Terrance Mendoza v. State ( 2011 )

MEMORANDUM OPINION
No. 04-11-00357-CR
Terrance MENDOZA,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 12, Bexar County, Texas
Trial Court No. 311251
Honorable Scott Roberts, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Rebecca Simmons, Justice
Delivered and Filed: December 14, 2011
AFFIRMED
Terrance Mendoza was convicted by a jury of possession of marijuana. On appeal,
Mendoza presents five issues raising evidentiary, Brady, and procedural challenges. We affirm
the trial court’s judgment.
BACKGROUND
Deputy Benjamin R. Olvera, Jr. stopped Mendoza because the registration to the vehicle
Mendoza was driving was expired. Deputy Olvera approached the driver’s side of the vehicle,
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while his field training officer, Anthony Doggett, approached the passenger side. Upon
approaching the driver’s side window, Deputy Olvera smelled a strong odor of fresh marijuana.
Based on furtive movements by the passenger and after a brief struggle, the passenger was
removed from the vehicle and handcuffed by Officer Doggett. Deputy Olvera asked Mendoza to
also exit the car, and Mendoza consented to a search of the vehicle. Marijuana and a scale were
discovered inside a backpack on the back seat of the vehicle. Although Mendoza and the
passenger both initially denied that the backpack was theirs, Deputy Olvera placed Mendoza
under arrest when he subsequently admitted the backpack belonged to him. Deputy Olvera could
not recall when Mendoza was placed in handcuffs, but stated that Mendoza was definitely placed
in handcuffs when Deputy Olvera told Mendoza that he was under arrest.
MOTION TO SUPPRESS
The trial court’s ruling on a motion to suppress is reviewed for abuse of discretion. Lujan
v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). The trial court is given almost complete
deference in its determination of historical facts, especially when based on an assessment of
credibility and demeanor. Id. The same deference is given to the trial court with respect to its
rulings on the application of the law to questions of fact if resolution of those questions depends
on an evaluation of credibility and demeanor. Id. Mixed questions of law and fact that do not
turn on credibility and demeanor are reviewed de novo. Id.
In his first issue, Mendoza contends the trial court erred in denying his motion to
suppress his statement admitting ownership of the backpack because Deputy Olvera had not
provided him with his Miranda 1 warnings. The need for Miranda warnings arises when a person
has been subjected to a custodial interrogation. Campbell v. State, 325 S.W.3d 223, 233 (Tex.
App.—Fort Worth 2010, no pet.); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 7 (West 2005).
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Custodial interrogation is questioning initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of action in any significant way.
Campbell, 325 S.W.3d at 233; Meadoux v. State, 307 S.W.3d 401, 408 (Tex. App.—San Antonio
2009), aff’d, 325 S.W.3d 189 (Tex. Crim. App. 2010). A person is in custody only if, under the
circumstances, a reasonable person would believe that his freedom of movement was restrained
to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.
Crim. App. 1996); Hernandez v. State, 107 S.W.3d 41, 47 (Tex. App.—San Antonio 2003, pet.
ref’d). A person held for a temporary investigative detention is not in custody. Campbell, 325
S.W.3d at 233; Hernandez, 107 S.W.3d at 47. “An officer who lacks probable cause but whose
observations lead to a reasonable suspicion that a particular person has committed, is
committing, or is about to commit a crime, may detain that person briefly in order to investigate
the circumstances that provoke the suspicion.” Hernandez, 107 S.W.3d at 47. “The officer may
ask a moderate number of questions to determine the person’s identity and to try to gather
information to confirm or dispel the officer’s suspicions.” Id.
In this case, Deputy Olvera could not recall if Mendoza was placed in handcuffs for
safety reasons before he was placed under arrest. Even if Mendoza was placed in handcuffs
while being detained, there is no bright-line rule that handcuffing a suspect always constitutes an
arrest. Campbell, 325 S.W.3d at 234. Based on the record, the trial court did not abuse its
discretion in concluding Deputy Olvera asked only a moderate number of questions during his
investigation, and Mendoza was not in custody until after he admitted that he owned the
backpack which contained the marijuana. Mendoza’s first issue is overruled.
In his second issue, Mendoza contends that searching the backpack exceeded the scope of
his consent for Deputy Olvera to search the vehicle. Mendoza consented to the search of the
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vehicle knowing Deputy Olvera was searching for marijuana. Accordingly, the scope of the
permissible search included any containers in the vehicle which might contain marijuana,
including the backpack. See Florida v. Jimeno, 500 U.S. 248, 251 (1991); Lopes v. State, 85
S.W.3d 844, 849 (Tex. App.—Waco 2002, no pet.); see also Montagnino v. State, No. 04-03-
00090-CR, 2003 WL 22047213, at *1, 3 (Tex. App.—San Antonio Sept. 3, 2003, pet. dism’d,
untimely filed) (search of backpack in vehicle within scope of consent to search vehicle for
narcotics) (not designated for publication). Mendoza’s second issue is overruled.
