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 2007-11

Delio M. Barrios v. State ( 2007 )


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    In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana



    ______________________________



    No. 06-06-00133-CR

    ______________________________





    DELIO M. BARRIOS, Appellant



    V.



    THE STATE OF TEXAS, Appellee





    On Appeal from the 76th Judicial District Court

    Morris County, Texas

    Trial Court No. 9225









    Before Morriss, C.J., Carter and Moseley, JJ.

    Memorandum Opinion by Justice Moseley



    MEMORANDUM OPINION



    Delio M. Barrios was convicted by a Morris County jury of money laundering (Tex. Penal Code Ann. § 34.02 (Vernon Supp. 2007)), receiving a sentence of fifteen years' incarceration and a fine of $10,000.00. He raises eleven points of error in this appeal. After thoroughly examining the record and applicable laws, and following presentation of oral argument by the parties, we affirm.

    Background

    On June 7, 2005, State Trooper Joe Hogue observed a van driven by Barrios make an unsafe lane change on Interstate 30, forcing the driver of a trailing truck to have to apply his brakes to avoid a collision; Hogue also observed that the driver of the van had failed to signal a lane change.

    Hogue pulled over Barrios's van and engaged Barrios, who apparently was then conversant in English. At that time, Barrios related that he was returning to Dallas from Nashville, Tennessee, where he had been engaged in painting for two days; he indicated that the van was being returned to Barrios's friend, Filadelfo Gonzalez, who was the owner and insurer of the van. Barrios did not have a driver's license; he gave Hogue a Sam's Club membership card as photographic identification. The proof of insurance form Barrios provided (showing that the effective date of the insurance was May 18, 2005, about three weeks before the traffic stop) did not list Barrios among the authorized insured drivers of the vehicle. Although the title to the vehicle had not yet been transferred to Gonzalez, Barrios provided a bill of sale which indicated that the van had been purchased by Gonzalez within a "few days" before the traffic stop. Hogue observed that he had noticed from his previous experience that drug traffickers will often use newly-purchased vehicles so if contraband is discovered, the trafficker can profess lack of knowledge of the existence of contraband in the vehicle, maintaining that the drugs must have been left in the vehicle by a prior owner. Therefore, these circumstances aroused Hogue's suspicions. Further, Hogue noticed that there was no paint on Barrios's fingernails or clothes; in his experience, this was inconsistent with the appearance of painters. Hogue also thought Barrios seemed unduly nervous, an apparent anxiousness which did not diminish when Hogue ultimately told him he would only be giving Barrios warnings for the traffic infractions.

    Based on these observations and the suspicions which they generated, Hogue asked for Barrios's consent to search the vehicle, a consent which was granted. Upon a search of the vehicle, Hogue observed that the paint brushes and painting equipment in the van were all unused; in a duffel bag, Hogue found one change of clothes (not evidently painter's clothes).

    During the search, Hogue noticed some screws which had been "tampered with" on one of the interior side panels of the van. Hogue also noticed pink housing insulation within an air conditioner vent near the suspect screws and panel. Hogue testified that with the insulation blocking the vent, the air conditioner would not produce cool air at that spot. Using an electric drill or screwdriver, Hogue removed the panel and found two bricks of cash held together by duct tape, each brick containing $18,000.00 and each marked "1-8-0-0-0." At the time the money was found, Barrios indicated at one point that he had earned it painting and at another point in time, he said that the money was from the proceeds of the sale of an automobile.

    A canine unit was summoned to the vehicle; the dog alerted on the area where the money had been found and exited the vehicle with pink insulation in his mouth or stuck on his nose. State Trooper Brett Dalme, to whom the dog, Zymbal, was assigned, testified that Zymbal was trained to smell out heroin, cocaine, marihuana, and methamphetamine, but not money. Dalme ventured that Zymbal would not have alerted on the money unless that money had been "laced" with one of the four mentioned drugs. Dalme further testified that when he turned Zymbal loose in the van, the dog gave an "aggressive alert" near the panel beneath which Hogue had previously located the money bricks. Dalme said that this alert by the canine indicated some form of one of the four drugs Zymbal was trained to detect had been located in the area.

