Opinion
NO. 09-19-00299-CR
03-17-2021
SHANNON DOUGLAS WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court Montgomery County, Texas
Trial Cause No. 19-05-06416-CR
MEMORANDUM OPINION
A jury convicted appellant Shannon Douglas Williams of possession of a controlled substance with intent to deliver or manufacture and made an affirmative deadly weapon finding. The trial court assessed punishment at sixty years of confinement. In seven issues on appeal, Williams challenges the sufficiency of the evidence, the denial of his motions to suppress, the trial court's ruling denying his request to testify during the suppression hearing, the denial of his request for a jury instruction, and the admission of extraneous offense evidence during punishment. We affirm the trial court's judgment.
THE EVIDENCE
Rhyann Droddy, a special agent with the Texas Department of Public Safety, testified that he works with the Montgomery County Narcotics Enforcement Team ("MCNET"), and his work as a narcotics investigator involves securing search warrants and using undercover officers and confidential informants. Droddy explained that on July 13, 2018, his team received information from a confidential informant that a suspect was dealing drugs from room 112 of the Extended Stay America, and Droddy began a narcotics investigation and conducted surveillance on room 112. Droddy testified that he confirmed that Williams was occupying room 112. Droddy testified that during the investigation, he communicated with his team by radio and text messaging, and he notified his team when he observed Williams exit room 112 and drive away in a pickup truck. Droddy explained that he gave a description of the pickup and the license plate to nearby officers who could make a traffic stop if necessary. Droddy explained that prior to Williams leaving the room, the team researched Williams's driver's license, but Droddy did not conduct the research.
Droddy testified that before Williams left, he also observed a female leave the room, and his team stopped Williams and the female. Droddy explained that after Specialist Deputy Scott Martin stopped Williams, Droddy was talking on the phone with Detective Michael Uber and relaying information to the team through text messages, and Droddy sent a text stating that "[w]e will arrest him for DWLI or no DL[.]" According to Droddy, Uber sent a text questioning whether Williams was "DWLI[,]" and Droddy sent a text stating, "[p]ossibly. I can't read those anymore. DL is expired." Droddy explained that he has been off the road for many years and he could not read the driver's license returns showing suspensions because they are very complicated, but he could tell if the license was expired. Droddy testified that he knew Williams's driver's license was expired when Williams was stopped, but he did not know if Williams was driving with an invalid license. Droddy testified that it is a crime to drive with an expired license or a suspended license and it is possible for a suspect to have both, and a suspect can be arrested for driving with an expired license.
Specialist Martin of the Montgomery County Sheriff's Office testified that he is assigned to the MCNET division, and he wears a uniform and drives a marked unit. Martin testified that on July 13, 2018, Droddy informed him that Williams was leaving the Extended Stay America in a tan Chevrolet pickup truck, and the plate number he was provided matched the description of the pickup. Martin explained that he stopped Williams for driving with an expired driver's license, and that he had confirmed that Williams's license was expired before he initiated the traffic stop. According to Martin, when he ran Williams's driver's license on his computer in his patrol vehicle, he discovered that Williams's license had been expired for almost three years. Martin explained that it was a Class C offense to drive with an expired license, and that based on MCNET's investigation, it was legal for him to arrest Williams for the offense to further the investigation. The State introduced a copy of Williams's driver's license history, which showed that Williams's license expired in 2015.
Martin explained that based on the investigation, he had reasonable suspicion that Williams was involved in narcotics trafficking, and that due to safety concerns, he asked Williams to get out of the pickup. Once Martin decided to arrest Williams, he searched his person, and Martin found over $5000 in cash in Williams's pockets, along with gum containers containing twelve small packages of a white powdery substance that appeared to be cocaine. Martin explained that after a field test confirmed the substance was cocaine, he had probable cause to arrest Williams. Martin testified that based on his experience, the packaging of the cocaine into small baggies is evidence that Williams possessed the controlled substance with the intent to deliver it, because it is typical for drug dealers to buy narcotics in larger quantities and package the narcotics into smaller packages after breaking it up and adding cutting agents to make higher profits.
