Davis Daniel Gobert v. State

Affirmed and Memorandum Opinion filed August 30, 2007

Affirmed and Memorandum Opinion filed August 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-00838-CR

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DAVIS DANIEL GOBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris  County, Texas

Trial Court Cause No. 1005179

M E M O R A N D U M   O P I N I O N

Davis Daniel Gobert appeals a conviction for possession of a controlled substance^[1] on the grounds that the trial court abused its discretion by: (1) admitting into evidence statements appellant made to police pursuant to a custodial interrogation; and (2) finding that the State=s copy of the missing punishment jury charge was accurate.  We affirm.

Custodial Interrogation

Appellant=s first three issues argue that his statements to police officers concerning his use of the crack pipes that police discovered in appellant=s motel room were inadmissible because the statements were made pursuant to a custodial interrogation before appellant had been given Miranda^[2] warnings, as required by the United States and Texas Constitutions and Texas Code of Criminal Procedure article 38.22.  Specifically, appellant contends he was Ain custody@ as soon as the officers found the narcotics paraphernalia in the motel room because at that point, the officers had probable cause to arrest him.

A person is in Acustody@ for this purpose if there is either a formal arrest or  circumstances in which a reasonable person would otherwise believe that he was not at liberty to terminate the interrogation and leave.  Yarborough v. Alvarado, 541 U.S. 652, 663 (2004).  Custody can exist where officers: (1) have probable cause to arrest a suspect; (2) manifest their knowledge of it to the suspect, such as where information substantiating probable cause is related by the suspect or officers to the other; and (3) do not tell the suspect that he is free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996).

In this case, appellant and a female occupant were stopped outside the parking lot of a motel for an expired vehicle registration.  Because of appellant=s Aweird@ behavior, Deputy Stech asked appellant if he had any drugs or weapons, and appellant responded that he had smoked crack cocaine a few hours earlier.  However, when Stech asked appellant if he had any crack in his motel room, appellant responded that he did not and gave the officers permission to search the motel room.  In that search, Deputy Savell found two pipes and an aluminum can that had been used to cook crack cocaine.  When Stech asked who owned the items, the woman said that the pipes were hers, and appellant said that he had used one of the pipes to smoke the crack cocaine.  The officers then placed both appellant and the woman under arrest for possession of a controlled substance.

Appellant contends that he was in custody the moment the officers found the drug paraphernalia in the motel room because there was then probable cause to arrest him and he was not told that he was free to go.  However, probable cause to arrest requires facts and circumstances that reasonably support an objective belief that the person arrested had committed or was committing an offense.  See Parker v. State, 206 S.W.3d 593, 596 (Tex. Crim. App. 2006).  There is thus a significant difference between probable cause to believe that someone has committed an offense and probable cause to believe that a particular person has committed an offense.  Id. at 596-97.

In this case, because the drug paraphernalia was found in a motel room occupied by both appellant and a female companion, and appellant had affirmatively denied that he had any drugs in the motel room, the officers did not have probable cause to arrest appellant upon mere discovery of the pipes and can in the motel room, but only when appellant stated that he had smoked the cocaine using one of the pipes.^[3] Because appellant's first three issues thus fail to demonstrate that he was in custody when the officers discovered the drug paraphernalia in the motel room, they are overruled.

Missing Punishment Charge

Appellant=s fourth issue contends that the trial judge erred in ruling that the State=s copy of the missing punishment charge was accurate because there was conflicting evidence whether the copy was accurate.^[4]

When a filing designated for inclusion in the clerk's record has been lost or destroyed,  the parties may, by written stipulation, deliver a copy of the filing to the trial court clerk for inclusion in the record.  Tex. R. App. P. 34.5(e).  If the parties cannot agree, the trial court must determine what constitutes an accurate copy of the missing document and order it included in the record.  Id.  Almost total deference is afforded a trial court's rulings on questions of fact, particularly when the trial court's ruling turns on the credibility of the witnesses.  See Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006).

In this case, after the original punishment charge was determined to be missing from the court=s file, and appellant=s counsel and the trial prosecutor could not agree on stipulating to a substitute copy, this court abated the case and ordered the trial court to hold a hearing to determine what constitutes an accurate copy of the missing charge.  At the hearing, the trial prosecutor testified that: (1) he had located a copy of the original punishment charge; (2) he specifically remembered it as the one he reviewed in the case because of his notations on it; and (3) he remembered that appellant had raised some objections to the charge that were overruled, so this was the version submitted to the jury.  Appellant=s trial counsel testified that his file did not contain a copy of the original charge, and that: (1) ATo the best of my recollection, I cannot say that this is the same copy of the same document.@; (2) AI cannot say that this is an accurate copy of what was submitted to the jury during the trial.@; and (3) AIt=s my testimony that I don=t remember it as being the charge presented to the jury.@  However, apart from not remembering it as the charge submitted, appellant=s trial counsel did not affirmatively state that it was not the same, cite any differences between it and the one submitted, or otherwise give any reason to doubt that it was the same.

As the trier of fact, the trial court weighed this evidence and concluded that the State=s copy constituted an accurate copy of the charge and supplemented the clerk=s record accordingly.  Appellant=s fourth issue cites no authority or rationale suggesting that this decision was outside the trial court=s discretion.^[5] Accordingly, it is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed August 30, 2007.

Panel consists of Chief Justice Hedges, and Justices Fowler and Edelman.  (Fowler, J., concurring without opinion).

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

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^[1]           A jury found appellant guilty and assessed punishment at 20 years confinement.

^[2]           See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

^[3]           Cf. Evans v. State, 202 S.W.3d 158, 161B62 (Tex. Crim. App. 2006) (stating that mere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control over drugs); Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981) (stating that when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband).   

^[4]           Appellant contends that his trial objection to the punishment charge cannot be appealed without the actual charge that was submitted to the jury.  However, appellant=s brief does not specify what objection he is referring to or cite any portion of the record at which such an objection was made. Therefore, it is not possible to review whether the objection pertains to the substituted copy of the charge.  In addition, it is not clear how a mere lack of consensus on the copy could demonstrate error in the trial court=s decision, as appellant contends.  If the parties had agreed on the substituted copy, there would have been no need for a hearing and determination by the trial court in the first place.

^[5]           See Johnson v. State, 176 S.W.3d 94, 97 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d).