    State Trooper Darren Lubbe testified that he knew of Filadelfo Gonzalez, listed as the owner and insurer of the van, by reputation as a "known cocaine trafficker."

    Barrios took the stand in his defense. At trial, Barrios said the money found in the van was his, that he had earned it over several years, and that he had planned to use the money to bring his parents into the United States from Guatemala.

    Point 1) Legal Sufficiency of the Evidence

    In his first point of error, Barrios claims that the evidence was legally insufficient to sustain his conviction. The indictment charged that Barrios did "knowingly possess and transport proceeds of criminal activity, to wit: to possess and deliver controlled substances as prohibited by Chapter 481 [of the Texas Health and Safety Code]." (1) In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

    In Lee v. State, (2) a law enforcement officer found a duffel bag in the vehicle filled with a large amount of cash. Lee's codefendant told the officer that Lee obtained the money by selling the drug "Ecstasy." Lee was convicted of money laundering; he and the codefendant (who was a passenger in the car) gave conflicting stories about the origin of the money; the other person in the car told officers that Lee got the money selling drugs. Police found approximately $190,000.00 in a duffel bag; a drug dog later alerted on the bag; and in the car, police found a writing tablet with "Dallas 190" written on it. Although the Dallas Court of Appeals found that the evidence was legally sufficient, it reversed the conviction on another ground. See Lee, 143 S.W.3d at 570-71.

    The Amarillo Court of Appeals analyzed a situation with facts similar to those in Barrios's case in an unpublished case. (3) In that circumstance, Adam Granado was found with $6,100.00 in cash in his vehicle; officers testified that possession of marihuana with a street value of $6,100.00 would constitute a felony. Granado claimed that the source of the money was the sale of a vehicle but was unable to provide documentation of the sale which he alleged. Officers further testified that the currency emitted a strong odor of marihuana and was packaged in a manner consistent with the proceeds of a drug transaction. A drug dog also alerted to the presence of drugs, including marihuana, and the dog alerted on the currency which was found. Although the evidence of the currency's origin was circumstantial, the evidence was sufficient to prove Granado's guilt.

    Reviewing the evidence in the light most favorable to the jury's verdict, there was evidence that Barrios knowingly concealed $36,000.00 inside the van he was driving: Barrios never denied knowing the money was there. Trooper Hogue testified to things that made him suspicious of Barrios: that despite Barrios's claim to have spent two days painting in Nashville, Barrios looked remarkably clean, with no residue of paint on his person, and his appearance did not seem to indicate having spent two days painting. Hogue thought it did not make economic sense for Barrios to have driven from Dallas, Texas, to Nashville, Tennessee, to paint for two days and then drive back. The painting equipment in the van did not appear to have been used or opened. Barrios appeared unduly nervous and his anxiety level did not substantially diminish when Hogue informed him that he would receive only a traffic warning rather than a ticket. Hogue saw a duffel bag with a change of clothes, but none that looked to have been used in painting. Hogue also said that in his experience, it was common for drug traffickers to employ newly- purchased and -insured vehicles on the theory that they could disavow knowledge of any contraband, were it to be found. Hogue also testified that about 4.4 pounds of cocaine could be purchased with $36,000.00.

    A reasonable jury could have found the charged elements of money laundering beyond a reasonable doubt. The evidence was legally sufficient to support the jury's verdict; we overrule the first point of error.

    Point 2) Factual Sufficiency of the Evidence

    Barrios's second point claims that the evidence is factually insufficient to support the jury's finding of guilt. In reviewing the factual sufficiency of the evidence, we view all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In a factual sufficiency review, we are to afford "due deference" to a jury's determinations. Marshall, 210 S.W.3d at 625. Circumstantial evidence is an effective and accepted means to prove that certain money is the proceeds of criminal activity. See State v. $11,014.00, 820 S.W.2d 783, 784 (Tex. 1991). Circumstantial evidence is "direct proof of a secondary fact which, by logical inference, demonstrates the ultimate fact to be proven." Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984) (en banc). Every fact and piece of evidence need not, however, point independently to the defendant's guilt. See Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). A conviction may rest on the cumulative strength of all incriminating circumstances. Id.

