IN THE
TENTH COURT OF APPEALS
No. 10-14-00014-CR
RUBEN HEREDIA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law
Navarro County, Texas
Trial Court No. C34853-CR
MEMORANDUM OPINION
Ruben Heredia was convicted of possession of a controlled substance, cocaine,
and sentenced to 60 years in prison. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d)
(West 2010). Heredia was the front seat passenger in a vehicle stopped by a
Department of Public Safety trooper for traffic violations, and cocaine was found in the
vehicle. Because the trial court did not err in denying Heredia’s motion to suppress or
in denying Heredia’s motion for directed verdict, the trial court’s judgment is affirmed.
MOTION TO SUPPRESS
Heredia first contends that the trial court erred in denying Heredia’s motion to
suppress several of his statements because the statements were 1) taken in violation of
article 38.22 of the Texas Code of Criminal Procedure; and 2) inadmissible pursuant to
Texas Rules of Evidence 401, 404(b), and 403. Heredia did not request findings of fact
and conclusions of law following the denial of his motion to suppress. However, we
abated this appeal so that the trial court could supply finding of fact and conclusions of
law regarding the voluntariness of Heredia’s statements. See Vasquez v. State, 411
S.W.3d 918, 920 (Tex. Crim. App. 2013). Those findings and conclusions were supplied,
and we reinstated this appeal.
We employ a bifurcated standard of review when reviewing motions to
suppress. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). We measure the
propriety of the trial court's ruling under the totality of the circumstances, extending
almost total deference to the trial court's rulings on questions of historical fact, as well
as on its application of law to fact questions that turn upon credibility and demeanor.
Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012); Leza v. State, 351 S.W.3d 344,
349 (Tex. Crim. App. 2011). We review de novo the trial court's rulings on questions of
law and its rulings on application of law to fact questions that do not turn upon
credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d at 349. We view
the record in the light most favorable to the trial court's conclusion and reverse the
Heredia v. State Page 2
judgment only if it is outside the zone of reasonable disagreement. State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006).
Waiver of Rights
Heredia first complains under this issue that the statements were inadmissible
because they were taken in violation of article 38.22 of the Texas Code of Criminal
Procedure. Under article 38.22, no oral statement of an accused made as a result of
custodial interrogation shall be admissible against an accused in a criminal proceeding
unless (1) the statement was recorded and (2) prior to the statement but during the
recording, the accused was warned of his rights and knowingly, intelligently, and
voluntarily waived those rights. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Joseph v.
State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010). The warnings required by article
38.22 include those stated in Miranda1 and, in addition, a warning that the accused "has
the right to terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22
§§ 2(a), 3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
Heredia’s statements were recorded on an in-car video recording device after
Heredia was placed under arrest for an outstanding warrant and placed in Trooper
Dustin Gilmore’s patrol unit. He does not argue that the statements are inadmissible
because they were not recorded or that they were improperly recorded. Rather, he
argues that the eight statements, made either by Heredia or about him, were
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Heredia v. State Page 3
inadmissible because he was either not properly warned of his statutory rights under
article 38.22 § 2(a) or did not waive those statutory rights.
The first statement mentioned by Heredia in his brief is a reference to an arrest
warrant for Heredia. This statement was not made by Heredia; thus, article 38.22 is not
invoked and the trial court did not err in admitting the statement under this part of
Heredia’s issue. Likewise, article 38.22 is not invoked for two other statements
referencing that Trooper Gilmore “found all that shit,” referencing the cocaine, and that
Gilmore and the other troopers who helped search the vehicle were “white trash.”
While Heredia made these statements, neither were the product of custodial
interrogation. Heredia was in the front seat of the patrol unit when he made those
statements; but the officer was not in the vehicle at the time and had not asked Heredia
any questions which would have provoked those statements. Accordingly, the trial
court did not err in admitting those additional statements under this theory of
exclusion.
The remaining statements at issue referenced the sale of cocaine, the price of
cocaine, the purchase of the cocaine by the driver and its reason, and the use of cocaine,
in general, and specifically of the use the day before of the purchased cocaine. These
statements were the product of questioning by Gilmore while Heredia was in custody.
The State argues, however, that Heredia waived his right to remain silent under article
38.22.
Heredia v. State Page 4
The State bears the burden of establishing a knowing, intelligent, and voluntary
waiver of one's rights under Miranda and Article 38.22. Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim.
App. 2011); Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). Waiver must be
proven by a preponderance of the evidence. Leza, 351 S.W.3d at 349, 351; Joseph, 309
S.W.3d at 24. In determining whether there was a valid waiver of Heredia's rights, we
must look to the totality of the circumstances, "including the background, experience,
and conduct of the accused." North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755,
60 L. Ed. 2d 286 (1979); see Leza, 351 S.W.3d at 349, 352-53; Joseph, 309 S.W.3d at 25.
A waiver can be expressly made or implied by the accused's conduct. Berghuis v.
