Constantino Rios Morales v. State

ACCEPTED
06-15-00125-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/15/2015 9:53:52 AM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS
FOR THE SIXTH COURT OF APPEALS DISTRICT OF TEXAS
TEXARKANA, TEXAS FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
10/15/2015 9:53:52 AM
DEBBIE AUTREY
CONSTANTINO RIOS MORALES * Clerk
*
*
VS. * NO. 06-15-00125-CR
*
THE STATE OF TEXAS *
ON APPEAL FROM CAUSE NO. F48830
249TH JUDICIAL DISTRICT COURT
JOHNSON COUNTY, TEXAS
LEAD COUNSEL FOR THE STATE
DALE S. HANNA
DISTRICT ATTORNEY
204 S. BUFFALO, SUITE 209
GUINN JUSTICE CENTER
CLEBURNE, TEXAS 76033
817/556-6801
BAR NO. 08918500
DAVID W. VERNON
ASSISTANT DISTRICT ATTORNEY
JOHNSON COUNTY, TEXAS
BAR NO. 00785149
davidv@johnsoncountytx.org
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
Names of All Parties ............................................................................................. v-vi
Index of Authorities ............................................................................................. vii-x
Statement of the Case................................................................................................. 1
Statement of Facts .................................................................................................. 2-3
Argument and Authorities.................................................................................... 4-41
Reply to Appellant's Issue
Number One: The evidence was sufficient to support
Appellant’s conviction in Count One ..... 4-12
A. Standard of review concerning the
sufficiency of the evidence to convict ....... 4-6
B. Relevant law concerning possession
of a controlled substance ......................... 6-7
C. The evidence was sufficient to
establish that Appellant knowingly
possessed the methamphetamine ........... 8-10
D. The evidence was sufficient to
establish that Appellant possessed the
methamphetamine with the intent to deliver.
.............................................................. 10-12
Reply to Appellant’s Issue
Number Two: The trial judge remained a neutral arbiter
and did not deny Appellant a fair and
impartial trial ....................................... 13-21
A. Relevant facts ............................ 14-16
B. Relevant law and standard of review
ii
.............................................................. 16-17
C. Appellant failed to preserve his issue
for appellate review ................................... 17
D. The trial court’s remarks did not
violate Appellant’s due-process rights to a
fair and impartial trial ......................... 17-18
E. Harmless error .......................... 18-21
Reply to Appellant’s Issue
Number Three: The trial court properly denied Appellant’s
motion for mistrial ............................... 22-26
A. Relevant facts ................................... 23
B. Relevant law and standard of review
.............................................................. 23-24
1. Motions for mistrial ......................... 23
2. Impermissible comments by trial court
on the weight of the evidence .......... 23-24
C. Appellant failed to preserve his issue
for appellate review. ............................ 24-25
D. No abuse of discretion ............... 25-26
Reply to Appellant’s Issue
Number Four: The trial court did not err in denying
Appellant’s motion to suppress ............ 27-41
A. Relevant facts ............................. 28-31
B. Standard of review – trial court’s
ruling on a motion to suppress ............ 31-32
iii
C. Relevant law and standard of
review—standing ................................. 32-33
D. Relevant law — the doctrine of
spoliation.................................................... 33
E. Appellant failed to preserve all but
two issues for appellate review ............ 34-36
F. Appellant lacks standing to challenge
the search of the IPad Mini........................ 36
G. Appellant’s due process rights were
not violated due to the doctrine of
spoliation.............................................. 36-41
Conclusion and Prayer ............................................................................................ 42
Certificate of Compliance ........................................................................................ 43
Certificate of Service ................................................................................................ 44
iv
NAMES OF ALL PARTIES
1. ATTORNEY FOR THE STATE
Dale S. Hanna (at trial)
18th, 249th, 249TH Judicial District
204 S. Buffalo, Suite 209
Guinn Justice Center
Cleburne, Texas 76033
Bryan Bufkin
Assistant District Attorney
Lindsey Lehrmann
Assistant District Attorney
2. ATTORNEY FOR THE STATE (on appeal)
Dale S. Hanna
District Attorney
18th, 249th, 249TH Judicial District
204 S. Buffalo, Suite 209
Guinn Justice Center
Cleburne, Texas 76033
David W. Vernon
Assistant District Attorney
3. ATTORNEY FOR APPELLANT
Patrick Barkman (at trial)
Attorney at Law
13 N. Main Street
Cleburne, Texas 76031
Jennifer Enright
Attorney at Law
300 N. Broadway
Joshua, TX 76058
v
4. ATTORNEY FOR APPELLANT (on appeal)
Lane E. Rugeley
Attorney at Law
16 N. Caddo Street
Cleburne, Texas 76031
5. PRESIDING JUDGE (at trial)
Honorable D. Wayne Bridewell
249TH Judicial District Court
204 S. Buffalo
Guinn Justice Center
Cleburne, Texas 76033
6. APPELLANT
Constantino Rios Morales
TDC # 01995563
James Lynaugh Unit
1098 S. Highway
Fort Stockton, TX 79735
vi
INDEX OF AUTHORITIES
Cases Page
Aranda v. State, 640 S.W.2d 766
(Tex.App.-San Antonio 1982, no pet.) .................................................... 25
Becknell v. State, 720 S.W.2d 526
(Tex.Crim.App. 1986). ............................................................................. 24
Blue v. State, 41 S.W.3d 129
(Tex.Crim.App. 2000). ............................................................................. 24
Bowen v. State, 374 S.W.3d 427
(Tex.Crim. App. 2012). .............................................................................. 6
Brooks v. State, 323 S.W.3d 893
(Tex.Crim.App. 2010) ................................................................................ 5
Brown v. State, 911 S.W.2d 744
(Tex.Crim.App. 1995). ............................................................................... 7
Brumit v. State, 206 S.W.3d 639
(Tex.Crim.App. 2006). ............................................................................. 23
California v. Trombetta, 467 U.S.479 (1984). ............................................ 33
Chambers v. State, 805 S.W.2d 459
(Tex.Crim.App. 1991). ............................................................................... 5
Conner v. State, 67 S.W.3d 192
(Tex.Crim.App. 2001). ............................................................................... 5
Davis v. State, 780 S.W.2d 945
(Tex.App.-Fort Worth 1989, pet. ref’d.), ................................................ 25
DeMoss v. State, 12 S.W.3d 553
(Tex.App.-San Antonio 1999, pet. ref’d.). .............................................. 34
Evans v. State, 202 S.W.3d 158
(Tex.Crim.App. 2006.). .............................................................................. 7
Ex parte Little, 887 S.W.2d 62
(Tex.Crim.App. 1994). ............................................................................. 23
Foster v. State, 101 S.W.3d 490
(Tex.App.-Houston [1st Dist.] 2002, no pet.). ........................................ 17
Garner v. State, 939 S.W.2d 802
(Tex.App.-Fort Worth 1997, pet. ref’d.). ................................................ 16
Grant v. State, 989 S.W.2d 428
(Tex.App.-Houston [14th Dist.] 1999, no pet.). ........................................ 8
Guzman v. State, 995 S.W.2d 85
vii
(Tex.Crim.App. 1997) .............................................................................. 31
Harrison v. State, 187 S.W.3d 429
(Tex.Crim.App. 2005) .............................................................................. 24
Hawkins v. State, 135 S.W.3d 72
(Tex.Crim.App. 2004). ............................................................................. 23
Hughen v. State, 265 S.W.3d 473
(Tex.App.-Texarkana 2008), cert. denied
560 U.S. 911 (2010)............................................................................ 16,18
Jackson v. Virginia, 443 U.S. 307(1979) ...................................................... 5
Johnson v. State, 783 S.W.2d 19
(Tex.App.-Fort Worth 1990, pet. ref'd) .................................................... 5
