Opinion
No. 10-14-00014-CR
03-05-2015
RUBEN HEREDIA, Appellant v. THE STATE OF TEXAS, Appellee
From the County Court at Law Navarro County, Texas
Trial Court No. C34853-CR
MEMORANDUM OPINION
Ruben Heredia was convicted of possession of a controlled substance, cocaine, and sentenced to 60 years in prison. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). Heredia was the front seat passenger in a vehicle stopped by a Department of Public Safety trooper for traffic violations, and cocaine was found in the vehicle. Because the trial court did not err in denying Heredia's motion to suppress or in denying Heredia's motion for directed verdict, the trial court's judgment is affirmed.
MOTION TO SUPPRESS
Heredia first contends that the trial court erred in denying Heredia's motion to suppress several of his statements because the statements were 1) taken in violation of article 38.22 of the Texas Code of Criminal Procedure; and 2) inadmissible pursuant to Texas Rules of Evidence 401, 404(b), and 403. Heredia did not request findings of fact and conclusions of law following the denial of his motion to suppress. However, we abated this appeal so that the trial court could supply finding of fact and conclusions of law regarding the voluntariness of Heredia's statements. See Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013). Those findings and conclusions were supplied, and we reinstated this appeal.
We employ a bifurcated standard of review when reviewing motions to suppress. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). We measure the propriety of the trial court's ruling under the totality of the circumstances, extending almost total deference to the trial court's rulings on questions of historical fact, as well as on its application of law to fact questions that turn upon credibility and demeanor. Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012); Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). We review de novo the trial court's rulings on questions of law and its rulings on application of law to fact questions that do not turn upon credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d at 349. We view the record in the light most favorable to the trial court's conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
Waiver of Rights
Heredia first complains under this issue that the statements were inadmissible because they were taken in violation of article 38.22 of the Texas Code of Criminal Procedure. Under article 38.22, no oral statement of an accused made as a result of custodial interrogation shall be admissible against an accused in a criminal proceeding unless (1) the statement was recorded and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Joseph v. State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010). The warnings required by article 38.22 include those stated in Miranda and, in addition, a warning that the accused "has the right to terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22 §§ 2(a), 3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
Heredia's statements were recorded on an in-car video recording device after Heredia was placed under arrest for an outstanding warrant and placed in Trooper Dustin Gilmore's patrol unit. He does not argue that the statements are inadmissible because they were not recorded or that they were improperly recorded. Rather, he argues that the eight statements, made either by Heredia or about him, were inadmissible because he was either not properly warned of his statutory rights under article 38.22 § 2(a) or did not waive those statutory rights.
The first statement mentioned by Heredia in his brief is a reference to an arrest warrant for Heredia. This statement was not made by Heredia; thus, article 38.22 is not invoked and the trial court did not err in admitting the statement under this part of Heredia's issue. Likewise, article 38.22 is not invoked for two other statements referencing that Trooper Gilmore "found all that shit," referencing the cocaine, and that Gilmore and the other troopers who helped search the vehicle were "white trash." While Heredia made these statements, neither were the product of custodial interrogation. Heredia was in the front seat of the patrol unit when he made those statements; but the officer was not in the vehicle at the time and had not asked Heredia any questions which would have provoked those statements. Accordingly, the trial court did not err in admitting those additional statements under this theory of exclusion.
The remaining statements at issue referenced the sale of cocaine, the price of cocaine, the purchase of the cocaine by the driver and its reason, and the use of cocaine, in general, and specifically of the use the day before of the purchased cocaine. These statements were the product of questioning by Gilmore while Heredia was in custody. The State argues, however, that Heredia waived his right to remain silent under article 38.22.
The State bears the burden of establishing a knowing, intelligent, and voluntary waiver of one's rights under Miranda and Article 38.22. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011); Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). Waiver must be proven by a preponderance of the evidence. Leza, 351 S.W.3d at 349, 351; Joseph, 309 S.W.3d at 24. In determining whether there was a valid waiver of Heredia's rights, we must look to the totality of the circumstances, "including the background, experience, and conduct of the accused." North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); see Leza, 351 S.W.3d at 349, 352-53; Joseph, 309 S.W.3d at 25.