Thompkins, 560 U.S. 370, 383, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010); Joseph, 309 S.W.3d
at 24. An implied waiver of one's rights is established upon a showing that the accused:
(1) was given the proper warnings; (2) understood the warnings and their
consequences; and (3) made an uncoerced statement. Berghuis, 560 U.S. at 381-384; see
Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Leza, 351
S.W.3d at 349. "As a general proposition, the law can presume that an individual who,
with a full understanding of his or her rights, acts in a manner inconsistent with their
exercise has made a deliberate choice to relinquish the protection those rights afford."
Berghuis, 560 U.S. at 385.
Heredia v. State Page 5
While it is true that a waiver cannot be presumed from an accused's silence or
the fact that a confession was made after warnings were provided, "the general rule is
that neither a written nor an oral express waiver is required." Watson v. State, 762
S.W.2d 591, 601 (Tex. Crim. App. 1988) (en banc). Simply making a statement is often
the kind of conduct viewed as indicative of one's intention to waive her rights. See
Berghuis, 560 U.S. at 384; Leza, 351 S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7. This
relatively low threshold for establishing waiver is because "[t]he main purpose of
Miranda is to ensure that an accused is advised of and understands the right to remain
silent and the right to counsel." Berghuis, 560 U.S. at 383.
Trooper Gilmore testified at the motion to suppress hearing that he read Heredia
his rights and asked Heredia if he understood those rights. Although the reply in the
in-car video was sufficiently inaudible for the court reporter to transcribe when the
video was played during trial, Gilmore testified that Heredia said, “yeah.” Gilmore
also stated that Heredia had been arrested before, had been through the system before,
had no problem communicating with Gilmore or understanding Gilmore’s questions,
and spoke fluent English. Based on the totality of the circumstances, Gilmore believed
that Heredia understood and waived his statutory and constitutional rights to remain
silent. The video was introduced into evidence at the hearing. On cross-examination,
Gilmore’s credibility was not attacked.
Heredia v. State Page 6
In argument during the suppression hearing, Heredia’s counsel contended that
Heredia replied, “no,” when asked if he understood his rights. But the trial court
watched and listened to the video many times before deciding that the complained of
statements were admissible. Further, the trial court specifically found that after being
advised of his rights, Heredia answered, “yeah,” and concluded that Heredia’s
statements were voluntary and that Heredia knowingly, intelligently, and voluntarily
waived his rights set out in article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22
(West 2005). Based on the record, the trial court was within its discretion to have
determined that Heredia understood his rights. Further, based on our review of the
record in the light most favorable to the trial court’s conclusions, Heredia, at the very
least, impliedly voluntarily waived those rights. Accordingly, the trial court did not err
in denying Heredia’s motion to suppress on this first theory of exclusion.
Extraneous Offenses
Heredia next complains under his first issue that the same statements were
extraneous offenses and were inadmissible pursuant to Texas Rules of Evidence 401,
404(b), and 403. Initially we note that Heredia did not advise the trial court that the
statements were inadmissible pursuant to Rule 404(b). Accordingly, that part of
Heredia’s issue does not comport with the arguments made at trial and are not
preserved for our review. See TEX. R. APP. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691-692
(Tex. Crim. App. 2009). Further, Heredia fails to brief why the statement that Gilmore
Heredia v. State Page 7
“found all that shit” or the statements that the driver of the vehicle paid for the cocaine
were inadmissible under this part of his issue. Accordingly, any complaint regarding
these two statements is improperly briefed and presents nothing for review. See TEX. R.
APP. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).
We will review, however, the remaining statements 1) that Heredia had a
warrant for his arrest; 2) that he called the troopers “white trash;” 3) that he used the
cocaine the day before; and 4) that discussed the general price and sales of cocaine to
determine whether they were relevant and if so, whether the probative value of those
statements was substantially outweighed by the danger of unfair prejudice, because
those same arguments were made to the trial court.
Relevancy
In his brief, Heredia does not explain how these remaining statements were
irrelevant or how they did not have "any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than
would be without the evidence." TEX. R. EVID. 401. He simply concludes that the
statements were irrelevant.
Heredia was charged with possession of a controlled substance, cocaine, which
was found in a vehicle with two other occupants. The cocaine was not on his person;
rather, it was found in a coin purse located on the floor in between the center console
and the front seat. The back seat passenger, who was sitting behind Heredia, was the
Heredia v. State Page 8
closest person to the pouch. Whether Heredia, the front seat passenger, was in care,
custody, or control of the cocaine found in the vehicle was a fact of consequence in the
trial. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) ("the State must
prove that (1) the accused exercised control, management, or care over the
substance….”). Further, Heredia’s theory of defense was that he did not know the
cocaine was in the vehicle. Thus, the statements at issue were relevant because they
could lead to an inference that Heredia knew the cocaine was in the vehicle and had
care, custody, or control of it.