Johnson v. State, 803 S.W 2d 272
(Tex.Crim.App. 1990). ............................................................................. 24
Kim v. State, 331 S.W.3d 156
(Tex.App.-Houston [14th Dist.] 2011, pet. ref’d.). ................................. 24
Krause v. State, 243 S.W.3d 95
(Tex.App.-Houston [1st Dist.] 2007, pet. ref’d.). ................................... 34
Kutzner v. State, 994 S.W.2d 180
(Tex.Crim.App. 1999). ............................................................................... 5
Laney v. State, 117 S.W.3d 854
(Tex.Crim.App. 2003) .............................................................................. 32
Lewis v. State, 664 S.W.2d 345
(Tex.Crim.App. 1984). ............................................................................... 7
Mahaffey v. State, 937 S.W.2d 51
(Tex.App.-Houston [1st Dist.] 1996, no pet.) .................................... 33,40
Malik v. State, 953 S.W.2d 234
(Tex.Crim.App. 1997). ............................................................................ 5,6
Martinez v. State, 186 S.W.3d 59
(Tex.App.-Houston [1st Dist.] 2005, pet. ref’d.) ............................... 17,19
Martinez v. State, 91 S.W.3d 331
(Tex.Crim.App. 2002). ............................................................................. 32
Matthews v. State, 431 S.W.3d 596
(Tex.Crim.App. 2014) ......................................................................... 32,33
McGoldrick v. State, 682 S.W.2d 573
(Tex.Crim.App. 1985). ............................................................................... 6
Moreno v. State, 195 S.W.3d 321
(Tex.App.-Houston [14th Dist.] 2006, pet. ref’d.). ................................... 7
Moreno v. State, 755 S.W.2d 886
viii
(Tex.Crim.App. 1988) ................................................................................ 5
Oles v. State, 993 S.W.2d 103
(Tex.Crim.App. 1999). ............................................................................. 31
Ostos v. State, 713 S.W.2d 402
(Tex.App.-El Paso 1986, pet. ref’d.)....................................................... 25
Palmer v. State, 857 S.W.2d 898
(Tex.App.-Houston [1st Dist.] 1993, no pet.). .......................................... 7
Poindexter v. State, 153 S.W.3d 402
(Tex.Crim.App. 2005). ............................................................................... 6
Rezac v. State, 782 S.W.2d 869
(Tex.Crim.App. 1990). ............................................................................. 17
Robinson v. State, 174 S.W.3d 320
(Tex.App. –Houston [1st Dist.] 2005, pet. ref’d.)...................................... 8
Sapata v. State, 574 S.W.2d 770
(Tex.Crim.App. 1978). ............................................................................. 23
Silva v. State, 989 S.W.2d 64
(Tex.App.-San Antonio 1998, pet. ref’d.). .............................................. 16
Smith v. State, 638 S.W.2d 200
(Tex.App.-Houston [1st Dist.] 1982, pet. ref’d.-untimely filed) ............ 23
Steen v. State, 640 S.W.2d 912
(Tex.Crim.App. 1982) ................................................................................ 5
Strauss v. State, 121 S.W.3d 486
(Tex.App.-Amarillo 2006, pet. ref’d.). .................................................... 34
Swearingen v. State, 101 S.W.3d 89
(Tex.Crim.App.2003). ................................................................................ 6
U.S. v. Valenzuela-Bernal, 458 U.S. 858(1982). ........................................ 33
Wead v. State, 129 S.W.3d 126
(Tex.Crim.App. 2004). ............................................................................. 23
Wilson v. State, 71 S.W.3d 346
(Tex.Crim.App. 2002). ............................................................................. 34
Statutes
TEX. HEALTH and SAFETY CODE ANN. §481.002 (38) .......................... 6,8
TEX. HEALTH and SAFETY CODE ANN. § 481.112 (a). ............................. 6
TEX. PENAL CODE ANN. § 6.03(b). ............................................................. 8
TEX.R.APP.PROC 33.1 (a)(1) ...................................................................... 24
TEX.R.APP.PROC. 33.1 (a)(1)(A). ............................................................... 34
TEX. R. EVID. 104(a). ................................................................................. 16
ix
TEX.R.EVID.901(a)...................................................................................... 16
TEX.TRANSPORTATION CODE ANN. § 547.323 ...................................... 38
TEX.TRANSPORTATION CODE ANN. § 547.325 ...................................... 38
TEX.TRANSPORTATION CODE ANN. § 545.058 ...................................... 38
x
NO. 06-15-00125-CR
IN THE COURT OF APPEALS
FOR THE SIXTH COURT OF APPEALS DISTRICT OF TEXAS
TEXARKANA, TEXAS
CONSTANTINO RIOS MORALES
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
STATE'S BRIEF
TO THE HONORABLE COURT OF APPEALS, SIXTH COURT OF APPEALS
DISTRICT OF TEXAS:
The State of Texas, by and through her District Attorney, respectfully
submits this brief in the above entitled and numbered cause.
STATEMENT OF THE CASE
On September 12, 2014, Appellant was indicted for one count of
“Possession of Controlled Substance with Intent to Deliver, > 4 < 200 Grams in a
Drug Free Zone” (i.e., Count One).1 At trial, prior to the reading of the indictment,
the State announced that it was not proceeding with the “Drug Free Zone”
element.2 Thereafter, Appellant entered a plea of “not guilty.”3 After hearing all of
the evidence, the trial jury found Appellant guilty as charged and sentenced
Appellant to 45 years in TDCJ-ID, with a $10,000.00 fine.4
1
C.R., p. 14.
2
R.R. Vol. 11, p. 86.
3
R.R. Vol. 11, pp. 88, 89.
4
C.R., pp. 146, 149-154, 159; R.R. Vol. 13, pp. 53, 54; R.R. Vol. 14, pp. 119, 120.
1
STATEMENT OF FACTS
On the evening of August 31, 2004, Eric Alexander, a patrol officer with the
Cleburne Police Department (in Johnson County, Texas), was approaching the
downtown intersection of Main Street and Chambers when he noticed a tan, 1999
Chevy Silverado pickup truck in violation of several Transportation Code statutes
(i.e., the rear taillights were obscured by spray paint, the passenger side brake light
was not working, and the vehicle weaved onto an improved shoulder). 5 After
Alexander initiated a traffic stop, the officer identified the driver (the lone
occupant of the vehicle) as Constantino Morales (i.e., Appellant). 6 Following this,
Alexander placed Appellant under arrest (apparently for having outstanding
warrants?) and called for his supervisor (i.e., Officer Shane Wickson) to help with
an inventory search.7 During the search, three similar laptop-type computers were
found inside the center console and, in a hidden space underneath the cup holder in
the center console, a green pouch was discovered that contained two baggies of
methamphetamine (totaling 37.79 grams), digital scales, a small Ziploc-type
baggie and $483.00 in cash.8 Thereafter, Alexander determined that one of the
5
R.R. Vol. 11, pp. 104, 105, 109-111, 115, 117, 171, 173; R.R. Vol. 15, State’s Exhibit Nos. 1,
6-12.
6
R.R. Vol. 11, pp. 110, 111, 113, 115, 117, 118, 174; R.R. Vol. 15, State’s Exhibit No. 1.
7
R.R. Vol. 11, pp. 118, 169, 171, 175, 190.
8
Id. at 119, 121, 123-125, 127, 130-134, 137, 138, 175, 176, 178, 180; R.R. Vol. 12, pp. 11, 12,
15, 18; R.R. Vol. 15, State’s Exhibit Nos. 1-5, 13-20.
2
three laptop computers (i.e., an IPad Mini) was stolen.9 As a result of the
contraband discovered in Appellant’s vehicle, he was indicted on September 12,
2004, for one count of “Possession of Controlled Substance with Intent to Deliver,
> 4 < 200 Grams, in a Drug Free Zone.”10
9
R.R. Vol. 11, pp. 119, 121, 163-167, 177, 182, 183, 202.
10
C.R., p. 14.
3
REPLY TO APPELLANT’S
ISSUE NUMBER ONE: The evidence was sufficient to support
Appellant’s conviction in Count One.
In Appellant’s Issue Number One, he argues that the evidence was
insufficient to support his conviction in Count One. Specifically Appellant claims
the State failed to establish that he possessed (i.e., exercised care, custody, control,
or management) the methamphetamine found in the vehicle that he was driving or,
if he did, that his intent was to deliver this drug to others. The State of Texas
respectfully disagrees.
ISSUES PRESENTED
ONE
Was the evidence sufficient in Count One to support the jury’s finding that
Appellant intentionally or knowingly possessed methamphetamine with the intent
to deliver?
