Ortega, Guadalupe A/K/A Lupe Ortega v. State ( 2001 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Guadalupe Ortega a/k/a Lupe Ortega

Appellant

Vs.                   No.  11-99-00259-CR C Appeal from Taylor County

State of Texas

Appellee

The jury convicted appellant of possession of amphetamine with intent to deliver, found the enhancement paragraphs to be true, and assessed punishment at 50 years confinement.  We affirm.

In his first point of error, appellant argues that the trial court erred in denying his motion to suppress evidence.  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.  Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997).  We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.  Guzman v. State, supra at 89.  Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category.   Guzman v. State, supra.  When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling "turns" on an evaluation of credibility and demeanor.  Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998).  A question "turns" on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue.  Loserth v. State, supra. We must view the record in the light most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of law applicable to the case.  Guzman v. State, supra. 

Donnie Dale Edwards, with the Taylor County Sheriff=s Department, testified that on September 4, 1998, he went to an apartment complex along with another agent Aattempting to contact two people who were believed to be staying there who had outstanding felony warrants.@  Agent Edwards stated that he had received information that appellant lived at that apartment and that appellant had two outstanding felony warrants.  After a female left the apartment, she informed the officers that appellant was inside of the apartment.  A uniformed officer knocked on the door of the apartment, made contact with appellant,  placed him under arrest, and advised him of his rights.  Agent Edwards asked appellant if there were any narcotics in the residence, and appellant responded that there was not. Appellant then gave the officers consent to search the residence, and they found the amphetamine.

Appellant specifically argues that the trial court should have granted his motion to suppress evidence because the State did not produce an arrest warrant at the hearing on his motion to suppress.  When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the initial burden of proof is placed upon the defendant.  Russell v. State, 717 S.W.2d 7 (Tex.Cr.App.1986); Telshow v. State, 964 S.W.2d 303, 307 (Tex.App. - Houston [14th Dist.] 1998, no pet=n).  As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and, therefore, shifts the burden of proof to the State.  Russell v. State, supra.   A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant.  Russell v. State, supra; Telshow v. State, supra.   Without evidence affirmatively showing that there was no warrant, the State never has the burden to prove reasonable suspicion to detain or probable cause to arrest.   Telshow v. State, supra.

Agent Edwards testified at the hearing that there were two outstanding felony arrest warrants for appellant.  On cross-examination, appellant=s trial counsel asked Agent Edwards whether he showed appellant a copy of the warrants at the time of his arrest.  Agent Edwards stated that he did not have the warrants with him at the time of arrest but that he had the warrant numbers.  Appellant has not met his initial burden of establishing that he was arrested without a warrant.  Appellant has not shown that the trial court erred in denying his motion to suppress evidence.  Appellant=s first point of error is overruled.

In his second point of error, appellant argues that the trial court erred in failing to instruct the jury on the lesser included offense of possession of less than four grams of amphetamine.  A trial court must submit a jury instruction on a lesser included offense if the offense is included within the proof necessary to establish the offense charged and if there is some evidence in the record "that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense."  Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Cr.App.1997); Rousseau v. State, 855 S.W.2d 666, 672‑73 (Tex.Cr.App.), cert. den'd,  510 U.S. 919 (1993); see  TEX. CODE CRIM. PRO. ANN. art. 37.09 (Vernon 1981).  In order to raise the lesser included offense, the evidence must affirmatively raise the issue; it is not enough that the jury could simply disbelieve "crucial evidence pertaining to the greater offense."  Bignall v. State, 887 S.W.2d 21, 24 (Tex.Cr.App.1994). 

Appellant contends that the testimony from J. R. Burch, the State=s chemist, Aregarding the less than absolutely positive nature of any finding of more than four grams of amphetamine,@ raised the lesser included offense of possession of less than four grams of amphetamine.  We disagree.

Burch testified at trial that he was asked to test a suspected controlled substance involving appellant.  Burch testified that the substance tested positive for both cocaine and amphetamine and that it weighed 4.06 grams.  Burch also testified that the scale used to weigh the substance are routinely examined by the chemists in his department and that, once a year, they are verified by a certified technician.

On cross-examination, appellant=s trial counsel questioned Burch about the possibility that the scales were inaccurate.  Burch was unable to state the last time the scale was calibrated; but he explained that the scale was electronic and was re-calibrated by turning it off, unplugging it, and then restarting the scale. Burch explained  that if the scale still appeared to give an inconsistent weight, a certified technician would be called in to service the scale.  Burch testified that in the nine years he had worked for the Department of Public Safety Crime Lab, he was unaware of having to call in a technician to re-calibrate a scale.  Burch further testified that he had never known any scale at the department to function Aoutside of normal operating limits.@  The record does not support appellant=s argument that he was entitled to an instruction on the lesser included offense of possession of less than four grams of amphetamine. Appellant=s second point of error is overruled. 

In his third point of error, appellant complains that he received ineffective assistance of counsel because his trial counsel did not object to the trial court=s failure to charge the jury on the lesser included offense of possession of less than four grams of amphetamine.  As discussed in appellant=s second point of error, we find that appellant was not entitled to an instruction on the lesser included offense of possession of less than four grams of amphetamine.  Therefore, his trial counsel was not ineffective in failing to object to the trial court=s charge.  Kinnamon v. State, 791 S.W.2d 84, 97 (Tex.Cr.App.1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex.Cr.App.1994); Wood v. State, 4 S.W.3d 85 (Tex.App. - Fort Worth 1999, pet=n ref=d).  Appellant=s third point of error is overruled. 

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

September 27, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.