Opinion
No. 14-10-00357-CR
Opinion filed May 24, 2011. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 1201763.
Panel consists of Justices BROWN, BOYCE, and JAMISON.
MEMORANDUM OPINION
A jury found appellant Marcus Marquis Pruitt guilty of possessing between four and 200 grams of cocaine by aggregate weight, including any adulterants or dilutants, with the intent to deliver. The jury assessed an enhanced sentence of imprisonment for 35 years. We affirm.
BACKGROUND
Houston Metro Police Department Officer Robert Smith was on patrol at about 3:00 a.m. when he found appellant unconscious behind the wheel of his idling car at the intersection of Austin Street and Gray Street in Houston, Texas, on February 2, 2009. Officer Smith testified that he turned on his emergency lights and "hit the siren a couple of times," but that appellant did not wake up until after Officer Smith knocked on the window of appellant's car and yelled for "a minute or two." Officer Smith instructed appellant to put the car in park, turn off the engine, and exit the car; appellant complied. Officer Smith testified that appellant's "eyes were glassy" and he "had an odor of alcohol on or about his person." Officer Smith also testified that appellant "had a little bit of swaggering and was unsteady on his feet." Because he believed appellant to be intoxicated, Officer Smith arrested appellant for public intoxication and placed him in the patrol vehicle. Officer Smith performed a search of appellant's person and discovered $901 in cash; appellant stated that he received the money from working and gambling earlier that day. Officer Smith testified that he arranged for appellant's car to be towed because appellant's car was in the middle of the intersection and appellant was under arrest. During a post-arrest search of appellant's car, Officer Smith discovered a camouflage jacket; it is disputed whether Officer Smith recovered the jacket from appellant's back seat or by forcibly entering appellant's locked trunk by removing the back seat of appellant's car. When Officer Smith moved the jacket to look underneath it, a small black bag fell out. Inside the open black bag, Officer Smith saw what he believed to be "crack rocks" inside a pill bottle and "crack cookies" in a clear plastic bag. Officer Smith testified that the substance in the pill bottle and plastic bag field tested positive for cocaine, and that such a "[large] amount" of crack cocaine more likely would be carried by a seller rather than a user. He also testified that he found no evidence of crack cocaine use in appellant's car. Officer Smith met with Houston Police Department K-9 Officer Richard Corrales after appellant's car was towed, and Officer Corrales's narcotic detection dog alerted to the $901 in cash. Houston Police Department crime lab criminalist specialist James Miller testified that he performed several laboratory tests on the substance recovered from the jacket in appellant's car, which he determined to be 19.7 grams of crack cocaine. Appellant filed a pre-trial pro se motion to suppress the crack cocaine found in his car as the fruit of an illegal search. The trial court denied the motion. Appellant re-urged the motion to suppress at trial. Appellant did not request and the trial court did not include an instruction in the charge directing the jury to disregard evidence of the crack cocaine if the jury believed, or had a reasonable doubt that "the evidence was obtained in violation of [the laws or Constitution of Texas or the United States]." See Tex. Code. Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). The jury returned a verdict of guilty. After a trial on punishment, the trial court sentenced appellant to imprisonment for 35 years in accordance with the jury's verdict, which was based on two enhancement paragraphs. Appellant timely appealed, arguing (1) his trial counsel was ineffective; and (2) the trial court erred in failing to instruct the jury to consider the legality of Officer Smith's search.ANALYSIS
I. Ineffective Assistance of Counsel
Appellant argues in his first issue that his trial counsel was ineffective for failing to obtain a ruling on the re-urged motion to suppress the crack cocaine recovered from appellant's car. An ineffective assistance of counsel issue may be raised for the first time on direct appeal, although the record on such a direct appeal often will not be sufficient to show that counsel was ineffective. Cannon v. State, 252 S.W.3d 342, 347 n. 6, 350 (Tex. Crim. App. 2008). In determining whether his trial counsel's representation was ineffective such that it violated appellant's Sixth Amendment right to counsel, we use the two-prong test laid out in Strickland v. Washington, 466 U.S. 668 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 668). To establish ineffective assistance of counsel, a defendant must show that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. The following exchange took place during Officer Smith's testimony offered by the State:[COUNSEL FOR APPELLANT]: Your Honor, as part of the reurging the motion to suppress, may I ask this be done outside the presence of the jury? I think [the State's] about to get into what [Officer Smith] found in the car.