SUMMARY OF THE ARGUMENT
The record supports Appellant’s conviction in Count One and the jury’s
finding that Appellant possessed > 4 < 200 grams of methamphetamine with the
intent to deliver. At trial, evidence was adduced that: (1) Appellant was the owner
of the pickup truck in which the contraband was found; (2) he was the driver and
sole occupant of the truck; (3) Appellant had easy access to the contraband (i.e.,
the methamphetamine and drug paraphernalia were discovered in a hidden
compartment in the center console next to the driver’s seat); (4) a significant
amount of cash ($483.00) was also discovered in the vehicle; (5) a local drug
dealer (i.e., Martha Manzo) testified that Appellant was her source and, after
Appellant was arrested, that Appellant called her to say that he had a large amount
of drug in his truck when he was stopped by the police; (6) a similar admission was
heard on a taped phone call made by Appellant to his ex-wife (i.e., Celeste
Cooley); and that the DPS Crime Lab in Waco analyzed the drug exhibits and
determined them to be 37.79 grams of methamphetamine.
A. Standard of review concerning the sufficiency of the evidence to convict.
4
In reviewing the sufficiency of the evidence, the appellate court must view
the evidence in the light most favorable to the verdict (i.e., the prosecution) and
consider whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.11 In conducting such a review, a
reviewing court must remember that the jury is the sole fact-finder and is charged
with the duty of judging the credibility of the witnesses, reconciling conflicts in
testimony, and accepting or rejecting any or all of the evidence on either side.12
The jury is also allowed to draw reasonable inferences from basic facts to ultimate
facts.13 A verdict will be sustained if there is any evidence that, if believed, shows
the guilt of the defendant.14 All evidence, whether properly or improperly
admitted, will be considered when reviewing the evidence for sufficiency. 15 The
standard of review is the same for direct or circumstantial evidence cases.16
The sufficiency of the evidence is measured against the elements of the
offense as defined by a hypothetically correct jury charge for the case.17 The
standard of sufficiency ensures that a judgment of acquittal is reversed for those
11
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893
Tex.Crim.App. 2010) (The Jackson standard of review is the sole standard to be used for
challenges to the sufficiency of the evidence).
12
Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991).
13
Jackson v. Virginia, 443 U.S. at 319; Johnson v. State, 783 S.W.2d 19, 20 (Tex.App.-Fort
Worth 1990, pet. ref’d.).
14
Moreno v. State, 755 S.W.2d 886, 887 (Tex.Crim.App. 1988); Steen v. State, 640 S.W.2d
912, 914 (Tex.Crim.App. 1982).
15
Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001).
16
Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999).
17
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997).
5
situations in which there is an actual failure in the State’s proof of the crime rather
than a mere error in the jury charge submitted.18
If a criminal case is reversed for sufficiency, the judgment is reformed to
reflect a conviction for a lesser offense—regardless if the jury charge on the lesser
offense was either submitted or requested, but denied.19 Otherwise a reviewing
court vacates the judgment of conviction for insufficiency and orders a judgment
of acquittal.20
B. Relevant law concerning possession of a controlled substance.
To meet its burden of proof that the defendant knowingly possessed a
controlled substance, the State is required to demonstrate that the defendant (1)
exercised control, management, or care over the substance and (2) knew the matter
possessed was contraband.21 “Possession” means actual care, custody, control, or
management of an item.22
The knowledge element of the crime of possession, being subjective, must
always be inferred to some extent, in the absence of an admission by the accused. 23
To prove knowing possession, the State must present evidence that affirmatively
18
Id.
19
Bowen v. State, 374 S.W.3d 427, 432 (Tex.Crim. App. 2012).
20
Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003).
21
Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). See also, TEX. HEALTH
and SAFETY CODE ANN. § 481.112(a).
22
TEX. HEALTH and SAFETY CODE ANN. § 481.002 (38).
23
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985).
6
links the defendant to the controlled substance.24 This evidence may be direct or
circumstantial.25 Regardless whether the evidence is direct or circumstantial, it
must establish that the defendant’s conviction with the drug was more than
fortuitous.26
To prove that an accused possessed a controlled substance with an intent to
deliver, the State can use circumstantial evidence.27 Factors that courts have
considered include: (1) the nature of the location at which the accused was
arrested; (2) the quantity of contraband in the accused’s possession; (3) the manner
of packaging; (4) the presence or lack thereof of drug paraphernalia (for either use
or sale); and (5) the accused’s status as a drug user.28 The number of factors
present is not as important as the logical force the factors have in establishing the
elements of the offense.29 An oral expression of intent is not required.30 Intent
can be inferred from the acts, words, and conduct of the accused.31 Expert
testimony by experienced law enforcement officers may be used to establish an
accused’s intent to deliver.32
24
Palmer v. State, 857 S.W.2d 898, 900 (Tex.App.-Houston [1st Dist.] 1993, no pet.).
25
Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995).
26
Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006.).
27
Moreno v. State, 195 S.W.3d 321, 325 (Tex.App.-Houston [14th Dist.] 2006, pet. ref’d.).
28
Id., citing, Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim.App. 1984).
29
Id. at 326.
30
Id.
31
Id.
32
Id.
7
C. The evidence was sufficient to establish that Appellant knowingly possessed
the methamphetamine.
The State would first argue that the evidence was sufficient to support the
jury’s finding that Appellant knowingly possessed the methamphetamine
discovered inside the Chevy Silverado pickup truck in which Appellant was
driving. As stated in the jury charge, a person acts knowingly or with knowledge
with respect to the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct.33 And, “possession” means
actual care, custody, control, or management of an item. 34 Thus, given the facts of
the case sub judice, the State would have to show that (1) Appellant was aware that
the methamphetamine was inside the vehicle and (2) he exercised care, custody,
control, or management over this drug.
Knowledge of the presence of contraband may be inferred from the
accused’s control over the vehicle in which the contraband is concealed.35 Control
over the vehicle can be shown by the accused being the sole occupant of the
vehicle.36 It may also be shown by evidence that the accused owned the vehicle.37
Here, the record reflects that the methamphetamine was discovered in the
center console of a vehicle in which Appellant was not only the sole occupant of
33
C.R., p. 142; R.R. Vol. 13, p. 9. See also, TEX. PENAL CODE ANN. § 6.03(b).
34
TEX. HEALTH and SAFETY CODE ANN. § 481.002 (38).
35
Grant v. State, 989 S.W.2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.).
36
Id.
37
Robinson v. State, 174 S.W.3d 320, 325 (Tex.App. –Houston [1st Dist.] 2005, pet. ref’d.).
8
the vehicle, but also the driver.38 The record also reflects that Appellant was the
owner of the vehicle. Rene Ozuna, a salesman at Dugger Motor Company in
Cleburne, Texas testified that the vehicle (a tan, 1999 Chevy Silverado pickup
truck,) was first sold to Mr. Eric Mills and that a “Mexican guy” bought if from
Mills (i.e., took over the payments).39 Mills testified that he sold the vehicle to
Appellant (a person with a Spanish surname) and then identified Appellant in court
as the person to whom he sold the Silverado pickup truck.40 And, Martha Manzo
(an acquaintance of Appellant’s) testified that Appellant was the owner of the
truck, that he had purchased it about a month before his August 31, 2014 arrest,
and that he had spray painted the taillights (one of the reasons for Officer
Alexander’s traffic stop).41 Thus, a rational jury could have found beyond a
reasonable doubt that Appellant had knowledge of the methamphetamine found
inside the Silverado pickup truck.
A rational jury could also have found beyond a reasonable doubt that
Appellant possessed the methamphetamine. In addition to the aforementioned
affirmative links, the record reflects that the contraband was secreted in a hiding
space within the center console which was within easy access of Appellant.42
38
R.R. Vol. 11, pp. 117, 118, 174; R.R. Vol. 15, State’s Exhibit No. 1.
39
R.R. Vol. 12, pp. 188, 191, 193.
40
Id. at 65.
41
Id. at 58, 65, 66, 107, 108.
42
R.R. Vol. 11, pp. 121-125, 130, 137, 138; R.R. Vol. 15, State’s Exhibit Nos. 1-5, 13, 19, 20.
9
Also, drug paraphernalia (i.e., a glass pipe, a small Ziploc baggie, and digital scales
were found with the methamphetamine along with a significant amount of cash—
$483.00).43 Moreover, Manzo testified that she was a local dealer of
methamphetamine, that Appellant was her source, that he had told her just prior to
his arrest that he was going to purchase some methamphetamine, and that he called
her after the arrest and stated that he had a large amount of methamphetamine in
the truck when he was arrested.44 Such an admission is also on a taped telephone
call (presumably made from the county jail) between Appellant and his ex-wife
(i.e., Celeste Cooley).45 Therefore, the evidence was sufficient to establish that
Appellant knowingly possessed the methamphetamine found in the Chevy
Silverado pickup truck.
