Affirmed and Opinion filed June 6, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-01-00407-CR
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VICTOR SANTANA CEDANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 852,967
O P I N I O N
Victor Cedano appeals his conviction and 40 year sentence for possession of more than 400 grams of cocaine with intent to deliver. Appellant asserts the trial court erred in admitting an oral statement he made during the search of his home and in failing to suppress the cocaine. Appellant also contends the evidence presented at trial is legally and factually insufficient to support his conviction. We affirm.
Background
Appellant and co-defendant, Alipio Martinez, had been under surveillance for several months when Officer Robinson of the Houston Police Department=s narcotics division requested that a patrol officer monitor appellant for traffic violations on August 15, 2000. Patrol Officer Munoz responded to the call and detained appellant for failure to signal a right turn. Officer Robinson arrived at the scene of the stop while Munoz attempted to verify appellant=s license information. Robinson, speaking with appellant in Spanish, obtained appellant=s written consent to search his vehicle and residence. The written consent is described in greater detail below.
After the search of appellant=s car yielded no contraband, the officers and appellant left appellant=s car behind and drove to appellant=s residence at 126502 Greens Bayou, a garage apartment. Appellant rode in handcuffs in the backseat of Officer Munoz= patrol car. Once the officers began to search appellant=s apartment, Officer Doyle arrived with a narcotic-detecting dog. The dog alerted to a compartment in the kitchen and a dresser drawer in appellant=s bedroom. The officers found 6.5 kilos of cocaine in the kitchen compartment, $16,000 in cash in the dresser drawer, and another two Abricks@ of cocaine above the refrigerator. Scales, plastic bags, duct tape, and a kilo press were also seized. On direct examination at trial, Officer Robinson testified he had the following conversation with appellant regarding the $16,000 found in the dresser:
Q: Now, did you have a conversation with anyone in the apartment about that money?
A: Yes, ma=am.
Q: Who is that with?
A: I asked Mr. Cedano about the money.
Q: What did he say, if anything?
A: He said he didn=t know anything about that money, that that money was there when he moved into that place.
Q: 16,000 was just there when he moved in?
A: Yes, ma=am.
Prior to trial, appellant had filed a AMotion to Suppress Written Or Oral Statements of Defendant@ and a separate AMotion to Suppress Physical Evidence.@ Appellant=s co-defendant also filed a motion to suppress. After considerable testimony, the trial court overruled appellant=s and his co-defendant=s motions. In overruling the motions, the trial court made no explicit reference to statements given by appellant.
Issues
In his first issue, appellant contends his oral statement was taken without compliance with Article 38.22 of the Texas Code of Criminal Procedure. In his second issue, appellant alleges the cocaine seized at his apartment should have been suppressed because his written consent was coerced, in violation of his state and federal constitutional rights. See U.S. Const. amend. IV; Tex. Const. art. I ' 9.
Appellant=s third issue initially appears to relate to the scope of his consent to the search of his apartment under the written forms he signed. However, the vast majority of law and argument provided pertains to whether appellant=s roadside detention was based upon reasonable suspicion. We therefore determine whether appellant=s detention was permissible under Terry v. Ohio and its progeny.[1] 392 U.S. 1 (1968). Appellant=s last issue, a legal and factual sufficiency complaint, is an attack on the proof establishing appellant Apossessed@ cocaine. See Tex. Health & Safety Code Ann ' 481.118 (Vernon Supp. 2002) (Aknowingly . . . possesses@).
Discussion
I. Review of Motion to Suppress B Issues One, Two, and Three
A. Standard of Review
In reviewing the trial court=s ruling on a motion to suppress, we afford almost total deference to a trial court=s determinations of historical facts that the record supports and to its rulings on the application of law to fact questions, also known as mixed questions of law, when those rulings are based on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998); Guzman v. State, 955 S.W.2d 85, 87B89 (Tex Crim. App. 1997). Mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Guzman, 955 S.W.2d at 89. Where, as here, findings of fact are not filed, we review the evidence in a light most favorable to the trial court=s ruling. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
B. Oral Statement
Texas law provides that oral statements made by a criminal accused as a result of custodial interrogation are inadmissible unless they are electronically recorded and the accused is advised of certain constitutional rights. See Tex. Code Crim. Proc. Ann. art 38.22 ' 3(a) (Vernon Supp. 2002). Appellant=s statement was not recorded, nor was he advised, prior to making the statement, of the rights identified in article 38.22. The State contends (1) appellant has waived error because his objection to Officer Robinson=s trial testimony was untimely; and (2) appellant=s statement was not the result of interrogation.