A waiver can be expressly made or implied by the accused's conduct. Berghuis v. Thompkins, 560 U.S. 370, 383, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010); Joseph, 309 S.W.3d at 24. An implied waiver of one's rights is established upon a showing that the accused: (1) was given the proper warnings; (2) understood the warnings and their consequences; and (3) made an uncoerced statement. Berghuis, 560 U.S. at 381-384; see Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Leza, 351 S.W.3d at 349. "As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford." Berghuis, 560 U.S. at 385.
While it is true that a waiver cannot be presumed from an accused's silence or the fact that a confession was made after warnings were provided, "the general rule is that neither a written nor an oral express waiver is required." Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988) (en banc). Simply making a statement is often the kind of conduct viewed as indicative of one's intention to waive her rights. See Berghuis, 560 U.S. at 384; Leza, 351 S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7. This relatively low threshold for establishing waiver is because "[t]he main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel." Berghuis, 560 U.S. at 383.
Trooper Gilmore testified at the motion to suppress hearing that he read Heredia his rights and asked Heredia if he understood those rights. Although the reply in the in-car video was sufficiently inaudible for the court reporter to transcribe when the video was played during trial, Gilmore testified that Heredia said, "yeah." Gilmore also stated that Heredia had been arrested before, had been through the system before, had no problem communicating with Gilmore or understanding Gilmore's questions, and spoke fluent English. Based on the totality of the circumstances, Gilmore believed that Heredia understood and waived his statutory and constitutional rights to remain silent. The video was introduced into evidence at the hearing. On cross-examination, Gilmore's credibility was not attacked.
In argument during the suppression hearing, Heredia's counsel contended that Heredia replied, "no," when asked if he understood his rights. But the trial court watched and listened to the video many times before deciding that the complained of statements were admissible. Further, the trial court specifically found that after being advised of his rights, Heredia answered, "yeah," and concluded that Heredia's statements were voluntary and that Heredia knowingly, intelligently, and voluntarily waived his rights set out in article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005). Based on the record, the trial court was within its discretion to have determined that Heredia understood his rights. Further, based on our review of the record in the light most favorable to the trial court's conclusions, Heredia, at the very least, impliedly voluntarily waived those rights. Accordingly, the trial court did not err in denying Heredia's motion to suppress on this first theory of exclusion.
Extraneous Offenses
Heredia next complains under his first issue that the same statements were extraneous offenses and were inadmissible pursuant to Texas Rules of Evidence 401, 404(b), and 403. Initially we note that Heredia did not advise the trial court that the statements were inadmissible pursuant to Rule 404(b). Accordingly, that part of Heredia's issue does not comport with the arguments made at trial and are not preserved for our review. See TEX. R. APP. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691-692 (Tex. Crim. App. 2009). Further, Heredia fails to brief why the statement that Gilmore "found all that shit" or the statements that the driver of the vehicle paid for the cocaine were inadmissible under this part of his issue. Accordingly, any complaint regarding these two statements is improperly briefed and presents nothing for review. See TEX. R. APP. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).
We will review, however, the remaining statements 1) that Heredia had a warrant for his arrest; 2) that he called the troopers "white trash;" 3) that he used the cocaine the day before; and 4) that discussed the general price and sales of cocaine to determine whether they were relevant and if so, whether the probative value of those statements was substantially outweighed by the danger of unfair prejudice, because those same arguments were made to the trial court. Relevancy
In his brief, Heredia does not explain how these remaining statements were irrelevant or how they did not have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than would be without the evidence." TEX. R. EVID. 401. He simply concludes that the statements were irrelevant.