Unfair Prejudice
Again, in his brief, Heredia simply concludes that the remaining statements at
issue were prejudicial. Evidence may be excluded under Rule 403 if the danger of
unfair prejudice substantially outweighs the probative value of the evidence. TEX. R.
EVID. 403; Greer v. State, 436 S.W.3d 1, 9 (Tex. App.—Waco 2014, no pet.). Rule 403
favors admission of relevant evidence and carries a presumption that relevant evidence
will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim.
App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The trial court
has broad discretion in conducting a Rule 403 balancing test, and we will not lightly
disturb its decision. Allen, 108 S.W.3d at 284; Greer, 436 S.W.3d at 9.
All testimony and physical evidence will likely be prejudicial to one party or the
other. Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity between the
Heredia v. State Page 9
degree of prejudice of the offered evidence and its probative value that Rule 403 is
applicable. Id. The fact that Heredia knew about sales and pricing of cocaine, had a
warrant out for his arrest, used some of the cocaine the day before the remainder was
seized, and called the troopers “white trash,” were all pieces of the puzzle used by the
State to show that Heredia was in possession of the cocaine. While the statements may
have been prejudicial to Heredia, the statements were not so prejudicial that there was a
clear disparity between the degree of prejudice and the statements’ probative value.
Accordingly, the trial court did not err in denying Heredia’s motion to suppress
these remaining statements under this theory of exclusion.
Heredia’s first issue is overruled.
DIRECTED VERDICT
In his second issue, Heredia contends the trial court erred in denying Heredia’s
motion for directed verdict because the evidence was insufficient to prove Heredia was
in possession of the controlled substance.
We review a challenge to the denial of a motion for directed verdict as a
challenge to the sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex.
Crim. App. 2003); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The
Court of Criminal Appeals has expressed our standard of review of a sufficiency issue
as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
Heredia v. State Page 10
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
"familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts." Jackson, 443
U.S. at 319. "Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction."
Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Heredia v. State Page 11
To prove unlawful possession of any controlled substance, "the State must prove
that (1) the accused exercised control, management, or care over the substance; and (2)
the accused knew the matter possessed was contraband." Evans v. State, 202 S.W.3d 158,
161 (Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)
(West 2010) ("'Possession' means actual care, custody, control, or management.").
Possession is not required to be exclusive. Roberts v. State, No. 10-14-00048-CR, 2015
Tex. App. LEXIS 78, 3-4 (Tex. App.—Waco Jan. 8, 2015, no pet. h.) (not designated for
publication). When the defendant is not in exclusive possession of the place where the
controlled substance is found, then additional, independent facts and circumstances
must link the defendant to the substance in such a way that it can reasonably be
concluded that the defendant possessed the substance and had knowledge of it. See
Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). In other words, the
evidence "must establish, to the requisite level of confidence, that the defendant's
connection with the [contraband] was more than just fortuitous," which may be
established by direct or circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747
(Tex. Crim. App. 1995).
Heredia was not in exclusive possession of the place where the cocaine was
found. He was the front seat passenger of an SUV that was pulled over for traffic
violations by Trooper Gilmore. When stopped, the driver and back seat passenger
appeared fidgety. Heredia had an outstanding warrant for his arrest and was placed
Heredia v. State Page 12
under arrest and placed in the trooper’s patrol unit. The driver of the SUV, who was
also the owner, gave Gilmore permission to search the vehicle. The coin purse was
found pursuant to the search. In the purse was the cocaine.
Heredia contends that the evidence was insufficient to show he was in
possession of the cocaine because the driver testified at Heredia’s trial that he bought
the cocaine and that Heredia did not know about it. Further, both the driver and the
female passenger pled guilty to possessing the cocaine.
The evidence also showed, however, that when the cocaine was found, Heredia,
in the patrol car by himself, commented that the trooper “found all that shit.” He also
made a comment to himself about the troopers searching the vehicle, calling them
“white trash.” After being warned of his statutory and Miranda rights, Heredia told
Gilmore that the driver purchased the cocaine the day before for Heredia’s girlfriend,
the backseat passenger. Heredia admitted to using some of the cocaine the day it was
purchased. He was also very familiar about the going price of cocaine and how it made
him feel when he used it.
Viewing the record in the light most favorable to the judgment, we find that the
evidence was sufficient for the jury to have found Heredia guilty of possessing the
cocaine.
Heredia’s second issue is overruled.
Heredia v. State Page 13
CONCLUSION
Having overruled each of Heredia’s issues on appeal, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 5, 2015
Do not publish
[CRPM]
Heredia v. State Page 14