defendant must show that (1) a party raised an issue of historical fact
in front of the jury, (2) a party contested the fact by affirmative evidence at trial, and
(3) the fact is material to the constitutional or statutory violation that the defendant
has identified as rendering the particular evidence inadmissible. Robinson v. State,
377 S.W.3d 712, 719 (Tex. Crim. App. 2012). Accordingly, although a fact issue on a
defensive theory may be raised “from any source, and the evidence may be strong,
weak, contradicted, unimpeached, or unbelievable,” an Article 38.23 jury instruction
must be included in the jury charge only if there is a factual dispute about how the
9
Alcocer v. State, 256 S.W.3d 398 (Tex. App.—San Antonio 2008, no pet.), the
case on which the State relies in support of its preservation argument, was decided
prior to Kirsch. In Kirsch, the Court of Criminal Appeals concluded that failure to
preserve error is not a proper basis for a court of appeals to decline to address an
appellate complaint of alleged error in the jury charge. 357 S.W.3d at 649.
16
evidence was obtained. White v. State, 201 S.W.3d 233, 248 (Tex. App.—Fort Worth
2006, pet. ref’d) (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)).
Robinson’s brief does not clearly articulate the exact factual dispute that he
believes entitled him to an Article 38.23 instruction. He argues that “the jury should
have been allowed to deliberate whether the officers were acting in good faith” and
that “the record reflects two alternate and very different theories for the officers’
arrival at the scene,” which he claims “in of itself triggers the right to an Art. 38.23
instruction.” In support of this argument, he directs us to the following language
from the Court of Criminal Appeals’ opinion in Robinson:
And if there is a dispute about whether a police officer was genuinely
mistaken, or was not telling the truth, about a material historical fact
upon which his assertion of probable cause or reasonable suspicion
hinges, an instruction under Article 38.23(a) would certainly be
appropriate.
Robinson, 377 S.W.3d at 721. We have already concluded that the reasons for the
officers’ arrival at the QuikTrip were immaterial to the legality of Robinson’s arrest.
See Ramirez-Tamayo, 537 S.W.3d at 36 (explaining that the reasonable-suspicion
standard “disregards the actual subjective intent of the arresting officer”). Therefore,
Robinson has not pointed out any fact that is “material to the constitutional or
statutory violation that [he] has identified as rendering the particular evidence
inadmissible.” See Robinson, 377 S.W.3d at 719. In other words, what Robinson calls
the “miscommunication or misinformation” among Nick, the 911 dispatcher, and the
police was not a “material historical fact” in this case.
17
Robinson’s argument at trial was clearer. During the charge conference,
defense counsel based his request for the Article 38.23 instruction on “the fact
question of whether [Robinson appeared] intoxicated.” He attempted to support his
argument by telling the trial court, “Even at one point[,] when the State objected to
my asking about him being asleep[,] you had told them in the objection that it is a fact
issue whether somebody was passed out or asleep.” The closest thing we can find in
the record to what trial counsel was apparently referencing is this colloquy when
Moala was on the witness stand:
[PROSECUTOR]: Judge, I’m gonna object to that question. The
Defense is vacillating back and forth between the term asleep and passed
out.
THE COURT: What’s your objection?
[PROSECUTOR]: My objection is that it’s assuming a fact that hasn’t
been proved.
THE COURT: Would you restate your last question.
[DEFENSE ATTORNEY]: Judge, my question was as he was there
asleep in his truck he was no danger to himself.
[PROSECUTOR]: That’s assuming a fact not in evidence.
THE COURT: That’s a conclusion for the jury.
So new question, please.
[DEFENSE ATTORNEY]: So is it sustained?
THE COURT: He can answer the question. Go ahead, officer, and
answer the question again.
A. (THE WITNESS) I’m sorry. Can you repeat that question again?
18
Q. Yeah. So as he was there asleep in his truck he presented no danger
to himself, did he?
A. I disagree.
If the trial court had intended to rule that whether Robinson was asleep or
passed out was a fact issue for the jury to resolve, then we need not review that ruling
because Robinson has not made it an issue in his appeal, and in any event, the terms
“passed out” and “asleep” are similar; the point is that Robinson was unconscious,
and the jury saw a video of how he appeared and could draw its own conclusions.
The only issue of historical fact to which Robinson has pointed that is material to
how the challenged evidence was obtained is whether he appeared intoxicated. We
have searched the record10 to determine whether either party contested this fact by
affirmative evidence at trial and have found the following excerpts pertinent to this
issue:
[PROSECUTOR:] [Once defendant was awake], did you notice any
signs of intoxication?
