Opinion
No. 05-05-01541-CR
Opinion issued March 26, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-73068-LP.
AFFIRMED.
OPINION
Appellant Nicholas Gonzalez appeals his conviction by a jury for the offense of aggravated robbery based on his plea of guilty. After finding appellant guilty of the aggravated robbery of Brent White, the jury assessed his punishment at forty years' confinement in the penitentiary. Appellant raises two issues on appeal: whether the trial court erred in finding appellant's fiancèe voluntarily consented to a search of the apartment she shared with appellant and whether the trial court erred in admitting into evidence an extraneous robbery when the State failed to prove beyond a reasonable doubt the robbery was committed by appellant. Concluding no reversible error has been shown, we affirm.
The trial court entered an affirmative finding in the judgment that a deadly weapon had been used or exhibited during the commission of the offense.
Background
We briefly set out the facts. Brent White, the complainant, testified that on July 11, 2004, he and a friend, Dejuan, drove to an apartment complex in Dallas for Dejuan to pick up some items. Dejuan parked his Kia automobile and left the motor running. White remained in the front passenger seat of the Kia, listening to the radio, while Dejuan went inside one of the apartments. While waiting, White noticed several threatening groups of individuals in the parking lot. He considered driving off; however, before he could, three Hispanic men jumped into the car. One man got in on the driver's side and two men got in the back seat. The man in the back behind the driver's seat was later identified as appellant. Appellant pointed a gun at White's head and demanded his wallet. The men spoke Spanish. The men yelled at White and threatened to kill him if he did not give them his wallet and drugs. White did not have a wallet. This upset the men. Appellant, who was described as being the leader of the group, told the driver to drive off. The man seated behind White grabbed him by the neck. At one point White heard the gun "click;" however, the gun did not discharge. When the man released his hands from White's neck, White turned his head and saw appellant trying to re-cock the gun after it had misfired. Appellant again pointed the gun at White's head and pulled the trigger. This time the gun fired. A bullet hit White in his jaw area. Even though the car was going about 45 miles per hour, White opened the door and jumped out onto the door of the car. The driver ran a red light with White hanging onto the door and his feet dragging on the pavement. Eventually, White was thrown from the car and tumbled approximately forty feet, during which he received extensive road burns. The car did not stop. White was spitting blood and had difficulty talking. Unable to stop another motorist for help, White went to a nearby neighborhood. After knocking on several doors, someone called the police for him. The police and paramedics subsequently arrived. White was taken to Baylor Hospital where he remained in intensive care for eight days and in the hospital for over two weeks. White's injuries were severe and extensive. In addition to the injuries to his mouth, teeth and jaw, White suffered injuries to his back and legs. While in the hospital, White was shown a photographic spread from which he picked appellant as the gunman.Appellant's Arrest
A warrant was issued for appellant. The warrant was executed on July 28, 2004, by Norman Smith, a Dallas police officer assigned to the Gang Unit. Other officers assisted. Appellant was standing outside an apartment he shared with his fiancèe, Christina Dominguez. The police questioned Dominguez. Dominguez told the police she lived in the apartment and her name was on the lease. She voluntarily signed a written consent to search form. Pursuant to Dominguez's consent, Smith entered the apartment where he saw in plain view on the coffee table a stack of identification cards and other items belonging to various individuals, including Dejuan Becke and William Langford. Some marijuana and scales were also found. Smith also saw a photograph of appellant "throwing" a gang sign. Smith identified the sign as that of a gang known as "La Lomos Locals." Two other suspects in this robbery, Jose Clark and Alejandro Valdez, were known to Smith as members of a gang known as the "East Side Home Boys."Appellant's Confession
On August 2, 2004, Dallas police detective Dennis Craig questioned appellant. Appellant signed a written statement. A .25 caliber shell casing was found on the floorboard of the recovered vehicle. The vehicle was registered to Dejuan Becke's parents. Dejuan told Craig he had gone to the apartment complex to buy some illegal drugs.Trial
During the trial, the judge allowed into evidence an extraneous robbery of William Langford that occurred on the morning of July 26, 2004, at a convenience store in Dallas. Langford described the attack on him by two Hispanic men who took his wallet that contained various identification, credit cards, and money. Although the men were not disguised, Langford was not able to identify them in a photographic array, nor was he able to identify appellant at trial. Langford's identification was found at the apartment where appellant lived with his fiancè. Appellant denied being involved in the Langford robbery.Consent Hearing
