Affirmed and Memorandum Opinion filed August 28, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00144-CR
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EDISON DEJESUS SALAZAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1037089
M E M O R A N D U M O P I N I O N
Appellant Edison DeJesus Salazar appeals his conviction for possession with intent to deliver cocaine, challenging factual sufficiency of the evidence supporting admission of the narcotics. We affirm the trial court=s judgment.
I. Factual and Procedural Background
Undercover Houston Police Department Officers James Yeoman and Mario Escobedo conducted surveillance at a restaurant parking lot in an unmarked police vehicle while wearing civilian clothing. They observed a white van, driven by appellant, and a blue truck driven by another man pull into the parking lot one after another. The drivers of the vehicles parked next to each other, facing the officers= police car. Nothing blocked the officers= view of the van or truck. The officers observed the driver of the truck meet appellant between the two vehicles, and they saw the driver of the truck pull a heavy, green and black duffel bag from the truck. Without exchanging any words, the man handed the bag to appellant, who then placed the bag inside the back of the van behind the driver=s seat. Both vehicles immediately left the parking lot.
Because the officers believed they witnessed a narcotics deal, they followed the van and called for backup. After the officers observed appellant commit several traffic violations by changing lanes without signaling, Officer Yeoman advised Officer Brett Tatum, the responding officer in the marked patrol car, to pull appellant=s vehicle over. Once parked, Officers Tatum and Escobedo then approached the driver=s side of the van. Officer Tatum, in Spanish, asked appellant for appellant=s driver=s license and insurance.[1]
Both Officers Escobedo and Tatum testified that they suspected appellant had been engaged in a narcotics transaction. Officer Escobedo testified that because of his suspicions, he requested and received permission from appellant to search the van.[2] While Officers Tatum and Escobedo spoke with appellant, Officer Yeoman, who was able to see through the van=s window, saw the green and black duffel bag sitting on the floor inside. The bag was partially unzipped, and newspapers covered one side of the bag. Officer Yeoman testified at trial that he observed bricks of what appeared to be cocaine wrapped in brown packing tape inside the bag in plain view. Officer Yeoman believed the packages in the bag were bricks of cocaine because they were similarly packaged as kilos of cocaine he had observed on several previous occasions. Officer Escobedo informed Officer Yeoman that appellant had given consent to search the van, and Officer Yeoman retrieved the bag from inside the vehicle. Police later verified the duffel bag contained 13.5 kilograms of cocaine.
Appellant was charged with possession with intent to deliver more than four hundred grams of cocaine, to which he pleaded Anot guilty.@ The only other account of the events came from appellant=s own testimony at trial. Appellant denied ever conversing with Officer Escobedo or giving anyone consent to search. During trial, the State offered the seized cocaine into evidence, and appellant did not object to the cocaine or to any testimony regarding its seizure.
The jury found appellant guilty as charged. The trial court judge assessed punishment at forty-five years= confinement and levied a $10,000 fine.
II. Issue and Analysis
In his only issue, appellant contends the evidence is factually insufficient to support the jury=s implied finding that the cocaine was lawfully seized on the grounds that (1) appellant did not give consent to search his vehicle, (2) the officers did not have probable cause, and (3) the cocaine was not in plain view because it was Aimpossible for the officer to see the contents@ of the bag. Appellant focuses on the jury instruction in the trial court=s charge and challenges the factual sufficiency of the evidence to support an implied jury finding of probable cause or consent pursuant to that instruction. Appellant asserts the jury=s implied finding of probable cause or consent is incorrect because the jury should have disregarded the cocaine pursuant to Article 38.23 of the Texas Code of Criminal Procedure, inasmuch as the testimony admitted at trial allegedly indicated the cocaine was seized without probable cause or consent.
Article 38.23 of the Texas Code of Criminal Procedure provides in part:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or law of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).