D. The evidence was sufficient to establish that Appellant possessed the
methamphetamine with the intent to deliver.
The State would also argue that the evidence was sufficient to establish that
Appellant’s possession of the methamphetamine was done with the intent to
deliver. Using the aforementioned factors, the State would first note that Appellant
was found with a large amount of methamphetamine (i.e., 37.79 grams).46 Both
Alexander and Wickson testified that this was by far the largest amount of
43
R.R. Vol. 11, pp. 124, 125, 127, 130-134, 151, 178, 180; R.R. Vol. 15, State’s Exhibit Nos. 1,
13, 15-17.
44
R.R. Vol. 12, pp. 58, 59, 66-70.
45
Id. at 80, 101-103, 111-113, 138, 139, 146-148, 150; R.R. Vol. 15, State’s Exhibit Nos. 22, 26.
46
R.R. Vol. 11, pp. 138, 178; R.R. Vol. 12, p. 18; R.R. Vol. 15, State’s Exhibit No. 20.
10
methamphetamine that they had ever encountered on a traffic stop.47 And, Adam
King (i.e, the commander of the STOP Task Force) testified as an expert witness
that most users only consume a quarter of one gram at a time, that much more than
that amount would likely be fatal, and that 37.79 grams indicated an intent to
deliver.48 In addition, King testified that the drug paraphernalia found with the
methamphetamine (i.e., a glass pipe, digital scales, and small baggie) and the
$483.00 further indicated that Appellant had the intent to deliver the
methamphetamine.49 And, King, Alexander, and Wickson all testified that the
presence of the stolen IPad Mini suggested that Appellant was a dealer (noting that
dealers commonly trade drugs for stolen merchandise such as electronics). 50
Moreover, as previously mentioned, Manzo testified that she was a local dealer of
methamphetamine, that Appellant was her supplier, and that just prior to his arrest
Appellant had stated that he was going to purchase some methamphetamine.51
Consequently, a rational trier of fact could also have found beyond a reasonable
doubt that the methamphetamine was not for Appellant’s personal use, but that he
possessed it with the intent to deliver. Therefore, for the reasons stated above, the
evidence was sufficient to support Appellant’s conviction in Count One.
47
R.R. Vol. 11, pp. 108, 109, 138, 178, 179.
48
R.R. Vol. 12, pp. 165-167, 172.
49
Id. at 165, 170.
50
R.R. Vol. 11, pp. 119, 121, 175-177, 182, 183, 202; R.R. Vol. 12, pp. 170, 171.
51
R.R. Vol. 12, pp. 58, 59, 66-70.
11
Accordingly, Appellant’s Issue Number One should be overruled.
12
REPLY TO APPELLANT’S
ISSUE NUMBER TWO: The trial judge remained a neutral
arbiter and did not deny Appellant a
fair and impartial trial.
In Appellant’s Issue Number Two, he argues that the trial judge denied him
his due process rights when, in guilt/innocence, the judge ceased to be a neutral
arbiter and became a prosecutor involved in the fray. Specifically, Appellant
claims that after the judge admitted the lab results, it was error for him to then pose
a question to both sides (outside the presence of the jury) whether the State had
fully proven the chain of custody. The State of Texas respectfully disagrees.
ISSUES PRESENTED
ONE
When the objection on appeal fails to comport with the objection lodged at
trial, has Appellant preserved his issue for appellate review?
TWO
If the trial judge has plenary power to reconsider an interlocutory ruling
made during trial, is it error for the judge to take a recess and ask both sides to
research if the ruling was correct?
THREE
If an alleged error by the trial court inures to the benefit of Appellant, is the
error reversible?
SUMMARY OF ARGUMENT
Appellant failed to preserve his issue for appellate review because his
argument on appeal does not comport with the objection lodged at trial. In
addition, the trial court’s post-ruling pondering as to whether or not the chain of
custody was proven was not error because the court retains plenary power during
trial to reconsider an interlocutory ruling. Finally, Appellant cannot claim that the
alleged error was reversible because the benefit of the ruling inured to Appellant
(i.e., the prosecution went to the unnecessary steps to fill in the chain of custody
gaps).
13
A. Relevant facts.
In guilt/innocence, the State, having established the first leg in the chain of
custody for the drug exhibits (i.e., from their discovery by law enforcement to their
transfer to the Cleburne Police Department property room), called James Milam (a
forensic scientist at the Texas Department of Public Service Crime Lab in Waco)
to testify about the results of his analysis of said exhibits.52 Testifying as to the last
step of the chain of custody, Milam explained that the two drug exhibits (contained
in an envelope marked as State’s Exhibit No. 19) both exhibited the unique lab
number, the case and exhibit number, the date of resealing, and his initials.53
Milam next stated that he personally performed the lab analysis on both drug
exhibits.54 At this point, State’s Exhibit No. 19 was offered and admitted without
any objection by defense counsel.55 Milam, who was then shown State’s Exhibit
No. 20 (i.e., the lab report), testified that the report accurately reflected the results
of his analysis and carried the same unique lab number as State’s Exhibit No. 19.56
The State then offered its Exhibit No. 20 which, like No. 19, was also admitted
without any objection by defense counsel.57 Then, after his cross-examination of
Milam, defense counsel (with agreement by the prosecution) stated that he had no
52
R.R. Vol. 11, pp. 129-132, 134-137, 141, 142.
53
R.R. Vol. 12, pp. 11, 12, 14, 15.
54
Id. at 15.
55
Id.
56
Id. at 16, 17.
57
Id. at 17, 18.
14
objection to the court excusing Milam.58 The court responded by having the bailiff
take the jury out of the courtroom for a 15 minute break.59
During the break, the trial court (apparently having some confusion as to
whether chain of custody was properly proven) asked Milam to remain seated and
suggested that it might be a good idea for both sides to use the break to research
the issue.60 At the end of the break (and before the jury was brought back into the
courtroom), defense counsel approached the bench and lodged two objections —
(1) that the chain of custody was not proven as to State’s Exhibit No. 19 and (2)
that the trial court’s statements during the recess about whether the prosecution had
met the chain of custody requirement was an impermissible comment on the
weight of evidence.61 Defense counsel then asked for a mistrial.62 In response, the
State argued that it had proven chain of custody by showing the first and last leg
and that the gaps in between went to the weight of the evidence and not its
admissibility.63 The prosecution then reminded the trial judge that defense counsel
failed to object to the admission of State’s Exhibit No. 19 and argued that a
58
Id. at 18, 19.
59
Id. at 19.
60
Id. at 19, 20.
61
Id. at 21.
62
Id.
63
Id. at 21, 22.
15
mistrial was not warranted.64 The trial judge then overruled defense counsel’s
objections and denied his motion for mistrial.65
B. Relevant law and standard of review.
While it is true that a defendant has a due process right to a fair trial before a
fair tribunal, the trial court has plenary jurisdiction to reconsider its interlocutory
rulings, and retains that ability, until a final judgment or order is entered in the
cause and the decree becomes final without violating this due-process right.66
Such interlocutory rulings involve preliminary questions concerning the
admissibility of evidence.67
TEX. R. EVID. 901(a) provides that, “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” This rule does not require the State to prove anything.68 Instead, it
requires only a showing that satisfies the trial court that the matter in question is
what the State claims; once that showing is made, the exhibit is admissible. 69 The
State meets the authentication requirement for admissibility once it “has shown the
beginning and the end of the chain of custody, particularly when the chain ends at
64
Id. at 22.
65
Id. at 22, 23.
66
Hughen v. State, 265 S.W.3d 473, 479-480, 482 (Tex.App.-Texarkana 2008), cert. denied,
560 U.S. 911 (2010).
67
TEX. R. EVID. 104(a).
68
Silva v. State, 989 S.W.2d 64, 67-68 (Tex.App.-San Antonio 1998, pet. ref’d.).
69
Garner v. State, 939 S.W.2d 802, 805 (Tex.App.-Fort Worth 1997, pet. ref’d.).