A hearing was conducted outside the jury's presence on the consent to search issue. Smith testified that at the time of appellant's arrest outside the apartment, Dominguez opened the apartment door and stood in the doorway. After the arrest, Smith told Dominguez the police wanted to search the apartment for other suspects. Dominguez had the option of not allowing the officers to enter the apartment. The police explained to Dominguez that her boyfriend was under arrest, they wanted to search for other suspects, and the handgun might be in the apartment. The officers did not have their weapons drawn at any time and they explained to Dominguez she had a right to refuse consent. Dominguez willingly gave up her right to refuse consent and allowed the police to enter. Nothing was promised Dominguez in exchange for her consent nor was she threatened in any way. Dominguez was given a consent-to-search form which she signed in Smith's presence. Dominguez asked no questions about the consent-to-search form. Two other officers witnessed Dominguez's signature on the consent form. Dominguez was not under arrest or in custody at the time she signed the form. During the search, marijuana was found. When the marijuana was found, Dominguez was briefly detained due to the marijuana but she was not charged. The consent form was admitted into evidence "for purposes of the hearing" as State's Exhibit 16. Smith testified if Dominguez had refused entry or consent he would have told Detective Craig and it would have been up to Craig to decide whether he wanted to question her or seek a warrant. On cross-examination, defense counsel clarified that appellant was already under arrest when the police asked Dominguez for consent. Appellant was handcuffed and had no access to entry of the apartment. Smith was present during the entire interview with Dominguez. Smith was the primary officer talking to Dominguez although there were four or five other officers present. One officer was outside with appellant and the other officers were inside. The defense then called Christina Dominguez. Dominguez testified she was appellant's fiancèe. She remembered appellant was arrested in the area of the apartment they were sharing. The lease was in her name at the time. Dominguez testified that when appellant was arrested,"I was at my next door neighbor's house inside and then a sheriff or someone came knocking at my neighbor's house telling me, is this your fiancee, Nicholas Gonzalez, he is going to be arrested for this and this and that and I didn't know anything about it."Dominguez further testified,
"[t]hey took me out her apartment and sign this paper saying we have a right to search your house, this and I don't know. So, I signed this paper because I was real scared because they told me if I didn't sign the paper that I would get involved with all the damage and everything they did within my apartment."The following exchange then occurred between defense counsel and Dominguez:
Q. So, did you feel like you were free not to sign that consent form?
A. (Unaudible response.)
Q. Speak up. You must speak up?
A. Huh.
Q. You must speak up?
A. Can you repeat that question again, please?
Q. Did you feel like that you were free to not sign that consent form?
A. What do you mean by that?
Q. Free, in other words, you had a free choice to either sign it or not sign it no matter what would — no matter, no other one could force you or threaten you?
A. No, it felt like I was being threatened, to tell you the truth I felt like that, because they say if you don't sign this paper you are going to get involved with it. And, I was real scared because I didn't know what to do, I was pregnant at that time, so I signed the paper.
Q. When they said, you were getting involved in it, what did you, in your mind think that they meant by you're getting involved with it?
A. I don't know. I really don't know, sir.
Q. Some criminal activity?
A. Yes, sir.
Q. Were you afraid that you might be arrested, handcuffed and taken to jail at that time if you did not sign this?
A. Yes, sir.
Q. So, is it fair to say in summary, it wasn't your free will, you signed it without your free will, in other words, you were forced to sign this thing because of the circumstances that were presented if you didn't sign it?
A. Yes, sir.Dominguez then testified the officers walked around to her place and that her front door was locked. In response to defense counsel's question, "It was locked?" Dominguez responded:
A. And, I was nervous to get the keys. And, they told me, why are you being nervous? And, I am like, I don't know what's going on. And, they told me, why you taking so long to find the key? I know it ain't that hard to find the key. And so, I found my key and opened the door and they made me sign the paper right there in my living room. I was so scared I was shaking, I didn't know what to expect or anything, this is my first time I ever dealt with this situation, so I signed the paper because it was scaring me.On cross-examination, Dominguez testified she completed the tenth grade in school, she could read and write English, her primary language. Dominguez was never handcuffed at any time. Nor did anyone draw any weapons on her or put her in a police car. When asked if anyone made any threats to her if she didn't sign the paper, Dominguez replied, "[n]o, it seemed like to me they was threatening me. They were like, if you don't sign this paper, this and this is what will happen to you." When asked if anybody promised her anything if she signed the paper, Dominguez replied, "[y]es, they did, they promised me. They told me if I sign this paper I won't get blamed for none of this stuff that was inside my apartment." Dominguez was the first one to go inside the apartment where they read the consent-to-search form to her. At the conclusion of the suppression hearing, in overruling defense counsel's objection to the evidence, the trial court "[found] that the consent to search was given freely and voluntarily by the witness, Christina Dominguez."