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(At the Bench)
THE COURT: Okay. They are entitled to put on their case. If you have something else you want to ask him outside the presence of the jury when [the State's] through, we can do that.
[COUNSEL FOR APPELLANT]: Judge, he is about to go into what he found in the car, particularly, the drugs, in which case once it is before the jury, then it doesn't do me any good.
THE COURT: If I grant your motion, they are done. We are in the middle it [sic]. Jeopardy attached, so.
[COUNSEL FOR APPELLANT]: Okay.
THE COURT: I am carrying it along with the trial. That's what I'm trying to think through, whatever you want to put on. If you have something else you want to put on outside the presence of the jury, that's fine, but the —
[COUNSEL FOR APPELLANT]: Okay. That's fine, Judge. I understand.The State presented its case in chief, and appellant's counsel presented testimony from appellant regarding the arrest and search. Appellant's counsel then stated:
[COUNSEL FOR APPELLANT]: Judge, I am assuming my motion to suppress was denied?
THE COURT: Yes, ma'am.This exchange belies appellant's contention on appeal that his counsel's performance fell below an objective standard for reasonableness because counsel failed to obtain a ruling on the re-urged motion to suppress. See Thompson, 9 S.W.3d at 812 (citing Strickland, 466 U.S. at 668). We overrule appellant's first issue.
II. Article 38.23(a) Instruction
Appellant argues in his second issue that the trial court should have instructed the jury under article 38.23(a) of the Code of Criminal Procedure, and that the failure to do so egregiously harmed appellant. See Tex. Code Crim. Proc. Ann. art. 38.23(a). Article 38.23(a) states:No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
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 this Article, then and in such event, the jury shall disregard any such evidence so obtained.Id. An article 38.23(a) jury instruction must be given in any case in which the defense raises a factual dispute about the legality of how the evidence was obtained; the requirement for such an instruction does not depend on a request from the defendant. Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005). However, when a defendant fails to request such an instruction, we review the alleged error for egregious harm. Roberts v. State, 321 S.W.3d 545, 553 (Tex. App.-Houston [14th Dist.] 2010, pet. ref'd) (citing Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004), and Ortiz v. State, 144 S.W.3d 225, 231 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd)). A defendant must meet three requirements before he is entitled to a jury instruction under article 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
A. Entitlement to an Instruction
Appellant argues: "In the present case such an issue was in fact raised by the testimony of Appellant that the drugs were found in the car, that the trunk was locked, and that he did not give permission to the officer to search the trunk. . . . Appellant's testimony was further supported by the evidence slip by the arresting officer to the police lab, which stated that the drugs were found in the trunk." Officer Smith testified at trial that he found the camouflage jacket containing the crack cocaine in the back seat of appellant's vehicle. However, he indicated on the evidence submission form that the jacket containing the crack cocaine was recovered from the vehicle's trunk. He testified:Q. So can you tell us why this evidence submission form [ — ] that you said you filled out truthfully [ — ] indicates that it was found in the jacket in the trunk of the car?
A. It was — it has been a while back, back on February 2nd of '09. I filled it out. Never was able to get into the trunk. Asked Mr. Pruitt how to get into the trunk and he said it wasn't working.
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Q. But why — can you explain to us why the evidence submission form would indicate that you found it in the jacket in the trunk of the car?
A. Probably just a mistake or omission on my behalf.Appellant testified that he was seated in the patrol vehicle during the search with an unobstructed view of his car, which was parked directly in front of the patrol vehicle. He testified regarding the search:
Q. After [Officer Smith] searched the passenger — I mean, the driver's area, did he find anything or did he indicate to you that he had found anything?
A. No, ma'am.
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Q. Okay. After he searched the driver's area [of your car], where did he search?
A. Backseat.
Q. Did he ever search the front passenger side.
A. Yeah. He searched the whole front side first, then he went to the back.
Q. Okay. What happened next?
A. Approximately two more officers appeared at the scene.
Q. Any idea who they were?
A. They was Metro police officers too.
Q. Okay. And did he have — did Officer Smith have a conversation with them?
A. Yes, ma'am.
Q. Did — what happened next?
A. Once he had a conversation — conversation with them, they immediately start[ed] searching my car, also.
Q. So at this time they had three officers searching your car?
A. Yes, ma'am.
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Q. Did you — what happened next after they searched the backseat of the car and didn't find anything?
A. Well, the officer — all three officers repeated [sic] search and search and search the passenger area of my car repeatedly, you know what I'm saying, to no avail.
