Juan Jose Resendez v. State ( 2008 )

Affirmed and Memorandum Opinion filed April 3, 2008

Affirmed and Memorandum Opinion filed April 3, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-01025-CR

____________

JUAN JOSE RESENDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1037131

M E M O R A N D U M   O P I N I O N

Appellant Juan Jose Resendez was convicted of the felony offense of possession of over 400 grams of cocaine with intent to distribute. Appellant appeals his conviction on the following grounds: (1) the jury verdict constitutes cruel and unusual punishment, (2) the trial court abused its discretion in denying appellant=s motion to suppress evidence, and (3) the evidence is factually insufficient to support his conviction.  We affirm.

                                                I.  Background

On August 11, 2005, appellant was stopped by Officer John Oakley for a traffic violation.  When the officer approached appellant=s vehicle, he smelled the odor of marijuana.  He asked for appellant=s consent to search the vehicle, and appellant provided both verbal and written consent to search.  Officer Oakley found a bag of marijuana and several thousand dollars in appellant=s vehicle.  An inventory search of appellant=s vehicle was also performed, during which bags of cocaine were found hidden underneath the carpet.

Officer Michael Biggs spoke to appellant at the police station and obtained consent to search his residence at 1215 Witter in Pasadena.  During the search of appellant=s residence on 1215 Witter, Officer Jason Bright found cocaine packaged in small plastic bags, a digital scale, and a larger bag with cocaine residue.

Subsequently, police learned that appellant had another home with his wife on 413 Alastair in Pasadena.  Appellant=s wife, Gina Resendez, gave police consent to search the residence.  She led Officer Raymond Garivey to the bedroom and pulled out the bottom drawer of a dresser, under which lay two bricks of cocaine.  One brick weighed 975.2 grams, and the other brick weighed 974.6 grams.  Gina Resendez showed Officer Garivey two safes in the bathroom that held approximately $18,000 in cash, jewelry, and paperwork. She further directed Officer Biggs to the attic where he recovered two lockboxes containing $135,000 in cash and a digital scale.

Appellant gave a voluntary written statement to police admitting the cocaine found in both houses belonged to him and outlining his narcotics operation for police.  In total, police recovered approximately 1,975 grams of cocaine.  At trial, appellant was found guilty of possession of over 400 grams of cocaine with intent to distribute and was sentenced to life imprisonment and assessed a $250,000 fine.  This appeal followed.

II.  Discussion

A. Cruel and unusual punishment

In his first issue, appellant complains the jury verdict of life imprisonment and fine of $250,000 is cruel and unusual punishment.  To present a complaint for appellate review, the record must show the complaint was made to the trial court by a timely objection or motion.  Tex. R. App. P. 33.1(a).  Failing to complain that a sentence is cruel and unusual, either by objection during the punishment phase of trial or by motion for new trial, waives the error.  Solis v. State, 945 S.W.2d 300, 301 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d).  There is no evidence in the record that appellant made a specific objection to the trial court when his punishment was assessed.  In fact, appellant=s trial counsel responded, ANo, your honor,@ when asked if he had anything else on the matter.  Although appellant did file a motion for new trial, the basis for the motion was insufficient evidence, not cruel and unusual punishment.  Therefore, appellant presents nothing for appellate review.

Even assuming it was properly preserved for appellate review, appellant=s contention that his sentence was cruel and unusual punishment is without merit.  Appellant argues that his life sentence and $250,000 fine are disproportionate to his crime, and thus constitute cruel and unusual punishment.  However, as a general rule, Aas long as a sentence is within the proper range of punishment it will not be disturbed on appeal.@  Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).  Appellant was convicted of possession of over 400 grams of cocaine with intent to deliver.  See Tex. Health & Safety Code Ann. ' 481.112(a) (Vernon 2005).  His conduct in committing this offense set the punishment range at a minimum of fifteen years to ninety-nine years or life imprisonment and a fine not to exceed $250,000.  Id. ' 481.112(f). Therefore, because the punishment assessed by the jury is within the statutory range of punishment, the sentence does not constitute cruel and unusual punishment.