Martin further testified that he conducted an inventory search of Williams's pickup and found two firearms loaded with magazines containing ammunition concealed in an enclosed bag in the passenger seat, and he also found acetaminophen hydrocodone pills in the bag with the firearms. Martin testified that the firearms were semiautomatic handguns, and that in his experience, suspects distributing narcotics use smaller pistols because they are easier to conceal and can fit into a pocket. According to Martin, drug dealers carry firearms for safety and to protect their valuable narcotics and cash, because they often get into altercations during drug deals. Martin explained that drug dealers can use a firearm without firing at someone. Martin testified that possessing narcotics in small packaging along with large amounts of cash and pistols is consistent with dealing narcotics. Lauren Molina, a forensic scientist with the Department of Public Safety Crime Lab, testified that in Williams's case, she analyzed the seven Ziploc bags containing a white powdery substance and determined that the substance contains cocaine totaling 4.56 grams.
After the defense rested, the trial court considered Williams's motion to suppress the evidence arising from his traffic stop. Specifically, the trial court considered Williams's argument that the testimony of the State's witnesses called into question whether Martin had knowledge that Williams's driver's license was suspended or expired when Martin initiated the traffic stop. According to Williams, there was affirmative evidence contradicting Martin's testimony, including the text messages between other members of the team questioning the status of Williams's license, the video of the stop, and Martin's testimony that he initially told Williams his license was suspended before clarifying it was expired. The State argued that it was within the collective knowledge of the MCNET agents that there was an issue with Williams's license, whether it was expired or suspended, and Martin testified that he had previous knowledge that Williams's license was expired.
After considering the parties' arguments, the trial judge noted that during Martin's direct testimony, he clearly stated that he knew Williams's license was expired prior to the stop. The trial court denied Williams's motion to suppress, explaining that its decision was based on Droddy's observations at the motel room and Martin's testimony that he knew Williams's license was expired. The trial court also denied Williams's request for an article 38.23 jury charge instruction.
Williams testified in his defense. Williams testified about the events that occurred before Martin stopped him. Williams explained that after Chelsea McInnis and another friend came to his hotel room, he left to go to a club and was stopped and searched by the police. According to Williams, the officer never told him the reason for the stop, but Williams agreed that his driver's license was expired. Williams explained that the cocaine that Martin found in his pocket was for his personal use, and that the cocaine was already packaged in small baggies when he bought it from McInnis. Williams testified that he only used the pickup for work purposes, and he did not know that the firearms and pills were in the pickup.
During cross-examination, Williams agreed that he had prior convictions for kidnapping, theft, possession of cocaine, and assault family violence, and defense counsel did not object to the admission of the certified judgments. After Williams denied being a drug dealer and denied having knowledge that he was under surveillance as part of a narcotics investigation, the State asked the trial court to allow it to question Williams about the subsequent search warrant that was executed on his hotel room, which resulted in the recovery of methamphetamine, heroin, cocaine, scales, baggies, and money. According to the State, the circumstances surrounding the possession of drugs in Williams's hotel room were relevant to the element of intent to deliver. Defense counsel objected, arguing that the evidence was not relevant and prejudicial. The trial court found that Williams had opened the door and allowed the State to question Williams about the search of his hotel room.
Williams testified that he had been staying in room 112 for approximately two to three weeks, but he claimed that some of the items found in his hotel room did not belong to him. Williams testified that the ammunition and gun holster found in his room belonged to him, but he denied owning a gun. Williams admitted that the cash, which was found in plastic bags and individually banded by denominations, belonged to him.