Q. How long, if you can remember, were they searching your car?
A. They searched it for a good while, passenger only.
Q. Okay. Give me an idea of time.
A. I say 30 minutes.
Q. 30 minutes of searching inside the car. What happened next?
A. Well, they tried to get into the trunk.
Q. And when you say they tried to, was there something wrong with your trunk?
A. No, it wasn't nothing wrong with my trunk.
Q. Okay. So why couldn't they get in it?
A. I drive a 2005 Grand Prix, you know what I'm saying? Only two ways you can get in my trunk, by remote control or you can hold the unlock switch button down. At that time my remote control was broke. I had ordered a new — a new one was in order, so they couldn't get in the trunk that way.
Q. So the remote wasn't working.
A. Yes. I didn't have it at all. I had it on my keychain.
Q. And what is the other way to get in the trunk?
A. You got to hold the unlock switch down on my car. It will pop open.
Q. Did they do that?
A. They didn't have no knowledge of that.
Q. Did they ever ask you about getting in the trunk?
A. They never asked me. They only asked the wrecker driver for assistance, you know what I'm saying? They didn't know how to open the trunk and he asked — he told him, No.
Q. Well if you had — if they asked you how to get in your trunk, would you have told them?
A. No.
Q. And did they eventually get in the trunk?
A. Yes, ma'am.
Q. How did they get in the trunk?
A. They tore — Officer Smith tore my backseat — my backseat down and [got] in my trunk that way.
Q. And did he find anything in the trunk?
A. Yes, ma'am.
Q. And what was found in the trunk?
A. He found the jacket, you know what I'm saying, with the — that had the drugs in it.
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Q. Now, you heard Officer Smith testify that the jacket with the drugs was found in the backseat of the car. Is that true?
A. No, ma'am.
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Q. [Y]ou are saying that they basically ripped your car apart looking for these drugs, correct?
A. No, ma'am. They just ripped my backseat out.The jury therefore heard affirmative and contested evidence on the factual issue of whether the crack cocaine was discovered in the back seat or in the trunk of appellant's car. See Madden, 242 S.W.3d at 510. Appellant and the State disagree about whether the issue is material and whether appellant therefore was entitled to an article 38.23(a) instruction. See id. The State argues that the dispute is immaterial because even if Officer Smith found the crack cocaine in the manner described by appellant, the trunk nonetheless was within the permissible scope of a lawful post-arrest inventory search. The State relies on Richards v. State, 150 S.W.3d 762 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (en banc), in making this argument. Richards held that the trial court did not err in concluding that the police officer, who testified that he acted pursuant to his training, lawfully accessed the locked trunk of the appellant's vehicle with the ignition key. Id. at 771 ("The opening and inventory of easily-accessible containers serves both to protect the owner's property and to insure against false claims."). Appellant did not testify that Officer Smith accessed appellant's trunk with a key, or that the trunk was readily accessible. Appellant testified that Officer Smith "tore [the] backseat — [the] backseat down and [got] in [the] trunk that way," and that "[t]hey just ripped my backseat out." The circumstance described by appellant differs from "[t]he opening and inventory of easily-accessible containers" discussed in Richards. See Gill v. State, 625 S.W.2d 307, 320 (Tex. Crim. App. 1980) (op. on reh'g) ("Here, as the police officers had lawfully impounded the automobile, they had the lawful right to perform 'caretaking' functions regarding it. However, under the facts presented, they did not have the lawful right to forcibly enter the locked trunk of the automobile" by pulling the seat back so the officers could inspect the trunk), overruled in part on other grounds by Osban v. State, 726 S.W.2d 107, 108-10 (Tex. Crim. App. 1986), overruled by Heitman v. State, 815 S.W.2d 681, 685 (Tex. Crim. App. 1991); cf. Delgado v. State, 718 S.W.2d 718, 721-22 (Tex. Crim. App. 1986) (distinguishing use of force in Gill from situation in which officer uses defendant's key to access and inventory locked trunk); Kelley v. State, 677 S.W.2d 34, 37 (Tex. Crim. App. 1984) (same); Stephen v. State, 677 S.W.2d 42, 44 (Tex. Crim. App. 1984) (same). We assume without deciding that appellant was entitled to an article 38.23(a) instruction under these circumstances, and that a factual dispute regarding discovery of the crack cocaine in the back seat versus discovery after forced entry into appellant's locked truck by "ripp[ing] the back seat out" is material to determining whether the search can be justified as a lawful inventory search. Even with these assumptions, reversal is not warranted unless appellant was egregiously harmed by the trial court's failure to include an article 38.23(a) instruction. See Roberts v. State, 321 S.W.3d at 553-54. We now turn to that inquiry.
