Opinion
No. 10-16-00270-CR
09-19-2018
ANTHONY TAD SHELTON, Appellant v. THE STATE OF TEXAS, Appellee
From the 18th District Court Johnson County, Texas
Trial Court No. F50740
MEMORANDUM OPINION
Appellant Anthony Tad Shelton was convicted by a jury of the offense of possession with intent to deliver four grams or more but less than two hundred grams of methamphetamine. After finding the enhancement paragraphs "True," the jury sentenced Shelton to a term of incarceration of seventy-five years. Shelton appeals his conviction in three issues, asserting that the trial court erred in denying his motions to suppress. We will affirm.
Issues
Shelton specifically argues the following:
Issue Number One: The trial court erred in denying Shelton's motion to suppress as the search warrant affidavit and search warrant were not signed by a magistrate.
Issue Number Two: The trial court erred in denying Shelton's motion to suppress as the search warrant affidavit did not establish probable cause.
Issue Number Three: The trial court erred in admitting the statement made by Shelton to law enforcement because Shelton was under the influence and was not expressly given his Miranda rights, and because the statement contained extraneous and prejudicial information.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Background
Shelton was indicted under four separate Cause Numbers: F49899, F50524, F50739, and F50740. Each indictment charged Shelton with various offenses related to methamphetamine trafficking and arose out of the same criminal episode. The State proceeded to trial in Cause Number F50740, in which Shelton was charged specifically with one count of possession with intent to deliver four grams or more but less than two hundred grams of methamphetamine. The indictment also included two felony enhancement paragraphs.
Prior to trial, Shelton filed two motions to suppress. The motion filed in Cause Number F50524 challenged the validity of the search warrant on a variety of grounds, including those raised in his present appeal—that the warrant was not properly signed by the magistrate and that the warrant did not sufficiently establish probable cause. The trial court denied the motion after a hearing. The motion filed in Cause Number F50740, entitled "Motion to Determine Admissibility of Statement," argued that the statement Shelton gave to law enforcement should not be admitted at trial due to the same grounds presented in this appeal—Shelton was under the influence when the statement was taken, Shelton was never told that his statement could be used as evidence in his trial, and the statement included hearsay and matters that were extraneous and prejudicial in nature. After a hearing, the trial court partially granted Shelton's motion and ruled that statements related to Shelton's prior conviction, incarceration, and parole should be deleted from the audio recording to be played to the jury. The trial court signed findings of fact and conclusions of law in regard to both motions on September 1, 2016, after Shelton was sentenced.
Shelton actually filed three motions to suppress, but only two are relevant to this appeal. His first motion was filed in Cause Number F49899, but no hearing was held or ruling issued on the motion. That motion is identical to the motion filed in Cause Number F50524.
Although the lack of a magistrate's signature was not specified in the motion, Shelton's counsel clarified the issue at the suppression hearing.
Shelton contends that there is nothing in the record to indicate that the trial court entered written findings of fact and conclusions of law in conjunction with the motion to suppress filed in Cause Number F50524. However, the trial court's findings on that motion were filed in the same cause number—F50524. Shelton filed a motion in Cause Number F50740 to adopt all motions and court reporter's records filed in Cause Numbers F49899 and F50524, and the motion was granted by the trial court. At the State's request, the findings of fact and conclusions of law relating to the motion to suppress filed in Cause Number F50524 were filed in the present appeal as part of the supplemental clerk's record.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); Richardson v. State, 494 S.W.3d 302, 304 (Tex. App.—Waco 2015, no pet.). The trial court is entitled to believe or disbelieve all of part of a witness's testimony—even if that testimony is uncontroverted—because he is in the best position to observe the witness's demeanor and appearance. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Therefore, we give almost total deference to the trial court's rulings on: (1) questions of historical fact, even if the trial court's determination of those facts is not based on an evaluation of credibility and demeanor; and (2) application-of-law-to-fact questions or mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.
When reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24; Kelly v. State, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those fact findings. Kelly, 204 S.W.3d at 818. We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id.