1. Waiver
While appellant did re-urge his objection to the statement several minutes after Officer Robinson=s recitation, appellant had previously submitted, and received a ruling on, his objection via a pre-trial motion to suppress. The motion specifically sought to suppress oral statements taken in violation of article 38.22. At the hearing on the motion, appellant=s counsel questioned Officer Robinson:
Defense: At any time either before or after you found the drugs, did my client ever admit he was involved in drug trafficking? And that includes possessing the drugs you found?
Prosecutor: Excuse me. I=ll object. Outside the scope of the hearing.
Defense: I=m trying to suppress statements, Your Honor.
The Court: Okay. Well, I=ll let him answer.
Robinson: Would you repeat the question?
Defense: Did my client ever admit he was involved in the violation B or involved in narcotics trafficking in general or in particular to the drugs you found that day at any momentB
Robinson: No, sir.
At trial, after the allegedly tardy objection, the trial judge recalled and agreed with appellant that the oral statement at issue had been presented in appellant=s motion to suppress:
Defense: Your Honor, there was a statement made B I had a B it=s not directly related in terms of dope. It does relate to the money. And I know my motion to suppress the evidence based on the Fourth Amendment grounds B we had that suppression motion, and obviously it includes derivative statements that was B go to the statements and the money and everything else, including the drugs. You already ruled on that. Am I correct that my motion covered the statements and the drugs and other things found in the house, the press and everything else? Am I correct on that?
Court: Well, yes. But I thought the motion went to B
It appears from the lengthy discussion following this exchange that the court, as well as both defendants and the State, had not been aware that appellant=s oral statement had been made in response to a question posed by Officer Robinson. The Court concluded:
Defense: I did make a pretrial motion to suppress oral statements.
Court: I understand that. And I believe he did say there were no statements given. What I was trying to say a minute ago B we were off the record. But my understanding was that he didn=t get a confession or any statement given in response to any custody interrogation when he wasn=t Mirandized and so forth and so on. But that was the context I understood the motion to go to.
Defense: Right.
Court: And this was sort of a res gestae thing of this evidence coming in and what was said.
One of appellant=s pre-trial motions was explicitly directed toward oral statements. At the suppression hearing, appellant=s counsel clearly expressed a desire to suppress statements. The court overruled appellant=s motion. Despite the possibility that there was some misunderstanding at the motion hearing regarding the existence of the statement at issue, we hold the court heard and overruled an objection to the statement at the motion hearing.
Under these facts, appellant=s pre-trial motion to suppress is sufficient to preserve error. See Tex. R. Evid. 103(a)(1) (error preserved without trial objection where error objection ruled upon outside of jury=s presence); Flores v. State, 840 S.W.2d 753, 755B56 (Tex. App.CEl Paso 1992, no pet.) (citing Wyle v. State, 777 S.W.2d 709, 715 n.5 (Tex. Crim. App. 1989). Appellant=s did not waive error by failing to object anew at trial. Id.
2. Custodial Interrogation
The State next contends the statement was not given as a result of interrogation.[2] Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (holding interrogation includes any words or actions by the police that are reasonably likely to elicit an incriminating response from the suspect); Tex. Code Crim. Proc. Ann. art 38.22 ' 3(a) (Vernon Supp. 2002) (Acustodial interrogation@). We need not decide this issue because, even if the trial court erred in admitting the statement, the violation of the statute will be disregarded unless it affected appellant=s substantial rights. Hughes v. State, 24 S.W.3d 833, 837 n.2 (Tex. Crim. App. 2000); Moore v. State, 999 S.W.2d 385, 402 (Tex. Crim. App. 1999) (applying non-constitutional harm standard to violation of article 38.22).
A substantial right is affected where the error had a substantial or injurious effect or influence in determining the jury=s verdict. Tex. R. App. P. 44.2(b); Llamas v. State, 12 S.W.3d 469, 470 (Tex. Crim. App. 2000). Appellant=s trial strategy was to contest the State=s proof that he resided in the apartment where the drugs were found. The statement links appellant to the apartment. However, as we discuss in detail below in our sufficiency review, other physical and testimonial evidence strongly links appellant to the apartment. For this reason, we hold that the introduction of the statement had only a slight influence, if any, upon the jury=s verdict and did not affect appellant=s substantial rights. We overrule appellant=s first issue.