The State offered three witnesses in rebuttal to Williams's testimony. McInnis testified that she has known Williams for approximately six years and that she used to buy heroin and cocaine from him. McInnis testified that she went to Williams's hotel room to buy drugs, and she saw other people buying drugs in Williams's room. McInnis explained that in exchange for drugs, she assisted Williams in packaging drugs to be sold. McInnis denied being a drug dealer and owning the drugs that the police found in Williams's room. McInnis explained that on July 13, 2018, she was pulled over after leaving Williams's room, and she was arrested for possession of heroin.
Uber testified that he is assigned to the MCNET task force, and on July 13, 2018, he received information that Williams was connected to narcotics activity at the Extended Stay America. After confirming that Williams was renting room 112, Uber set up surveillance and marked officers conducted "takeaway stops" on people leaving Williams's room when there was probable cause to initiate a traffic stop. According to Uber, the takeaway stops resulted in the arrest of Brittney Bufkin and the recovery of suspected drugs. Once Uber corroborated that Williams was involved in narcotics activity in room 112, he received a search warrant based on the initial information he had received from a tip ster and the arrest and recovery of drugs from the takeaway stops. Uber executed the search warrant and found items consistent with dealing narcotics, including a razor blade, small plastic baggies, a set of digital scales, ammunition, a holster for a small pistol, heroin, methamphetamine, cocaine, and approximately $4000 in cash. Uber testified that his investigation did not show that anyone other than Williams owned the narcotics recovered in the room.
Bufkin testified that on July 13, 2018, she went to Williams's hotel room to buy heroin, and the police stopped her after she left the hotel. Bufkin testified that the police arrested her after they found heroin in her car. Bufkin explained that she used to regularly go to Williams's room to buy heroin. The defense reurged its motion to suppress the evidence from the hotel room, arguing that the affidavit used to secure the search warrant was insufficient to establish probable cause because it was based on unreliable sources. After reviewing the affidavit and considering Bufkin's testimony, the trial court overruled the motion to suppress the evidence from Williams's hotel room.
MOTION TO SUPPRESS
In issue one, Williams argues that the trial court erred in denying his motion to suppress evidence obtained pursuant to the search warrant for his hotel room, because Uber's affidavit in support of the search warrant failed to contain sufficient particularized facts to support a probable cause finding. According to Williams, the information in the affidavit was provided by Bufkin and another individual after they were arrested, and there was insufficient evidence to substantiate their reliability.
Generally, we review a trial court's ruling on a motion to suppress using a bifurcated standard of review. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). We give almost total deference to a trial judge's determination of historical facts and mixed questions of law and fact that rely on credibility determinations if they are supported by the record, but we review de novo questions of law and mixed questions of law and fact that do not rely on credibility determinations. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In ruling on a motion to suppress, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). A trial court may choose to believe or disbelieve any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We must uphold the trial court's ruling on a motion to suppress if the "ruling was supported by the record and was correct under any theory of law applicable to the case." Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). If the trial court does not enter findings of fact, we must view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact that support its ruling if those findings are supported by the record. Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006).
When a trial court finds probable cause to support the issuance of a search warrant based solely on an affidavit, there are no credibility determinations to make because the trial court ruled based on the facts that fall within the four corners of the affidavit. McLain, 337 S.W.3d at 271. Thus, in reviewing a magistrate's decision to issue a search warrant, we apply a highly deferential standard of review because of the constitutional preference for a search conducted pursuant to a warrant over a warrantless search. Id.
"Probable cause for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is at least a 'fair probability' or 'substantial chance' that contraband or evidence of a crime will be found at the specified location." Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 238, 243 n.13 (1983)); see Rodriquez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007). We will uphold the magistrate's probable cause determination so long as the magistrate had a substantial basis for concluding that probable cause existed. McLain, 337 S.W.3d at 271. We analyze the affidavit with common sense, recognizing that the magistrate may draw reasonable inferences from the facts and circumstances contained within the four corners of the affidavit. Id. If in doubt, we defer to all reasonable inferences that the magistrate could have made. Id.
