Opinion
No. 11-05-00043-CR
Opinion filed April 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 385th District Court Midland County, Texas, Trial Court Cause No. CR29506.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
OPINION
The jury convicted appellant, Jesus Caballero Sanchez, of the third degree felony offense of possession of cocaine. The trial court assessed punishment at two years confinement. We affirm. Issues on Appeal Appellant presents two issues for review. In his first issue, appellant argues that he received ineffective assistance of counsel because his trial attorney failed to file a motion to suppress the cocaine and failed to object to the introduction of the cocaine as evidence at trial. In his second issue, appellant argues that the trial court erred in denying his motion for new trial based on newly discovered evidence. After appellant's trial, Anthony Garcia, a co-defendant, told appellant's wife that the cocaine belonged to him. The newly discovered evidence consists of Garcia's statement that the cocaine was his. The Evidence At Trial Officers Sean Alexander Sharp and William Taylor Welch of the Midland Police Department were on patrol during the evening hours of March 13, 2004. They stopped at the Dos De Oro bar, a place having a reputation for drug activity. Appellant and his wife owned Dos De Oro. Officer Welch testified that Dos De Oro's men's restroom was known by police as a place where people use and sell drugs. Officer Welch said that several people had been arrested for possession of drugs at Dos De Oro. Officer Geo Mitchell of the Midland Police Department also testified about Dos De Oro's reputation for drug activity. Officer Mitchell said that he had made four or five cocaine arrests at Dos De Oro. Officer Sharp and Officer Welch stopped at Dos De Oro on March 13, 2004, because of its reputation for drug activity. Officer Sharp entered the men's restroom. Officer Welch was behind him in the doorway to the restroom. Officer Sharp said that the restroom had one stall and that the stall door was cracked open when he entered the restroom. Officer Sharp leaned down to look under the stall door, and he saw two sets of feet in the stall. The people in the stall were facing each other. Officer Sharp said that he did not hear the people in the stall talking or exchanging anything and that he could not see what was going on inside the stall because the stall door was blocking his view. Officer Sharp testified that he pushed open the stall door. Appellant and Garcia were standing in the stall. Officer Sharp said that appellant and Garcia looked surprised. Appellant was standing close to the toilet with his back to the toilet, and Garcia was facing appellant. Officer Sharp saw appellant turn around and throw something into the toilet. Officer Welch handcuffed Garcia, and Officer Sharp handcuffed appellant. Officer Sharp found a clear plastic bag containing a white substance on the floor next to the toilet. Officer Sharp picked up the bag and put it into his shirt pocket. The officers took appellant and Garcia outside and performed a field test on the white substance. The substance tested positive for cocaine. Officer Sharp testified that he would have seen the bag of cocaine on the floor if it had been there when he looked under the stall door. Officer Sharp searched appellant and found over $3,000 in cash in appellant's possession. Officer Welch testified that he and Officer Sharp did a walk through of Dos De Oro on March 13, 2004. He said that they went straight to the men's restroom. Officer Sharp indicated to Officer Welch that he saw two sets of feet in the restroom stall. Officer Welch said that the door to the stall was partially closed. The officers did not hear any talking coming from the stall. They did not wait to listen for talking before opening the stall door because they did not want to give the people time to get rid of any drugs by flushing them down the toilet. When Officer Sharp opened the stall door, Officer Welch saw appellant and Garcia standing in the stall with surprised looks on their faces. Appellant was standing between the toilet and Garcia. Officer Welch did not see appellant throw anything, but he did see appellant's arm go down. Officer Welch looked down and saw a bag of white powder on the ground next to the toilet, closer to appellant than Garcia. Officer Welch believed that the white powder was cocaine. Officer Welch and Officer Sharp did not find anything in the toilet. Officer Welch said that he never heard the toilet flush. Officer Welch said that Officer Sharp found $3,518 when he searched appellant. Sherrill Bradford, a technician with the Midland Police Department, took the white substance to the Department of Public Safety Crime Lab for testing. Dennis Hambrick, a DPS chemist, tested the substance. He