    We have summarized the evidence above. Barrios took the stand to claim the money belonged to him and that he had earned it legitimately. Barrios's attorney, through cross-examination of State witnesses, propounded the theory that none of them had fairly asked Barrios about the source of the money; Barrios initially made this claim in his testimony, then said he had told the troopers he had earned the money and saved it, and finally said that it was the proceeds of the sale of a Tacoma truck for $6,000.00. Barrios denied the money had come from any illegal activity.

    Conflicts in the evidence are to be resolved by the jury. In doing so, it may accept one version of facts and reject another or reject any of a witness's testimony. Penagraph v. State, 623 S.W.2d 341 (Tex. Crim. App. [Panel Op.] 1981). In so doing, it is the jury's job to judge the credibility of the witnesses and the weight to be given their testimony, and it may resolve or reconcile conflicts in the testimony, accepting or rejecting such portions thereof as it sees fit. Banks v. State, 510 S.W.2d 592 (Tex. Crim. App. 1974).

    It is true the evidence supporting Barrios's conviction was generally circumstantial. However, it cannot be said that the evidence supporting the verdict is so weak or so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Accordingly, we hold the evidence was factually sufficient. Therefore, we overrule Barrios's second point of error.

    Point 3) Prosecutorial Misconduct in Closing Argument at Guilt/Innocence Phase

    In his third point of error, Barrios complains of comments made by the State during closing arguments at the guilt/innocence phase of the trial. Barrios lists nine comments made by the State which he indicates were outside the bounds of proper argument; he generally complains the comments made in argument, "solely and in combination," were so prejudicial and inflammatory as to taint the entire jury process. Notwithstanding the fact that he has raised a multifarious point of error, (4) Barrios failed to preserve any of his complaints for appeal. To preserve error for appellate review, (1) the complaining party must make a timely objection specifying the grounds for the objection, if the grounds are not apparent from the context; (2) the objection must be made at the earliest possible opportunity; and (3) the complaining party must obtain an adverse ruling from the trial court. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). Barrios objected to only one of the comments about which he now complains. When, in the State's rebuttal closing argument, the State said, "We just have to rely on that officer's word, and I'll stand with him on that. And if you don't believe [Trooper] Joe Hogue . . . ." Barrios's attorney objected to "the district attorney aligning himself. Mr. Cowan [the State's attorney] is an honorable person, and I would object to him bolstering the witness to his stature." (5) The trial court said, "Again, this is argument on the part of the State's attorney." The complaining party must obtain an adverse ruling from the trial court. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); DeRusse v. State, 579 S.W.2d 224 (Tex. Crim. App. [Panel Op.] 1979). Barrios did not obtain a ruling from the trial court. No error is preserved and we overrule this contention.

    Point 4) Prosecutorial Misconduct in Closing Argument at Sentencing Phase

    Akin to his previous complaint, Barrios next maintains that statements made by the State during closing arguments at the punishment phase of trial are the basis for error. As with the section attacking the guilt/innocence argument, Barrios's brief quotes numerous statements by the State, then makes somewhat general arguments about the alleged impropriety of the statements. Since Barrios did lodge some objections to these statements at trial, to the extent we are able to discern his appellate complaint, we will address this point of error. (6)  

    The Texas Court of Criminal Appeals has acknowledged four proper areas of jury argument: "(1) summation of the evidence presented at trial; (2) reasonable deduction drawn from that evidence; (3) answer to the opposing counsel's argument; or (4) a plea for law enforcement." Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000); Alejandro, 473 S.W.2d at 231-32 (citations omitted). This Court has recognized a fifth area proper for jury argument, the trial court's charge to the jury. Bessey v. State, 199 S.W.3d 546, 554 (Tex. App.--Texarkana 2006), aff'd on other grounds, No. PD-1401-06 (Tex. Crim. App. Nov. 14, 2007), available at http://www.cca. courts.state.tx.us/opinions/HTMLopinionInfo.asp?OpinionID=16201.