Williams argues that the information in the search warrant affidavit came from two "criminal milieu individuals" who had no established track record of providing reliable information, and Uber failed to corroborate the information or provide sufficient information to substantiate their reliability. A tip by an informant of unknown reliability, standing alone, is not a sufficient basis for a magistrate's probable cause determination. State v. Duarte, 389 S.W.3d 349, 353, 360-61 (Tex. Crim. App. 2012); Rivas v. State, 446 S.W.3d 575, 579 (Tex. App.—Fort Worth 2014, no pet.). While the reliability, veracity, and the basis of knowledge of an informant are not absolutely required, they are highly relevant considerations in analyzing the totality of the circumstances. Gates, 462 U.S. at 233. "[A]n affidavit that identifies a named informant as supplying the information upon which probable cause is based is sufficient if it is sufficiently detailed to suggest direct knowledge on the informant's part." Rivas, 446 S.W.3d at 579.
Corroboration of an informant's tip through independent police investigation is also relevant in the magistrate's determination of probable cause. Valadez v. State, 476 S.W.3d 661, 668 (Tex. App.—San Antonio 2015, pet. ref'd). In his affidavit, Uber stated that after receiving a tip from a named informant that Williams was staying in room 112 and had sold heroin to the informant, Uber began surveillance on room 112 and confirmed that Williams was renting the room. Uber also averred that after Bufkin left Williams's room, the police stopped her, and she admitted that she had bought heroin from Williams and that she was confident Williams had more narcotics in his room.
Although Uber's affidavit did not include an allegation that the informants were credible and reliable, the affidavit contained other verifying information that corroborated the informants' tips, allowing the magistrate to reasonably conclude that the informants were credible. See id. at 668-69; Rivas, 446 S.W.3d at 579-80. Under the high level of deference we are to give an issuing magistrate's determination and based on the totality of the circumstances as presented in Uber's affidavit, we conclude that the magistrate had a substantial basis for determining that probable cause existed to search Williams's hotel room. See McLain, 337 S.W.3d at 271-72; Rivas, 446 S.W.3d at 579, 581. We further conclude that the trial court did not err in overruling Williams's motion to suppress evidence obtained from his hotel room. See McLain, 337 S.W.3d at 271. We overrule issue one.
In issue two, Williams argues that the trial court erred in denying his motion to suppress the traffic stop, because the record shows that Martin lacked reasonable suspicion because he did not know the status of Williams's driver's license before he initiated the stop. The State contends that Martin's uncertainty after the stop regarding whether Williams's license was suspended did not undermine Martin's reasonable suspicion that Williams's license was expired. According to the State, the trial court resolved the issue of Martin's credibility and the record supports the trial court's implicit finding that Martin knew the status of Williams's license before the stop.
A police officer has reasonable suspicion to detain a suspect if he has specific, articulable facts that, combined with reasonable inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). This is an objective standard that looks to whether the arresting officer had an objectively justifiable basis for the detention, and we consider whether the totality of the circumstances combine to reasonably suggest the imminence of criminal conduct. Id. In determining whether reasonable suspicion exists, we consider the cumulative information known to all the cooperating officers at the time of the stop. Id. To have reasonable suspicion, the articulable facts need not lead inexorably to the conclusion that a particular offense is imminent; rather, it is enough that the information is sufficiently detailed and reliable to support more than an "inarticulate hunch" that something of an apparently criminal nature is brewing. State v. Daniel, 446 S.W.3d 809, 813 (Tex. App.—San Antonio 2014, no pet.). The State need not show that an offense was committed, but only that the officer reasonably believed that a violation was in process. Green v. State, 93 S.W.3d 541, 545 (Tex. App.—Texarkana 2002, pet. ref'd).