Appellant acknowledges that, as a general rule, punishment assessed within the statutory limits is not excessive, cruel, or unusual punishment.  However, appellant argues that his sentence is grossly disproportionate to the severity of the offense because it involved no death or loss of limbs.  Citing Solem v. Helm, 463 U.S. 277 (1983), appellant argues for a disproportionality analysis guided by objective criteria.  Under this analysis, the court looks at the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the commission of the same crime in other jurisdictions.  Id. at 291.  Unless an appellant establishes the first element of the Solem test, that his sentence is grossly disproportionate to his crime, the second and third elements need not be addressed.  Jeffus v. State, No. 12-06-00268-CR, 2007 WL 3087562, at *4 (Tex. App.CTyler Oct. 24, 2007, pet. ref=d) (mem. op., not designated for publication).  A sentence is grossly disproportionate to the crime only when Aan objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme.@  Harris v. State, 204 S.W.3d 19, 29 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (emphasis added).  This gross disproportionality principle is Aapplicable only in the >exceedingly rare= and >extreme= cases.@  Lockyer v. Andrade, 538 U.S. 63, 73 (2003).

Under the circumstances of this case, appellant=s sentence of life imprisonment is not so extreme as to satisfy the disproportionality prong of the Solem test.  Appellant=s maximum sentence was handed down as a result of his involvement in a large-scale narcotics operation involving nearly 2,000 grams of cocaine.  Thus, the jury=s verdict did not constitute cruel and unusual punishment.  We overrule appellant=s first issue.

B. Motion to suppress evidence

In his second issue, appellant contends the trial court abused its discretion in denying his motion to suppress evidence.  The denial of a motion to suppress is reviewed for abuse of discretion, giving almost total deference to a trial court=s determination of historical facts and reviewing de novo the court=s application of search and seizure law.  Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002).  If the record supports a trial court=s findings, an appellate court is not at liberty to disturb them.  Etheridge v. State, 903 S.W.3d 1, 15 (Tex. Crim. App. 1994).

Appellant argues that he did not violate any traffic laws and that he was initially stopped because of a telephone call Officer Oakley had received regarding appellant and not because of any traffic violation.  While it is true that the mere inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause, see Terry v. Ohio, 392 U.S. 1, 27 (1968), Officer Oakley provided specific articulable facts which led to the traffic stop.

An officer may lawfully stop and detain a motorist who commits a traffic violation in the officer=s presence.  McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993).  Once an officer makes a legal stop for a traffic offense, he may also investigate any other offense that he reasonably suspects has been committed.  Id.  The validity of the stop is determined by the totality of the circumstances.  State v. Griffey, 241 S.W.3d 700, 703 (Tex. App.CAustin 2007, pet. filed).  In this case, appellant=s stop was lawful because he committed a traffic violation when he made an unsafe lane change to the opposite lane of traffic.  The Texas Transportation Code provides that an operator on a roadway divided into two or more clearly marked lanes for traffic shall drive as nearly as practical entirely within a single lane and may not move from the lane unless that movement can be made safely.  Tex. Transp. Code Ann. ' 545.060(a) (Vernon 2005).  Officer Oakley testified that he saw appellant cross over the center lane into oncoming traffic.

Appellant cites two cases for the proposition that Officer Oakley=s testimony did not establish reasonable suspicion to stop appellant for a violation of section 545.060.  In these two cases, appellate courts held that police officers did not have reasonable suspicion that the defendant had committed a traffic offense to justify a warrantless stop.  See Aviles v. State, 23 S.W.3d 74, 79 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); Hernandez v. State, 983 S.W.2d 867, 872 (Tex. App.CAustin 1998, pet. ref=d).  However, in both Hernandez and Aviles, each of the defendants crossed over into another lane of traffic traveling in the same direction.  Aviles, 23 S.W.3d at 77B78; Hernandez, 983 S.W.2d at 868B69.  Furthermore, there was no other evidence that the lane changes were unsafe.  See  Aviles, 23 S.W.3d at 77B78; Hernandez, 983 S.W.2d at 868B69.

