Brown v. State , 2000 Tex. App. LEXIS 8310 ( 2000 )

OPINION

DAVIS, Chief Justice.

The court convicted Rashann Maurice Brown in a bench trial of taking a controlled substance (marihuana) into a correctional facility and sentenced him to two years’ imprisonment. Brown claims in two issues that: (1) the court erred in overruling his motion to suppress because the State lacked probable cause to arrest him; and (2) the evidence is insufficient to support his conviction because it does not establish that he intentionally and knowingly took marihuana into the county jail.

BACKGROUND

DPS Trooper Jean Bangassar stopped a U-Haul truck on Interstate Highway 45 in the early afternoon for speeding. The driver identified himself with an Arkansas identification card. He informed Trooper Bangassar that a friend of one of the passengers had rented the truck but he could not find the rental agreement. He told her that they had come from Leesville, Louisiana and were going to Wilmer, Texas. Bangassar asked the occupants to exit the truck.

Brown sat in the right front seat of the U-Haul. He identified himself to the trooper as Shawn Johnson and gave a date of birth, but he could not recall his social security number. Bangassar suspected Brown was lying because a records check revealed no one with that name and birth date and because Brown could not recall his social security number even though he told her about a job he had working for a magazine company in Florida.

Bangassar noticed the rental agreement in the front console as the occupants exited. After obtaining a consent to search the U-Haul, Bangassar discovered two additional passengers were in the cargo compartment. The agreement reflected that Haden Drexler Brandies had rented the U-Haul in Pensacola, Florida as an “IN-TOWN RENTAL” and that the truck was three days’ overdue. Brandies was not one of the truck’s occupants. A check on the vehicle revealed that it had been reported stolen by the owner. The occupants told Bangassar that Brandies had left them without explanation when they were staying at a hotel in Leesville.

Bangassar arrested all five occupants for unauthorized use of a motor vehicle. She and other officers transported them to the Navarro County Justice Center. At the Justice Center, the officers took the suspects to a break room in the sheriffs department.¹ The officers advised the suspects of their Miranda rights and questioned them further about the U-Haul and its owner.

Brown stated that Brandies was his roommate in Florida and that he was with Brandies when he rented the truck. Ban-gassar determined from the interrogation of the suspects that Brown and another identified in the hearing only as “Shep” had been with Brandies in Florida and had traveled together with him from Florida. Accordingly, she turned Brown and “Shep” over to jail authorities to be booked in on the unauthorized use charge and had the other three occupants released from custody.

As the suspects sat in the break room, Deputy Bruce Venable asked them “if they had anything in their possession that they weren’t suppose to have in their possession; namely, drugs, weapons, or anything like that.” He cautioned them that “it’s a completely different charge once you step behind the secured doors of the jail.” None of the suspects turned over any contraband.

The officers took Brown inside the secured area of the jail to the booking area. After Brown was booked into the jail, he pulled a small quantity of marihuana from one of his pants pockets and handed it to Venable as he was undressing to take a shower.

SUPPRESSION RULING

Brown contends in his first issue that the court abused its discretion in overruling his motion to suppress because Trooper Bangassar did not have probable cause to arrest him. The State responds that probable cause existed for Brown’s arrest under the totality of the circumstances.

An officer must have probable cause to make a warrantless arrest. See Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991); Josey v. State, 981 S.W.2d 831, 841 (Tex.App. — Houston [14th Dist.] 1998, pet. refd). “Probable cause exists “when the facts and circumstances within an officer’s personal knowledge and of which he has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in the belief that, more likely than not,’ a particular suspect has committed an offense.” Hughes v. State, 878 S.W.2d 142, 154 (Tex.Crim.App.1992) (op. on reh’g) (quoting Castillo v. State, 818 S.W.2d 803, 805 n. 4 (Tex.Crim.App.1991)); Blackmon v. State, 926 S.W.2d 399, 404 (Tex.App. — Waco 1996, pet. ref'd).

[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands.... In making a determination of probable cause the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.

Stull v. State, 772 S.W.2d 449, 452 n. 1 (Tex.Crim.App.1989) (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)).

At the time Trooper Bangassar decided to arrest Brown, she knew that: (1) he was a passenger in a stolen truck; (2) he was from the state in which the truck was stolen; (3) the purported lessor of the truck was not among its occupants; (4) the rental agreement which evidenced that the truck was three days’ overdue was in the front console area near where Brown was sitting; (5) the other occupants could not identify Brown other than to say that they knew him only by the name he had given the officer; and (6) Brown did not know his own social security number despite claiming to be gainfully employed. Because the name and birth date Brown gave her did not produce any results when checked, Bangassar also had reason to believe Brown had lied to her about his identification.

