Connie McCoy v. State

Opinion filed June 29, 2006

Opinion filed June 29, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-04-00285-CR

                                                     __________

                                       CONNIE MCCOY, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 385th District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR29585

                                                                   O P I N I O N

Connie McCoy appeals from her conviction by a jury of the offense of possession of a controlled substance, methamphetamine, in an amount less than one gram.  The trial court assessed her punishment at 250 days in the Texas Department of Criminal Justice, State Jail Division.  She contends in two points that the trial court erred by (1) refusing to instruct the jury to disregard statements by her that resulted from a custodial interrogation because she had not received the warning as required under Miranda^[1] and (2) admitting certain syringes into evidence because evidence of the syringes was more prejudicial than probative under Tex. R. Evid. 403.  We affirm.

McCoy asserts in point one that the trial court erred by refusing to instruct the jury to disregard statements by her that resulted from a custodial interrogation because she had not received a warning as required under Miranda.  McCoy made no objection to testimony showing that Midland police officers responded to a domestic disturbance call made by McCoy=s husband Chris to the apartment she shared with him or to testimony that, when Chris indicated his desire that she leave the apartment, she proceeded to tell the police officers present where methamphetamine was hidden in the apartment. Robby Mobley, a detective with the Midland Police Department, testified without objection that he was called to the apartment after narcotics had been found.  He testified, again without objection, that McCoy said that she and her husband Ahad worked for a prison before and knew various locations and good places to hide the drugs.@  Just after that testimony was elicited, counsel for McCoy asked for a bench conference. McCoy=s counsel said, AIt is obvious to me by the time that this witness arrived at this apartment, Connie McCoy was in custody.  There has been no predicate that a Miranda warning was ever given.@  The prosecutor responded, AShe wasn=t in custody yet.  It wasn=t until after they found the drugs in the -- I can ask him.@  At that point, McCoy=s counsel responded, AOkay.@ The court then instructed the prosecutor to make sure she did not go Ainto the other stuff that he has objected to.@

When questioning of Detective Mobley continued, he testified that the arresting officer=s statement to the effect that McCoy was handcuffed after methamphetamine was found in the bathroom probably comported with his memory.  He related that McCoy was describing places in the apartment where drugs might be hidden. He testified without objection that, based on the information that McCoy gave them, officers found a small package of methamphetamine poked down the shower rod in the bathroom and that McCoy admitted to being a drug user.  On cross-examination, Detective Mobley said he would assume that McCoy was being detained when he arrived.  He acknowledged that he had not given McCoy a Miranda warning.  Shortly after this testimony, McCoy=s counsel asked the trial court for an instruction to the jury to disregard everything McCoy told Detective Mobley because she was in custody and no Miranda warning was given.  The trial court overruled the request.  Subsequently, Detective Mobley testified that McCoy was talking to the officers and Acame out more or less telling where the places in the apartment to look.@  When McCoy=s counsel asked Detective Mobley if McCoy responded to what he was asking her, he replied, AI wasn=t asking her.  She was just responding on her own.@

McCoy relies on the holding in Miranda, 384 U.S. 436, that what has become known as the Miranda warning must be given to a suspect or statements resulting from custodial interrogation may not be admitted against him or her.  Id. at 467.  She states, without any citation to the record, that Detective Mobley admitted he questioned McCoy after he arrived.

We first note that Detective Mobley testified as to more than one statement made by McCoy after he arrived, all without objection.  If we construe McCoy=s request to disregard the statements as an objection, it was untimely.  So was the request for an instruction to disregard. We hold, therefore, that nothing is presented for review.  See Ranson v. State, 707 S.W.2d 96, 99 (Tex. Crim. App. 1986).  We also note that, contrary to McCoy=s assertion, Detective Mobley did not admit that he questioned McCoy after he arrived.  Rather, he testified, AI wasn=t asking her.  She was just responding on her own.@  McCoy makes no reference to the record showing that any of her statements were the result of interrogation, as opposed to voluntary statements.  McCoy presents no authority suggesting that Miranda warnings are required where statements are not the result of custodial interrogation, and we are not aware of any.  We overrule point one.

McCoy contends in point two that the trial court erred in admitting certain syringes into evidence because the evidence was more prejudicial than probative under Rule 403. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Rule 403.  A Rule 403 balancing test includes the following factors:

!             (1) how compellingly the evidence serves to make a consequence more or less probableCa factor related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

!             (2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way;

!             (3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;

!             (4) the force of the proponent=s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to help establish this fact, and is this fact related to an issue in dispute.       

See Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).  We will reverse only upon a clear abuse of discretion.  Id.  The syringes in question were found in a drawer that contained Q-tips, makeup, and cotton swabs, all indicating that a female used the drawer.  We take judicial notice that illegal substances are frequently administered by injection.  Consequently, the evidence was highly relevant as to whether McCoy knowingly possessed the drugs located in the apartment she shared with her husband. While this evidence might impress the jury, it would not be in an irrational way.  It took little time to develop this evidence.  Counsel for McCoy raised the issue of whether McCoy possessed the methamphetamine in question, both in voir dire and in his closing statement. The issue of McCoy=s possession was in dispute.  Because McCoy=s husband also occupied the premises, it was significantly important for the State to show a link between McCoy and the methamphetamine found.  We hold that the trial court did not abuse its discretion in overruling McCoy=s Rule 403 objection. 

McCoy suggests that, since there was no evidence methamphetamine could be injected by the syringes, the jury would be left to speculate whether they might be used to ingest other drugs.  She makes no reference to any evidence or statement presented by the State before the jury suggesting that either McCoy or her husband had been using other drugs. Under the evidence presented, we see nothing about the presence of the syringes that would confuse the jury or cause it to speculate that McCoy used or was in possession of other drugs.  We overrule point two.

The judgment is affirmed.

PER CURIAM

June 29, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  McCall, J., and

Strange, J., and Hill, J.^[2]

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).

^[2]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.