COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00380-CR
ADRIAN LEE WHITEMON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1209550D
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OPINION
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A jury convicted Appellant Adrian Lee Whitemon of possession of four or
more grams of cocaine but less than 200 grams. The trial court found the
enhancement paragraph to be true and sentenced him to thirty-five years’
confinement. In three points, Appellant contends that the trial court erred by
improperly limiting his voir dire questions, by denying his motion to suppress the
arrest-and-search warrant, and by admitting evidence of his prior bad acts.
Because the trial court committed no reversible error, we affirm the trial court’s
judgment.
Motion to Suppress
The police executed a no-knock search-and-arrest warrant and found
drugs, money, and several people, including Appellant, inside the apartment. In
his second point, Appellant contends that the trial court erred by denying his
motion to suppress the search-and-arrest warrant and by admitting the evidence
obtained via the warrant. He argues that although the warrant contained a
description of “Cush” or “Kush,” the person to be arrested, the supporting affidavit
contained no description, not even a statement of the gender of the person to be
arrested. In addition to arguing that the warrant fails for lack of specificity,
Appellant also argues that it fails for lack of corroboration.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 1 We give almost total deference to a trial court’s
rulings on questions of historical fact and application-of-law-to-fact questions that
turn on an evaluation of credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor. 2
1
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
2
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
2
We must uphold the trial court’s ruling if it is supported by the record and correct
under any theory of law applicable to the case even if the trial court gave the
wrong reason for its ruling. 3
In assessing the sufficiency of an affidavit for an arrest warrant or search
warrant, the reviewing court is limited to the four corners of the affidavit. 4 The
reviewing court should interpret the affidavit in a common sense and realistic
manner, recognizing that the magistrate was permitted to draw reasonable
inferences. 5 We must defer to the magistrate’s finding of probable cause if the
affidavit demonstrates a substantial basis for his conclusion. 6
Appellant points out that article 15.02 of the Texas Code of Criminal
Procedure requires an arrest warrant to “specify the name of the person whose
arrest is ordered, if it be known, if unknown, then some reasonably definite
description must be given.” 7 Further, as both sides note, the law is well
established that information provided by an informant must contain some indicia
3
State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert. denied,
541 U.S. 974 (2004).
4
Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied,
507 U.S. 921 (1993).
5
Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).
6
Rodriguez v. State, 232 S.W.3d 55, 64 (Tex. Crim. App. 2007).
7
Tex. Code Crim. Proc. Ann. art. 15.02 (West 2005).
3
of reliability or be reasonably corroborated by police before it can be used to
justify a search. 8
In denying the motion to suppress, the trial court made oral findings of fact
and conclusions of law:
All right. After reviewing State’s Exhibit No. 1 and hearing
testimony and cross-examination, the Court, after doing so,
concludes as a matter of law and matter of fact that the Defendant’s
motion fails.
The warrant does establish probable cause that at 2377
Dalworth, Apartment 235, Grand Prairie Texas, Tarrant County, . . .
Texas, that Grand Prairie police officers did have probable cause to
request and secure a warrant for that location on the basis that the
information that’s contained therein, upon which the officers went
into the location and made a number of discoveries that have been
identified as State’s Exhibit 2 through 18, inclusively, and State’s
Exhibit 22 that have been submitted and received as conditional.
Still relying on other additional information that still needs to
be brought forward, it’s still the conclusion of the Court that the
information, the evidence obtained therein, is admissible and was
done in conformity of the Fourth and Fourteenth Amendments of the
United States Constitution, Article 1, Section 9 of the State
Constitution.
Therefore, the Defendant’s motion should be and is hereby
denied.
Are there any additional findings of fact and conclusions of
law, State?
[Prosecutor]: And that all items that were seized from that
apartment on that date and time are admissible as a matter of law
and fact.
8
Illinois v. Gates, 462 U.S. 213, 242, 103 S. Ct. 2317, 2334 (1983).
4
THE COURT: That is correct. And that’s why I identified them
specifically. If there are additional items that you intend to offer that
were not—have not been presented to the Court thus far, that would
also be admissible and that they were collected lawfully.