Extraneous Offense Hearing
The trial court then had a hearing outside the jury's presence on the extraneous offense evidence. The State called William Langford, the complainant in the extraneous offense. Langford testified he lived in Dallas, was forty-four years old, worked as a union electrician, and on July 26, 2004 he was beaten and robbed at a Texaco station a little before six o'clock when he was on his way to work. Langford's attackers were two Hispanic males who attacked him from behind. One man was about five feet, nine or ten inches tall and a "lot stockier" than the complainant. The other man was "a little shorter and scrawny, skinny." Both men had hair and were not wearing masks. The men were "in their twenties, probably, early to mid." They had "[m]edium complexion." Langford explained how the men jumped him as he was leaving the station and kicked him "a half a dozen times at least." The men took Langford's wallet. His wallet contained a driver's license, social security card and credit cards. Langford also had a concealed handgun license in his wallet. All the documents were in his name, William Langford. Langford also had about $120 in his wallet. He did not know either appellant or Dominguez and did not give either of them permission to have his driver's license or credit cards on July 28, 2004. Langford reported the robbery to the police. The men ran from the scene and jumped in a vehicle, which took off immediately, leading Langford to believe a third person was involved. Langford did not see the driver, but believed the vehicle to be a Datsun or a Nissan with a gray panel on it. Langford did not get the license number of the vehicle. Langford refused medical treatment and went home and "started canceling credit cards." Langford was unable to pick anyone from a photographic spread nor could he identify appellant at trial as one of his attackers. About a month after Langford was attacked, Craig returned Langford's driver's license and concealed handgun license to him. Langford was told his property was found in the course of searching an apartment for another offense. Officer Smith testified he found Langford's driver's license, social security card, and other credit cards on a coffee table on July 28, 2004 in "plain sight" during a search of Dominguez's apartment where she lived with appellant. Langford's property was found in a stack which included Dejuan Becke's identification and credit card. Dominguez testified there were three "other gentlemen living" in her apartment on the date appellant was arrested because they didn't have a place to stay. Dominguez did not know the names of the men but knew one was known on the street as "Tag Jose" and another was "Tag's brother Smurf[.]" They had been there about two or three months and slept in the living room. On cross-examination Dominguez confirmed that when she said "Jose" she mean "Jose Clark." At the conclusion of the hearing, the trial judge overruled defense counsel's objection to the admissibility of the extraneous offense evidence, stating specifically,And, that objection with all of the evidence that I have heard, the Court believes that a jury could find, beyond a reasonable doubt, that the Defendant was criminally responsible for that extraneous crime or bad act. And, will of course, instruct the jury that they cannot consider the same for any purpose unless they first believe it beyond a reasonable doubt.Following an additional rule 403 objection from defense counsel, the trial court stated, "[a]nd, the Court finds that the probative value of the evidence is — substantially outweighs any prejudicial affect [sic] that it might have." In the presence of the jury, Smith identified the consent-to-search form as the one Dominguez "freely and voluntarily" signed. Over defense counsel's same objection made outside the jury's presence, the trial court admitted the executed consent-to-search form for all purposes. Smith then testified to what was found in the apartment.