From this evidence, we conclude that Trooper Bangassar had sufficient probable cause to believe that Brown was a participant in the commission of the unauthorized use of the stolen U-Haul truck. Accordingly, we overrule his first issue.

VOLUNTARINESS

Brown argues in his second issue that the evidence is “insufficient” to establish that he intentionally or knowingly took the marihuana into the jail. He claims that he could not have taken the marihuana into the jail with the requisite culpability because he was handcuffed when he was escorted into the jail. Thus, he contends that he “had no control over the [marihuana]” and “had no opportunity to dispose of [it] prior to being taken inside the jail facility.”

The State relies on Deputy Venable’s testimony to establish that Brown did have an opportunity to turn over the marihuana during the interview process and before he was escorted into the secured area of the jail. The State also places weight on Brown’s written stipulation that he was intentionally and knowingly possessing marihuana when he was “placed into custody.” According to the State, this constitutes sufficient evidence to support the conviction.

Since the advent of the factual sufficiency analysis of Clewis in 1996, we have articulated several different approaches for construing a “sufficiency” complaint to determine whether it challenges the legal or factual sufficiency of the evidence (or both). In Hoffman v. State, we concluded that the appellant’s sufficiency point constituted a factual sufficiency challenge because he requested reversal and remand in his discussion of the relief required in the event of a favorable ruling on that point.² 922 S.W.2d 663, 671 & n. 6 (Tex.App. — Waco 1996, pet. ref'd). In Caldwell v. State, we observed that we would construe a general sufficiency challenge as a challenge to the legal sufficiency of the evidence. 943 S.W.2d 551, 552 (Tex.App. — Waco 1997, no pet.). More recently, we have noted that we look to the arguments made and the cases cited to construe a general sufficiency issue. See Purvis v. State, 4 S.W.3d 118, 120 (Tex.App. — Waco 1999, no pet.).

As we have previously stated, counsel should clearly specify the type of sufficiency challenge being made and state the applicable standard of review. See Purvis, 4 S.W.3d at 119-20; Deckard v. State, 953 S.W.2d 541, 543 n. 3 (Tex.App.— Waco 1997, pet. ref'd). If counsel falls to do so, we may require re-briefing under Rule of Appellate Procedure 38.9. See Tex.R.App.P. 38.9. However, if we are satisfied that the briefing rules have not been flagrantly violated, we will construe the issue presented. Preferably, the argument and authorities presented in the brief will dictate whether an issue challenges the legal or factual sufficiency of the evidence or both. See Purvis, 4 S.W.3d at 120; Hoffman, 922 S.W.2d at 671 n. 6. Otherwise, we will construe a general sufficiency challenge as a challenge to only the legal sufficiency of the evidence. See Caldwell, 943 S.W.2d at 552.

In this case, Brown does not specify whether he is challenging the legal or factual sufficiency of the evidence on this issue. Nevertheless, he cites Gonzales v. State as supporting authority. 638 S.W.2d 41 (Tex.App. — Houston [1st Dist.] 1982, pet. ref'd). Gonzales is a legal sufficiency case. See id. at 43. Accordingly, we construe Brown’s second issue as a challenge to the legal sufficiency of the evidence. See Purvis, 4 S.W.3d at 120.

In reviewing a claim of legal insufficiency, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App.2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991).

Although this issue expressly challenges intent or knowledge, Brown’s complaint that he was brought to the jail against his will really challenges the sufficiency of the evidence to prove that his conduct was voluntary. See Chimney v. State, 6 S.W.3d 681, 688 (Tex.App. — Waco 1999, pet. filed); Tex.R.App.P. 38.1(e) (appellate court considers “every subsidiary question that is fairly included” in an issue or point). As Brown states in the summary of argument section of his brief, he believes the trial court should have found “that he did not voluntarily introduce the contraband into the correctional facility.”

To establish criminal responsibility, the State must prove that the accused acted voluntarily and with a requisite culpable mental state. See Alford v. State, 866 S.W.2d 619, 622-23 (Tex.Crim.App.1993); Rhodes v. State, 997 S.W.2d 692, 694 (Tex.App. — Texarkana 1999, pet. ref'd); Saldivar v. State, 980 S.W.2d 475, 498 (Tex.App. — Houston [14th Dist.] 1998, pet. ref'd); see also Tex.Pen.Code ANN. §§ 6.01, 6.02 (Vernon 1994). The issue of voluntariness centers on “whether [the defendant] voluntarily engaged in the conduct of which he is accused.” Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App.1997) (quoting Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982) (op. on reh’g)).