C. Admittance of Cocaine
1. Voluntariness of Consent
Appellant alleges the consent to search his home is invalid because it was coerced. See Schneckloth v. Bustamonte, 412 U.S. 218B19 (1973) (U.S. Constitution); State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App. 1997) (Texas Constitution). Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given. Ibarra, 953 S.W.2d at 245. We therefore review the evidence under the more protective Texas standard. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000).
In determining whether an accused=s consent to search is voluntary, we look to the totality of the circumstances. Johnson, 68 S.W.3d at 653 n.32 (citing Ohio v. Robinette, 519 U.S. 33, 40 (1996)); Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Here, appellant, a Spanish-speaker, conversed with a Spanish-speaking officer. Appellant executed several consent forms written in the Spanish language. The forms indicate in large, easily-readable print, that appellant had the right to refuse consent. Appellant places great emphasis upon the fact that the consent to search his apartment was solicited at a location other than the apartment itself. We do not believe this distinction demonstrates the consent was involuntary. The address of appellant=s apartment is clearly written on the consent form. At the hearing on appellant=s motion to suppress, Officer Robinson testified appellant was not handcuffed when he gave his consent to search his residence and had not been physically or verbally threatened. Officer Robinson testified to the following:
A: No, ma=am. As a matter of fact, I presented him the form after I=d filled it out; and I showed it to him. And when I gave it to him, he looked at it; and then he asked me if I would read it to him. And then, after B
Q: You=d already showed him the form.
A: Right. I showed him the form. And he looked at it. When I first gave to it him [sic], I guess he thought it was an English; and he asked me if I would read it for him. And then he saw that it was in Spanish; and he said, ANo. It=s in Spanish. I can read it.@
Q: Did he actually say, AI can read it@?
A: Yes, ma=am.
Against this evidence, appellant contends his subsequent, brief hesitation in opening the door to his apartment demonstrates a lack of consent. Officer Robinson testified appellant appeared to pretend his key would not open his front door. As appellant fiddled with the key, one of the officers in the group knocked on the door. Co-defendant Martinez answered the door and the officers walked inside. Reconciling the testimony concerning appellant=s behavior at his door with his unequivocal, written consents is a task best suited to the trial judge. Guzman, 955 S.W.2d at 89 (evaluation based on demeanor). Giving proper deference to the trial court=s determination, we hold that the State proved by clear and convincing evidence that appellant consented to the search of his apartment. We overrule appellant=s second issue.
2. Reasonable Suspicion
We next determine whether appellant=s continued detention beyond that necessary to fulfill the purpose of the initial traffic stop was lawful. See Florida v. Royer, 460 U.S. 491, 500 (1983) (A[a]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.@). An officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possibly‑criminal behavior where the officer can Apoint to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.@ Terry, 392 U.S. at 21; Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997) (ATexas courts require reasonable suspicion before a seizure of the person or property can occur.@)
In Edmond v. State, we addressed the law governing consent searches following traffic stops. 2002 Tex. App. LEXIS 2486 (Tex. App.CHouston [14th Dist.] April 4, 2002, no pet. h.). Unlike in Edmond, here discussions with appellant regarding drugs began prior to completion of the traffic investigation.[3] However, it is also probable that Officer Munoz=s traffic investigation concluded prior to appellant=s acquiescence to the search of his vehicle and residence. Munoz testified:
Q: I=m talking about B I know that=s when the narcotics officers arrived. Okay. You stopped him. Three to five minutes later, Narcotics arrived. After that point how much more time before you verified his license as being valid?
A: No, sir, I don=t recall that.
Q: Narcotics arrives. You=re holding him because you=re, as you state, still investigating the traffic stop, the signal; you=re still trying to verify the license; but you=re also still holding him because Narcotics told you to B right? B those three reasons.
A: Yes, sir.
Q: Okay. How long after Narcotics arrived did you continue to hold him before you transported him to the other location?
A: I don=t recall the specific time, sir. I can=t remember.
Q: Can you give an estimate?
A: No, sir. It=s been awhile; so, I don=t remember.
. . .
Q: Okay. You said you don=t know how long Narcotics was keeping them there. But did Narcotics question him there at the scene?
A: I don=t know if they questioned him. I know they talked to him, sir.
Q: But you don=t know how long?
A: No, sir.
Robinson stated:
Q: All right. By the time you arrived and started talking to my client and before you obtained a consent, how much time elapsed?
A: I don=t know. It wasn=t very B it wasn=t very much at all, though.
