Opinion
No. 05-03-00990-CR
Opinion issued February 9, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 199th District Court, Collin County, Texas, Trial Court Cause No. 199-81209-02. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
Eugene Stallworth appeals his money laundering conviction. A jury convicted appellant and sentenced him to twenty years' confinement and a $10,000 fine. In seven issues, appellant argues the evidence is legally and factually insufficient to support his conviction, and the trial court erred in denying his motion to suppress, overruling his objections to certain evidence, and not providing appellant ten days notice following the amendment of the indictment. We affirm the trial court's judgment. On September 25, 2001, Plano police officer Jon Britton observed a minivan traveling at seventy-three miles per hour in a sixty-mile-per-hour zone and changing lanes without signaling. Britton pulled the minivan over and, for identification, was shown a traffic ticket appellant had received earlier. Appellant said his driver's license had been seized by police in Oklahoma after he received the ticket. Although the minivan was registered in Illinois, appellant produced valid insurance issued in Texas. Britton asked appellant to exit the van, and appellant complied. Britton questioned appellant, and appellant appeared "overly nervous" in that he was speaking rapidly and repeating his answers to Britton's questions. Britton asked appellant if he had contraband in the car or large sums of money or drugs, and appellant said he did not and told Britton he could search the minivan. Britton confirmed that he had appellant's permission to search the minivan and began searching it. Britton noticed there had been screws removed from the driver's side door panel and fresh sealant where the door handle was, indicating appellant was using the natural void in the door to carry contraband. Britton also found Bondo, a body filler, which indicated there might be a false compartment in the minivan. Britton ultimately recovered two bundles of currency totaling $98,400 from the compartments he discovered in the minivan. Marijuana remnants were also found inside the door panel. Britton asked appellant about the money, but appellant said he did not know about it. Appellant was charged with money laundering, and a jury convicted him. This appeal followed. In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his conviction. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Id. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits the offense of money laundering if he knowingly acquires, receives, conceals, possesses, or transports the proceeds of criminal activity. Tex. Pen. Code Ann. § 34.02(a)(1) (Vernon 2003). The indictment in this case charged appellant with acquiring, receiving, concealing, possessing, and transporting the proceeds of delivery of marihuana over one-fourth ounce in an amount more than $20,000 but less than $100,000. The record shows appellant was pulled over for speeding and changing lanes without signaling. Appellant identified himself by producing a traffic ticket and appeared nervous. Appellant consented to the search of his vehicle, and Britton found two bundles of currency totaling $98,400 in compartments he discovered in the vehicle. Police also found marijuana remnants in the vehicle's door panel, and a drug dog alerted to the presence of a narcotic odor on the door seams of the vehicle and on the bundles of cash. Under these circumstances, we conclude the evidence is legally and factually sufficient to support appellant's conviction. See Jackson, 443 U.S. at 319; Zuniga, 144 S.W.3d at 484-85. We overrule appellant's first and second issues. In his third issue, appellant argues the trial court erred in denying appellant's motion to suppress the warrantless search of his vehicle. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Here, Britton saw appellant speeding and changing lanes without signaling, providing sufficient justification to stop appellant. See Walter v. State, 28 S.W.3d 538, 542 (Tex.Crim.App. 2000) (officer may lawfully stop and detain person for traffic violation). Once stopped, appellant consented to a search of his vehicle, and police discovered the cash in compartments inside the vehicle. Constitutional prohibitions against warrantless searches and seizures do not come into play when a person gives free and voluntary consent to search. Foster v. State, 101 S.W.3d 490, 495 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Under these circumstances, we cannot conclude the trial court erred in denying appellant's motion to suppress the warrantless search of his vehicle. See Villarreal, 935 S.W.2d 138. We overrule appellant's third issue. In his fourth, fifth, and sixth issues, appellant complains the trial court erred in overruling his objections to the admission of certain extraneous offenses. Specifically, appellant argues the trial court erred in admitting evidence that he was stopped in Mississippi on November 21, 2001 with more than $67,000 in his van and in Grayson County on April 3, 2002 with more than eighty pounds of marijuana in his vehicle. Appellant argues this evidence was inadmissible because (1) under rule of evidence 404(b), it constituted an attempt to prove his bad character and show action in conformity therewith; (2) under rule of evidence 403, the probative value of this evidence was substantially outweighed by the danger of unfair prejudice; and (3) this evidence involved offenses that were subsequent in time to the charged offense. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Absent an abuse of discretion, we do not disturb a trial judge's ruling on the admissibility of evidence. See Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App. 2000); Coffin v. State, 885 S.W.2d 140, 149 (Tex.Crim.App. 1994). We view the evidence in the light most favorable to the trial judge's ruling. See Corbin v. State, 85 S.W.3d 272, 282 (Tex.Crim.App. 2002). Rule 404(b) disallows evidence of other crimes, wrongs, or acts to prove a person acted in conformity with their character by committing the charged offense. See Tex. R. Evid. 404(b). However, extraneous offense evidence is admissible for other purposes, such as to show motive, intent, plan, or absence of mistake or accident. See id. In determining whether, under rule 403, the probative value of evidence is substantially outweighed by the danger of unfair prejudice, we consider (1) the probative value of the evidence, (2) the potential of the evidence to impress the jury in an irrational and indelible way, (3) the time needed to develop the evidence, and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000). The last inquiry includes three subparts: (1) whether the proponent has other available evidence to show the fact of consequence that the extraneous misconduct is relevant to show; (2) if so, how strong is that other evidence; and (3) whether the fact of consequence is related to an issue that is in dispute. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g). In this case, the State was required to prove that appellant intentionally and knowingly acquired, concealed, possessed, and transported the proceeds of criminal activity, delivery of marijuana, and the value of the funds was more than $20,000 but less than $100,000. See Tex. Pen. Code Ann. § 34.02 (Vernon 2003). The trial court admitted the evidence that appellant was stopped in Mississippi with more than $67,000 in his van and in Grayson County with more than eighty pounds of marijuana in his vehicle on the basis that these extraneous acts showed "scheme, intent, knowledge, design, and absence of mistake." In addition, the trial court stated the probative value of the extraneous acts, "for pretty much the same reasons," outweighed the danger of unfair prejudice. We agree with the trial court. The extraneous acts are clearly relevant to show that appellant, though he claimed not to know about the money hidden in the van at the time he was stopped, repeatedly carried large amounts of cash and drugs hidden in his vehicle. Thus, the extraneous acts are relevant to show appellant's knowledge, intent, and lack of mistake. See Tex. R. Evid. 404(b). Further, while the extraneous acts are "prejudicial" in the sense that they show appellant's lack of mistake, we conclude their probative value is not substantially outweighed by the danger of unfair prejudice. See Reese, 33 S.W.3d at 240-41. Finally, we decline to hold that the extraneous acts were inadmissible merely because they occurred after the charged offense. See Russell v. State, 113 S.W.3d 530, 537 (Tex.App.-Fort Worth 2003, pet. ref'd) (no abuse of discretion to reject defendant's claim that extraneous offense was inadmissible simply because it occurred after charged offense). Accordingly, we conclude the trial court did not abuse its discretion in admitting the extraneous acts in this case. We overruled appellant's fourth, fifth, and sixth issues. In his seventh issue, appellant argues the trial court erred in not allowing appellant ten days to prepare and respond after the indictment was amended. Appellant was indicted on July 25, 2002 for the offense of money laundering. On May 30, 2003, the State filed a motion to amend the indictment to add two additional counts. The trial court set the motion for a hearing on June 5, 2003 and, on that date, granted the motion and ordered the indictment to be amended as set forth in the motion. On the morning of June 16, 2003, appellant filed a motion to quash the indictment arguing it was impossible to distinguish the offense alleged in the indictment from "the extraneous offenses." Further, appellant argued the indictment failed to describe with particularity the criminal activity with which he was charged, and so failed to give him adequate notice of the charges against him such that he could adequately prepare for trial, be protected from double jeopardy, and be adequately informed of which law applied to his case. Later that morning before trial began, the trial court conducted a hearing on appellant's motion in which appellant's counsel argued he was not present at the hearing on June 5, 2003, and he did not receive timely notice of the amendment to the indictment. At the hearing, prosecutor Martin Leyko testified the motion to amend was filed May 30, 2003. Leyko testified he spoke with appellant's counsel on June 6, 2003 in person at the courthouse and told him about the motion to amend. Appellant's counsel said he "had not received anything but verbally" at that time. Leyko testified he had asked his secretary to mail and fax appellant's counsel a copy of the motion on May 30. Pamela Selman, Leyko's secretary, testified Leyko told her to give appellant's counsel notice of the motion to amend on May 30. Selman testified she sent notice of the motion by certified mail but did not recall whether she also faxed the motion, though she generally faxed such motions. Selman produced a green card that was returned on June 9, but she testified there were multiple green cards in the file, and she could not say the June 9 green card was in connection with the motion to amend. The trial court overruled appellant's motion to quash the indictment, finding that appellant's counsel had sufficient notice. When reviewing a trial court's ruling on a motion to quash, we will not reverse unless the court abuses its discretion. Jones v. State, 111 S.W.3d 600, 605 (Tex.App.-Dallas 2003, pet. ref'd). With respect to the notice required when an indictment is amended, the code of criminal procedure provides as follows:
(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.Tex. Code Crim. Proc. Ann. art. 28.10(a) (Vernon 1989). Appellant's counsel argued he was not given ten days to respond to the amended indictment and "technically" had not been given notice of the amended indictment as of the date of trial. However, the record shows that, on May 30, 2003, the motion to amend was filed, and Leyko told Selman to give appellant's counsel notice of the motion. Selman testified she sent notice of the motion by certified mail. On June 6, 2003, Leyko gave appellant's counsel verbal notice that the motion had been filed. Trial commenced on June 16, 2003. Under these circumstances, we conclude the trial court did not abuse its discretion in denying appellant's motion to quash. See Jones, 111 S.W.3d at 605. We overrule appellant's seventh issue. We affirm the trial court's judgment.