The search-and-arrest warrant was based on two affidavits. The first
affidavit included the name Kush or Cush and a physical description of this
person: “B/M 5’2”–5’5” 145–60 lbs, BLK/BRO, Tear drop tattoos on near right
eye and multiple tat[t]oos all upper torso and arms.” This is a “reasonably
definite description” under article 15.02. 9
The affidavits show that the police used their informant to make two
controlled buys. Their information was that Cush or Kush was selling crack
cocaine out of the apartment. One affidavit contains the statement that the
confidential informant had, in the past, provided information that “ha[d] led to the
execution of several narcotic search warrants and the arrest of several narcotic
dealers within the city limits of Grand Prairie.” The affidavit also describes the
procedure that the police used for sending the informant to make the controlled
buys. Thus, the affidavits provide some indicia of reliability of the informant.
Based on the contents of both affidavits and applying the appropriate standard of
review, 10 we hold the affidavits sufficient to support the trial court’s probable
9
See Tex. Code Crim. Proc. Ann. art. 15.02; Walthall v. State, 594 S.W.2d
74, 80–81 (Tex. Crim. App. [Panel Op.] 1980).
10
See Gates, 462 U.S. at 242, 103 S. Ct. at 2334; Moreno v. State, 415
S.W.3d 284, 287 (Tex. Crim. App. 2013).
5
cause finding and sufficient to support the challenged warrant. The trial court
therefore did not err by denying Appellant’s motion to suppress. Because of our
conclusion that the trial court properly denied Appellant’s motion to suppress, we
do not address the State’s contention that Appellant lacked standing to challenge
the police entry into the apartment he claimed to be merely visiting. 11 We
overrule Appellant’s second point.
Limitations on Voir Dire
In his first point, Appellant argues that the trial court abused its discretion
by preventing the defense from asking proper voir dire questions. In Standefer v.
State, 12 a 5-4 decision with two judges concurring with the majority, the Texas
Court of Criminal Appeals held,
[A] question is a commitment question if one or more of the possible
answers is that the prospective juror would resolve or refrain from
resolving an issue in the case on the basis of one or more facts
contained in the question.
....
[F]or a commitment question to be proper, one of the possible
answers to that question must give rise to a valid challenge for
cause. 13
Before Standefer, the emphasis was not on whether the question was a
commitment question but on whether the commitment was to treat the facts of
11
See Tex. R. App. P. 47.1.
12
59 S.W.3d 177, 180 (Tex. Crim. App. 2001).
13
Id. at 180–82.
6
the specific case on trial in a particular manner. Additionally, the law recognized
that a legitimate purpose of posing voir dire questions was not solely to seek
grounds for valid challenges for cause, but also to enable the litigant to
intelligently exercise peremptory challenges. As our sister court in San Antonio
explained almost twenty years ago,
A voir dire question is proper if its purpose is to discover a
venire member’s view on an issue applicable to the case. Voir dire
is intended to expose bias or prejudice which might prevent full and
fair consideration of the evidence to be presented at trial. Therefore,
if a question is proper, the denial of an answer prevents the
intelligent exercise of peremptory challenges and harm is shown. 14
And four years before Standefer, the Texas Court of Criminal Appeals explained
in Atkins v. State, 15
In Shipley,[16] we held that control of the voir dire examination is
within the sound discretion of the trial judge and that the trial judge is
given wide discretion in this area. Although this is true, a trial judge
must not exceed his discretion by denying a proper question or
allowing an improper question. And in a case such as this, a trial
judge must determine if the hypothetical is used to explain the law or
to commit the venire to specific facts of the case. To find that the
question was used for anything other than to explain the law would
be an abuse of discretion and would constitute reversible error. 17
14
Clemments v. State, 940 S.W.2d 207, 210 (Tex. App.—San Antonio
1996, pet. ref’d) (citing Ex parte McKay, 819 S.W.2d 478, 482 (Tex. Crim. App.
1990)).
15
951 S.W.2d 787, 790 (Tex. Crim. App. 1997).
16
Shipley v. State, 790 S.W.2d 604 (Tex. Crim. App. 1990).
17
Atkins, 951 S.W.2d at 790.
7
In Atkins, a case in which a defendant was being tried for possession of a
residue amount of cocaine found in a crack pipe, the questions were, “Is there
anybody who would be unable to convict somebody for possession of a residue
amount of cocaine . . . ?” and “Is there anyone who would be unable to convict in
this type of circumstance?” 18 The Atkins court held,
This type of questioning, using a hypothetical or otherwise, is
improper and serves no purpose other than to commit the jury to [a]
specific set of facts prior to the presentation of any evidence at
trial. 19
In the case now before this court, Appellant asked the following questions:
1. If a person walks into a house, somebody else’s house[,] and
there’s [a] controlled substance in there, do you think that means
they’re automatically guilty?