16
a laboratory. Any gaps and minor theoretical breaches go to the weight rather than
the admissibility of the evidence, absence a showing of tampering.”70
The trial court has discretion to determine the sufficiency of the predicate of
authentication and, absent an abuse of discretion, the trial court’s judgment will not
be reversed on appeal.71
C. Appellant failed to preserve his issue for appellate review.
The State would first argue that Appellant has failed to preserve his issue for
appellate review. It is well settled that to preserve error on appeal, an objection
raised on appeal must comport with the objection lodged at trial.72 Here, Appellant
complains an appeal that his due process rights were violated by the complained-of
comments by the trial judge because in making them, the judge became an
advocate for the prosecution. At trial, however, defense counsel’s objections were
that the prosecution had not proven up the chain of custody concerning State’s
Exhibit No. 19 and that the judge’s remarks constituted an impermissible comment
on the weight of the evidence.73 Consequently, Appellant has not preserved his
issue for appellate review.
D. The trial court’s remarks did not violate Appellant’s due-process rights to a
fair and impartial trial.
70
Martinez v. State, 186 S.W.3d 59, 62 (Tex.App.-Houston [1st Dist.] 2005, pet. ref’d.).
71
Foster v. State, 101 S.W.3d 490, 498 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
72
Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990).
73
R.R. Vol. 12, p. 21 (ls. 1-10).
17
In addition to Appellant having failed to preserve his issue for appellate
review, the State would next argue that the trial court’s remarks did not violate
Appellant’s due-process rights to a fair and impartial trial. Caselaw holds that a
trial court has plenary jurisdiction to reconsider its interlocutory rulings and retains
that ability until a final judgment or order is entered in the cause and the decree
becomes final.74 This enhances the fairness of a trial by giving the trial court an
opportunity to correct error in its rulings. For this reason, such reconsideration
does not deny a defendant due process of law.75
Here, although the trial court had correctly ruled that State’s Exhibit Nos. 19
and 20 (i.e., the lab report) were admissible (i.e., they were properly authenticated
when the first and last links of the chain of custody were shown), the trial court,
having second thoughts about the admissibility requirements, merely suggested
that both sides review the law on this issue during a 15 minute recess. This
precautionary action resulted in the trial court being reassured that it had made the
correct ruling in its admission of these exhibits. Consequently, the trial court’s
action of reconsidering its ruling did not deny Appellant his due-process rights.
E. Harmless error.
In the event that the trial court’s reconsideration of its ruling (i.e., the
admission of State’s Exhibit Nos. 19 and 20) was error, the State would argue that
74
Hughen, 265 S.W.3d at 479.
75
Id. at 482.
18
Appellant was not harmed. First, the trial court was correct in admitting these
exhibits. As previously stated, the authentication requirement for admissibility is
met once the State has shown the beginning and end of the chain of custody,
particularly when the chain ends at a laboratory. 76 Any gaps and minor theoretical
breaches go to the weight of rather than the admissibility of the evidence, absent a
showing of tampering.77
Here, Officer Alexander testified that he packaged the evidence recovered
from the inventory search, sealed them, put a case number and his name on each
package, and delivered them to the property room. 78 Later at trial, James Milam,
the forensic scientist for the DPS lab in Waco who analyzed the drug exhibits,
testified that he recognized the two drug exhibits inside the envelope marked as
State’s Exhibit No. 19, that the bags had identification markings on them (i.e., the
law enforcement case number, date that Milam resealed the bags, and the unique
lab exhibit number assigned to the bags) and that they showed no signs of
tampering prior to his analysis.79 Thus, the trial court did not err in admitting the
drug exhibits (and the analysis of them) because the beginning and end of the chain
of custody was shown.
76
Martinez, 186 S.W.3d at 62.
77
Id.
78
R.R. Vol. 11, pp. 129-132, 134-137, 141, 142; R. R. Vol. 15, State’s Exhibit Nos. 14-19.
79
R.R. Vol. 12, pp. 14, 15.
19
Secondly, the trial court’s ruling on the admissibility of the drug exhibits and
lab report was not affected by its suggestion that both sides do some legal research
on the issue of authentication and chain of custody. The record reflects that at the
end of the 15 minute recess, the State instructed the court concerning the law on
chain of custody and how it supported his ruling.80 Thereafter, the court overruled
defense counsel’s untimely objection concerning the chain of custody and let its
ruling stand.81 Consequently, Appellant’s due-process rights were not violated by
the trial court’s proper ruling on the admissibility of State’s Exhibit Nos. 19 and
20.
Finally, any benefit from the trial court’s reconsideration of its ruling inured
to Appellant. As a result of the trial court’s suggestion that the issue of
authentication and chain of custody be researched, the State decided to take the
unnecessary step of having Milam fill in the gaps of chain of custody. Following
the recess, Milam testified that State’s Exhibit Nos. 19 and 20 were delivered to
the lab by Sam Thomas of the Cleburne Police Department, that these exhibits
were received by Kristina Aguirre (an evidence tech at the lab), that Aguirre placed
the exhibits in the return vault, that evidence tech Sandra Cull took the exhibits and
placed them in the drug vault, and that he retrieved the exhibits from the drug vault
80
Id. at 21, 22.
81
Id. at 22.
20
for testing.82 Milam then testified that after his analysis, his supervisor (i.e.,
Araceli Utmore) reworked the analysis, that Utmore returned the exhibits to the
drug vault, that the exhibits were thereafter transferred to the return vault before
Cull retrieved them and gave them back to Thomas.83 As such, Appellant received
the benefit of the State demonstrating far more of the chain of custody than the law
requires. Therefore, Appellant was not harmed by the trial court’s act of
reconsideration.
Accordingly, for the reasons stated above, Appellant’s Issue Number Two
should be overruled.
82
Id. at 24, 25.
83
Id. at 25.
21
REPLY TO APPELLANT’S
ISSUE NUMBER THREE: The trial court properly denied
Appellant’s motion for mistrial.
In Appellant’s Issue Number Three, he argues that the trial court reversibly
erred during guilt/innocence when it denied his motion for mistrial regarding the
trial court’s remarks made outside the presence of the jury, (i.e., about whether the
State had met the authentication requirements to show chain of custody for State’s
Exhibit Nos. 19 and 20). Specifically, Appellant maintains that these remarks
constituted an impermissible comment on the weight of the evidence in violation
of Art. 38.05 V.A.C.C.P.
ISSUES PRESENTED
ONE
If Appellant failed to lodge a timely objection following the alleged
improper comment on the weight of the evidence by the trial court, has he
preserved error for appellate review?
TWO
If complained-of remarks by the trial court were made outside the presence
of the jury and did not impermissibly comment on the weight of the evidence (i.e.,
did not imply approval of the State’s argument, did not indicate a disbelief in the
defense’s position, and did not diminish the credibility of the defense’s approach to
the case), does the trial court abuse its discretion in denying Appellant’s motion for
mistrial?
SUMMARY OF ARGUMENT
Appellant failed to preserve his issue on appeal (i.e., that the complained-of
statements made by the trial court constituted an impermissible comment on the
weight of the evidence). In addition, the complained –of remarks did not constitute
an impermissible comment on the weight of the evidence because (1) they were
made outside the presence of the jury and, as such, could not have affected their
verdict and (2) they neither implied approval of the State’s argument, indicate any
disbelief on the defense’s position, or diminished the credibility of the defense’s
approach to the case. As such, the trial court did not abuse its discretion in
denying Appellant’s motion for mistrial.
22
A. Relevant facts.
The State wishes to incorporate Subsection A (i.e., “Relevant facts”) of its
Reply to Appellant’s Issue Number Two herein for purposes of showing the
relevant facts surrounding Appellant’s Issue Number Three.
B. Relevant law and standard of review.
1. Motions for mistrial
The decision to grant or deny a motion for mistrial is within the discretion of
the trial court, which was broad power to deal with unexpected situations occurring
during trial.84 The trial court’s denial of a motion for mistrial is reviewed under an
abuse of discretion standard.85 A trial judge abuses his discretion by granting a
mistrial when less dramatic alternatives were available.86 The trial court’s denial
of a motion for mistrial must be upheld as long as the ruling is within the zone of
reasonable disagreement.87
2. Impermissible comments by trial court on the weight of the evidence.
Due process requires a neutral and detached judge.88 Art 38.05 V.A.C.C.P.
states that a trial judge shall not, at any stage of the proceeding previous to the
return of the verdict, make any remark calculated to convey to the jury his opinion
84
Smith v. State, 638 S.W.2d 200, 202 (Tex.App.-Houston [1st Dist.] 1982, pet. ref’d.-untimely
filed), citing, Sapata v. State, 574 S.W.2d 770 (Tex.Crim.App. 1978).
