Opinion
No. 05-14-01227-CR
06-27-2016
SHELTON L. BONDS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 382nd Judicial District Court Rockwall County, Texas
Trial Court Cause No. 2-12-255
MEMORANDUM OPINION
Before Justices Lang, Brown, and Richter
Opinion by Justice Richter
The Honorable Martin E. Richter, Justice Retired, sitting by assignment. --------
A jury convicted Shelton L. Bonds of possession with intent to deliver cocaine in an amount of 400 grams or more. The jury assessed punishment at fifty-four years' imprisonment and a $35,000 fine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (f) (West 2010). In two issues, appellant complains of the trial court's rulings denying his motion to suppress and admitting two exhibits into evidence. We affirm the trial court's judgment.
MOTION TO SUPPRESS
In his first issue, appellant contends the trial court abused its discretion by denying his motion to suppress evidence that was obtained in violation of the United States and Texas Constitutions and article 38.23 of the Texas Code of Criminal Procedure. Appellant asserts the officer's continued detention of him, and of the vehicle, went well beyond the legitimate scope of the traffic stop before the officer illegally discovered evidence of criminal activity. The State responds the trial court did not err in denying appellant's motion to suppress evidence because the officer had "sufficient reasonable suspicion" to continue the detention after the initial traffic stop.
Background
On February 27, 2012, Rockwall police officer Josh Ellis stopped a Nissan Maxima for failure to yield the right-of-way. Ellis asked the driver, identified as Kendrick Allen, routine questions. Appellant was in the front passenger seat. Allen appeared to be nervous and could not tell Ellis appellant's name. After getting Allen's driver license, Ellis went to the passenger side and asked appellant the same questions he had asked Allen. Ellis smelled marijuana coming from the vehicle when appellant rolled down the window, and he saw marijuana residue on the console area. Ellis noticed appellant's nervousness and that appellant avoided eye contact. Ellis became suspicious due to several discrepancies in the men's answers to his questions, their nervous behavior, and the marijuana residue he saw in the front console area. Ellis got appellant's identification and returned to his patrol car to check both men's identity and to call for a cover officer. After the cover officer arrived, Ellis told Allen that he was going to search the vehicle because he had smelled marijuana when appellant rolled down the window. Ellis instructed appellant to step out of the car. When appellant opened the passenger side door, Ellis saw a syringe in the door handle. Ellis searched the vehicle and found a duffel bag containing 1.24 kilograms of cocaine in the trunk.
A videotape from the patrol car's dash camera was played to the jury. The videotape showed Ellis both stopping the vehicle and questioning Allen and appellant. Ellis returned to his patrol car and called for another officer. After the second officer arrived, Ellis instructed appellant to get out of the vehicle and to stand next to Allen. Ellis searched the vehicle and found the duffel bag in the trunk. The videotape showed that Ellis questioned Allen for four-and-a-half minutes before he questioned appellant. Ellis then questioned appellant for two minutes before returning to his patrol car to call for a cover officer. After searching the vehicle for approximately seven minutes, Ellis found the duffel bag in the trunk.
Outside the jury's presence, the trial court conducted a hearing on appellant's motion to suppress the evidence obtained from the search of the vehicle. Appellant argued he was illegally detained because the purpose of the stop was for Allen's traffic violation. Appellant asserted that because he was a passenger and not the driver, did not have drug paraphernalia on his person, and did not make any furtive movements, the officer had no reason to detain him or to search the vehicle. The trial court denied the motion to suppress and entered written findings of fact and conclusions of law.
Applicable Law
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to the facts. Wade v. State, 422 S.W.3d 661, 666-67 (Tex. Crim. App. 2013). When the trial court files findings of fact with its ruling on a motion to suppress, an appellate court does not engage in its own factual review, but determines only whether the record supports the trial court's fact findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless the trial court abused its discretion by making a finding not supported by the record, we will defer to the trial court's fact findings and not disturb the findings on appeal. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). On appellate review, we address only the question whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543.