We cannot say that this is a question that seeks to commit a juror improperly to
a specific set of facts or, that is, to treating a specific set of facts in a particular
way. It appears to be a question about mere presence:
[W]hen the theory of prosecution is that the accused or another
acted together in possessing a narcotic drug, the evidence must
affirmatively link the accused to the contraband in such a manner
that it can be concluded that he had knowledge of the contraband
as well as control over it. Mere presence alone at a place where the
contraband is being used or possessed by others does not justify a
finding of joint possession, or constitute one a party to an offense. 20
18
Id. at 789.
19
Id.
20
Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988) (citations
omitted).
8
It may, however, run afoul of the prohibition against asking how a juror will
respond to the specific facts of the case at bar. Appellant’s defense was that he
walked into someone else’s apartment where drugs were found, that he was
merely present when the police arrived, and that he did not knowingly or
intentionally exercise care, custody, or control over the contraband. The
question may inquire about the venire member’s reaction to the specific facts of
this case rather than his ability to follow the law, as discussed in Atkins. 21
2. Do you think that the State would have to show more
connection than just being in the same house with a controlled
substance to find someone guilty?
This is a closer inquiry, because the question includes the fact that the
contraband is in a habitation but is also an inquiry into the law upon which
Appellant was entitled to rely: mere presence is not sufficient to support
conviction. 22
3. Would you agree that the State has to show for
possession that a person intentionally and knowingly had the
substance or exercised control over it?
This question is a commitment question, but it is also a statement of the law upon
which Appellant was entitled to rely. 23 As the Standefer court explained,
21
See Atkins, 951 S.W.2d at 789–90.
22
See id.; Martin, 753 S.W.2d at 386.
23
See Atkins, 951 S.W.2d at 789–90; Martin, 753 S.W.2d at 386.
9
[T]he inquiry for improper commitment questions has two steps: (1)
Is the question a commitment question, and (2) Does the question
include facts—and only those facts—that lead to a valid challenge
for cause? If the answer to (1) is “yes” and the answer to (2) is “no,”
then the question is an improper commitment question, and the trial
court should not allow the question. 24
Under the Standefer test, the question properly inquires into the venire member’s
ability to follow the law on which Appellant was entitled to rely without injecting
specific facts of the case into the inquiry and could lead to a challenge for
cause. 25 Appellant was allowed to ask this question, and the prospective juror
answered, “Yes.” Appellant does not complain that he wanted to ask that
question of other members of the venire.
4. Okay. The fact that the[y are] in mere proximity of it
wouldn’t necessarily be enough to convince you?
This final question does not inquire whether the venire can follow the law.
Rather, this question asks what it would take to convince the venire member in
the case at bar. This question therefore improperly inquires into how the venire
member would treat the evidence expected to be presented at trial. 26
We do not need to enter the fray concerning whether the lawyers may ask
questions that enable them to exercise peremptory strikes with some degree of
intelligence because even if we assume that the trial court erred by sustaining
24
Standefer, 59 S.W.3d at 182–83.
25
See id.
26
See id.; Atkins, 951 S.W.2d at 789–90.
10
the State’s objections to Appellant’s first, second, and fourth questions set out
above, we hold that such error was harmless.
Appellant argues that by sustaining the objections to his first, second, and
fourth questions, the trial court violated his constitutional rights to counsel, to be
heard, to a trial by a fair and impartial jury, and to due process. He does not,
however, direct us to any portion of the record at which he raised these
constitutional claims before the trial court. They are therefore not preserved. 27
Appellant also argues that the voir dire error alleged is of constitutional
magnitude. The Texas Court of Criminal Appeals, however, instructs us to
consider this type of voir dire error nonconstitutional error under rule of appellate
procedure 44.2(b). 28 We therefore apply rule 44.2(b) and disregard the error if it
did not affect Appellant’s substantial rights. 29
A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. 30 Conversely, an
27
See Tex. R. App. P. 33.1(a); Everitt v. State, 407 S.W.3d 259, 262–63
(Tex. Crim. App. 2013); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App.
2009); Sanchez v. State, 418 S.W.3d 302, 306 (Tex. App.—Fort Worth 2013, pet.
ref’d).