Here, in denying Williams's motion to suppress, the trial court impliedly found that Martin was justified in stopping Williams because he knew that Williams's driver's license was expired prior to initiating the stop. The question of whether Martin had a reasonable suspicion to stop Williams is not a function of Martin's demeanor or credibility, but of the legal significance of the essential uncontested facts. See Leming v. State, 493 S.W.3d 552, 562 (Tex. Crim. App. 2016). Thus, we review de novo whether Martin was justified in stopping Williams, applying an objective standard to determine whether the facts available to Martin when he initiated the stop warranted a person of reasonable caution to believe the action taken was appropriate. See id.; Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).
The Texas Transportation Code requires a person to possess a valid driver's license when operating a motor vehicle on a public highway and to display the license on demand. See Tex. Transp. Code Ann. §§ 521.021, 521.025(a); Marzett v. McCraw, 511 S.W.3d 210, 212 (Tex. App.—Dallas 2015, pet. denied). A police officer may stop and detain a person operating a motor vehicle to determine if he has a valid license. Tex. Transp. Code Ann. § 521.025(b). A person commits the offense of driving with an invalid license if the person operates a motor vehicle on a highway and the person's driver's license has been cancelled, suspended or revoked, expired during a period of suspension, or denied renewal. Id. § 521.457. The record shows that the trial court considered Williams's argument that the evidence showed that Martin did not know the status of Williams's driver's license before he initiated the traffic stop. The trial court denied Williams's motion to suppress, noting that Martin clearly testified that he stopped Williams for driving with an expired driver's license, and that he confirmed that Williams's license was expired prior to the stop.
We conclude that the record supports the trial court's implied finding that Martin had reasonable suspicion to stop Williams for driving with an expired license. We conclude that the trial court did not abuse its discretion in denying the motion to suppress the traffic stop and admitting the complained-of evidence. Accordingly, we overrule issue one.
In issue three, Williams complains that the trial court's refusal to allow him to testify during the suppression hearing forced him to waive his Fifth Amendment right against self-incrimination to assert his Fourth Amendment right to be free from unreasonable searches and seizures. To preserve an alleged error for appeal, the complaining party must make his complaint known to the trial court by a timely request, objection, or motion that states the grounds for the ruling the complaining party sought with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a). In addition, the issue raised on appeal must comport with the objection raised before the trial court. See Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). Because Williams failed to raise this argument in the trial court, he has failed to preserve this claim for our review. See Tex. R. App. P. 33.1(a); Thomas, 723 S.W.2d at 700. We overrule issue three.
SUFFICIENCY OF THE EVIDENCE
In issue seven, Williams complains that the evidence is insufficient to support his conviction for possession with intent to deliver. According to Williams, there was insufficient evidence showing that he possessed a controlled substance with the intent to deliver. Under a legal sufficiency standard, we assess all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the jury's responsibility to fairly resolve conflicting testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. In our review, we consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence. Id.
A person commits possession of a controlled substance with intent to deliver if he knowingly possesses cocaine that is "by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams." Tex. Health & Safety Code Ann. § 481.112(d). The record shows that Williams testified that the cocaine found in his pocket was for his personal use, and that the cocaine was packaged in small baggies when he bought it. Intent to deliver may be proved by circumstantial evidence, such as the quantity of drug possessed, the manner of packaging, and the presence of large amounts of money, including evidence regarding a defendant's possession of the drugs. Smith v. State, 737 S.W.2d 933, 941 (Tex. App.—Dallas 1987, pet. ref'd); Mack v. State, 859 S.W.2d 526, 528 (Tex. App.—Houston [1st Dist.] 1993, no pet.). Additional factors include whether the defendant is a drug user and whether there is evidence of other drug transactions. Smith, 737 S.W.2d at 941.