The Court of Criminal Appeals explained in Holmes v. State, the Afirst sentence of article 38.23 speaks to the admissibility of evidence.@ 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). A trial court judge determines admissibility of evidence under Texas Rule of Evidence 104(a), and the trial judge=s decision to exclude evidence could be determined by a ruling of law, a finding of fact, or both. Id.; see Tex. R. Evid. 104(a) (APreliminary questions concerning the . . . the admissibility of evidence shall be determined by the court.@).
The second sentence of Article 38.23 pertains to the jury instruction and the jury=s consideration of the evidence. Holmes, 248 S.W.3d at 199. This provision comes into play only if the trial court has admitted evidence, and only if there is a contested issue of fact about the obtaining of the evidence.[3] Id. The jury is given a role as backup protection against erroneous judicial rulings that have admitted evidence. Pierce v. State, 32 S.W.3d 247, 253 (Tex. Crim. App. 2000).
In this case, the jury instruction during the guilt-innocence phase of trial roughly tracked the language in Article 38.23, providing as follows:
[A]ny search of the defendant=s vehicle without a search warrant, without probable cause or without his consent would not be lawful. . . . [C]onsent must be freely and voluntarily given to be considered effective.
[U]nless you believe beyond a reasonable doubt, or if you have reasonable doubt thereof, that the search of the defendant=s vehicle, if any, was with the defendant=s consent and that said consent, if any, was freely and voluntarily given, then you will wholly disregard such evidence found in the vehicle, if any, and not consider it as any evidence whatsoever.
See Tex. Code Crim. Proc. Ann. art. 38.23(a). A jury charge containing Article 38.23 language instructs the jurors to disregard evidence, if they believe it was illegally obtained. See id.; Hanks v. State, 104 S.W.3d 695, 701 (Tex. App.CEl Paso 2003), aff=d, 137 S.W.3d 668, 668 (Tex. Crim. App. 2004) (stating the Article 38.23 instruction clearly instructed the jury to disregard particular items of evidence it found had been seized by the officers without probable cause). By implication, a Aguilty@ verdict, as in this case, means the jury resolved a factual dispute against appellant that the cocaine was not obtained in violation of the Constitutions and laws of the United States or of Texas. See Pierce, 32 S.W.3d at 253; Coleman v. State, 45 S.W.3d 175, 178 (Tex. App.CHouston [1st Dist.] 2001), overruled on other grounds by Johnson v. State, 95 S.W.3d 568, 572 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (en banc).
Appellant argues the evidence is factually insufficient to support the jury=s implied finding of probable cause when other evidence indicates (1) Officer Yeoman could not have seen the contents of the bag in plain view because bundles of newspaper covered part of the duffel bag, and (2) Officer Yeoman could not have recognized the contents of the bag in plain view because the bricks of cocaine were wrapped in brown packing tape. Essentially, appellant asserts Officer Yeoman had no probable cause to search the van and seize the cocaine because the nature of the contents of the duffle bag was not immediately apparent and there was no basis for Officer Yeoman to associate the bags contents with criminal activity. Furthermore, appellant asserts that the facts in the record are insufficient to support the jury=s implied finding of consent because Officer Tatum could not speak enough Spanish to corroborate Officer Escobedo=s testimony that appellant gave consent. According to appellant, the evidence is insufficient to prove probable cause or consent, making the officers= search and seizure unlawful, and, therefore, pursuant to Article 38.23, the jury should have disregarded the evidence, which incorrect renders the jury=s implied finding of probable cause or consent.
Appellant urges this court to conduct a factual-sufficiency review of the evidence to support the resolution of the jury=s implied finding of probable cause or consent pursuant to Article 38.23. Appellant essentially asks this court to assess the jury=s implied finding of probable cause or consent pursuant to Article 38.23 of the Texas Code of Criminal Procedure while employing a factual-sufficiency standard of review.
Courts of appeals are vested with the authority to review fact questions in criminal cases under a factual-sufficiency standard of review. Hanks v. State, 137 S.W.3d 668, 670 (Tex. Crim. App. 2004) (en banc); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc). Moreover, it is now well settled that courts of appeals are empowered to conduct a factual-sufficiency review of the evidence of the elements of the offense. Hanks, 137 S.W.3d at 670; see Clewis, 922 S.W.2d at 129. When evaluating a challenge to the factual sufficiency of the evidence, an appellate court views all the evidence in a neutral light and inquires whether it is able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006).