B. Egregious Harm
Egregious harm is a difficult standard that must be determined on a case-by-case basis. Id. at 553 (citing Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002), and Green v. State, 233 S.W.3d 72, 78 (Tex. App.-Houston [14th Dist.] 2007, pet ref'd)). Egregious harm due to charge error exists if the error affects the very basis of the case, deprives the accused of a valuable right, or vitally affects a defensive theory. Id. at 553-54 (citing Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008)). The error must have been so harmful as to effectively deny the accused a fair and impartial trial. Id. at 554. In determining whether appellant suffered egregious harm, we consider (1) the entire jury charge; (2) the state of the evidence, including the contested issues and weight of probative evidence; (3) arguments made by counsel; and (4) any other relevant information revealed by the record as a whole. Oursbourn v. State, 288 S.W.3d 65, 69 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (citing Stuhler, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). We place no burden of proof or persuasion to show egregious harm on either appellant or the State. Id. (citing Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008)). Before we can find egregious harm, the record must show that appellant suffered actual, rather than merely theoretical harm from the jury charge error. Id. (citing Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1984)). We determine whether appellant suffered egregious harm by analyzing the impact of the jury instruction, not by analyzing the impact of the admission of the challenged evidence. See id. (citing Ellison, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002)). With respect to the jury charge, the jury was instructed on the offense as set forth in the indictment. In a possession with intent to deliver case, the State must prove that the accused (1) exercised care, custody, control, or management over a controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. See Tex. Health Safety Code Ann. §§ 481.002(38), 481.112(a), (d) (Vernon 2009); see also Parker v. State, 192 S.W.3d 801, 805 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). The charge explained the requirements of the offense in conformity with these elements, and included appropriate definitions that are not challenged on appeal. No portion of the charge addressed whether the jury could consider or disregard evidence based upon whether that evidence was lawfully obtained. "Here, the error was the omission of an instruction, rather than the presentation to the jury of an erroneous instruction." Taylor v. State, 332 S.W.3d 483, 493 (Tex. Crim. App. 2011). Therefore, this is not a circumstance in which the jury is presumed to have followed — and been led astray by — an instruction in the charge that affirmatively misstated the law. Compare id. at 493 (omission of instruction limiting jury's consideration to events occurring after appellant's seventeenth birthday did not result in egregious harm), with Hutch v. State, 922 S.W.2d 166, 172, 174 (Tex. Crim. App. 1996) (egregious harm resulted from inclusion of erroneous jury instruction that "was 180 degrees opposite of what it should have been"). Turning to the state of the evidence, appellant argues as follows on appeal: "Without the admission of the drugs there would have been no case against Appellant, as the trial court stated on the record." This argument does not account for all of the evidence introduced at trial — in particular, extensive evidence pertaining to possession and intent that was proffered by the appellant himself after the trial court made the observation paraphrased in appellant's brief. Appellant did not argue at trial or in his appellate brief that his extensive testimony regarding cocaine in his possession was impelled by the State's introduction of evidence obtained in violation of the law, and we cannot speculate as to whether appellant would have testified under different circumstances. See Davis v. State, 203 S.W.3d 845, 855 (Tex. Crim. App. 2006). Appellant testified as follows on direct examination:A. So when I get in the house, my — everything is full, so I get in the house. I drop everything, had planned to go back and get my coat out of the trunk, but my phone ring [sic]. When I heard the phone ring, a customer calling me, you know what I am saying, wanting some drugs. I let him know I was out because I am through, you know what I'm saying.
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A. Basically, I agree that that's my dope. I am not — I take full responsibility. Only thing I am saying, I did not knowingly and intentionally possess that dope for the simple fact I honestly forgot the dope was in the trunk.
I don't — I had every intention when I went home to retrieve my dope from the trunk and put it in my house. For the simple fact I got into a little argument/fight with my girlfriend about going back out to the club, I got sidetracked you know what I'm saying.
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A. I just took a wash-up and I just forgot to go back and get the dope out of the trunk.The following day, appellant's counsel informed the court that appellant had presented her with a list of 20 or so additional questions he wanted her to ask him in front of the jury. Appellant's counsel stated at a hearing outside the jury's presence, "I do not feel, as his attorney, that it is in his best interest that I bring this information before the jury," and asked to make a record establishing that appellant insisted upon having the questions asked. The trial court complied with counsel's request, and appellant confirmed on the record his desire to have the questions asked. Following this confirmation, appellant's counsel asked the questions while the jury was present. Appellant testified on redirect as follows.
