TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 0981914, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
Logans's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief was delivered to Logans, who was advised of his right to examine the appellate record and to file a pro se brief.
Logans filed a pro se brief by which he complains of jury selection error, urges that his motion to suppress evidence was erroneously overruled, and contends the evidence is not sufficient to sustain the guilty verdict. We will overrule these contentions and affirm the conviction.
Austin Police Officer Carl Hendricks was told by another officer that a man named "T" was reported to be selling narcotics from a gray Buick parked at a restaurant known as The Shack. Using the pager number he had been given by the other officer, Hendricks contacted "T" and arranged to meet him at The Shack to make a drug purchase. Hendricks and two other officers then drove to The Shack in an unmarked car. They saw three men standing outside beside the gray Buick. Having no description for "T", Hendricks paged him again. One of the three men outside the restaurant, identified as Logans, responded to the page by calling Hendricks back on a cell phone.
The officers approached Logans on foot, told him they had been told he was selling drugs, and asked if the Buick belonged to him. Logans said the car belonged to his wife. The officers asked for permission to search the car, and Logans signed a written form consenting to the search. After signing the consent form, and while the officers were questioning him, Logans said that there was crack cocaine in the center console. During the subsequent search, the officers found cocaine where appellant said it would be, together with two tally sheets.
Appellant contends the evidence against him should have been suppressed because he was unlawfully detained. A police officer may briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 30 (1968). The reasonableness of a temporary detention must be examined in terms of the totality of the circumstances. See Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997). A temporary detention is justified when the detaining officer has specific articulable facts, which taken together with rational inferences from those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. See id. A reasonable suspicion means more than a mere hunch or suspicion. See Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997). A detention is not permissible unless the circumstances objectively support a reasonable suspicion of criminal activity. See id.
Officer Hendricks confirmed all the information he was given by the other officer. He called the pager number, contacted "T", and arranged to purchase cocaine at The Shack. The gray Buick was found at that location. By again paging "T", the officers identified Logans as the suspected drug dealer. At that point, the facts known to the officers gave them a rational basis for suspecting that Logans was engaged in criminal activity and warranted his temporary detention for further investigation. The opinion on which appellant relies, Salcido v. State, 758 S.W.2d 261 (Tex. Crim. App. 1988), is distinguishable. There, the officers did not corroborate the anonymous tip before seizing the defendant. Points of error one, three, and four are overruled.
Next, Logans contends his statement to the officers that cocaine would be found in the Buick's console was the product of unlawful custodial interrogation because he was not advised of his rights and because his right to remain silent was not honored. See Miranda v. Arizona, 384 U.S. 436, 467-75 (1966); Maestas v. State, 987 S.W.2d 59, 61-62 (Tex. Crim. App. 1999). These contentions were not presented to the district court and therefore were not preserved for review. See Tex. R. App. P. 33.1(a). At the suppression hearing, Logans contended that his statement was not recorded as required by statute. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (West Supp. 2000). If for no other reason, this contention was properly overruled because the statement contained an assertion of fact that was found to be true and tended to establish Logans's guilt. See id. art. 38.22, § 3(c). Points of error two and five are overruled.
In his final point relating to the motion to suppress, Logans contends his consent to the search was not voluntary. There is no evidence in the record to support this contention. The record reflects that Logans was not in custody at the time his consent to the search was sought and obtained. Logans did not testify at the suppression hearing and there is no evidence that he was intimidated or pressured by the officers. Point of error six is overruled.
Logans contends the evidence is not sufficient to sustain the guilty verdict because "there is insufficient evidence to prove beyond a reasonable doubt that the adulterants and dilutants constitute a part of the weight" alleged. He relies on the opinions in Reeves v. State, 806 S.W.2d 540, 543 (Tex. Crim. App. 1990), Engelking v. State, 750 S.W.2d 213 (Tex. Crim. App. 1988), and McGlothlin v. State, 749 S.W.2d 856 (Tex. Crim. App. 1988). These opinions were decided before the legislature defined adulterants and dilutants. See Tex. Health & Safety Code Ann. § 481.002(49) (West Supp. 2000). Under this definition, any material that increases the bulk or quantity of a controlled substance is an adulterant or dilutant. Therefore, all of the material possessed by Logans in addition to the cocaine was an adulterant or dilutant. The proof required by the opinions on which he relies is no longer necessary. See Williams v. State, 936 S.W.2d 399, 405 (Tex. App.--Fort Worth 1996, pet. ref'd). Point of error eight is overruled.
