Summary
noting that officer smelled the odor of marijuana coming from defendant's vehicle and had "probable cause to search the vehicle"
Summary of this case from Zavala v. StateOpinion
No. 05-16-00654-CR
02-07-2017
BRITTANY DANIELLE BROWN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1 Collin County, Texas
Trial Court Cause No. 001-88592-2015
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Schenck
Opinion by Justice Schenck
Brittany Danielle Brown appeals her conviction for possession of marijuana in an amount of less than two ounces. In a single issue, appellant contends reversible error occurred when evidence was admitted of her self-incriminating oral statements. We affirm the trial court's judgment.
BACKGROUND
Appellant waived her right to a jury trial and pleaded not guilty before the trial court. At the beginning of the proceedings, the trial court announced it would carry appellant's motion to suppress along with the trial.
Allen police officer David Childers testified that on November 2, 2015, he was patrolling the area around a park and observed a white car leaving the park around 8:20 p.m. As the vehicle passed by his patrol car, Childers smelled the odor of marijuana. Childers testified he turned his patrol car around and followed the vehicle until he observed a traffic violation, at which time he initiated a traffic stop. Appellant, who was in the driver's seat, was the sole occupant of the vehicle. Childers testified he smelled the odor of marijuana when he approached appellant's car. Childers asked appellant for her driver license and proof of insurance, then he called for a "cover unit." Childers asked appellant to step out of the car, and he advised appellant that he could smell the odor of marijuana coming from her vehicle. Appellant said "yes," and that she "was just leaving the park where she was smoking." Childers asked appellant if she had marijuana in her vehicle. Appellant responded that there was marijuana in the console. After a second officer arrived on the scene, Childers searched appellant's vehicle and found a plastic container in the front center console that contained 0.150 ounces of marijuana. Childers placed appellant in custody, handcuffed her, and put her in the back seat of his patrol car. A videotape of the traffic stop and appellant's arrest was admitted into evidence without objection. Childers testified he did not arrest appellant when she made oral statements about the marijuana because he had not physically found any marijuana at that point.
The trial court denied the motion to suppress and found appellant guilty of possession of marijuana. The trial court assessed punishment at confinement in the county jail for ninety days, probated for nine months, and a $300 fine.
SELF-INCRIMINATING STATEMENTS
Appellant contends the trial court reversibly erred by admitting her self-incriminating oral statements, in violation of the required warnings in article 38.22 of the code of criminal procedure. Appellant asserts the statements were made while she was in custodial interrogation without any of the article 38.22 warnings, and she was in custody and being interrogated when the officer made her step out of her vehicle. Appellant argues that because she was not free to leave, and made the oral statements while in custody, the trial court erred in overruling her motion to suppress.
The State responds that appellant was not in custody when she made the self-incriminating oral statements and, thus, not entitled to the article 38.22 warnings. Further, any error in admitting appellant's oral statement was harmless.
APPLICABLE LAW
We review a trial court's decision to admit evidence under an abuse of discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). The trial court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement." Id.
Under the Texas Code of Criminal Procedure, a defendant's oral statement made as a result of custodial interrogation may not be used against her in a criminal proceeding unless she is first read certain warnings. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3 (West Supp. 2016); see also Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). The warnings are only required when there is a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). A defendant bears the burden of proving her statements were a result of custodial interrogation. Id.
Generally, a routine traffic stop does not place a person in custody for Miranda purposes. Berkemer v. McCarty, 468 U.S. 420, 440-41 (1984); State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). A traffic stop only escalates to a custodial detention when a formal arrest is made or when a detainee's freedom of movement is restrained to the degree associated with formal arrest. Ortiz, 382 S.W.3d at 372. Whether a traffic stop escalates to a custodial detention is evaluated on a case-by-case basis and depends on whether a reasonable person would perceive the detention to be a restraint on his movement comparable to a formal arrest. Id. This evaluation is made based on the objective circumstances and does not consider the officer's subjective beliefs except as far as he manifests those to the detainee. Id. at 372-73. An officer may ask the driver and any passengers to step out of the car in an ordinary traffic stop. Maryland v. Wilson, 519 U.S. 408, 410 (1997).
DISCUSSION
In this case, Officer Childers conducted a routine traffic stop after observing a traffic violation. After obtaining appellant's driver license and proof of insurance, he asked appellant to step out of her vehicle because he smelled the odor of marijuana coming from the vehicle, and he announced the reason for asking her to get out of the vehicle to appellant. Appellant made self-incriminating oral statements about smoking marijuana in the nearby park and having marijuana inside her vehicle before a second officer arrived on the scene. Further, appellant was not placed in custody until after Childers found marijuana inside her vehicle. There is nothing in the record that shows circumstances that elevated the traffic stop to custodial interrogation.
Moreover, any error in admitting appellant's self-incriminating oral statement was harmless. The erroneous admission of evidence is a non-constitutional error subject to the harm analysis found in TEX. R. APP. P. 44.2(b). Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Under Rule 44.2(b), a non-constitutional error that does not affect substantial rights must be disregarded. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). The improper admission of evidence is harmless if the same or similar evidence is admitted without objection at another point in the trial. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).
Here, Childers smelled the odor of marijuana coming from appellant's vehicle, and he had probable cause to search the vehicle in which appellant was the sole occupant. See Moulden v. State, 576 S.W.2d 817, 820 (Tex. Crim. App. [Panel Op.] 1978) (police officers had probable cause to search vehicle after smelling odor of burnt marijuana). Further, a videotape showing the traffic stop, including appellant's oral statements and her arrest, was admitted into evidence without objection.
We conclude appellant has not carried her burden to show that her oral statements were the result of a custodial interrogation. See Herrera, 241 S.W.3d at 526. Thus, the trial court did not abuse its discretion in admitting appellant's oral statements. See Davis v. State, 329 S.W.3d 798, 803. We overrule appellant's sole issue on appeal.
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160654F.U05
JUDGMENT
On Appeal from the County Court at Law No. 1, Collin County, Texas
Trial Court Cause No. 001-88592-2015.
Opinion delivered by Justice Schenck. Justices Bridges and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of February, 2017.