SUFFICIENCY
In his fifth issue, Mendoza contends the evidence is legally insufficient to sustain his
conviction because the marijuana was excluded from evidence based on concerns with the chain
of custody. Specifically, the evidence room was unable to locate the marijuana for Deputy
Olvera to bring to the first day of trial; however, Deputy Olvera brought the marijuana to the
second day of trial after it was found in the property room at the main jail. In his third issue,
Mendoza contends that the trial court erred in denying his motion to dismiss and request for
directed verdict after the trial court excluded the marijuana from evidence. “[A] complaint about
overruling a motion for directed/instructed verdict is in actuality an attack upon the sufficiency
of evidence to sustain the conviction.” McDuff v. State, 939 S.W.3d 607, 613 (Tex. Crim. App.
1997); see also Sony v. State, 307 S.W.3d 348, 353 (Tex. App.—San Antonio 2009, no pet.).
Accordingly, we will address and dispose of Mendoza’s third and fifth issues together.
In evaluating the legal sufficiency of the evidence to support a criminal conviction, “we
consider all the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences therefrom, a rational juror could have found the
essential elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13
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(Tex. Crim. App. 2007). Although the trial court excluded the marijuana from evidence, the jury
still could consider Deputy Olvera’s testimony that the backpack contained 18.2 grams of
marijuana, and Mendoza’s admission that he owned the backpack. See Osbourn v. State, 92
S.W.3d 531, 538 (Tex. Crim. App. 2002) (officer qualified to identify substance as marijuana);
Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977) (same). This testimony provided a
proper basis for the trial court to deny the motion for directed verdict and is sufficient evidence
to support the jury’s verdict. Mendoza’s third and fifth issues are overruled.
BRADY VIOLATION
In his fourth issue, Mendoza contends the prosecutor violated Brady v. Maryland, 373
U.S. 83 (1963), when he failed to disclose the fact that the marijuana was missing. When a
defendant complains that the State failed to disclose the fact that evidence was lost, the
complaint is a Brady due process claim. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App.
1999). The three part test used to determine whether the prosecutor’s actions have violated due
process is whether the prosecutor: (1) failed to disclose evidence; (2) favorable to the accused;
and (3) the evidence is material, meaning there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. Id.
In this case, the testimony established that Deputy Olvera and the prosecutors were
unaware that the marijuana was missing until Deputy Olvera attempted to retrieve it from the
evidence room on the day of trial. Mendoza argues that the duty to disclose under Brady extends
to information in the possession of police agencies or other members of the prosecutorial team.
Ex parte Mitchell, 977 S.W.3d 575, 578 (Tex. Crim. App. 1998). Mendoza further argues that
the State could have called the narcotics officer in charge of the evidence room to testify and that
the narcotics officer would have known the evidence was missing from the evidence room.
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Mendoza’s argument assumes that the narcotics officer had actual knowledge that the marijuana
was missing before Deputy Olvera went to retrieve the marijuana; however, there is no evidence
to support this assumption.
Even if we accept that a member of the prosecutorial team knew the marijuana was
missing from the evidence room, the fact that the evidence was missing was disclosed in time for
defense counsel to successfully argue for its exclusion when it was subsequently found. On
appeal, Mendoza contends that if defense counsel had known the evidence was lost, he could
have suppressed all evidence pertaining to the marijuana, including Deputy Olvera’s testimony
that the marijuana was subsequently found which was presented to the jury before the trial court
ruled that the marijuana would be excluded. Mendoza’s contention does not, however, show a
reasonable probability that the outcome would have been different. See Little, 991 S.W.2d at
866. Deputy Olvera’s testimony established that the substance in the backpack was marijuana
independent of the introduction of the marijuana itself. Accordingly, Mendoza’s fourth issue is
overruled.
ARTICLE 38.23 CHARGE
In his final issue, Mendoza asserts the trial court erred in denying his request for a jury
charge under article 38.23. A defendant’s right to the submission of a jury instruction under
article 38.23 is limited to disputed issues of fact that are material to his claim of a constitutional
or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d
504, 509-10 (Tex. Crim. App. 2007). Mendoza argues that he was entitled to an instruction so
the jury could determine whether or not he was entitled to Miranda warnings before Deputy
Olvera asked him about the ownership of the backpack. Mendoza appears to be arguing that the
instruction was necessary for the jury to determine whether or not Mendoza was in custody and
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entitled to Miranda warnings; however, determining whether a person is in custody is an issue of
law, not a factual issue for the jury to resolve. Mbugua v. State, 312 S.W.3d 657, 669-70 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). To raise a disputed fact warranting an article 38.23
instruction, there must be some affirmative evidence that puts the existence of a fact into
question. Madden, 242 S.W.3d at 513. In this case, the only affirmative evidence was Deputy
Olvera’s testimony, and his testimony was not contradictory with regard to the events that
occurred. Accordingly, because the evidence did not raise a disputed fact issue, the trial court
properly denied the requested instruction.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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