Heredia was charged with possession of a controlled substance, cocaine, which was found in a vehicle with two other occupants. The cocaine was not on his person; rather, it was found in a coin purse located on the floor in between the center console and the front seat. The back seat passenger, who was sitting behind Heredia, was the closest person to the pouch. Whether Heredia, the front seat passenger, was in care, custody, or control of the cocaine found in the vehicle was a fact of consequence in the trial. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) ("the State must prove that (1) the accused exercised control, management, or care over the substance...."). Further, Heredia's theory of defense was that he did not know the cocaine was in the vehicle. Thus, the statements at issue were relevant because they could lead to an inference that Heredia knew the cocaine was in the vehicle and had care, custody, or control of it. Unfair Prejudice
Again, in his brief, Heredia simply concludes that the remaining statements at issue were prejudicial. Evidence may be excluded under Rule 403 if the danger of unfair prejudice substantially outweighs the probative value of the evidence. TEX. R. EVID. 403; Greer v. State, 436 S.W.3d 1, 9 (Tex. App.—Waco 2014, no pet.). Rule 403 favors admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The trial court has broad discretion in conducting a Rule 403 balancing test, and we will not lightly disturb its decision. Allen, 108 S.W.3d at 284; Greer, 436 S.W.3d at 9.
All testimony and physical evidence will likely be prejudicial to one party or the other. Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable. Id. The fact that Heredia knew about sales and pricing of cocaine, had a warrant out for his arrest, used some of the cocaine the day before the remainder was seized, and called the troopers "white trash," were all pieces of the puzzle used by the State to show that Heredia was in possession of the cocaine. While the statements may have been prejudicial to Heredia, the statements were not so prejudicial that there was a clear disparity between the degree of prejudice and the statements' probative value.
Accordingly, the trial court did not err in denying Heredia's motion to suppress these remaining statements under this theory of exclusion.
Heredia's first issue is overruled.
DIRECTED VERDICT
In his second issue, Heredia contends the trial court erred in denying Heredia's motion for directed verdict because the evidence was insufficient to prove Heredia was in possession of the controlled substance.
We review a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App. 2003); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13.Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the evidence" includes evidence that was properly and improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307, 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence are treated equally: "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the factfinder is entitled to judge the credibility of witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
To prove unlawful possession of any controlled substance, "the State must prove that (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband." Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West 2010) ("'Possession' means actual care, custody, control, or management."). Possession is not required to be exclusive. Roberts v. State, No. 10-14-00048-CR, 2015 Tex. App. LEXIS 78, 3-4 (Tex. App.—Waco Jan. 8, 2015, no pet. h.) (not designated for publication). When the defendant is not in exclusive possession of the place where the controlled substance is found, then additional, independent facts and circumstances must link the defendant to the substance in such a way that it can reasonably be concluded that the defendant possessed the substance and had knowledge of it. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). In other words, the evidence "must establish, to the requisite level of confidence, that the defendant's connection with the [contraband] was more than just fortuitous," which may be established by direct or circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).
Heredia was not in exclusive possession of the place where the cocaine was found. He was the front seat passenger of an SUV that was pulled over for traffic violations by Trooper Gilmore. When stopped, the driver and back seat passenger appeared fidgety. Heredia had an outstanding warrant for his arrest and was placed under arrest and placed in the trooper's patrol unit. The driver of the SUV, who was also the owner, gave Gilmore permission to search the vehicle. The coin purse was found pursuant to the search. In the purse was the cocaine.
Heredia contends that the evidence was insufficient to show he was in possession of the cocaine because the driver testified at Heredia's trial that he bought the cocaine and that Heredia did not know about it. Further, both the driver and the female passenger pled guilty to possessing the cocaine.
The evidence also showed, however, that when the cocaine was found, Heredia, in the patrol car by himself, commented that the trooper "found all that shit." He also made a comment to himself about the troopers searching the vehicle, calling them "white trash." After being warned of his statutory and Miranda rights, Heredia told Gilmore that the driver purchased the cocaine the day before for Heredia's girlfriend, the backseat passenger. Heredia admitted to using some of the cocaine the day it was purchased. He was also very familiar about the going price of cocaine and how it made him feel when he used it.
Viewing the record in the light most favorable to the judgment, we find that the evidence was sufficient for the jury to have found Heredia guilty of possessing the cocaine.
Heredia's second issue is overruled.
CONCLUSION
Having overruled each of Heredia's issues on appeal, we affirm the trial court's judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed
Opinion delivered and filed March 5, 2015
Do not publish
[CRPM]
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).