85
Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex.Crim.App. 2004).
86
Ex parte Little, 887 S.W.2d 62, 66 (Tex.Crim.App. 1994).
87
Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004).
88
Brumit v. State, 206 S.W.3d 639, 644-45 (Tex.Crim.App. 2006).
23
of the case. To constitute reversible error, the comment must be reasonably
calculated to benefit the State or to prejudice the rights of the defendant.89 A trial
court’s comment does so if it (1) implies approval of the State’s argument, (2)
indicates any disbelief in the defense’s position, or (3) diminishes the credibility of
the defense’s approach to the case.90
C. Appellant failed to preserve his issue for appellate review.
The State would first argue that Appellant has failed to preserve his issue for
appellate review. Normally, to preserve error for review, an appellant must make a
timely, specific objection and obtain an adverse ruling.91 An objection is timely if
the party objects as soon as the ground for objection becomes apparent. 92 Failure
to object to an Art. 38.05 violation waives the issue for appellate review unless the
comment is so egregious that it constitutes fundamental, constitutional error.93
Here, the record reflects that Appellate lodged no objection to the
complained-of remark by the trial court when, after excusing the jury for a 15
minute recess, it wondered if the prosecution had shown the requisite chain of
custody concerning the already admitted State’s Exhibit Nos. 19 and 20.94 At this
89
Becknell v. State, 720 S.W.2d 526, 531 (Tex.Crim.App. 1986).
90
Kim v. State, 331 S.W.3d 156, 160 (Tex.App.-Houston [14th Dist.] 2011, pet. ref’d.).
91
Harrison v. State, 187 S.W.3d 429, 433 (Tex.Crim.App. 2005); TEX. R. APP. PROC.
33.01(a); TEX. R. EVID. 103(a)(1).
92
Johnson v. State, 803 S.W 2d 272, 291 (Tex.Crim.App. 1990).
93
Blue v. State, 41 S.W.3d 129, 132-33 (Tex.Crim.App. 2000).
94
R.R. Vol. 12, p. 19.
24
point, defense counsel lodged no objection.95 Only upon returning from the recess
did defense counsel raise his objections (i.e., that the State failed to show the chain
of custody for State’s Exhibit No. 19 and that the trial court’s remarks were a
comment on the weight of the evidence). As such, Appellant’s objection was not
timely. Moreover, for reasons stated in Paragraph D of the State’s Response to
Appellant’s Issue Number Two and Paragraph D of the State’s Response to
Appellant’s Issue Number Three, the complained-of remarks were not egregious
and did not constitute fundamental or constitutional error. Consequently,
Appellant has failed to preserve his Issue Number Three for appellate review.
D. No abuse of discretion.
In the alternative that Appellant preserved his issue for appellate review, the
State would next argue that the trial court did not abuse its discretion in denying
Appellant’s motion for mistrial because the complained-of remarks did not
constitute an impermissible comment on the weight of the evidence. First, to run
afoul of Art. 38.05, the complained-of comments must have been made in front of
the jury.96 Otherwise, the complained-of comments could not have affected the
jury’s verdict.97 Here, the complained-of remarks were made after the judge had
95
Id. at 19, 20.
96
Davis v. State, 780 S.W.2d 945, 949-50 (Tex.App.-Fort Worth 1989), pet. ref’d.), citing,
Ostos v. State, 713 S.W.2d 402, 403 (Tex.App.-El Paso 1986, pet. ref’d.); Aranda v. State, 640
S.W.2d 766, 774 (Tex.App.-San Antonio 1982, no pet.).
97
Id.
25
called for a 15 minute recess and after the bailiff had escorted the jury outside of
the courtroom.98 Secondly, the complained-of comments reflected (1) the trial
court’s confusion as to whether the State had properly authenticated its Exhibit
Nos. 19 and 20 (i.e., by showing the requisite chain of custody) and (2) the court’s
desire to make sure its ruling (i.e., the admitting of these exhibits) was correct.
Contrary to Appellant’s assertions, the court’s comments were not calculated to
benefit the State or prejudice Appellant in any way. Moreover, they did not imply
approval of an argument by State, they did not indicate a disbelief in the defense’s
position, and they did not diminish the credibility of the defense’s approach to the
case. Consequently, the trial court’s comments did not offend Art. 38.05.
Therefore, the trial court did not abuse its discretion by denying Appellant’s
motion for mistrial.
Accordingly, for the reasons stated above, Appellant’s Issue Number Three
should be overruled.
98
R.R. Vol. 12, pp. 19, 20.
26
REPLY TO APPELLANT’S
ISSUE NUMBER FOUR: The trial court did not err in denying
Appellant’s motion to suppress.
In Appellant’s Issue Number Four, he argues that the trial court erred in
denying his motion to suppress. Specifically, Appellant claims that : (1) there was
no evidence showing that he was arrested (warranting an inventory search of his
vehicle); (2) there was no evidence showing the Cleburne Police Department
inventory search procedure; (3) there was no evidence that Officers Alexander and
Wickson used an inventory sheet during the search of Appellant’s vehicle; (4) the
search of the IPad Mini laptop computer was not based on probable cause and was
conducted without a warrant; (5) there was no evidence that he was arrested on
outstanding warrants prior to the inventory search; and (6) that the State violated
his due process rights under the doctrine of spoliation (i.e., the police released his
vehicle to a towing service which he had the result of preventing him from later
examining the vehicle for favorable and material evidence). The State of Texas
respectfully disagrees.
ISSUES PRESENTED
ONE
If four of the six claims raised by Appellant in his Issue Number Four do not
comport with the objections raised at his suppression hearing, has Appellant
preserved these four claims for appellate review?
TWO
If Appellant has no property or possessory interest in the stolen IPad Mini,
did he have standing to challenge Officer Wickson’s search of this laptop?
THREE
If Appellant cannot establish (1) that the complained-of evidence was lost or
destroyed, (2) that his vehicle contained favorable and material evidence and (3)
that law enforcement released the vehicle to a towing service in bad faith, has his
due process rights been violated under the doctrine of spoliation?
27
SUMMARY OF ARGUMENT
Four of the six claims raised by Appellant in this Issue Number Four were
not preserved for appellate review because they do not comport with the objections
lodged at the suppression hearing. Of the remaining issues, (i.e., the alleged illegal
search of the IPad Mini found in the center console of Appellant’s vehicle and the
violation of his due process rights due to the doctrine of spoliation), Appellant
lacks standing to challenge the search of the IPad because it was stolen and
Appellant cannot meet the requirements of spoliation (i.e., proving that (1)
evidence was lost or destroyed, (2) the evidence had exculpatory and material
value, and (3) that its destruction was the result of bad faith on the part of law
enforcement).
A. Relevant facts.
On March 4, 2015, defense counsel filed a motion to suppress which alleged,
in relevant part, the following: “the actions of the Cleburne Police Department
violated the constitutional and statutory rights of the Defendant under the Fourth,
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article
I, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of
Criminal Procedure”, and “Any tangible evidence seized in connection with a 1999
Tan Chevrolet Sierra, VIN# 2GCEK19VXX1261302, Plate #DNZ7036, was seized
without probable cause or other lawful authority in violation of the rights of
Constantino Morales pursuant to the Fourth, Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution, Article I, Sections 9, 10 and 19 of
the Constitution of the State of Texas.”99
99
C.R., pp. 80, 81.
28
The relief sought by defense counsel in said motion was, in relevant part, the
suppression at trial in this cause of “[A]ny and all tangible evidence seized by law
enforcement officers or others in connection with the detention and arrest of
Constantino Morales in this case or in connection with the investigation of this
case, including but not limited to any items seized from a 1999 Tan Chevrolet
Sierra, VIN# 2GCEK19VXX1261302, plate # DNZ7036, and any testimony by the
Cleburne Police Department or any other law enforcement officers or others
concerning such evidence.100
At the beginning of the suppression hearing, held on April 14, 2015, defense
counsel stipulated that Appellant was arrested on outstanding warrants and then
announced that he was proceeding under the doctrine of spoliation.101 According
to defense counsel, the releasing of Appellant’s vehicle by the Cleburne Police
Department to a towing service (1) prevented him from verifying Officers
Alexander’s and Wickson’s offense report (and expected testimony) that the
vehicle’s tail lamp assembly (including reflectors) was obscured by spray paint and
(2) theoretically rendered useless (through likely contamination) any fingerprints
that were later obtained from the inside of the center console by CPD.102 For these
reasons, defense counsel claimed that he was prevented from challenging the
100
Id. at 81.