No evidence obtained by an officer in violation of the United States or Texas Constitutions shall be admitted against the accused on the trial of any criminal case. TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005). The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. CONST. amend. IV. To suppress evidence because of an alleged Fourth Amendment violation, a defendant bears the initial burden of producing evidence that rebuts the presumption of proper police conduct by showing that a search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once a defendant has shown the search or seizure was without a warrant, the State must establish that the search or seizure was reasonable under the totality of the circumstances. Id. at 672-73.
A temporary detention, as opposed to an arrest, may be justified on less than probable cause if a person is reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968). Reasonable suspicion requires only some minimal level of objective justification. See Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012). When determining whether probable cause exists, the focus is on the facts and circumstances known to the law enforcement official at the time of the search. See Wiede v. State, 214 S.W.3d 17, 26 (Tex. Crim. App. 2007). Probable cause to search exists when the totality of the circumstances allows a conclusion that there is a fair probability of finding contraband or evidence at a particular location. Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006).
Discussion
The trial court entered written findings that Ellis stopped Allen's vehicle because Allen failed to properly signal lane changes. When Ellis asked Allen where he was coming from, Allen responded he was coming from his cousin's funeral and that he had been in the area for two days. Ellis asked Allen who was sitting in the passenger seat of the vehicle, and Allen could not tell Ellis the passenger's name. Whenever Ellis asked Allen a question, Allen responded with a question. Ellis then spoke with appellant, who gave Ellis a Tennessee identification card bearing appellant's name. When Ellis asked appellant where he was coming from, appellant said he was coming from his brother's house, that he had come down the night before, and that his brother lived in Dallas. Ellis observed that appellant avoided eye contact and appeared to be very nervous. Ellis smelled an odor of marijuana in the car when he questioned appellant, and Ellis observed marijuana residue around the center console of the car. When Ellis asked Allen if anyone had smoked marijuana in the car recently, Allen stated he had not smoked any marijuana, and he did not know of anyone else who had smoked marijuana in the vehicle. Ellis told Allen he was going to search the vehicle based on the odor of marijuana in the vehicle. Allen responded by telling Ellis to search the car. Ellis observed a syringe in the door handle when appellant exited the vehicle. Rockwall police officer Josh Norlin arrived on the scene and remained with Allen and appellant while Ellis searched the vehicle. Ellis accessed the trunk from the back seat of the vehicle and found a duffle bag that contained men's clothing and hygiene items, and what Ellis believed to be a kilogram of cocaine wrapped in heat-sealed packaging. Allen and appellant were subsequently arrested and charged with possession with intent to deliver a controlled substance in an amount greater than 400 grams.
The trial court concluded that based on the nervous behavior and conflicting stories from both Allen and appellant, Ellis had sufficient reasonable suspicion to continue the detention after the initial stop. The trial court concluded that because Ellis smelled the odor of marijuana upon approaching appellant in the vehicle, and Ellis observed marijuana residue in plain view in the front console area, he was justified in the further detention of both Allen and appellant. The trial court further concluded that when Ellis saw a syringe in the door handle as appellant exited the vehicle, Ellis had sufficient reasonable suspicion that Allen and appellant were involved in criminal activity.
Reviewing the record under the appropriate standards, we conclude it supports the trial court's findings and the trial court's conclusions of law. See Romero, 800 S.W.3d at 543; see also State v. Crawford, 120 S.W.3d 508, 510 (Tex. App.—Dallas 2003, no pet.). Thus, the trial court did not err in denying appellant's motion to suppress. See Cantu, 817 S.W.2d at 77.
