Opinion
No. 05-05-00263-CR
Opinion Filed October 17, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-40787-MS. Affirm.
Before Justices BRIDGES, FITZGERALD, and RICHTER.
OPINION
Appellant Kevin Ray Wooldridge appeals his conviction for possession of a controlled substance (methamphetamine) with intent to deliver. A jury found Wooldridge guilty of the offense and assessed punishment at thirty-five years' confinement. In seven issues, Wooldridge posits error in the search of his vehicle, the jury charge, the sufficiency of the evidence to support the finding he possessed methamphetamine, and the prosecutor's closing argument. We affirm the trial court's judgment.
Background
Wooldridge was driving his pickup truck in Mesquite, Texas on September 17, 2001. Officers French and Quinn of the Narcotics Division of the Mesquite Police Department witnessed Wooldridge commit a traffic violation. They requested a marked car to make the traffic stop. (The narcotics officers were not in uniform and were driving an unmarked car.) Officer Jerry Walzell, also of the Mesquite Police Department, responded initially. Officers French and Quinn joined him, and Officer Chad Copeland arrived to provide back-up. French testified that as he walked up toward Walzell and Wooldridge, he could see into the bed of Wooldridge's truck and saw a variety of materials that he knew were used to manufacture methamphetamine. Walzell placed Wooldridge under arrest for the traffic violation. The decision was made to impound Wooldridge's truck, which was parked more than eighteen inches from the curb and was impeding traffic. Copeland, as the back-up officer, oversaw the inventory search of the truck. During the search, the officers discovered marijuana in the center console and a device for smoking marijuana in the driver's side door pocket. In a toolbox attached to the truck, they discovered methamphetamine, digital scales, clear empty plastic bags, and syringes. Wooldridge was charged with possession of the methamphetamine, in the amount of less than four grams, with intent to deliver. He filed his Motion to Suppress Physical Evidence (Search Without a Warrant), seeking suppression of evidence taken from his person, vehicle, and toolbox by the Mesquite police, arguing the search was warrantless and without consent. The trial court heard and denied the motion before trial began. The jury convicted Wooldridge and assessed his punishment at thirty-five years' confinement. Wooldridge appeals.Impoundment and Inventory Search of Vehicle
Wooldridge's first three issues on appeal relate to the impoundment and inventory search of his truck by the Mesquite police officers. Wooldridge challenged the warrantless search of the truck in his Motion to Suppress. An inventory search of a car is permissible if conducted pursuant to a lawful impoundment. South Dakota v. Opperman, 428 U.S. 364, 375-76 (1976); Daniels v. State, 600 S.W.2d 813, 814 (Tex.Crim.App. [Panel Op.] 1980). On appeal, Wooldridge challenges the lawfulness of the impoundment, and the resulting inventory search, on three bases: the existence of reasonable alternatives for impoundment, the violation of police department policies, and the motivations of narcotics officers at the scene of his arrest. We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. We give total deference to a trial court's determination of historical facts; we review de novo a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When, as here, a trial judge does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000).Reasonable Alternatives to Impoundment
A vehicle may be validly impounded and inventoried when (1) the driver is removed from the vehicle and placed under custodial arrest, and (2) no alternatives are available other than impoundment to insure the protection of the vehicle. Delgado v. State, 718 S.W.2d 718, 721 (Tex.Crim.App. 1986). The first element of this test was satisfied when Walzell placed Wooldridge under arrest. In his first appellate issue, Wooldridge argues the second element was not satisfied because there were reasonable alternatives to impoundment that would have insured the protection of the vehicle. The State established that Wooldridge was alone in the truck when he was stopped and arrested; there was no one with him who could be entrusted with the vehicle. But Wooldridge argues the police officers could have moved the truck so that it would have been legally parked on the side of the road. However, Texas case law does not oblige police officers to investigate and offer such an option "absent some objectively demonstrable evidence that alternatives did, in fact, exist." Mayberry v. State, 830 S.W.2d 176, 180 (Tex.App.-Dallas 1992, pet ref'd) (officers not required to locate occupant of house to determine whether appellant's car could remain in driveway). Courts have applied this rule when the investigating officers do not know who owns the vehicle at the time of the arrest. See Richards v. State, 150 S.W.3d 762, 769 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd); Josey v. State, 981 S.W.2d 831, 843 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). In Wooldridge's case, the record does not indicate that facts concerning ownership of the truck were known to the police at the time of the arrest. Thus, the option of moving the truck was not available to them. See Richards, 150 S.W.3d at 769 (option of moving car parked more than eighteen inches from curb not available when officers did not know who owned car). We decide Wooldridge's first issue against him.Internal Policies of Mesquite Police Department
In his second issue, Wooldridge argues that when the officers impounded his vehicle, they were violating their own department policies. The evidence does not support Wooldridge's charge. The Mesquite Police Department's written policy concerning impoundment of a vehicle was introduced into evidence at trial. That policy states that when the driver of a vehicle is taken into custody, three options are generally available to the arrested driver:1. The arrestee may release the vehicle to a passenger or companion, provided the vehicle can be safely operated and the person is legally qualified to drive.
2. The arrestee may leave the vehicle where it is, provided the vehicle will not be left in violation of the law. . . . .
3. The vehicle may be impounded.The first option was not available in this case: Wooldridge was alone in the vehicle when he was stopped and arrested. The second option was likewise unavailable: the truck could not be left where it was. Walzell testified that the truck was parked in violation of the law: "it was impeding traffic." Specifically, Walzell testified the truck was parked more than eighteen inches from the curb. Accordingly, when the officers exercised the third option — impoundment — they acted according to the Department's policy. We decide Wooldridge's second issue against him.