    Before reversible error occurs from improper jury argument, the statements must be "so extreme, manifestly improper, or inject new and harmful facts into the case that they deprive the defendant of a fair and impartial trial." McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). In determining whether the comments by the prosecutor constitute reversible error, we must view the allegedly improper argument in light of the facts adduced at trial and in the context of the entire argument. Id. at 239. With regard to jury argument to which an appellant did not object, that failure to object waives the error unless the arguments were so prejudicial that no instruction could cure the harm. Id. at 240. However, with regard to the argument to which appellant objected, where a trial court overrules an objection to improper argument, it places "the stamp of judicial approval" on the argument, magnifying the harm. Good v. State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986). It goes without saying, though, that the complaining party must still adequately preserve any asserted error with timely, proper objections. See Jackson v. State, 992 S.W.2d 469, 480 n.12 (Tex. Crim. App. 1999).

    We will only address arguments to which Barrios lodged some form of objection. First, Barrios complains of the following:

    [By the State]: Now, you ever wonder why . . . we have to have so many sheriff's deputies and patrol cars; how many houses gets [sic] broken into; how many forged checks businesses receive; how many people are injured and maimed every day; how many families are destroyed; how many people wonder, "What happened to my children? I was [a] good parent. Look at my kid, he's hitting that crack pipe."



    It's because people like Delio Barrios, professional drug traffickers, bring dope into this country.



    Now, I appreciate his wife, this lady that came, and the fact that she's got a five-year-old daughter. I represent the five-year-old daughters in this county, and I'm here to tell you the evidence in this case cannot support a probated sentence . . . there's only one verdict that will send a message to people.



    I don't care what term of years you would give. If you were to give eight years, ten years, 12 years, that means nothing in this case. That's easy time.

    The Judge has instructed you here in your verdict form right down here on the bottom of page 3, it says, "Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, will not become eligible for parole until the actual time served equals one fourth of the sentence."

    He'll be eligible for parole after one fourth of the sentence. If were you [sic] to give ten years, that's two and a half years he'll be eligible for parole.



    How can you send a message? There's a telephone out there in that lobby on that wall, and what you do here is important. All these other dozens of drug cases, all these other dozens of drug laundering cases throughout East Texas --



    Barrios objected to "improper jury argument"; the trial court sustained the objection and instructed the jury to disregard the comment regarding the drug issues. The trial court then denied Barrios's motion for a mistrial. In his brief, Barrios does not specify exactly what error we should find in the above passage. Rather, he quotes almost a page-length section of the State's argument, to which he only objected on the ground of "improper jury argument." He does not explain what specific part of the State's argument was improper or why he believes it to have been improper. Some of the quoted argument could qualify as a plea for law enforcement; some addresses part of the court's charge; some asks the jury to "send a message," which may fall within or without the limitations of a plea for law enforcement. (7) Barrios has failed to articulate specifically what part of the State's argument upon which his point of error is based.

    Barrios also complains of his overruled objection to the State's statement, "That van was traveling back and forth down Interstate 30, and just by the grace of God, one highway patrolman who was extremely diligent." This is a reference to a summation of evidence adduced at trial or to an inference which can be deduced from the evidence presented, a proper area of argument.

    In the State's closing rebuttal, Barrios objected to several comments which made reference to Barrios's supposed role in the illegal narcotics problem of Morris County. Among these were: "Poor Delio. I'm not trying to blame Delio for all the drug problems in Morris County. I'm blaming Delio and people like Delio, and we're going to send a message to people like Delio." Barrios objected, claiming this was "improper jury argument to send a message to other people who are unknown." The trial court overruled the objection. Reviewing the whole of the State's argument as taken in its entirety, we find this to have been a proper plea for law enforcement.