However, sufficiency and admissibility of evidence are distinct issues. Hanks, 137 S.W.3d at 671; Caddell v. State, 123 S.W.3d 722, 726 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). ASufficiency@ relates to whether elements of an offense have been logically established by the evidence presented, both admissible and inadmissible. Hanks, 137 S.W.3d at 671. Legal and factual sufficiency issues must relate only to the elements of the charged offense. Id. On the other hand, Aadmissibility@ relates to the fairness of introducing evidence and its logical relevance. Id.; see Tex. R. Evid. 403.
An appellant may request review of the factual sufficiency of the elements of the offense. See Hanks, 137 S.W.3d at 670; Clewis, 922 S.W.2d at 128B29. But nothing mandates appellate review of the factual sufficiency of the evidence of all disputed fact issues. Hanks, 137 S.W.3d at 670. And the disputed fact issue of whether the evidence was illegally obtained is not an element of the offense for which appellant was charged. Hanks, 137 S.W.3d at 671; see Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc); Caddell, 123 S.W.3d at 726 ; Johnson, 95 S.W.3d at 572.
We note that allowing a factual-sufficiency review of an admissibility issue would undermine well-settled law that in conducting sufficiency-of-the-evidence reviews courts consider all the evidence at trial as to the essential elements of the offense. See Johnson, 95 S.W.3d at 573. Appellant asks us to look only at evidence pertaining to probable cause and consent, and not to consider any other evidence, admissible or inadmissible. The admissibility of a particular piece of evidence alone cannot be used to determine the sufficiency of all other evidence introduced to prove the elements of the offense. See Hanks, 137 S.W.3d at 670; Malik, 953 S.W.2d at 240. In a sufficiency review, an appellate court does not have the power to re‑evaluate the weight and credibility of any particular piece of evidenceCall evidence presented to prove an element of the charged offense must be considered. See Lee v. State, 29 S.W.3d 570, 578 (Tex. App.CDallas 2000, no pet.); Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).
We hold that a factual-sufficiency review is appropriate only as to the sufficiency of evidence to prove each element of the offense. See Hanks, 137 S.W.3d at 672; Malik, 953 S.W.2d at 240. A factual-sufficiency review is not appropriate as to the admissibility of evidence when such a question is submitted to the jury pursuant to Article 38.23 of the Texas Code of Criminal Procedure. See Hanks, 137 S.W.3d at 672. Appellant=s complaint should have been voiced when the trial court ruled to admit the evidence, and addressed at that time. See Kendrick v. State, 93 S.W.3d 230, 236 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).
We overrule appellant=s only issue and affirm the judgment of the trial court.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed August 28, 2008.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Officer Tatum explained he originally asked for appellant=s license and registration in English. Appellant indicated he did not know English well, so Officer Tatum asked appellant for the documents in Spanish.
[2] Officer Escobedo asked in Spanish for permission to search the appellant=s van. Officer Tatum testified he did not understand each word Officer Escobedo said in Spanish, but he claimed to understand enough to know Officer Escobedo said the phrases Alook for@ and Ainside your car@ and that appellant agreed.
[3] To the extent appellant argues the trial court erred in admitting the cocaine, appellant has waived this issue on appeal. See Tex. R. App. P. 33.1(a); Holmes, 248 S.W.3d at 200. Appellant neither raised any objections during trial when the State offered the evidence, nor filed a motion to suppress the evidence. In fact, appellant affirmatively waived his right to have the trial judge determine the admissibility of the cocaine by stating ANo objection,@ when the State offered the evidence. See Holmes, 248 S.W.3d at 200. He therefore waived any claim on appeal that the trial court erred in admitting that evidence. Id. However, appellant=s lack of an objection when the evidence was offered does not indicate the issue is uncontested as to deprive him of an Article 38.23 jury instruction. See Holmes, 248 S.W.3d at 200.