[MITCHELL:] His eyes were bloodshot and watery. His movements
were really, really lethargic. The fact he was passed out and slumped
over at the wheel was a hint that there could definitely be some
intoxication. There was empty alcohol. There may have been a little bit
In the argument on his second issue, Robinson contends that “[t]he defense
10
had raised [this] issue in very clear terms,” without providing any subsequent citations
to the record. An appellant’s brief must contain “a clear and concise argument for the
contentions made, with appropriate citations … to the record.” Tex. R. App.
P. 38.1(i). We have, in the past, dismissed arguments as inadequately briefed when an
appellant has failed to cite the record. See, e.g., Turro v. State, 950 S.W.2d 390, 401
(Tex. App.—Fort Worth 1997, pet. ref’d).
19
of alcohol left in the Miller Lite -- not Miller Lite -- Steel Reserve bottle.
So all of those things led me to believe that he was probably intoxicated.
. . . With the belief that he was probably intoxicated, we didn’t
want him to have the 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 person, right?
[MITCHELL:] Uh-huh.
[DEFENSE ATTORNEY:] An older white male who was drinking a
beer and appeared to be passed out. That’s the information you got,
right?
[MITCHELL:] Yes, according to the report.
[DEFENSE ATTORNEY:] Okay. And, again, that’s what you say is
accurate, right?
[MITCHELL:] Yes, sir.
[DEFENSE ATTORNEY:] Okay. But, again, dispatch didn’t say
intoxicated person, right?
[MITCHELL:] I don’t know. I can’t remember the exact words of what
they said.
[DEFENSE ATTORNEY:] Okay. But that’s why you detained
Richard, right?
[MITCHELL:] Right.
....
[DEFENSE ATTORNEY:] . . . But when we talk about passed out,
that’s somebody sleeping, right?
[MITCHELL:] Right. Unconscious.
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[DEFENSE ATTORNEY:] Possibly unconscious, but just sleeping,
right?
[MITCHELL:] Yes, sir.
[DEFENSE ATTORNEY:] In all of your years, you have come across
sleeping persons several times, right?
[MITCHELL:] Uh-huh.
[DEFENSE ATTORNEY:] Some dealing with intoxication, some not?
[MITCHELL:] Correct.
....
[DEFENSE ATTORNEY:] And other than him sleeping in the truck,
you didn’t see any other level of stress, right?
[MITCHELL:] No.
[DEFENSE ATTORNEY:] And so then just as he was asleep in the
truck, he didn’t present a danger to himself, right, just sleeping in his
truck?
[MITCHELL:] Just based off of him being asleep?
[DEFENSE ATTORNEY:] Yes.
[MITCHELL:] Or being intoxicated and being asleep?
[DEFENSE ATTORNEY:] Being asleep in his truck.
[MITCHELL:] Just being asleep, no.
[DEFENSE ATTORNEY:] Right. Because when you approached, you
had no idea whether he was intoxicated.
[MITCHELL:] Correct.
...
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[MOALA:] And so when 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 white Ford pickup truck,
I saw -- I saw a subject in there who was slouched over which matched
the description on the call. It was a subject possibly intoxicated.
....
[PROSECUTOR:] Okay. And then based on your training and
experience -- I know you’re not an officer anymore, but it hasn’t been
that long. Based on your training and experience, is someone dripping a
drink on their shirt a possible sign of intoxication?
[MOALA:] Oh, yes.
Based on this record, no evidence tends to show that Robinson did not appear
intoxicated when the police detained him, and no evidence conflicts with the officers’
testimony or the video showing how Robinson appeared at that moment. The
officers’ admissions that they did not know with certainty whether Robinson was
intoxicated or not when they approached his vehicle is not affirmative evidence that
Robinson did not appear intoxicated, which is what he needed to get his requested
instruction. See White v. State, 549 S.W.3d 146, 154 n.21 (Tex. Crim. App. 2018)
(stating that appellant did not establish that there was an issue of fact in dispute
because he presented no evidence controverting the evidence presented by the State);
Madden v. State, 242 S.W.3d 504, 515 (Tex. Crim. App. 2007) (“Appellant’s questions
on cross-examination cannot, by themselves, raise a disputed fact issue. There must
be some affirmative evidence to raise a fact issue.”); Garza, 126 S.W.3d at 86 (“Vague
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suggestions by appellant’s counsel that the officers were on a fishing expedition,
without more, do not rise to the level of creating a fact issue.”).
Because Robinson has not shown that the evidence raised a factual dispute that
was material to how the evidence against him was obtained, the trial court did not err
in refusing to give the jury an Article 38.23 charge. Robinson, 377 S.W.3d at 722;
Madden, 242 S.W.3d at 518. We overrule Robinson’s second issue.
IV. CONCLUSION
Having overruled Robinson’s issues, we affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 18, 2022
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