    The State next said, "What this Court does and what this jury does affects everybody else, and the message that you can send is that you want to stand up and to stop this flow of drugs. All that it takes --." Barrios lodged an objection that "it's improper jury argument about stopping the flow of drugs. That's not what this case is about." We cannot disagree with the trial court's overruling of the objection; although Barrios's conviction was for money laundering, the State's theory of prosecution, supported by numerous evidentiary references throughout the guilt/innocence phase, pointed to drug trafficking as the source of the money hidden in the van. Thus, it could be construed the State was referring to evidence which had been offered at trial.

    Later, in its closing rebuttal, the State said, "Give him his flight papers. The only way that justice can be done in the case is for Delio Barrios to be assessed 20 years and a $10,000 fine. He is old enough to know better. He's a professional drug trafficker, and he got caught. Now that he's caught, it's time for him to be punished." Barrios objected, "I'm going to object to him classifying -- this is a case about money laundering, not about anything else." As with the previous comment, the flow of drugs and money was the nexus of the criminal activity the State alleged and needed to prove in order to meet the elements of money laundering. We find no error in the trial court having overruled this objection.

    Barrios objected to the State's statement that, "All that it takes for evil to triumph is for good men and women to do nothing. This is your one day, your one hour, that you have to speak up and make --." However, the trial court answered the objection by saying, "This is an argument presented by the State." Barrios did not obtain an adverse ruling, and thereby failed to preserve any complaint for appellate review.

    Finally, the State said, "Perhaps this former federal prosecutor that he hired to come up here and defend him believes that trafficking in drugs for money is not evil." Barrios objected to "improper jury argument" to "putting Counsel in the jury argument." The trial court sustained this objection and granted Barrios's request that the jury be instructed to disregard; the court then denied Barrios's request for a mistrial. When the trial court sustains an objection to jury argument and instructs the jury to disregard but denies a defendant's motion for a mistrial, the issue on appeal becomes whether the trial court abused its discretion in denying the requested mistrial. Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). As with other matters in which abuse of discretion is the issue, we will uphold the trial court's ruling if it was within the "zone of reasonable disagreement." Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g)). The Hawkins court approved the balancing of three factors for this kind of situation: (1) the severity of the misconduct (i.e., its prejudicial effect on the jury), (2) the curative measures which were taken, and (3) the certainty of the punishment which would have been assessed absent the misconduct. Hawkins, 135 S.W.3d at 77. Barrios does not address any of this analysis in his brief. Taken in context of the whole argument, we do not find the potential prejudicial impact on the jury to have been significant nor would we characterize the State's misconduct, to the extent any existed, as severe. The trial court's instruction to disregard is presumed effective and generally cures any error. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App. 1995); Losada v. State, 721 S.W.2d 305, 314 (Tex. Crim. App. 2006); Nielsen v. State, 836 S.W.2d 245, 249 (Tex. App.--Texarkana 1992, pet. ref'd). An instruction to disregard the argument generally cures any error. Castillo v. State, 939 S.W.2d 754, 762 (Tex. App.--Houston [14th Dist.] 1997, pet. ref'd). As for the certainty of the same punishment being assessed absent the State's misconduct, it is true Barrios had no prior criminal history. However, he received less than the maximum amount of punishment possible. He admitted to being in the country illegally and indicated that he planned to use the money which was found to illegally bring his parents to America. As he makes no attempt to argue why he would have received a lower sentence, and reviewing the record as a whole, we find the trial court was within its discretion to deny Barrios's request for a mistrial. His fourth point of error is overruled.

    Point 5) Claim of Sentencing Error as Beyond the Scope of Permitted Punishment

    Barrios's fifth point of error claims his fifteen-year sentence, in the punishment range of a second-degree felony, was inappropriate. He claims that money laundering with funds of more than $20,000.00 but less than $100,000.00 is a third-degree felony. See generally Tex. Penal Code Ann. §§ 12.33,12.34 (Vernon 2003), § 34.02. Barrios was arrested on June 7, 2005, before the effective change in the law. Money laundering in the stated amount of funds range was changed from a second- to third-degree felony as of September 1, 2005; the proper sentencing standard was applied. See Tex. Penal Code Ann. § 34.02(e)(2). (8) We overrule this point of error.