The evidence most favorable to the verdict shows that Williams had twelve packages of cocaine in a gum container that was found on his person, and the cocaine totaled 4.56 grams. Martin testified that the quantity and packaging of the cocaine, as well as the large amount of cash and pistols in Williams's possession, was consistent with dealing narcotics. McInnis testified that after she went to Williams's hotel room and bought drugs from Williams, the police pulled her over and arrested her for possession of cocaine. Bufkin also testified that she was arrested after she went to Williams's hotel room and bought heroin. Uber testified that after he corroborated that Williams was involved in narcotics activity in room 112, he executed a search warrant and found items consistent with dealing narcotics, including baggies, scales, ammunition, heroin, methamphetamine, cocaine, and a large amount of cash.
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational jury could find, beyond a reasonable doubt, that Williams committed the offense of possession of a controlled substance with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112(d); see also Jackson, 443 U.S. at 318-19; Hooper, 214 S.W.3d at 13; Smith, 737 S.W.2d at 941. We overrule issue seven.
In issue six, Williams argues that the evidence is insufficient to show a facilitation purpose between the firearms and the offense to support a deadly weapon finding. According to Williams, police located two handguns in the vehicle, which were concealed in a closed bag, but there was no evidence that the bag was within his reach or that there was a conscious decision to use or exhibit the handguns. Williams contends that none of the witnesses testified that they saw a weapon during the drug transactions, and the handguns did not facilitate the offense because they did not play a role in enabling, continuing, or enhancing the offense.
A deadly weapon finding affects a defendant's eligibility for parole, and when it is shown that a deadly weapon as defined by the Texas Penal Code was used or exhibited during the commission of a felony offense, a trial judge must enter a deadly weapon finding in the judgment. Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. Ann. art. 42A.054(b), (c). Under the Texas Penal Code, a firearm, by definition, is a deadly weapon. Tex. Penal Code Ann. § 1.07(a)(17)(A). We must review the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found beyond a reasonable doubt that Williams used the handguns to facilitate the felony offense. See Coleman, 145 S.W.3d at 652.
Using a deadly weapon during the commission of a felony offense extends to any employment of a deadly weapon, including simple possession, if such possession facilitates the associated felony. Safian v. State, 543 S.W.3d 216, 223-24 (Tex. Crim. App. 2018). Thus, one can use a deadly weapon without exhibiting it. Id. at 224; Plummer v. State, 410 S.W.3d 855, 858 (Tex. Crim. App. 2013). A deadly weapon finding is permissible when a jury could infer, in the absence of harm or threat, that the weapon "facilitated" the felony, such as when a defendant possesses both guns and drugs. Plummer, 410 S.W.3d at 859. In such a case, a jury could infer that although the defendant did not overtly use or brandish a gun, the weapon reasonably could have protected and facilitated the defendant's care, custody, and management of the drugs. Id.; Patterson v. State, 769 S.W.2d 938, 941-42 (Tex. Crim. App. 1989). A rational factfinder could infer that the use of the weapon facilitated the offense when the weapon is in the proximity of the drugs and when the defendant possessed drugs that had been previously divided into distribution-sized packages. Gale v. State, 998 S.W.2d 221, 225-26 (Tex. Crim. App. 1999).
The evidence supports the conclusion that Williams used the handguns to facilitate the felony offense. The evidence shows that twelve packages of cocaine were found on Williams's person, and Martin testified that the quantity and packaging of the cocaine were consistent with dealing narcotics. Martin also testified that Williams had a large amount of cash and that he found two loaded handguns and hydrocodone pills in the pickup. Martin explained that drug dealers are often involved in altercations and commonly use firearms to protect their safety as well as their cash and narcotics. Droddy testified that a firearm is a deadly weapon, and it is common for drug dealers to possess firearms to facilitate drug transactions. Droddy explained that there are various ways drug dealers use guns in narcotics dealing, including hiding a firearm nearby so it can be easily accessible if needed during a drug deal. Additionally, Uber testified that drug dealers use guns for protection, and Uber found more ammunition and drugs in Williams's hotel room.