ADMISSION OF STATE EXHIBIT NOS. 13 AND 14
In his second issue, appellant contends the trial court abused its discretion by admitting into evidence State's Exhibit no. 13, a CD containing redacted recordings of wiretapped calls, and Exhibit no. 14, a transcription of a call between appellant and Anthony Nixon that was made four days before appellant was arrested. Appellant argues the trial court violated Texas Rules of Evidence 403, 404(b), and 901 because the recorded conversations were not properly authenticated, they involved extraneous offenses and other bad acts not relevant to the case at hand, and their prejudicial effect clearly outweighed their probative value. The State responds the trial court did not abuse its discretion in admitting the exhibits into evidence because they were properly authenticated, served to show appellant's intent and his link to the drugs, and were more probative than prejudicial.
Background
During the trial, Allen testified he and appellant had traveled from Ripley, Tennessee to Dallas to pick up cocaine and take it back to Tennessee. Allen testified he had paid $35,000 for the cocaine. After Allen testified, appellant moved for a hearing outside the jury's presence to discuss the testimony of Joseph Garrison Taylor. During the hearing on appellant's motion in limine, Taylor testified he is a narcotics investigator with the Tennessee Attorney General's Office assigned to the Drug Enforcement Administration of the Western District of Tennessee. Taylor testified that in January 2012, he had obtained a court order that allowed him, for thirty days, to listen to conversations from four telephones belonging to an individual named Anthony Nixon. Taylor also received two thirty-day extension orders, which allowed him to listen to Nixon's calls through March 2012. Taylor testified that during this ninety-day period, Nixon spoke to a man named "Danky" on multiple occasions. Taylor testified he was able to identify appellant as "Danky." Taylor identified appellant by intercepting a call in which appellant made plans to go to a certain house to make a "pickup or delivery." Subsequent surveillance observed that appellant went to the house mentioned in the phone call, stayed inside for a few minutes, then left the house and went directly to Nixon's location.
The State argued the phone calls on State's Exhibit no. 11, a CD of Taylor's wiretaps, show appellant was not merely a passenger in the vehicle, but that appellant helped plan the drug pickup in Dallas. The State further argued that the calls corroborated Allen's statements that appellant had set up the drug deal with Nixon. At the conclusion of the hearing, the trial court ruled that seven of the calls would be admitted after the prosecutor redacted certain portions of them. The trial court found that the probative value of the calls outweighed their prejudicial effect, and stated that the court would give a limiting instruction regarding any reference to any other investigation or activity other than the one alleged in the indictment.
When the trial resumed before the jury, Allen testified he had listened to phone calls contained in State's Exhibit no. 11 and he identified the voices on those calls as belonging to Nixon and appellant. Allen testified he recognized their voices because he had "numerous" contacts with both Nixon and appellant.
Taylor testified regarding the collection of the telephone conversations. State's Exhibit no. 13, a redacted copy of the calls on State's Exhibit no. 11, and Exhibit no. 14, a transcript of a call made four days before appellant was arrested, were admitted into evidence. State's Exhibit no. 13 was played to the jury. The trial court also allowed Taylor to summarize the conversations between appellant and Nixon that were on State's Exhibit no. 13 as follows:
• January 9, 2012: appellant and Nixon discussed purchasing a kilogram of cocaine; they discussed the pricing of the cocaine.
• January 16, 2012: appellant and Nixon discussed pricing and possible travel to "maybe" pick up the drugs.
• January 17, 2012: appellant and Nixon discussed pricing of a kilogram of cocaine.
• February 7, 2012: appellant and Nixon discussed that "It's all good for the 27th."
• February 9, 2012: appellant and Nixon discussed "50/50," which meant half powder cocaine and half rock cocaine; they discussed "shaking it up," which meant cooking the cocaine.
• February 21, 2012: appellant and Nixon discussed pricing; they discussed traveling on "Monday;" and they discussed putting clothes in the car to simulate traveling on vacation.