    Points 6-9) Denial of Barrios's Motion to Suppress

    In four points of error, Barrios claims the trial court erred in denying his motion to suppress evidence obtained as a result of Trooper Hogue's traffic stop and subsequent investigation. Barrios claims that (1) the initial traffic stop was unconstitutional; (2) after the traffic stop, Barrios was illegally detained; (3) Hogue's search of the van was without a warrant and not permitted by any of the exceptions to the Fourth Amendment's search warrant requirement; and (4) even if Barrios had given Hogue consent to search the van, Hogue's search exceeded the scope of the consent as given. We find it expedient to address these contentions of error together.

    A trial court's ruling on a motion to suppress is reviewed for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997). Because the trial court is the exclusive fact-finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court's ruling and sustains the trial court's ruling if it is reasonably correct on any theory of law applicable to the case. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

    At the suppression hearing, Trooper Hogue testified that he pulled Barrios over after witnessing Barrios commit two traffic violations: failing to signal a lane change and making said lane change unsafely. Hogue said that as he was turning around on Interstate 30, he saw Barrios's westbound van make an "abrupt movement from the inside lane to the outside lane so close in front of a truck tractor that I saw the truck tractor apply his brakes." When changing lanes on a multi-lane road, a driver cannot change lanes unless such can be accomplished "safely." Tex. Transp. Code Ann. § 545.060 (Vernon 1999). Further, a driver is required to provide a signal before changing lanes. Tex. Transp. Code Ann. § 545.104 (Vernon 1999). Violation of a traffic law in an officer's presence is sufficient authority for an initial stop. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982); Griffin v. State, 54 S.W.3d 820, 822-23 (Tex. App.--Texarkana 2001, pet. ref'd). At a suppression hearing, the trial court observes the testimony and demeanor of the witnesses and is in a better position than the appellate court to judge the credibility of the witnesses. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). Therefore, we do not engage in our own factual review. Rather, we view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the trial court's ruling and sustain the ruling if it is sufficiently supported by the evidence and is correct on any theory of law applicable to the case. Id. It was within the trial court's discretion to believe Hogue's explanation for having stopped Barrios and to find that Hogue had a legitimate reason to conduct a traffic stop.

    As pertains to Barrios's claim that the stop amounted to an illegal detention, we find the law does not support this argument. An officer may 1) require the detainee to identify himself and produce a valid driver's license and proof of insurance, and 2) detain the individual for a period of time reasonably sufficient to check for outstanding warrants. Kothe v. State, 152 S.W.3d 54, 63-64 (Tex. Crim. App. 2004); Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.--Amarillo 2003, pet. ref'd). He may also ask the driver if he possesses illegal contraband and solicit voluntary consent to search the vehicle once the purpose of a traffic stop has been effectuated. Strauss, 121 S.W.3d at 491; James v. State, 102 S.W.3d 162, 172-73 (Tex. App.--Fort Worth 2003, pet. ref'd). Requesting such consent is not an unlawful seizure, and neither probable cause nor reasonable suspicion is required for the officer to ask. James, 102 S.W.3d at 173. Nor must the officer tell the individual that he is free to leave after the purpose of the stop is completed. Vargas v. State, 18 S.W.3d 247, 252 n.1 (Tex. App.--Waco 2000, pet. ref'd). (9)  

    Hogue's vehicle was equipped with a videotape recorder. The videotaped transaction shows Hogue pulling the van over and the interview with Barrios, as well as Hogue's search of the van. The videotape contains no audio portion; Hogue testified that he failed to check the battery on his microphone (which transmits the sound to the camera) at the beginning of his shift on the day in question. Hogue admitted this was a mistake on his part. While the State played the videotape for the jury, Hogue provided narration. From this recitation in the reporter's record and watching the videotape, we are able to ascertain that no more than ten minutes intervened between the beginning of the traffic stop and Barrios's consent to search the van. In light of the circumstances, especially Barrios's lack of a driver's license and his not having been listed as among the authorized insured drivers of the van, we find this was a reasonable amount of time for Hogue to have detained and questioned Barrios and then to have requested a consent to search the vehicle.