101
R.R. Vol. 11, pp. 1, 6, 7.
102
Id. at 7-10.
29
legality of the stop and/or allegations that Appellant had contact with the hidden
compartment inside the center console.103 In response, the prosecution stated that
it had located the vehicle, that it was still in Cleburne, and that defense counsel
could go inspect it if he so chose.104
Following the presentment of evidence, defense counsel, in his closing
argument, reurged the issue of spoliation, but also indicated that the $483.00 cash
discovered in the vehicle should not be admitted under TEX.R.EVID 403 and that
the information gleamed from Wickson’s search of the IPad Mini should be
suppressed because, citing Riley v. California, it was conducted without a
warrant.105
In its response, the State, citing TEX. TRANSPORTATION CODE ANN.
§§’s 547.323, 547.325, 545.058, and Dietiker v. State, 345 S.W.3d 422 (Tex.App-
Waco 2011), summed up the evidence that supported the legality of Alexander’s
traffic stop, argued that defense counsel had failed to meet the requirements of
proving spoliation (i.e., there was no showing of evidence being destroyed that was
material and exculpatory and no showing of bad faith or part of law enforcement),
challenged defense counsel’s assertion that the probative value of the cash was
substantially outweighed by the danger of unfair prejudice to Appellant, and
103
Id.
104
Id. at 11.
105
Id. at 72-77.
30
pointed out that Appellant had no standing to challenge Wickson’s search of the
stolen IPad Mini.106 Having heard arguments from both sides, the trial court
denied the motion to suppress.107
B. Standard of review -trial court’s ruling on a motion to suppress.
On appeal, a trial court’s ruling on a motion to suppress is generally
reviewed on appeal for an abuse of discretion.108 The process for such a review
was articulated by the Court of Criminal Appeals in Guzman v. State.109 Using a
bifurcated standard of review, almost total deference is given to a trial court’s
determination of historical facts—especially when the trial court’s findings are
based on an evaluation of credibility and demeanor.110 The same amount of
deference is given to the trial court’s ruling on application of law-to-fact questions
if the resolution of those questions turn on an evaluation of credibility and
demeanor.111 Applications of law-to-fact question that do not turn on the
evaluation of credibility and demeanor of witness testimony at the suppression
hearing, however, are reviewed de novo.112
The reviewing court must uphold a trial court’s ruling on a motion to
suppress if the ruling is reasonably supported by the record and correct on any
106
Id. at 77-83.
107
Id. at 85.
108
Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999).
109
See, Guzman v. State, 995 S.W.2d 85 (Tex.Crim.App. 1997).
110
Id.
111
Id.
112
Id.
31
theory of law applicable to the case.113 This is so even if the trial judge gives the
wrong reason for the decision.114 A reviewing court, however, may not reverse a
trial court’s ruling on any theory or basis that might have been applicable to the
case, but was not raised.115
C. Relevant law and standard of review—standing.
The rights protected by the Fourth Amendment to the Unites States
Constitution and Article 1, Section 9 of the Texas Constitution are personal.116 As
such, an accused must show that the search violated his, rather than a third party’s,
legitimate expectation of privacy.117 He must show (1) that he exhibited an actual
subjective expectation of privacy in the place invaded (i.e., a genuine intention to
preserve something as private), and (2) that society is prepared to recognize that
expectation of privacy as objectively reasonable.118
To determine whether a person’s expectation of privacy is reasonable, an
appellate court examines the totality of circumstances surrounding the search,
guided by a non-exhaustive list of factors:
 whether the accused had a property or possessory interest in the place
invaded;
113
Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App. 2003).
114
Id.
115
Martinez v. State, 91 S.W.3d 331, 336 (Tex.Crim.App. 2002).
116
Matthews v. State, 431 S.W.3d 596, 606 (Tex.Crim.App. 2014).
117
Id.
118
Id.
32
 whether he was legitimately in the place invaded;
 whether he had complete dominion or control and the right to exclude
others;
 whether, before the intrusion, he took normal precautions customarily
taken by those seeking privacy; and
 whether his claim is consistent with historical notions of privacy.119
Although a reviewing court defers to the trial judge’s fact findings, it reviews the
legal issue of standing de novo.120
D. Relevant law — the doctrine of spoliation.
The duty to preserve evidence is limited to evidence that possesses an
exculpatory value that was apparent before the evidence was destroyed.121
Therefore, a defendant must demonstrate that the lost evidence was both favorable
and material to his case.122 A showing that the lost evidence might have been
favorable does not satisfy the materiality requirement.123 Further, to establish that
the failure to preserve the evidence constitutes a violation of due process or due
course of law rights, appellant must demonstrate that the police acted in bad
faith.124
119
Id. at 606-07.
120
Id. at 607.
121
Mahaffey v. State, 937 S.W.2d 51, 53 (Tex.App.-Houston [1st Dist.] 1996, no pet.), citing,
California v. Trombetta, 467 U.S.479, 489 (1984).
122
Id., citing, U.S. v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982).
123
Id.
124
Id.
33
E. Appellant failed to preserve all but two issues for appellate review.
The State would first argue that Appellant has failed to preserve all but two
of his issues for appellate review. To preserve error for appellate review, the
Texas Rules of Appellate Procedure require a defendant to make a timely request,
objection, or motion to the trial court, stating “the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent
from the context.125 A motion to suppress is a specialized objection to the
admissibility of evidence, and thus must be timely and sufficiently specific to
inform the trial court of the complaint.126 In a motion that does not identify
specific constitutional violations, the defendant’s argument and questions of
witnesses at a suppression hearing may suffice to make the grounds apparent from
the context.127 If a defendant moves to suppress evidence and his motion is denied,
his points of errors on appeal must comport with his grounds for suppression in the
trial court.128 The spirit of the preservation rule is violated when, at the
suppression hearing, defense counsel narrows the issues he wishes for the court to
consider, but changes or expands his issues on appeal.129
125
TEX.R.APP.PROC. 33.1 (a)(1)(A).
126
Krause v. State, 243 S.W.3d 95, 102 (Tex.App.-Houston [1st Dist.] 2007, pet. ref’d.).
127
DeMoss v. State, 12 S.W.3d 553, 557-58 (Tex.App.-San Antonio 1999, pet. ref’d.).
128
Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002).
129
Strauss v. State, 121 S.W.3d 486, 489-90 (Tex.App.-Amarillo 2006, pet. ref’d.).
34
Here, defense counsel made a general allegation in his motion to suppress—
claiming that the evidence was seized without probable cause or other authority in
violation of Appellant’s rights under the Fourth, Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 9 of the Texas
Constitution.130 At the suppression hearing, defense counsel became more specific
in his complaint — asking the trial court to suppress the evidence because (1) his
due process rights were violated under the doctrine of spoliation (i.e., the Cleburne
Police Department released Appellant’s vehicle to a towing service which
prevented inspection of the vehicle’s tail light assembly for spray paint and
theoretically prevented the collection of useable fingerprints), (2) the probative
value of the $483.00 found in the vehicle (and later returned to Appellant) was
substantially outweighed by the danger of unfair prejudice, and (3) the IPad Mini
was illegally seized due to a lack of a warrant.131
On appeal, although Appellant reurges the issues of spoliation and the illegal
search of the IPad Mini, he also claims that (1) there was no evidence adduced at
the suppression hearing that he was arrested (warranting on inventory search) (2)
there was no evidence that he was arrested on outstanding warrants, (3) there was
no evidence detailing the Cleburne Police Department inventory search procedure,
and (4) that there was no evidence that either Alexander or Wickson used an
130
C.R., pp. 80, 81.
131
R.R. Vol. 11, pp. 72-77.
35
inventory sheet during the search of Appellant’s vehicle. As such, because these
additional four claims do not comport with the objections raised at the suppression
hearing, they are not preserved for appellate review.