Appeal
In issue number one, appellant argues the trial court erred in ruling that his fiancèe voluntarily consented to the search of the apartment. In other words, appellant complains the trial court denied his motion to suppress consent to search the apartment. The State responds the trial court did not err and, further, error, if any, was harmless.Law
Voluntary consent to search is a well-established exception to the warrant and probable cause requirements of the Fourth Amendment to the United States Constitution. Montanez v. State, 195 S.W.3d 101, 105 (Tex.Crim.App. 2006) citing Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000). Unlike federal law, Article 1, Section 9 of the Texas Constitution requires the State to prove by clear and convincing evidence consent was freely and voluntarily given. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Crim.App. 1997). Whether consent was freely and voluntarily given is a fact question to be determined from the totality of the circumstances. Gallups v. State, 104 S.W. 3d 361, 366 (Tex.App.-Dallas 2003, aff'd, 151 S.W.3d 196 (2004). When an appellate court is asked to decide whether the State proved voluntary consent to search by clear and convincing evidence, the applicable standard of review is that set out in Guzman v. State, 955 S.W. 2d 85 (Tex.Crim.App. 1997). Montanez, 195 S.W.3d at 106. We give almost total deference to a trial court's determination of historical facts and review de novo the trial court's application of search and seizure law. See Carmouche v. State, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 88-89. Appellant argues because the State did not recall Smith to rebut Dominguez's allegations of threats and promises made to her by the officers, the only testimony before the trial judge about coercive acts was the uncontroverted testimony of Dominguez. Appellant relies on Farr v. State, 519 S.W.2d 876 (Tex.Crim.App. 1975) and Sherman v. State, 532 S.W.2d 634 (Tex.Crim.App. 1976) in arguing the trial court abused its discretion by ruling consent was freely and voluntarily given. Appellant contends harm was shown because the items recovered in the search allowed the State to show appellant was a drug dealer as well as permitting the Langford extraneous robbery evidence.Analysis
We disagree with appellant that it was necessary to recall Smith. Although it is true Smith was not recalled to testify after Dominguez testified, his prior testimony rebutted and contradicted Dominguez's testimony that she was coerced to give consent. See Green v. State, 682 S.W.2d 271, 293 (Tex.Crim.App. 1984) (rejecting the necessity of recalling officers whose prior testimony explicitly or implicitly was fundamentally inconsistent with defendant's version). The evidence in this case about the events surrounding the giving of consent are conflicting. The evidence, if believed, supports a finding of free and voluntary consent. Dominguez was neither under arrest, in custody, or handcuffed when she gave consent. No weapons were drawn. She was told by the officers why they wanted to search the apartment she shared with appellant. They also read the consent-to-search form to her. She understood English, her primary language. As fact finder, the trial judge credited the officers' testimony and discredited Dominguez's. Applying a deferential standard of review to the trial judge's factual findings, we conclude no error has been shown. Because we conclude no error has been shown, we do not reach the issue of harm. We resolve appellant's first issue against him. In his second issue, appellant contends the trial court erred in admitting into evidence the extraneous Langford robbery because the State failed to prove beyond a reasonable doubt the robbery was committed by appellant. The State responds the trial court did not abuse its discretion in admitting the extraneous offense evidence and, alternatively, any error is harmless.Law
Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure provides that evidence of an extraneous crime or bad act is admissible during the punishment hearing only if shown by evidence beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible. When the jury is the fact finder, the trial judge must determine the threshold admissibility of an extraneous offense. Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App. 1996); Tex. R. Evid. 104(a), (b). As fact finder, the jury ultimately decides whether the State has proven the extraneous offense beyond a reasonable doubt. Id. In Moore v. State, 82 S.W.3d 399 (Tex.App.-Austin 2002, pet. ref'd), the court said,The trial court has the responsibility of determining the threshold admissibility of extraneous offense evidence at the punishment phase; that is, the court must make an initial determination at the proffer of the evidence that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense.Id. at 409. On appeal, a trial court's ruling on the admissibility of an extraneous offense is reviewed under an abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). An offense may be proved by circumstantial evidence. Earls v. State, 707 S.W.2d 82 (Tex.Crim.App. 1986). Langford could not identify the perpetrator. The State's evidence in support of the extraneous offense was circumstantial. A few weeks after the offense in this case to which appellant later pleaded guilty, Langford was robbed by two Hispanic men who attacked him from the rear as he was leaving a Texaco station. Based on the speed with which the car drove away after the two men jumped inside, Langford believed a third man was involved. A few days later, Langford's identification and personal documents taken during that robbery were found in an apartment appellant shared with Dominguez, his fiancèe. Although appellant denied he was one of the men who assaulted and robbed Langford, based on the evidence presented, the trial court made the requisite threshold determination that a jury could reasonably find beyond a reasonable doubt that appellant committed the Langford robbery. Credibility choices were for the jury to make. No abuse of discretion has been shown. Because no trial court error is shown by admission of the extraneous offense evidence, we do not reach the issue of harm. However, we note that appellant admitted he took and sold illegal drugs, hung out with local gangs, and that he never checked on White after he jumped out of the speeding car. Appellant admitted he put a gun to White's head and pulled the trigger. Appellant never turned himself in, but was turned in by a co-defendant, Alejandro Valdez. Even without the extraneous offense evidence, the facts of the primary offense were egregious and formed a sufficient basis for the jury's forty-year sentence.