said that it contained 3.5 grams of cocaine, including adulterants and dilutants. Officer Mitchell testified that he and Officer Juan Carranco had gone to Dos De Oro about an hour before appellant and Garcia were arrested. He and Officer Carranco had been looking for drug activity. At that time, appellant told Officer Mitchell that he knew about the drug problem at Dos De Oro. Appellant testified that he had gone into the restroom to use it and clean it. He said that he could not open the door to get into the stall because Garcia was standing outside of the stall. He wanted Garcia to move so that he could go into the stall. Appellant said that he was standing with his back to the police when they came into the restroom. He said that he and Garcia were standing outside the stall at the time. Appellant said that he did not know what was happening and that the police did not say anything. Appellant testified that he did not have anything to do with the cocaine, that he did not know cocaine was on the floor next to the toilet, and that he did not know who put it there. Appellant testified that he never had the cocaine in his hands and that he did not throw anything to the ground. Appellant said that he had $3,558 in his possession when he was arrested. He said that the money came from bar sales, not from drug sales. Appellant testified that he kept his money on him because he had been robbed twice at the bar. Appellant denied telling the police that there was a big drug problem at his bar. Ineffective Assistance of Counsel In his first issue, appellant argues that he was denied effective assistance of counsel at trial because his trial counsel failed to file a motion to suppress the cocaine and to object to the introduction of the cocaine as evidence at trial. Appellant asserts that he had a reasonable expectation of privacy in the restroom stall and that, therefore, the officers' search of the stall was illegal. Appellant contends that the cocaine discovered in the search should have been suppressed due to the illegality of the search. To determine whether appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999); Hooks v. State, 73 S.W.3d 398 (Tex.App.-Eastland 2002, no pet.). The burden of proving ineffective assistance rests with appellant. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). A trial counsel's failure to file a motion to suppress is not per se ineffective assistance of counsel. Hammond v. State, 942 S.W.2d 703, 710 (Tex.App.-Houston [14th Dist.] 1997, no pet.); Bonilla v. State, 740 S.W.2d 583, 586-87 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). Rather, to satisfy the Strickland test, appellant must prove that a motion to suppress would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). Unless appellant has shown that the motion to suppress had merit and that a ruling on the motion would have changed the outcome of the case, his counsel will not be found ineffective for failing to assert the motion. Id. (citing Roberson v. State, 852 S.W.2d 508, 510-12 (Tex.Crim.App. 1993)). To meet his burden, appellant was required to produce evidence that would defeat the presumption of proper police conduct. Id.; Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986). To prevail on his claim of ineffective assistance of counsel, appellant had the burden to develop facts and details of the search sufficient to conclude that the search was invalid. Id. For a warrantless search to be justified, the State must show the existence of probable cause at the time the search was made and the existence of exigent circumstances that made procuring a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991). Probable cause to search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead someone of reasonable prudence to believe the instrumentality or evidence of a crime will be found on the premises. Id. Exigent circumstances may arise in a number of circumstances, including preventing the destruction of evidence or contraband. Id. at 107. Appellant relies on Cook v. State, 762 S.W.2d 714 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). Cook involved the warrantless search of a restroom stall during a rock concert at the Summit sports arena in Houston. The court recognized that the defendant had a reasonable expectation of privacy while inside the restroom stall with the door shut. However, the court held that, based on the totality of the circumstances, a police officer had probable cause to conduct the warrantless search of the stall occupied by the defendant and two others. Id. at 715-16. In Cook, a police officer received information that several men were dealing heroin or cocaine and "shooting up" in a men's restroom stall. The officer knew that drug transactions occurred in the restrooms at the Summit and that narcotics could be, and often were, disposed