    We disagree with Barrios's contention that the traffic stop was unconstitutional, warrantless, and not within any of the exceptions to the requirement for a warrant. A search conducted with the consent of the suspect is an exception to the Fourth Amendment's warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). Barrios does not assert that his consent was not voluntarily given. We find that the traffic stop was constitutional and did not amount to an illegal detention and that Barrios's consent obviated the need to obtain a warrant for the search of the van. We overrule these points of error.

    Barrios claims that when Trooper Hogue used a drill to remove a panel inside the van, thereby revealing two bricks of cash, each containing $18,000.00, such act exceeded the scope of any consent given by Barrios. A suspect may limit the scope of the search to which he consents. Florida v. Jimeno, 500 U.S. 248, 251 (1991); Simpson, 29 S.W.3d at 330. The scope of the consent is defined by what a typical reasonable person would have understood by the exchange between the officer and the suspect. Simpson, 29 S.W.3d at 330. Absent an explicit limitation by the person, consent to search inside a vehicle includes consent to search containers that could contain the object of the search. Jimeno, 500 U.S. at 251; Vargas, 18 S.W.3d at 254. Hogue said he saw pink housing insulation within an air-conditioner vent and that some of the screws in the area seemed to have been tampered with or damaged. He testified that this raised his suspicions; thus, it was logical for him to remove the panel. Further, Barrios points to nothing in the record to indicate he ever limited the scope of his consent. We overrule this point of error.

    Point 10) State Failed to Turn Over Police Reports of All Officers Involved

    Barrios complains in his tenth point of error that his "due process rights were violated when the State failed to turn over all reports that were in the custody of the State. Moreover, there were no photographs turned over to appellant." Barrios does not specifically identify what was not turned over to him. He simply says, "Despite the fact that all Motions were granted by the trial court, the State did not disclose all of the information." Arguably, this point is inadequately briefed. See Tex. R. App. P. 38.1. The only objection or complaint lodged by Barrios regarding any law enforcement reports arose when Barrios was cross-examining Trooper Dalme, the canine handler, who made reference to a short report he had made, explaining that he makes one each time he deploys his dog for a search. This report was not provided to the State because Dalme was not the officer reporting this arrest. When Barrios's attorney asked to see this report, Dalme had to retrieve it from another place, but immediately complied. Although Barrios cites Brady v. Maryland, (10) he makes no effort to analyze or brief the issue; he does not point out what reports the State failed to supply, the use to which the report could have been put if it had been supplied earlier, or demonstrate any material evidence contained in the report which was not otherwise provided. As for Barrios's complaint that he received no photographs in discovery, none were admitted into evidence. This point of error is overruled.

    Point 11) Police Testimony as Expert Witnesses

    As with point of error 10, this point contains one paragraph of general citations and then a paragraph in which error is claimed but there is no argument, analysis, or citation to either the record or to caselaw supporting the point of error. Barrios claims to have been told at a pretrial hearing that the State would present no expert witnesses, but that the State's Department of Public Safety witnesses did, in fact, testify as experts. This point is inadequately briefed. See Tex. R. App. P. 38.1.

    In spite of the inadequacy of the briefing on this point, we observe that none of the troopers' testimony amounted to expert testimony. When Barrios did object to Trooper Hogue's testimony as having taken on the characteristics of expert testimony, the trial court ruled that he was not at that time finding Hogue to be an expert providing expert testimony; rather, Hogue's testimony was being admitted as being based on Hogue's personal experience. Hogue testified about why he suspected Barrios and arrested him for the offense of money laundering: (1) traveling on the interstate and direction of travel; (2) evidence at the scene did not match Barrios's story of being a painter returning from Tennessee; (3) money secreted away in a car; (4) a newly purchased vehicle and insurance; (5) the tale of having traveled a long distance to paint for just two days; and (6) inconsistency in much of Barrios's representations. This opinion evidence was based on the witness's experience. A witness can testify in the form of an opinion under Rule 701 of the Texas Rules of Evidence if the opinions or inferences are (a) rationally based on his perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002) (citing Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997)). "Since Rule 701 requires the testimony to be based on the witness's perception, it is necessary that the witness personally observed or experienced the events about which he or she is testifying.  . . . Thus, the witness's testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations." Id. (citation omitted). The admission or exclusion of evidence is reviewed for an abuse of discretion. Montgomery, 810 S.W.2d at 391.

