Opinion
No. 05-04-01753-CR
Opinion Filed February 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-81054-04. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Jose Esteban-Callen Lara of possession of marijuana under two ounces. The trial court assessed punishment at thirty days confinement and a $500 fine. In two issues, Lara complains the trial court erred by failing to submit an article 38.23 instruction to the jury. We affirm the trial court's judgment. Plano police officer George Johnson responded to a call at the Brentdale apartment complex. Narcotics officer Brian Quinn contacted Johnson and told him there was possible narcotics activity at apartment 1120 in that same complex. Johnson and officer Justin Lawrence knocked on the door of apartment 1120. Lara came to the door, stepped outside, closed the door, and responded to Johnson's questions stating there was no marijuana in his apartment. Lara told the officers it had been about two months since he had smoked marijuana but that he did have beer in his refrigerator. Lara also told the officers both he and his roommate, Roy Jackson, were eighteen-years-old. Johnson asked Lara for consent to enter the apartment to confiscate the beer since both Lara and his roommate were under the legal age to possess alcohol. Lara consented for Johnson to enter the apartment and go to the refrigerator. As Johnson walked through the living room towards the kitchen, he smelled burnt marijuana and saw a pipe commonly used to smoke marijuana in plain view on a living room table. At that point, Johnson asked Lara and Jackson to sit on the living room couch while he checked to see if anyone else was in the apartment. Johnson found Joseph Houser, Julius Huckaby, and Darrian Wilson in Jackson's bedroom closet. Houser, Huckaby, and Wilson admitted they had been smoking marijuana. Johnson asked Lara for consent to search the apartment. Lara declined and Johnson responded "no problem, we'll get a warrant." Johnson contacted officer Quinn and asked for his assistance in securing a search warrant. At that point, Lara gave consent for Johnson to search the apartment. Johnson read the voluntary consent to search form to Lara and Jackson. The two roommates signed the form. Lara then told Johnson that he had marijuana in the second drawer of his dresser in his bedroom. Johnson found a plastic baggy containing marijuana in that drawer. Johnson also found a plastic baggy containing a pipe with residue and a medicine bottle containing marijuana stems under Lara's mattress. Johnson recorded the apartment investigation on his patrol vehicle's recorder. In his two issues, Lara urges the trial court erred in failing to submit an article 38.23 instruction to the jury because of a factual dispute as to the voluntariness of (1) Lara's initial consent to enter the residence and (2) his written consent to search the residence. When reviewing a challenge to the jury charge, we must first determine whether error actually exists in the charge. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). If we find error in the charge, we must then determine if error was preserved for review and if properly preserved, we will reverse the conviction upon a showing of "some harm." Id. While the Texas Constitution protects against all unreasonable seizures and searches, a search made after voluntary consent is given is not unreasonable. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000). A trial court is required to include an article 38.23 instruction in the jury charge "only if there is a factual dispute as to how evidence was obtained." Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000); Tex. Crim. Proc. Code Ann. art. 38.23 (Vernon 2005). If there is no dispute as to the facts regarding the acquisition of evidence and the only determination to be made is of a legal nature, no instruction is required. Id. For a factual dispute to exist, the facts adduced on obtaining the evidence must be actually controverted not merely subject to alterative legal arguments. Balentine v. State, 71 S.W.3d 763, 773-774 (Tex.Crim.App. 2002). When no fact issue is raised by the evidence, the trial court acts properly in refusing a request for a 38.23 instruction. See Wesbrook, 29 S.W.3d at 121. Lara directs us to Vrba v. State for the proposition that "a court is statutorily bound to submit an article 38.23 instruction to the jury when there is a factual dispute regarding the voluntariness of the defendant's consent." Vrba v. State, 69 S.W.3d 713, 719 (Tex.App.-Waco 2002, no pet.). The court in Vrba based its conclusion upon the inconsistency between Vrba's testimony and that of a peace officer present at the time of the arrest. Vrba's testimony that "he had not driven a hundred yards before he was stopped" was inconsistent with the officer's testimony that "he had been following Vrba and made a request for assistance over the radio." Id. Here, Lara offers no conflicting evidence. Regarding his entry into the apartment, Johnson testified, "If he told me he didn't want me there, then I wouldn't have gone in." Lara did not testify at trial. While Jackson, Houser, Huckaby, and Wilson each testified, neither the witnesses nor the police vehicle's recording controverted Johnson's testimony regarding the facts surrounding the incident. Lara fails to identify any conflicting testimony regarding the voluntariness of his verbal consent permitting Johnson to enter the apartment or the voluntariness of his written consent to search the apartment. Lara's arguments dealing with exceeding the scope of the consent to enter the apartment and the applicability of the Brick factors to the validity of the consent given in this case, are legal arguments not factual disputes. See Brick v. State, 738 S.W.2d 676, 680-681 (Tex.Crim.App. 1987). We conclude the trial court committed no error. We affirm the trial court's judgment.