As we stated in Edmond, the principal inquiry under Terry is the length of time that elapsed between conclusion of the traffic investigation and the evolution of the encounter from a detention to a consensual situation. Edmond, 2002 Tex. App. LEXIS at *6. The key portions of the record, set forth above, provide no assistance in estimating this length of time. Viewing the record in the light most favorable to the trial court=s ruling, we are therefore unable to say the trial court abused its discretion in finding appellant=s road-side detention did not violate Terry=s second prong. Ballard, 987 S.W.2d at 891. Appellant=s consents were therefore not the product of an illegal detention and the physical evidence was properly admitted at trial. Mapp v. Ohio, 367 U.S. 643, 655 (1961) (evidence obtained through search violating Fourth Amendment not admissible). We overrule appellant=s third issue.
II. Legal and Factual Sufficiency B Issue Four
A. Standards of Review
Evidence is legally sufficient if, viewed in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In performing a legal sufficiency analysis, we review the evidence in the light most favorable to the verdict. Maldonado v. State, 998 S.W.2d 239, 242 n.3 (Tex. Crim. App. 1999) (citing Jackson, 443 U.S. at 319).
Evidence at trial is factually insufficient if a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Evidence is factually insufficient if: (1) it is so weak as to render the result clearly wrong and manifestly unjust; or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. In our review, we must be careful not to intrude on the jury=s role as the sole judge of the credibility of the witnesses or the weight to be given their testimony. Id. at 9.
B. Discussion
When an accused is charged with unlawful possession of cocaine, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband; and (2) the accused knew the object he possessed was contraband. Linton v. State, 15 S.W.3d 615, 618 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); see also Tex. Health & Safety Code Ann. '' 481.112(a), 481.102(3rd) (Vernon Supp. 2002). While the element of possession may be proved by circumstantial evidence, such evidence must affirmatively link the defendant to the offense, so that one may reasonably infer the defendant knew of the contraband=s existence and exercised control over it. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d.) (citing McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985)). Appellant contends the evidence is insufficient to prove knowing possession because he did not live at the apartment on Greens Bayou where the drugs were found. We disagree.
Appellant was under Arolling surveillance@ for several months. During that time, Officer Robinson observed appellant come and go from the apartment many times. Robinson observed appellant participating on many occassions in Aheat runs,@ an activity drug dealers engage in to determine if they are being followed. When Robinson first spoke with appellant at the road-side, appellant denied knowing anything about the apartment. Appellant lied to Robinson, stating he lived in Alvin at an address listed on his temporary Texas identification card. Only after Robinson told appellant they had just seen him leaving Greens Bayou did appellant admit he lived there.[4] Appellant=s passport was found in a bedroom dresser together with the bundle of cash. A shirt Officer Robinson had seen appellant wearing on a prior day was also found in the bedroom.
Other physical evidence indicates anyone present in the house would be involved in drug activity. Within the residence, police officers found two guns, a kilo press, more than 8 kilos of cocaine, albeit concealed, multiple documents containing mathematical notations consistent with drug sale activities, and $16,000 in cash wrapped in cellophane. Robinson testified drug dealers often wrap their money in cellophane. We hold the trial evidence logically links appellant to the drugs found within the apartment. See Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (logical force, not quantity, of affirmatively links is paramount). Viewed in the light most favorable to the verdict, the evidence is sufficient to enable a rational jury to conclude beyond a reasonable doubt that appellant possessed cocaine. Maldonado, 998 S.W.2d at 242.
We are aware that appellant=s counsel suggested by way of cross-examination that appellant received the keys to the apartment merely as an incident to borrowing the car in which he was detained. We also note the State produced no evidence appellant owned, leased, or paid utility bills for services at the apartment. We are equally cognizant that appellant was detained at a location away from the apartment and, more importantly, that the drugs were well concealed within the apartment. Viewing all the evidence neutrally, we cannot say the result reached by the jury is wrong or unjust, or against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. We overrule appellant=s fourth issue.
Accordingly, the judgment below is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Opinion filed June 6, 2002.
Panel consists of Justices Yates, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.3(b).
[1] The State has also chosen to treat appellant=s third issue as an attack under Terry.
[2] Officers Robinson and Munoz both testified appellant was in custody at the time he gave the statement. Therefore, no question regarding custody is raised.
[3] Officer Munoz=s traffic investigation was prolonged because appellant presented an out-of-country driver=s license. See Davis, 947 S.W.2d at 245 (officer may demand identification, a valid driver=s license, and proof of insurance from the driver, and check for outstanding warrants).
[4] Officer Robinson testified, without objection, that appellant admitted he lived in the apartment.