Logans's seventh point of error urges Batson error. See Batson v. Kentucky, 476 U.S. 79 (1986); see also Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989). At trial, Logans challenged as racially biased the State's peremptory challenges to three African American panelists. The prosecutor explained that the first panelist was struck because he was an attorney, and noted that the only other attorney on the panel was also struck. The prosecutor explained the second strike by citing the panelist's expressed bias against the police growing out of her son's incarceration for a drug offense. The prosecutor added that at least two other panelists related to persons with drug problems had been struck. The prosecutor's explanation for the third strike was that the panelist had known two persons who died as a result of a drug overdose. The district court ruled, and we agree, that the State's explanations were racially neutral. Logans made no effort to rebut these neutral explanations. The district court's ruling was not clearly erroneous. See Mandujano v. State, 966 S.W.2d 816, 818-19 (Tex. App.--Austin 1998, pet. ref'd). Point of error seven is overruled.
Finally, Logans contends the district court abused its discretion by ruling that a person selected for the jury was disqualified. After the trial jurors had been selected, but before they were sworn, one of the jurors approached the bailiff and told him that he did not fully understand English. During questioning outside the presence of the other jurors, it was established that this juror was not a United States citizen. See Tex. Code Crim. Proc. Ann. art. 35.12 (West 1989); Tex. Gov't Code Ann. § 62.102 (West 1998) (juror must be qualified to vote); Tex. Elec. Code Ann. § 11.002 (West Supp. 2000) (voter must be United States citizen). Without objection, the court excused the juror and substituted the next panelist on the list as the twelfth juror. No error is shown. Point of error nine is overruled.
The judgment of conviction is affirmed.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Affirmed
Filed: August 10, 2000
Do Not Publish
the product of unlawful custodial interrogation because he was not advised of his rights and because his right to remain silent was not honored. See Miranda v. Arizona, 384 U.S. 436, 467-75 (1966); Maestas v. State, 987 S.W.2d 59, 61-62 (Tex. Crim. App. 1999). These contentions were not presented to the district court and therefore were not preserved for review. See Tex. R. App. P. 33.1(a). At the suppression hearing, Logans contended that his statement was not recorded as required by statute. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (West Supp. 2000). If for no other reason, this contention was properly overruled because the statement contained an assertion of fact that was found to be true and tended to establish Logans's guilt. See id. art. 38.22, § 3(c). Points of error two and five are overruled.
In his final point relating to the motion to suppress, Logans contends his consent to the search was not voluntary. There is no evidence in the record to support this contention. The record reflects that Logans was not in custody at the time his consent to the search was sought and obtained. Logans did not testify at the suppression hearing and there is no evidence that he was intimidated or pressured by the officers. Point of error six is overruled.
Logans contends the evidence is not sufficient to sustain the guilty verdict because "there is insufficient evidence to prove beyond a reasonable doubt that the adulterants and dilutants constitute a part of the weight" alleged. He relies on the opinions in Reeves v. State, 806 S.W.2d 540, 543 (Tex. Crim. App. 1990), Engelking v. State, 750 S.W.2d 213 (Tex. Crim. App. 1988), and McGlothlin v. State, 749 S.W.2d 856 (Tex. Crim. App. 1988). These opinions were decided before the legislature defined adulterants and dilutants. See Tex. Health & Safety Code Ann. § 481.002(49) (West Supp. 2000). Under this definition, any material that increases the bulk or quantity of a controlled substance is an adulterant or dilutant. Therefore, all of the material possessed by Logans in addition to the cocaine was an adulterant or dilutant. The proof required by the opinions on which he relies is no longer necessary. See Williams v. State, 936 S.W.2d 399, 405 (Tex. App.--Fort Worth 1996, pet. ref'd). Point of error eight is overruled.
Logans's seventh point of error urges Batson error. See Batson v. Kentucky, 476 U.S. 79 (1986); see also Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989). At trial, Logans challenged as racially biased the State's peremptory challenges to three African American panelists. The prosecutor explained that the first panelist was struck because he was an attorney, and noted that the only other attorney on the panel was also struck. The prosecutor explained the second strike by citing the panelist's expressed bias against the police growing out of her son's incarceration for a drug offense. The prosecutor added that at least two other panelists related to persons with drug problems had been struck. The prosecutor's explanation for the third strike was that the panelist had known two persons who died as a result of a drug overdose. The district court ruled, and we agree, that the State's explanations were racially neutral. Logans made no effort to rebut these neutral explanations. The district court's ruling was not clearly erroneous. See Mandujano v. State, 966 S.W.2d 816, 818-19 (Tex. App.--Austin 1998, pet. ref'd). Point of error seven is overruled.
Finally, Logans contends the district court abused its discretion by ruling that a person selected for the jury was disqualified. After the trial jurors had been selected, but before they were sworn, one of the jurors approached the bailiff and told him t