    We overrule this allegation of error.

    We affirm the trial court's judgment.







    Bailey C. Moseley

    Justice



    Date Submitted: October 24, 2007

    Date Decided: November 16, 2007



    Do Not Publish

    1. See Tex. Penal Code Ann. § 34.02 (money laundering).

    2.

    143 S.W.3d 565 (Tex. App.--Dallas 2004, pet. ref'd), cert. denied, 126 S. Ct. 2978 (2006).

    3.

    Granado v. State, No. 07-05-0444-CR, 2006 Tex. App. LEXIS 7589 (Tex. App.--Amarillo Aug. 25, 2006, no pet.) (mem. op., not designated for publication).

    4.

    See Bell v. Tex. Dep't of Crim. Justice--Institutional Div., 962 S.W.2d 156, 157 n.1 (Tex. App.--Houston [14th Dist.] 1998, pet. denied).

    5.

    Barrios, in his closing argument, had impugned Trooper Hogue for having failed to check the battery in his voice recorder on the day of the arrest, which resulted in a lack of audio on the videotape of the traffic stop and the conversation between Hogue and Barrios. The attorney faulted Hogue for not "even hav[ing] enough get-up to put a battery in so we can hear what's going on." Hogue admitted he failed to check the audio portion of his video recorder before his shift on the day in question. Answering opposing counsel's argument is a permissible area of jury argument. Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App. 1973).

    6.

    A point of error that contains more than one specific ground of error is a multifarious point of error and we could refuse to consider it. See Marcum v. State, 983 S.W.2d 762, 767 n.1 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd) (citing Bell, 962 S.W.2d at 158 n.1). However, a court may consider multifarious points of error if the court can determine, with reasonable certainty, the alleged error about which the complaint is made. McCain v. State, 995 S.W.2d 229, 243 n.7 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd, untimely filed). As we are able to determine the errors about which appellant complains, we will, in the interest of justice, consider those complaints.

    7.

    Compare Pennington v. State, 171 Tex. Crim. 130, 345 S.W.2d 527 (1961); Cox v. State, 157 Tex. Crim. 134, 247 S.W.2d 262 (1952), where the Texas Court of Criminal Appeals reversed based on prosecutor's arguments that the respective communities expected or demanded the jury to assess lengthy sentences, McGee, 774 S.W.2d at 240, which found the prosecutor's argument asking the jury "to send a message to the community that it will not tolerate violence within its own community . . . were not an appeal based on unproven sentiments of the community which this Court has held to be reversible error."

    8. Act of May 30, 2005, 79th Leg., R.S., ch. 1162, § 2, 2005 Tex. Gen. Laws 3802, 3803.

    9.

    See also McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993) (an officer may lawfully stop a motorist who commits a traffic violation); Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (If an officer has a reasonable basis for suspecting that a person has committed a traffic offense, the officer may legally initiate a traffic stop. The officer also may detain a person who commits a traffic violation.). The continued detention and request to search a detainee's car following a traffic stop is reasonable when consent is given. See Ohio v. Robinette, 519 U.S. 33, 38-40 (1996); Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).

    10.

    372 U.S. 83, 87-88 (1963).

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    Date Submitted:          December 9, 2011

    Date Decided:             December 15, 2011

     

    Do Not Publish

     

     

     


    [1]The judgment reflects a plea of “true.”

    [2]We note the modified order required the community service to begin July 15, 2010, rather than in June, which apparently resolved the issue raised by Blavier’s counsel during the appearance before the trial court.