Aerielle Kilgore v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
AERIELLE AVINA KILGORE, §
No. 08-17-00172-CR
Appellant, §
Appeal from the
v. §
Criminal District Court No. 1
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20120D05387)
§
OPINION
Appellant was convicted of unlawful possession of marijuana more than five pounds but
less than fifty pounds. In her sole issue on appeal, Appellant contends the trial court abused its
discretion in denying her an Article 38.23(a) instruction, asserting the evidence raised a factual
dispute regarding the legality of the search of her luggage. We affirm.
BACKGROUND
This case involves the discovery of several pounds of marijuana in a suitcase in the luggage
compartment of an Amtrak train and whether a fact issue was raised regarding the legality of the
search. On November 1, 2012, United States Border Patrol Agent Jesus Arredondo was on patrol
at the Amtrak station in El Paso, Texas. With him was his assigned canine, Zina. It was
Arredondo’s regular duty to patrol this Amtrak station because narcotics are frequently sent
through El Paso to facilitate their entry into the eastern part of the United States.
On that day, Arredondo and Zina began their inspection as they customarily did, starting
at the back of the train and working their way to the front. Arredondo was conducting an open-
air search of the luggage compartment of the coach area of the train when Zina “heavily” alerted
to a pink Tourister suitcase on the right side of the compartment. When Arredondo observed his
canine’s reaction, he contacted a detective on site and informed him of the alert. Once the
detective arrived, Arredondo pointed out the pink suitcase to him and then left to continue
searching.
Detective Gardea responded to Arredondo’s call. He and Detective Lucero were assigned
to work narcotics interdiction that day and were dressed in plainclothes. After Arredondo directed
Gardea to the pink suitcase, Gardea began pulling it out to further inspect it. As he was doing so,
the Appellant, Aerielle Kilgore, entered the compartment from the passenger area. She
approached Gardea and told him the suitcase he was pulling out belonged to her. When he asked
her to confirm if she meant the pink suitcase, she stated she did. Kilgore then turned around and
left the compartment without saying anything further. Gardea went ahead and removed the
suitcase from the rack to inspect it. Moments later, Detective Lucero arrived in the compartment
and Gardea told him what had happened regarding the canine’s alert and Kilgore’s statement that
she was the owner of the suitcase. The detectives then noticed Kilgore return to the compartment.
Lucero approached her and identified himself as law enforcement, showing her his badge. He
asked Kilgore if the pink suitcase belonged to her, and this time she denied ownership. Deeming
the suitcase to be abandoned based on her response, the detectives opened it and found eight
vacuum-sealed bundles of marijuana. Lucero placed Kilgore under arrest and escorted her off the
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train.
After Kilgore was arrested, Gardea went to the passenger car and located the seat where
she had been sitting. There, he found a matching pink Tourister carry-on suitcase and a purse
containing Kilgore’s identification card.
Kilgore was charged with unlawful possession of more than five pounds but less than fifty
pounds of marijuana. During trial, Detective Gardea testified to the events described above. On
cross-examination of Gardea, Kilgore attempted to establish that the pink suitcase containing the
marijuana could not be deemed abandoned based solely on her denial of ownership because the
suitcase was in the luggage bin and could have belonged to any other passengers. Kilgore argued
that Gardea and Lucero had failed to ask any other passengers whether the suitcase belonged to
them, therefore, they could not have reasonably determined it was abandoned based on her
response alone. Gardea countered that the detectives had considered the totality of the
circumstances in determining the bag was abandoned, especially her initial claim of ownership of
the suitcase. At the charge conference, Kilgore requested an Article 38.23(a) instruction to allow
the jury to consider whether the pink suitcase was searched unlawfully. The State opposed the
instruction, asserting Kilgore had failed to raise a factual question on the legality of the search and
was raising a purely legal issue. The trial court denied Kilgore’s request.
The jury found her guilty as charged. The court assessed punishment at ten years’
imprisonment and probated the sentence, placing Kilgore on seven years’ community supervision.
The trial court also assessed a $2,000 fine, $1,500 of which was probated, and assessed 500 hours
of community service. This appeal followed.
DISCUSSION
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In her sole issue on appeal, Kilgore contends the trial court erred in denying her requested
instruction because she had raised a fact issue about the legality of the detectives’ warrantless
search of the pink Tourister suitcase.
Standard of Review
We review claims of jury-charge error by first determining whether an error exists in the
charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). If we find error in the charge,
we then analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.
2003)(en banc). The level of harm required for reversal depends on whether the defendant
objected to the error at trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985)(op.
on reh’g). If the defendant timely objected to the error, the error is analyzed under the “some
harm” standard. Id. The judgment may not be reversed unless the error was calculated to injure
the rights of the defendant. Id.
Applicable Law
Article 38.23(a) of the Texas Code of Criminal Procedure provides that:
No evidence obtained by an officer or other person in violation of any provisions
of the Constitution or laws of the State of Texas, or of the Constitution or laws of
the United States of America, shall be admitted in evidence against the accused on
the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be
instructed that if it believes, or has a reasonable doubt, that the evidence was
obtained in violation of the provisions of this Article, then and in such event, the
jury shall disregard any such evidence so obtained.
TEX.CODE CRIM.PROC.ANN. art. 38.23(a).
A defendant is entitled to an Article 38.23(a) instruction if he can establish the following:
(1) the evidence heard by the jury raised an issue of fact; (2) the evidence on that fact is
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affirmatively contested; and (3) the contested factual issue is material to the lawfulness of the
challenged conduct. Hamal v. State, 390 S.W.3d 302, 306 (Tex.Crim.App. 2012).
Analysis
Here, Kilgore argues there was a factual dispute raised regarding her abandonment of the
suitcase based on what she contends is a conflict in the testimony of Detectives Gardea and Lucero.
She asserts Detective Gardea testified she claimed ownership of the pink suitcase and Detective
Lucero testified she denied owning it; therefore, the issue of whether she actually abandoned the
suitcase should have been submitted to the jury because the jury could choose to believe she told
Detective Gardea she owned the suitcase and disbelieve she told Detective Lucero she did not own
it. However, her argument undergirding the fact issue is merely a description of the sequence of
events. Kilgore initially claimed ownership of the pink suitcase when she encountered a stranger
dressed in plainclothes pulling it down from the luggage rack. When she subsequently returned
to the luggage compartment and was confronted by a man identifying himself as a police officer
with his badge, she denied ownership of the suitcase. Both Detective Gardea and Detective
Lucero testified she denied ownership of the suitcase when Lucero asked her if it belonged to her.
Detective Gardea, under cross-examination, never contradicted this sequence of events. The
record reveals no factual dispute as to what she told the detectives. Further, no testimony was
presented to negate the detectives’ testimony of Kilgore’s statements. See Hamal, 390 S.W.3d at
306 (holding defendant was not entitled to an Article 38.23(a) instruction where there was no
factual dispute regarding what the defendant and officer said and did during their interaction).
Kilgore points to no testimony or other evidence that conflicts with any of the testimony of the
detectives. There mere fact that she initially claimed ownership of the suitcase and then later
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denied she owned it does not create a factual dispute that she made those statements. Id. Because
no evidence contradicts the detectives’ testimony, there was no factual dispute regarding what she
told the detectives about her ownership of the suitcase for the jury to consider. Id. Accordingly,
the trial court did not abuse its discretion in denying Kilgore’s request for an Article 38.23(a)
instruction. Issue One is overruled.
CONCLUSION
Having overruled Appellant’s sole issue on appeal, the judgment of the trial court is
affirmed.
July 5, 2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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