Conversely, crossing over the center stripe into oncoming traffic constitutes unsafe driving.  In Littleton v. State, No. 13-04-005-CR, 2005 WL 1983984, at *2 (Tex. App.CCorpus Christi Aug. 11, 2005, no pet.) (mem. op., not designated for publication), a police officer followed a driver who crossed the center yellow lines of the roadway and eventually arrested him for driving while intoxicated.  The court denied the appellant=s motion to suppress for lack of reasonable suspicion.  Id.  The court concluded that the officer=s testimony that the defendant had crossed the center yellow lines into oncoming traffic was sufficient to establish that the defendant was stopped pursuant to a traffic violation.  Id.

In this case, appellant was in the far left lane traveling northbound when he crossed over into the southbound lane.  Officer Oakley testified that appellant=s move to the southbound lane was unsafe because the southbound lane was not a lane of traffic appellant could have continued to travel in going north.  Furthermore, Oakley noted it is extremely unsafe to cross into a lane of traffic where there are oncoming vehicles traveling in the opposite direction.  Therefore, Officer Oakley provided the trial court with a reasonable basis to believe appellant=s lane change was unsafe.

We conclude the trial court did not err in determining that appellant was lawfully detained for a traffic offense.  Appellant gave voluntary verbal and written consent to search his vehicle and home.  Appellant does not challenge the validity of his consent given to the officer, but instead focuses on the lawfulness of the officer=s initial stop.  Appellant was legally detained when he provided consent to search his vehicle and home, and therefore, the seizure of items from these locations was lawful.  We overrule appellant=s second issue.

C. Sufficiency of the evidence

In his third issue, appellant complains the evidence is factually insufficient to support his conviction.  A factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  In determining the factual sufficiency of the evidence to establish the elements of the offense, the appellate court must review all the evidence in a neutral light and set aside the verdict only if it is so contrary to the great weight of the evidence as to be clearly wrong or so weak as to be clearly wrong or manifestly unjust.  Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).  The jury is the sole judge of the facts and is entitled to resolve any conflicts in the evidence, to evaluate the credibility of the witnesses, and to determine the weight given to any particular evidence.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

Appellant claims that the evidence is insufficient to support his conviction because the statement he provided to law enforcement admitting ownership of both homes and the cocaine was untrue.  Specifically, appellant claims, for the first time on appeal, that he provided the statement to police to protect his family.  However, appellant never presented any such evidence at trial.  Had appellant presented this alternative theory to the jury, they would have been free to choose which of his stories to believe. Matters that are not present in the record will not provide a basis for an appellate court to make a decision; the mere allegation of the existence of other facts may not be considered on appeal.  See Byrd v. State, No. 14-99-00882-CR, 1999 WL 795661, at *2 (Tex. App.CHouston [14th Dist.] Oct. 7, 1999, pet. ref=d) (not designated for publication).

Furthermore, appellant argues there was no evidence that the drugs which were found at appellant=s wife=s house were ever in his possession.  However, the State presented evidence that appellant told Officer Bright and Officer Garivey that he had the house on Witter with his girlfriend and the house on Alastair with his wife.  Appellant=s driver=s license indicated that his home address was 413 Alastair, and appellant told Officer Bright that although he and his wife had separated, he still had access to the house on Alastair.  Appellant had a key to the house and could visit his children whenever he wanted.  Additionally, some of appellant=s work clothes were found in the bedroom at the Alastair address, and paperwork found in the safes at the Alastair home belonged to appellant.  Finally, appellant admitted ownership of both homes and the cocaine and further outlined his narcotics operation for police.  Therefore, reviewing the evidence with appropriate deference to the jury=s verdict, the evidence is not so weak as to be factually insufficient.  Accordingly, we overrule appellant=s third issue.

                                                 III.  Conclusion

Appellant=s life sentence does not constitute cruel and unusual punishment.  Furthermore, the trial court did not abuse its discretion in denying appellant=s motion to suppress evidence.  Lastly, the evidence presented at trial was factually sufficient to support the jury=s verdict.  We affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed April 3, 2008.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).