Q. Okay. Sir, can you tell me the difference between blow-up dope and straight dope?
A. Well, the difference between blow-up and straight dope, straight dope is basically baking soda and cocaine mix. It is really a — basically a pure form of cocaine. Blow-up dope, for instance, you have — take 28 grams make an ounce. To make an ounce of blow-up dope, I require 14 grams, which would stretch out the dope. I give them more dope, but the quality of the dope will be like trash.
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A. The value of the dope that I was arrested with, it was approximately $1500, but what I paid for the dope was approximately $500. It was blow-up dope. And —
Q. Okay.
A. And the different [sic] with blow-up dope, when you cook it, it is wet. Straight dope, when you cook straight dope, you know what I'm saying, it dries faster. And blow-up dope, also, even after you cook it, it will still be wet, it doesn't dry fast, but still be wet and it shrinks.
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A. What made me start selling drugs? They come up in the ghetto, small, mother needed things. Man in that house seeing cousin, other family do it, thought it was what is best to do, you know what I am saying, in order to survive.
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Q. Do you enjoy selling drugs?
A. No, ma'am.Appellant's additional testimony constitutes evidence that appellant (1) sold drugs and received communications from his customers; and (2) was arrested with $1500 worth of "blow-up dope." Officer Corrales testified that one gram of crack cocaine sells for approximately $100. Appellant's testimony provided an ample and compelling basis for the jury to conclude that appellant exercised care, custody, control or management over at least 15 grams of crack cocaine, including any adulterants and dilutants, which he intended to deliver to another with knowledge that the crack cocaine was a controlled substance. This basis would exist on this record even if the jury had (1) been instructed under article 38.23(a); and (2) disregarded the crack cocaine found in appellant's car. The State also introduced Officer Corrales's testimony that his K-9 narcotic detection dog alerted to appellant's $901 in cash. Officer Corrales testified that his narcotic detection dog is certified to alert at four different narcotic odors — marijuana, cocaine, heroin, and methamphetamines. He explained that he cannot know which narcotic triggers the alert or how the narcotic came into contact with the currency. He testified that the length of time narcotics odor would stay on cash would vary depending on whether someone carrying the currency is frequently in contact with narcotics or sharing an environment with narcotics. Officer Corrales testified that it would be "almost unbelievable" for an individual to possess approximately 19 grams of crack cocaine for personal use rather than for sale. Officer Smith similarly testified that the amount of cocaine possessed by appellant was probably for sale. From this evidence, the jury could have concluded that appellant possessed the crack cocaine with the intent to deliver it. During closing argument, the State relied heavily and repeatedly upon appellant's admissions during his testimony. The State highlighted appellant's testimony in reference to each element of the offense. Appellant's counsel emphasized appellant's contention that he did not act knowingly because he had forgotten about the drugs in the trunk of his car and had forgotten to take them out before leaving to go out for the evening. In rebuttal, the State again emphasized appellant's testimony and stated, "[H]e told you not only did he buy that crack or cocaine to be able to make those crack cookies to sell on the street, but he intentionally put them in his car." The State continued, "He intentionally went out on the streets with the[m]. He knew that he was engaging in conduct that could lead to crack being in his vehicle." Given this record, we cannot say that the omission of the article 38.23(a) instruction caused egregious harm. This is particularly so in light of testimony that appellant insisted upon giving against the advice of counsel. See Taylor, 332 S.W.3d at 493 ("[T]he jury in this case could have convicted Appellant based upon evidence presented, even if the proper instruction had been given. . . ."); Cummings v. State, No. 14-10-00107-CR, 2011 WL 1045448, at *3 n. 2 (Tex. App.-Houston [14th Dist.] March 24, 2011, no pet. h.) (omission of article 38.23(a) instruction was not error; "[e]ven if the trial court had erred, we would conclude that appellant did not suffer egregious harm."); cf. Hutch, 922 S.W.2d at 172 ("[W]e must presume the jury followed the erroneous instruction which authorized the stop if appellant was wearing a seat belt. In fact . . . such a stop would have been illegal. Under the erroneous instruction, the only way the jury could have convicted was by using illegally obtained evidence.") (original emphasis). We overrule appellant's second issue.