of by flushing them down the toilet. The officer went inside the restroom, looked under the stall doors, and saw three pairs of legs in one of the stalls. Because the officer considered the presence of three individuals in the stall to be suspicious activity, he investigated further by going into the adjacent stall. He stood up on the toilet and looked down into the subject stall. The officer saw the defendant handing a bag containing white powder to one of the other occupants in the stall. The officer, believing that the white substance was contraband, identified himself and told the occupants in the stall to stop what they were doing. One of the occupants dropped the bag containing the white powder into the commode, and the defendant began stuffing a plastic pouch into his waistband. Later, the police found sixteen bags of cocaine in the pouch that the defendant had stuffed into his waistband. Id. at 715. The Cook court explained that, when the officer observed three men in the stall, it was not irrational for him to conclude that they were not using the stall for its regular and intended purpose. Id. at 716. The court stated that, because drugs are easily disposed of by flushing them down toilets, the situation "made the circumstances sufficiently exigent to disallow time to procure a warrant." Id. The court concluded that the officer had probable cause to conduct the warrantless search of the stall. Id. Cook involved facts similar to the facts in this case. In this case, the evidence established that drug transactions occurred at Dos De Oro, specifically in the men's restroom at Dos De Oro. Dos De Oro was known by the police as a place where people used and sold drugs, and the police had made many drug arrests at Dos De Oro. When Officer Sharp looked under the stall door, he saw two sets of feet. Additionally, the stall door was cracked open; it was not locked and shut. Because two men were occupying the stall, it was rational for the officers to conclude that the stall was not being used for its regular and intended purpose. The evidence also showed that narcotics may be disposed of by flushing them down the toilet, thus creating an exigent circumstance — possible destruction of evidence — that made procuring a warrant impracticable. Viewing the totality of the circumstances, the officers had probable cause to conduct the warrantless search of the restroom stall. Because the record does not demonstrate that a motion to suppress would have been granted, appellant's ineffective assistance of counsel claim must fail. Additionally, the record is silent as to appellant's trial counsel's trial strategy, if any, in failing to file a motion to suppress. Appellant did not raise his ineffective assistance of counsel claim in his motion for new trial nor did he present any evidence in support of the claim to the trial court. Absent record evidence, we must not speculate as to trial counsel's strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). When a record is silent as to trial counsel's strategy, we "will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). The record does not establish that appellant's trial counsel's conduct in failing to file a motion to suppress was so outrageous that no competent attorney would have engaged in it. We overrule appellant's first issue. Newly Discovered Evidence In his second issue, appellant complains that the trial court erred in denying his motion for new trial based on newly discovered evidence. At the hearing on his motion for new trial, appellant introduced a tape recording of a conversation between his wife and Garcia. On the tape, Garcia made the following statement about the cocaine in question: "Yes, I know it was mine." Appellant's wife testified that she recorded the conversation after appellant's trial. Appellant claims that it was by virtue of this recorded conversation that he learned Garcia was claiming ownership of the cocaine. Thus, the newly discovered evidence in this case consists of Garcia's statement that the cocaine belonged to him. The record shows that Garcia was charged with possession of the cocaine in question. On August 18, 2004, Garcia pled guilty to possession of the cocaine. The trial court assessed his punishment at ten years confinement, suspended the sentence, and placed Garcia on community supervision for five years. Garcia testified at the hearing on appellant's motion for new trial. He denied that the cocaine was his. He refused to answer some questions about the cocaine, taking the Fifth Amendment. An accused is entitled to a new trial when material evidence favorable to the accused has been discovered since trial. Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon Supp. 2005). Motions for new trial based upon newly discovered evidence are not favored by the courts and are viewed with great caution. Drew v. State, 743 S.W.2d 207, 225 (Tex.Crim.App. 1987). We review a trial court's decision to grant or deny a motion for new trial under an abuse of discretion standard. Keeter v. State, 74 S.W.3d 31, 37 (Tex.Crim.App. 2002). To establish an abuse of discretion in the failure to grant a new trial based on newly discovered evidence, an appellant must show each of the following requirements: (1) that the evidence was unknown to him before trial; (2) that his failure to discover the evidence was not due to a lack of diligence; (3) that the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) that the new evidence is probably true and will probably bring about a different result in a new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex.Crim.App. 2003); Keeter, 74 S.W.3d at 36-37. A failure of a defendant to establish any of these four essential requirements for a new trial based on newly discovered evidence warrants the trial court's denial of the motion. Delamora v. State, 128 S.W.3d 344, 354 (Tex.App.-Austin 2004, pet. ref'd); Shafer v. State, 82 S.W.3d 553, 556 (Tex.App.-San Antonio 2002, pet. ref'd). Appellant failed to establish the second and fourth requirements for a new trial based on newly discovered evidence. To satisfy the second requirement, appellant had the burden to allege and prove that the failure to discover the evidence before his trial was not due to a lack of diligence. Delamora, 128 S.W.3d at 355; Burns v. State, 844 S.W.2d 934, 935 (Tex.App.-Amarillo 1992, no pet.). Appellant did not plead that the failure to discover the evidence was not due to a lack of diligence, nor did he present any evidence on the issue at the hearing on his motion for new trial. The record does not contain any evidence about appellant's efforts, if any, to discover the evidence before trial. Appellant failed to meet his burden as to the requirement of due diligence. To satisfy the fourth requirement, appellant had the burden to show that the new evidence was probably true and would probably bring about a different result in a new trial. The trial court is the trier of fact at a hearing on a motion for new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). The credibility of the witnesses and the probable truth of the new evidence is primarily a determination for the trial court. Etter v. State, 679 S.W.2d 511, 515 (Tex.Crim.App. 1984); Williams v. State, 504 S.W.2d 477, 483 (Tex.Crim.App. 1974). If the newly discovered evidence is of questionable weight and credibility and would probably not bring about a different result upon a new trial, the trial court does not abuse its discretion in refusing a new trial. Jones v. State, 711 S.W.2d 35, 37 (Tex.Crim.App. 1986); Driggers v. State, 940 S.W.2d 699, 709 (Tex.App.-Texarkana 1996, pet. ref'd); Lyon v. State, 885 S.W.2d 506, 518 (Tex.App.-El Paso 1994, pet. ref'd). Appellant and Garcia were both indicted for possession of the cocaine. TEX. PEN. CODE ANN. § 1.07(39) (Vernon Supp. 2005) defines possession as "actual care, custody, control, or management." Even if the cocaine belonged to Garcia, both appellant and Garcia could have possessed the cocaine. The officers testified that appellant and Garcia were standing in the restroom stall. Officer Sharp testified that he saw appellant throw something, and Officer Welch testified that he saw appellant's arm go down. After appellant made the throwing motion, the officers found the bag of cocaine on the floor between appellant and the toilet. The evidence at trial was sufficient to establish that appellant was holding the bag of cocaine and that appellant was in "actual care, custody, control, or management" of the cocaine. Based on the evidence at trial, the trial court could have reasonably concluded that Garcia's statement that the cocaine was his would not produce a different result at a new trial on appellant's possession charge. Appellant failed to establish the fourth requirement for a new trial based on newly discovered evidence. On appeal, appellant asserts that he is entitled to a new trial under TEX. R. APP. P. 21.3(e) on the ground that Garcia, a material defense witness, was kept away from court by force, threats, or fraud. Appellant relies on Garcia's testimony at the hearing on appellant's motion for new trial. At the hearing, Garcia testified that he could be charged with perjury if he testified the cocaine belonged to him. However, appellant did not present any evidence that the State made any threats or did anything else to prevent Garcia from testifying at appellant's trial. Appellant is not entitled to a new trial under Rule 21.3(e). The trial court did not abuse its discretion in denying appellant's motion for new trial based on newly discovered evidence. We overrule appellant's second issue. This Court's Ruling We affirm the judgment of the trial court.