Inventory Search as Pretext
In his third issue, Wooldridge argues that the officers conducted the inventory search as a mere pretext for an evidentiary search in violation of the Fourth Amendment. "[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990) ("The individual police officer must not be allowed so much latitude that inventory searches are turned into a purposeful and general means of discovering evidence of crime."). However, Wooldridge points to no evidence in support of his pretext theory. His sole argument is that narcotics officers first saw and reported his traffic offense and that those officers participated in the inventory search after observing, in plain view, a variety of materials commonly used in the manufacture of methamphetamine. Wooldridge's mere suspicion as to these police officers' motives is no evidence of pretext. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (to raise genuine issue of material fact, evidence "must transcend mere suspicion"). "Evidence that is so slight as to make any inference a guess is in legal effect no evidence." Id. We decide Wooldridge's third issue against him as well. We conclude the trial court did not err in denying Wooldridge's motion to suppress.Jury Charge
In his fourth issue, Wooldridge argues that there was a fact issue concerning the legality of the search of his vehicle, and the jury should have been instructed according to article 38.23 of the code of criminal procedure. The article provides that: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 the Article, then and in such event, the jury shall disregard any such evidence so obtained.Tex. Code Crim. Pro. art. 38.23(a) (Vernon 2005). A trial court must include an article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained. Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000). Because there was no dispute regarding the facts surrounding Wooldridge's arrest and the impoundment and inventory search of his truck, he was not entitled to the instruction. See Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996). We have concluded the police officers lawfully impounded Wooldridge's vehicle and lawfully searched the vehicle for inventory purposes. Accordingly, it was not error for the trial court to refuse to instruct the jury on the effect of an unlawful search. We deny Wooldridge's fourth issue.
Factual Sufficiency of Evidence of Possession
In his fifth issue, Wooldridge argues the evidence is factually insufficient to support the jury's finding that he possessed methamphetamine. He declares he was "merely present during the time the drugs were found," and that there is insufficient evidence to link him to the drugs. In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we determine whether the evidence of the appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). When the contraband is not found on the defendant's person, the evidence must affirmatively link it to the defendant so that it can be reasonably inferred he knew about it and exercised control over it. Smith v. State, 56 S.W.3d 739, 747 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). This Court has looked to a nonexclusive list of possible affirmative links:(1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband; (6) whether the defendant made any incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash.Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.); Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). We are less concerned with the number of links than with the degree to which the links tend to link the defendant to the contraband. Taylor, 106 S.W.3d at 831. In Wooldridge's case, a significant number of the listed factors, alone and in combination, tend to link him to the methamphetamine. Wooldridge was the driver and the only occupant of the vehicle immediately before the methamphetamine was found. The officers found the methamphetamine and drug paraphernalia in a toolbox, attached to the truck. They found items in the back of the truck that could be used to manufacture methamphetamine. The officers also found marijuana in the truck's center console and a marijuana-smoking device in the driver's door side pocket. Finally, the State offered evidence at trial that Wooldridge was the owner of the truck. We conclude this evidence is not too weak to support the finding of guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. Moreover, there was no evidence contradicting Wooldridge's link to the drugs or linking any other person to the drugs. Thus, evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See id. We conclude the evidence was factually sufficient to support the jury's finding that Wooldridge possessed the methamphetamine, and we overrule his fifth issue.
Jury Argument
In his sixth and seventh issues, Wooldridge charges the prosecutor, in closing arguments at the punishment phase, commented on Wooldridge's failure to testify. Wooldridge argues the comment violated both the Fifth Amendment and article 38.08 of the Texas Code of Criminal Procedure. We disagree. To determine whether a remark violated the right against self-incrimination, we must look at the challenged language from the jury's standpoint, and the implication that the remark referred to the defendant's failure to testify must be clear. Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). We ask whether the remark "was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify." Id. We analyze the context in which the remark was made to determine whether the remark was so intended or was of such a character. Id. Because context is critical, we set forth the relevant portion of the State's argument:[The Prosecutor]: Folks, we are talking about responsibility, we are talking about someone taking responsibility for their actions and for what they are doing out there in our community. We are talking about in this case someone that fails to do that. Does not want to take responsibility for his actions. You know they are trying as hard as they can for you not to see the true Kevin Wooldridge. And he is doing the same thing. He comes in here that first day —
[Defense Counsel]: Your Honor, I am going to object that's a comment on Mr. Wooldridge not testifying in this case.
The Court: Overruled. I will instruct counsel to make sure that you do not make any such references. And the Court does not take it as such. Overrule the objection.
[The Prosecutor]: Mr. Wooldridge comes in here when we are picking the jury and he comes in a lot more clean-cut the second time y'all saw him. I know you noticed that. Again trying not to let you see the true Kevin Wooldridge.(Emphasis added.) Wooldridge objected to the emphasized portion of the argument set forth above. In context, however, it is apparent that the prosecutor was referring to efforts to make the defendant more presentable to the jury, more "clean-cut." We conclude the remark was not manifestly intended to point out the defendant's failure to testify. We further conclude the jury would not have necessarily and naturally taken the remark as a comment on the defendant's failure to testify. See Bustamente, 48 S.W.3d at 765. We overrule Wooldridge's sixth and seventh issues.