The State was not required to demonstrate that Williams exhibited the guns or that the guns were within Williams's reach during the stop to prove that Williams used the guns during the commission of the felony offense. See Coleman, 145 S.W.3d at 652-55. Based on this record, we conclude that a rational jury could have found beyond a reasonable doubt that Williams kept the guns to protect himself, as well as his drugs and money, thereby using the guns to facilitate his possession and intent to distribute cocaine. See Plummer, 410 S.W.3d at 859; Coleman, 145 S.W.3d at 655; Patterson, 769 S.W.2d at 941-42. We overrule issue six.
JURY CHARGE
In issue four, Williams contends that the trial court erred by denying his request for an article 38.23(a) jury instruction, because Droddy's testimony created a fact issue as to whether Martin knew that Williams's driver's license was expired before he stopped Williams. See Tex. Code Crim. Proc. Ann. art. 38.23(a). According to Williams, the jury should have been able to decide whether Martin knew the status of Williams's driver's license before the traffic stop, because there was no other reason for Martin to stop and detain him. The State argues that there was no affirmative evidence that Martin did not know that Williams's driver's license was expired prior to the stop. Williams argued at trial that the video of the stop showed that Martin did not know the status of Williams's license before he initiated the stop, and the text messages show that the agents found out the status of Williams's license after the stop.
Article 38.23(a) 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. Id. A jury instruction should be submitted if a fact issue arises about whether such a violation occurred. See id.; Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012). The instruction requires the jury to disregard evidence that it finds was obtained in violation of the Constitution or laws of the United States or Texas. Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 S.W.3d at 306. Three predicates are required for a defendant 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 S.W.3d at 306.
A jury instruction is proper "only if there is a contested issue of fact about the obtaining of the evidence." Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000). There is no issue for the jury when the question is only one of law. Id. 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).
The question here is whether there was any factual dispute about whether Martin knew the status of Williams's driver's license before the traffic stop. There must be some affirmative evidence that Martin did not know the status of Williams's license prior to the stop before there is a disputed factual issue, and in this case, there is no such evidence. See Madden, 242 S.W.3d at 514. Martin testified that he stopped Williams because he knew that Williams's license was expired. Although Williams contends that Droddy's testimony creates a fact issue, none of Droddy's testimony contested what Martin knew before the stop. On the record before us, we cannot conclude that the trial court erred by determining that there was no affirmative evidence that put the existence of a material fact into question and in denying the request for an article 38.23 jury instruction. See Tex. Code Crim. Proc. Ann. art. 38.23(a); Hamal, 390 S.W.3d at 306; Madden, 242 S.W.3d at 513. We overrule issue four.
EXTRANEOUS OFFENSE EVIDENCE
In issue five, Williams complains that the trial court erred by admitting evidence of an unadjudicated extraneous offense during the punishment phase. According to Williams, the State could not prove beyond a reasonable doubt that he committed the extraneous offense of sexual assault. The State argues that Williams failed to preserve error because he did not object to the admission of the evidence or request a threshold admissibility ruling.
To preserve an alleged error for appeal, the complaining party must make his complaint known to the trial court by a timely request, objection, or motion that states the grounds for the ruling the complaining party sought with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a). The record shows that Williams failed to request a ruling regarding the admissibility of the evidence regarding the alleged sexual assault before the evidence was presented, and Williams failed to object to the testimony of several witnesses who testified about the alleged assault. The record shows that it was not until closing argument that defense counsel asked the trial court to throw out the evidence of the sexual assault because of reasonable doubt. We conclude that Williams has failed to preserve his issue five complaint for our review. See Tex. R. App. P. 33.1(a); Thomas, 723 S.W.2d at 700. We overrule issue five. Having overruled each of Williams's issues, we affirm the trial court's judgment.
AFFIRMED.
/s/_________
W. SCOTT GOLEMON
Chief Justice Submitted on January 26, 2021
Opinion Delivered March 17, 2021
Do Not Publish Before Golemon, C.J., Kreger and Horton, JJ.