To obtain a conviction, the State had to prove that Brown voluntarily took marihuana into the jail.³ See Alford, 866 S.W.2d at 622-23; Rhodes, 997 S.W.2d at 694; Saldivar, 980 S.W.2d at 498. To the contrary, however, the record establishes that Brown was transported into the jail against his will because he was under arrest. Brown did not voluntarily go to the county jail. Therefore, he did not voluntarily take marihuana into the jail.

The stipulation relied on by the State establishes that Brown was intentionally and knowingly in possession of less than two ounces of marihuana when he was taken into custody on the side of the road. This stipulation sets out the offense with which Brown should have been charged, ie., possession of marihuana in an amount less than two ounces. See Tex. Health & Safety Code Ann. § 481.121(b)(1) (Vernon Supp.2000). However, the stipulation is silent as to the voluntariness of Brown’s actions once he was arrested.

The State also contends that Brown had the- opportunity to “volunteer” (ie., confess) that he had contraband. Because this “opportunity” was in a custodial setting, we conclude that the “opportunity” the officers gave Brown was nothing more than an invitation to admit his guilt to a lesser crime in order to avoid arrest and prosecution for a more serious offense. This type of “opportunity” is tantamount to an attempt to compel the defendant to waive his Fifth Amendment privilege against self-incrimination “by threatening to impose ... other sanctions ‘capable of forcing the self-incrimination which the Amendment forbids.’ ” Lykins v. State, 784 S.W.2d 82, 37 (Tex.Crim.App.1989) (quoting Minnesota v. Murphy, 465 U.S. 420, 434, 104 S.Ct. 1136, 1146, 79 L.Ed.2d 409 (1984)); accord In re Verbois, 10 S.W.3d 825, 829 (Tex.App. — Waco 2000, orig. proceeding [mand. denied]) (citing Garrity v. New Jersey, 385 U.S. 493, 496-98, 87 S.Ct. 616, 618-19, 17 L.Ed.2d 562 (1967)). Thus, it is improper. Lykins, 784 S.W.2d at 37.

Because Brown did not voluntarily go into the jail, the evidence is legally insufficient to establish that he voluntarily took marihuana into the jail. For this reason, we sustain Brown’s second issue.

APPROPRIATE DISPOSITION

Brown’s prayer for relief requests that we “reverse and remand this case to the trial court with appropriate instructions consistent with the decision of this court.” However, Rule of Appellate Procedure 43.3 provides:

When reversing a trial court’s judgment, the court must render the judgment that the trial court should have rendered, except when:

(a) a remand is necessary for further proceedings; or

(b) the interests of justice require a remand for another trial.

Tex.R.App.P. 43.3.

The Dallas Court of Appeals has examined the relationship between the requirement that an appellant “clearly state[ ]” the relief requested in his prayer and the requirement that the appellate court render the judgment that the trial court should have rendered. See Kaspar v. Thorne, 755 S.W.2d 151, 156-58 (Tex.App. — Dallas 1988, no writ) (op. on reh’g). The Court noted that the rules require an appellate court to liberally construe a party’s brief.⁴ Id. at 156. The Court continued: Id. at 156-57 (citation omitted). We agree with this analysis.

These rules suggest that the prayer’s irregularity of form or substance does not limit the relief available to a party. To the extent that the error is flagrant, the court may order a party to redraft his prayer. However, the rules prevent this court from tailoring its relief because of the violation of briefing rules without first giving the errant party an opportunity to cure the defect. Thus, we conclude that this court is not limited to remand of the cause because of a party’s omission of a request for rendition when the disposition of a party’s points entitles him to rendition.

Upon a finding that the evidence is legally insufficient to support a conviction, the appropriate disposition is reversal of the judgment of conviction and rendition of a judgment of acquittal. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996); Jones v. State, 945 S.W.2d 852, 854 (Tex.App.—Waco 1997), aff'd, 979 S.W.2d 652 (Tex.Crim.App.1998). However, we may in some circumstances modify the court’s judgment to reflect a conviction for a lesser-included offense. See Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999); Watson v. State, 923 S.W.2d 829, 832-33 (Tex.App.—Austin 1996, pet. ref'd).

In Collier, the Court held that an appellate court can modify the judgment to reflect conviction of a lesser-included offense if: (1) the appellate court finds the evidence insufficient to support a conviction for the offense charged but sufficient to support a conviction for the lesser offense; and “(2) either the jury was instructed on the lesser-included offense (at the request of a party or by the trial court sua sponte) or one of the parties asked for but was denied such an instruction.” Collier, 999 S.W.2d at 782. Thus, Collier states the rule for jury trials.