• February 23, 2012: appellant and Nixon discussed leaving on Sunday; they discussed that the person who travels with them was going to work with them on whatever they get.At the conclusion of Taylor's testimony, the trial court gave the jury a "limiting instruction" stating it could not consider any associations or investigations of activities other than those related to the offense alleged in the indictment. The court further instructed the jury that it "may" consider the content of the phone calls if it believed the content "beyond a reasonable doubt" and then only consider that content for its relevance, if any, to the allegation in the indictment.
Applicable Law
A trial court has great discretion in admitting evidence at trial. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). When considering a trial court's decision to admit or exclude evidence, we will not reverse the ruling unless it falls outside the "zone of reasonable disagreement." McGee v. State, 233 S.W.3d 315, 318 (Tex. Crim. App. 2007).
Rule 901(a) provides that "to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. TEX. R. EVID. 901(a). For authenticating a telephone conversation, evidence must show the call was made to a number assigned at the time to a particular person, if circumstances show that the person answering was the one called. TEX. R. EVID. 901(b)(6).
Rule 404(b) provides that evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. TEX. R. EVID. 404(b)(1). However, the evidence may be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b)(2); see also Berry v. State, 233 S.W.3d 847, 858 (Tex. Crim. App. 2007).
Rule 403 provides that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403. A trial court is entitled to broad discretion in ruling on a Rule 403 objection. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable." Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003). When undertaking a Rule 403 analysis, a trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
Discussion
Taylor identified State's Exhibit no. 11, the CD he had created from calls to and from the four phone numbers belonging to Nixon. Taylor identified State's Exhibit no. 13 as the redacted copy of the calls on Exhibit no. 11. Both Taylor and Allen identified appellant's voice on State's Exhibit nos. 11 and 13. Allen testified he knew appellant's voice from past interactions with appellant. Taylor testified he identified appellant's voice from the phone calls and from the surveillance he had conducted in Tennessee. We conclude the State presented sufficient evidence to authenticate the exhibits. TEX. R. EVID. 901(b)(6); see also Banargent v. State, 228 S.W.3d 393, 401 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).
Regarding appellant's rule 404 complaint, we conclude the record supports the trial court's conclusion that State's Exhibit no. 13 was highly probative to show appellant's intent and motive to possess and deliver the cocaine. At the time Ellis searched Allen's vehicle and found the cocaine in the duffel bag, both Allen and appellant claimed they did not know the cocaine was in the vehicle. The conversations contained in State's Exhibit no. 13 contradicted their claims. Moreover, the trial court instructed the jury that it could not consider the content of the conversations that was not related to the alleged offense unless they believed beyond a reasonable doubt that the content was true and relevant to the allegation in the indictment. See TEX. R. EVID. 404(b)(2); Berry, 233 S.W.3d at 858.
Finally, we conclude the record does not support appellant's complaint that the probative value of the exhibits was substantially outweighed by their prejudicial effect. State's Exhibit nos. 13 and 14 indicate appellant had prior knowledge that drugs would be transported in the vehicle. See Manning, 114 S.W.3d at 926. The recorded conversations between appellant and Nixon planning the trip to Dallas to purchase drugs was related to the main issue in the case and it did not repeat evidence that had been already admitted. See Gigliobianco, 210 S.W.3d at 641-42.
Because the exhibits were properly authenticated, they were admissible under rule 404, and their probative value was not substantially outweighed by their prejudicial effect, we conclude the trial court did not abuse its discretion by admitting State's Exhibit nos. 13 and 14 into evidence. See Manning, 114 S.W.3d at 926. We overrule appellant's second issue.
We affirm the trial court's judgment.
/Martin Richter/
MARTIN RICHTER
JUSTICE, ASSIGNED Do Not Publish
TEX. R. APP. P. 47 141227F.U05
JUDGMENT
Appeal from the 382nd Judicial District Court of Rockwall County, Texas
(Tr.Ct.No. 2-12-255).
Opinion delivered by Justice Richter, Justices Lang and Brown participating.
Based on the Court's opinion of this date, the trial court's judgment is AFFIRMED.
Judgment entered June 27, 2016.