F. Appellant lacks standing to challenge the search of the IPad Mini.
The State would also argue that Appellant lacked standing to challenge the
search of the IPad Mini. The record of the suppression hearing reflects the
following: that Officer Wickson first opened up the IPad and then opened up
Settings; from Settings, Wickson ascertained the name of the owner of the IPad
(i.e., Daniel Martinez) and his telephone number; that Martinez (who was
contacted about the device) stated that the IPad belonged to him and that it was
stolen; and that the IPad was returned to Martinez per CPD policy. 132 Thus,
because Appellant did not have a property or possessory interest in the IPad, could
not make a legitimate claim to information contained inside the IPad, did not have
the right to exclude others from using the IPad, had not taken normal precautions
customarily taken by those seeking to keep information contained in the IPad
private, and his claim is inconsistent with historical notions of privacy, he lacks
standing to challenge Wickson’s search of this device.
G. Appellant’s due process rights were not violated due to the doctrine of
spoliation.
132
Id. at 46, 51, 52, 60, 61, 65-68, 70, 71.
36
Finally, the State would argue that Appellant’s due-process rights were not
violated due to the doctrine of spoliation — either as to his hope of challenging the
legality of the traffic stop or the affirmative links to the methamphetamine.
Concerning the inspection of the vehicle to challenge the legality of the traffic
stop, Appellant cannot show (1) that CPD’s release of the vehicle caused evidence
to be lost or destroyed, (2) that an inspection of the rear tail lamp assembly (had
the vehicle been secured in CPD’s impound lot) would have produced evidence
that was both favorable and material to his case or (3) that the evidence was lost or
destroyed in bad faith.
The record of the suppression hearing indicates that after Officer Alexander
released Appellant’s vehicle to a towing service, it was repossessed by Dugger
Motor Company (and possibly resold), and that later (during the State’s trial
preparation), the prosecution had Alexander locate the vehicle and take pictures of
both the center console (i.e., State’s Exhibit Nos. 2-5) and the left and right rear tail
lamp assembly (i.e., State’s Exhibit Nos. 6-12).133 The record further reflects that
that the truck was in the same condition as when Alexander initiated the traffic
stop.134 And, the prosecution indicated to the trial court that defense counsel was
133
R.R. Vol. 7, pp. 5, 7; R.R. Vol. 10, pp. 4, 5; R. R. Vol., 11, pp. 7, 11, 29-35, 45, 62; R.R. Vol.
15, State’s Exhibit Nos. 2-12.
134
R.R. Vol. 11, pp. 29, 31, 33, 45.
37
aware of the vehicle’s location and could inspect it at any time (if he so chose). 135
As such, the vehicle was not, in effect, lost or destroyed under the doctrine of
spoliation.
In addition, an inspection of the rear tail lamp assembly would not have
yielded evidence of favorable or material value. As demonstrated by State’s
Exhibit Nos. 1 and 13. (Alexander’s in-car and body video and Wickson’s body
video respectively), the rear tail lamp assembly on both sides of the vehicle had
spray paint covering them which obscured the brake lamps and reflectors in
violation of TEX. TRANSPORTATION CODE ANN. §§ 547.323 and 547.325.136
Moreover, Alexander’s in-car video demonstrates that Appellant’s vehicle drifted
onto the improved shoulder in violation of §545.058.137 Thus, an inspection of
Appellant’s vehicle (if it had been secured in CPD’s impound lot) would not have
led to evidence which could challenge probable cause for the stop.
Lastly, both Alexander and Wickson testified that Appellant’s vehicle was
not released to the towing service in bad faith.138 According to these officers’
testimony, the vehicle was not an elementary fact of an offense and, as such, it was
departmental policy (1) to not secure it in the CPD impound lot and (2) to release it
135
Id. at 11.
136
Id. at 13-15, 19-21, 57, 58; R.R. Vol. 15, State’s Exhibit Nos. 1, 13. See also,
TEX.TRANSPORTATION CODE ANN. §§ 547.323 and 547.325.
137
R.R. Vol. 15, State’s Exhibit No. 1. See also, TEX. TRANSPORTATION CODE ANN. §
545.058.
138
R.R. Vol. 11, pp. 25-27, 29, 35, 37, 45, 61-63, 69, 70.
38
to a towing service (i.e., for space reasons, it is impossible to secure all the vehicles
in which drugs are found).139
As for the inspection of the vehicle to challenge affirmative links to the
methamphetamine (i.e., possession of the contraband), Appellant again cannot
show (1) that CPD’s release of the vehicle caused evidence to be lost or destroyed,
(2) that fingerprinting the center console would yield evidence that was favorable
and material to his case, or (3) that the evidence was lost or destroyed in bad faith.
Although Appellant’s vehicle was not secured in the CPD’s impound lot, the
opportunity to obtain meaningful evidence from fingerprinting the center console
was not lost or destroyed. Under the facts of this case, fingerprint evidence would
have yielded three results — regardless of whether or not Appellant’s vehicle was
impounded in CPD’s secured lot. First, Appellant’s fingerprints theoretically
would have been found inside the center console, the hidden compartment, or both.
Such evidence would only have served to further support the jury’s finding of
guilt. Secondly, fingerprints theoretically would have been found but, due to
contamination, were unusable. In that the jury found Appellant guilty without
fingerprint evidence, this scenario would not have altered Appellant’s conviction.
The third scenario is that, theoretically, no fingerprints were found inside the
center console (potentially affecting the jury’s verdict). Consequently, potential
139
Id. at 25-27, 29, 37, 61, 62.
39
fingerprint evidence was not, in effect, lost or destroyed under the doctrine of
spoliation.
Moreover, the theoretical fingerprint evidence would not be both favorable
and material to Appellant’s case. Caselaw holds that the materiality requirement of
spoliation is not met if the evidence might have been favorable.140 As stated
above, the theoretical fingerprinting of Appellant’s vehicle would yield three
potential results —two of which would not be favorable or material. Concerning
the third possible scenario (i.e., the center console was theoretically fingerprinted
and Appellant’s prints were not found) it is not certain that such a finding would
have altered the jury’s verdict. First, it is important to note that the jury found
Appellant guilty without evidence that his fingerprints were inside the center
console. Secondly, the theoretical absence of Appellant’s fingerprints could be
dismissed by a jury due to the possibility of his wearing gloves. Thus, Appellant
has not shown that fingerprinting the center console would yield evidence that was
favorable and material to his case.
Finally, as previously stated, the record reflects that any loss or destruction
of potential fingerprint evidence (by CPD’s action of releasing Appellant’s vehicle
to a towing service) was not done in bad faith, but per department policy. 141
140
Mahaffey, 937 S.W.2d at 53.
141
R.R. Vol. 11, pp. 25-27, 29, 35, 37, 45, 61-63, 69, 70.
40
Accordingly, for the reasons stated above, Appellant’s Issue Number Four
should be overruled.
41
CONCLUSION AND PRAYER
For the reasons previously stated, it is respectfully submitted that there was
no reversible error.
WHEREFORE, PREMISES CONSIDERED, the State respectfully prays that
Appellant's conviction for “Possession of Controlled Substance with Intent to
Deliver, >4 < 200 Grams” (i.e. Count One), be affirmed.
/s/ David W. Vernon
David W. Vernon
Assistant District Attorney
18th, 249th, 249th Judicial District
204 S. Buffalo, Suite 209
Guinn Justice Center
Cleburne, Texas 76033
817/556-6803
Fax No. 817/556-6814
Bar No. 0078514
davidv@johnsoncountytx.org
42
CERTIFICATE OF COMPLIANCE
The State of Texas, by and through her District Attorney, hereby certifies
that it’s brief contained 8,635 words and that it met the length requirement for a
computer generated document as dictated by TEX. R. APP. PROC. 9.4(i)(2) (eff.
12/01/2012).
/s/ David W. Vernon
David W. Vernon
Assistant District Attorney
18th, 249th, 249th Judicial District
Guinn Justice Center
204 S. Buffalo, Suite 209
Fax No. 817/556-6816
Bar No. 00785149
43
CERTIFICATE OF SERVICE
I HEREBY certify that a true copy of the State's Brief was sent by electronic
service, to Lane Rugeley, Attorney at Law, 16 N. Caddo Street, Cleburne, Texas
76031 and to Constantino Morales, TDC# # 01995563, James Lynaugh Unit,
1098 S. Highway, Fort Stockton, TX 79735, on this the 15th day of October 2015.
/s/ David W. Vernon
David W. Vernon
Assistant District Attorney
18th, 249th, 249th Judicial District
204 S. Buffalo, Suite 209
Guinn Justice Center
Cleburne, Texas 76033
817/556-6803
Fax No. 817/556-6814
Bar No. 0078514
44