28
Sanchez v. State, 165 S.W.3d 707, 713 (Tex. Crim. App. 2005); Tex. R.
App. P. 44.2(b).
29
See Tex. R. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
30
King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).
11
error does not affect a substantial right if we have “fair assurance that the error
did not influence the jury, or had but a slight effect.” 31 In making this
determination, we review the record as a whole, including any testimony or
physical evidence admitted for the jury’s consideration, the nature of the
evidence supporting the verdict, and the character of the alleged error and how it
might be considered in connection with other evidence in the case. 32 We may
also consider the jury instructions, the State’s theory and any defensive theories,
whether the State emphasized the error, closing arguments, and even voir dire, if
applicable. 33
Even if the trial court erred in sustaining the State’s objections to the first,
second, and fourth questions set out above, the error was harmless beyond a
reasonable doubt, based on the record before us. An inability to ask those three
questions did not have substantial and injurious effect or influence in determining
the jury’s verdict, nor did it prevent Appellant’s access to information necessary
for a proper challenge for cause. All four questions before us dealt with the
venire’s ability to properly apply the law of mere presence. The third question
was allowed to be asked and answered; it inquired into the venire’s ability to
31
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson
v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
32
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
33
Id. at 355–56.
12
properly apply the law of mere presence. Nothing in the record suggests that
Appellant was prohibited from asking this question of other members of the
venire individually.
We overrule Appellant’s first point.
Extraneous Bad Acts
In his third point, Appellant argues that the trial court abused its discretion
in the guilt phase by admitting evidence of his “extraneous bad acts concerning
[his] statement to a bond officer.” An appellate court reviews a trial court’s
decision to admit evidence for an abuse of discretion. 34 A trial court abuses its
discretion in admitting evidence if that decision falls outside the wide zone of
reasonable disagreement. 35
Appellant’s defense at trial was that he was merely a visitor at the
apartment and that none of the cocaine found there belonged to him. The bond
officer testified on rebuttal that Appellant had said that his drug of choice was
cocaine. Although this testimony is clearly prejudicial (why else would the State
have offered it in rebuttal), the question is whether it is unfairly prejudicial. 36 As
the State correctly argues, any theoretical unfair prejudice did not outweigh the
34
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004).
35
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op.
on reh’g).
36
Wheeler v. State, 67 S.W.3d 879, 888–89 (Tex. Crim. App. 2002).
13
probative value of the testimony, in light of Appellant’s defense that he did not
knowingly or intentionally possess the cocaine found in the apartment. 37 The
State was required to prove intentional and knowing possession, and the case
was a circumstantial evidence case. The bond officer’s testimony was brief and
to the point. It directly attacked Appellant’s defense and directly supported the
State’s theory of the case. The testimony was not likely to have confused the
jury or to cause the jury to wrongfully convict Appellant. 38 Additionally, as the
State argues, the statement is Appellant’s own, an admission by a party
opponent 39 as well as an admission against penal interest. 40 We therefore hold
that the probative value of the statement was not substantially outweighed by the
danger of unfair prejudice. 41 Consequently, the trial court did not abuse its
37
See Owen v. State, No. 02-03-00164-CR, 2004 WL 966323, at *6 (Tex.
App.—Fort Worth May 6, 2004, no pet.) (mem. op., not designated for
publication) (holding evidence that Owen had previously received drugs via
Fedex and had previously possessed methamphetamine admissible rebuttal
evidence to show current knowing and intentional possession of Fedex package
containing methamphetamine in face of her denial).
38
See Maranda v. State, 253 S.W.3d 762, 768 (Tex. App.—Amarillo 2007,
pet. dism’d) (holding evidence of drug use following aggravated robbery relevant
to defendant’s motive to commit robbery and that it did not confuse jury or lead
them to wrongly convict and took minimal time to develop).
39
See Tex. R. Evid. 801(E)(2).
40
See Tex. R. Evid. 803(24).
41
See Tex. R. Evid. 403.
14
discretion by admitting Appellant’s statement to the bond officer, and we overrule
Appellant’s third point.
Conclusion
Having overruled Appellant’s three points, we affirm the trial court’s
judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
WALKER, J., concurs without opinion.
PUBLISH
DELIVERED: March 5, 2015
15
Adrian Lee Whitemon v. State
Combined Opinion