In a concurring opinion, Judge Keasler observed that the second requirement:

should apply only when the case is tried before a jury, since there are no jury instructions in a bench trial. In a bench trial, the “judgment that the trial court should have rendered” can always be a conviction for a lesser-included offense because the trial court is authorized to find the defendant guilty of any lesser offense for which the State provides the required pi'oof.

Id. at 784 (Keasler, J. concurring) (citing Shute v. State, 877 S.W.2d 314, 315 (Tex.Crim.App.1994)); accord Watson, 923 S.W.2d at 832-33. We believe this is a correct statement of the law for bench trials.⁵

CONCLUSION

Possession of marihuana is a lesser-included offense of the offense charged in this case. See Duhrkopf v. State, 671 S.W.2d 147, 152 (Tex.App.—Fort Worth 1984, pet. refd) (possession of marihuana is lesser-included offense of delivery of marihuana). We have determined that the evidence is legally insufficient to prove that Brown voluntarily took marihuana into the Navarro County Jail. Nevertheless, Brown’s stipulation of evidence establishes all the elements of the lesser-included offense of marihuana possession prior to his entry into the jail.

Accordingly, we modify the judgment to reflect conviction of the lesser-included offense of possession of marihuana in an amount less than two ounces. We affirm the judgment of conviction as modified. See Dusek v. State, 978 S.W.2d 129, 137 (Tex.App.—Austin 1998, pet. ref'd); Lucero v. State, 915 S.W.2d 612, 615 (Tex.App.—El Paso 1996, pet. ref'd); Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.— Dallas 1994, pet. ref'd). We reverse that portion of the judgment assessing punishment and remand this cause to the trial court for a new punishment hearing. See Dickson v. State, 986 S.W.2d 799, 806 (Tex.App.—Waco 1999, pet. ref'd); Dusek, 978 S.W.2d at 137; Lucero, 915 S.W.2d at 615; Lockett, 874 S.W.2d at 818; Tex.Code Crim.Proc.Ann. art. 44.29(b) (Vernon Supp. 2000).

Justice GRAY dissenting.

1 . Deputy Bruce Venable testified that the Navarro County Justice Center includes the courts, the offices of the Sheriff’s Department, and the county jail. The break room in question is located in the offices of the Sheriff's Department, not in the jail.

2 . When the appellant challenges the legal sufficiency of the evidence, he should request reversal and rendition of a judgment of acquittal. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.1996); Jones v. State, 945 S.W.2d 852, 854 (Tex.App. — Waco 1997), aff'd, 979 S.W.2d 652 (Tex.Crim.App.1998). When a factual sufficiency challenge is made however, the appellant should request reversal and remand. See Clewis, 922 S.W.2d at 133-34; Gowans v. State, 995 S.W.2d 787, 790 (Tex.App. — Houston [1st Dist.] 1999, pet. ref'd). If both challenges are made, the appellant should request reversal and rendition or in the alternative reversal and remand. See Clewis, 922 S.W.2d at 133; Regan v. State, 7 S.W.3d 813, 819 (Tex.App. — Houston [14th Dist.] 1999, pet. ref'd) (appellate court may proceed to review factual sufficiency after it determines the evidence is legally sufficient).

3 . Section 38.11(b) of the Penal Code provides in pertinent part, “A person commits an offense if the person takes an alcoholic beverage, controlled substance, or dangerous drug into a correctional facility....” Tex.Pen.Code Ann. § 38.11(b) (Vernon 1994).

4 . The Court also noted that the former rule regarding the form of the prayer in an appellant's brief stated in pertinent part that the “nature of the relief sought should be clearly stated.” Kaspar v. Thorne, 755 S.W.2d 151, 156 (Tex.App.- — Dallas 1988, no writ) (op. on reh’g) (quoting Tex.R.App.P. 74(g), 707-708 S.W.2d (Tex.Cases) ixxv (Tex.Crim.App. 1986, amended 1997)). The current rule reads somewhat differently. It provides, “The brief must contain a short conclusion that clearly states (he nature of the relief sought.” Tex R.App.P. 38.1(i) (emphasis added). Nevertheless, the current rules continue to require an appellate court to liberally construe a party’s brief. Compare id. 38.9 with Tex.R.App.P. 74(p), 707-708 S.W.2d (Tex.Cases) Ixxvi-lxxvii (Tex.Crim.App.1986, amended 1997). Accordingly, we believe the reasoning of Kaspar remains valid.

5 . In any event, the State raised the issue of the lesser-included offense in its closing argument. The State argued, "[W]e’d ask the Court to find him guilty not only of a lesser included—not of the lesser included possession of marijuana, but of taking knowingly, at the very least, the controlled substance marihuana into the correctional facility.”