A. Magistrate's Signature. Article 18.04 of the Code of Criminal Procedure requires that a search warrant be dated and signed by the issuing magistrate. TEX. CODE CRIM. PROC. ANN. art. 18.04 (West Supp. 2017). As noted, Shelton argues that the search warrant and search warrant affidavit were not signed by a magistrate. Shelton does not argue that the search warrant and affidavit contained no signature, but rather that the signature appended to the documents was not that of the alleged signatory—Judge C.C. "Kit" Cooke. At the hearing on Shelton's motion to suppress, Shelton's attorney cross-examined Investigator Mark Goetz, who prepared the search warrant and affidavit, about the signatures. Goetz testified that Judge Cooke signed both. There was no other evidence regarding the signatures, and the trial court found that the warrant and affidavit were signed by Judge Cooke. Viewing the evidence in the light most favorable to the trial court's ruling, we find the evidence clearly supports the trial court's finding that Judge Cooke signed both the search warrant and the supporting affidavit. Shelton's first issue is overruled.
This article was amended after Shelton made his statement, but the amendment does not affect this appeal.
Goetz offered the same testimony at trial. In rebuttal, Shelton called Curt Baggett, a forensic document examiner and handwriting expert, who testified that the warrant was not signed by Judge Cooke but by Goetz. The State then called Judge Cooke, who testified that he signed both documents in question. When determining whether a trial court abused its discretion in overruling a motion to suppress, we consider only the evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced at a later proceeding. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Hardesty v. State, 667 S.W.2d 130, 135 n.6 (Tex. Crim. App. 1984). An exception to this general rule is applicable where the suppression issue has been consensually re-litigated by the parties during the trial on the merits. Hardesty, 667 S.W.2d at 135. If the parties consensually broach the suppression issue again before the fact-finder at trial, the reviewing court should also consider that evidence in gauging the propriety of the trial court's ruling on the motion to suppress. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App. 2012); see also Jackson v. State, 468 S.W.3d 189, 199 n.4 (Tex. App.—Houston [14th Dist.] 2015, no pet.). To the extent we may consider the testimony offered at trial, it further supports the trial court's finding that Judge Cooke signed the warrant and affidavit.
B. Probable Cause. As noted, a reviewing court generally applies a bifurcated standard of review when evaluating a trial court's decision on a motion to suppress. Cole, 490 S.W.3d at 922. However, a unique standard of review has evolved when the motion to suppress is based upon a magistrate's decision to issue a warrant. State v. Webre, 347 S.W.3d 381, 384 (Tex. App.—Austin 2011, no pet.); see also State v. Crawford, 463 S.W.3d 923, 928 (Tex. App.—Fort Worth 2015, pet. ref'd). Because the trial court is constrained to the four corners of the affidavit, there are no credibility determinations to which we must defer. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). Instead, when we review a magistrate's decision to issue a warrant, we apply "a highly deferential standard of review because of the constitutional preference for searches conducted pursuant to a warrant. . . ." Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). We will uphold the magistrate's probable cause determination so long as the magistrate had a substantial basis for concluding that probable cause existed. Id.; see also Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012); Moreno v. State, 415 S.W.3d 284, 287 (Tex. Crim. App. 2013). Probable cause exists if, under the totality of the circumstances, there is at least a "fair probability" or "substantial chance" that contraband or evidence of a crime will be found at the specified location. Flores v. State, 319 S.W.3d 697, 702 (Tex. App. 2010). The supporting affidavit should be reviewed in "a commonsensical and realistic manner. . . ." Jones, 364 S.W.3d at 857 (footnoted citations omitted). "Although the reviewing court is not a 'rubber stamp,' 'the magistrate's decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review.'" Id. (quoting Flores, 319 S.W.3d at 702).
The trial court made the following pertinent findings of fact in relation to the search warrant affidavit:
1. In the summer of 2015, S.T.O.P. Special Crimes Unit Investigator Mark Goetz was investigating the Defendant and his connection with the trafficking of controlled substances in Johnson County, Texas.
2. On August 13, 2015, Investigator Goetz enlisted the services of a confidential informant to do a controlled buy for seven (7) grams of methamphetamine from the defendant. Investigator Goetz had been provided information from this confidential informant on five (5) prior occasions and the information that was provided proved credible and reliable each time. Investigator Goetz met up with the confidential informant and searched the confidential informant's person and vehicle. Investigator Goetz then provided the confidential informant with $290 in cash, $250 for the methamphetamine and $40 for a third person who facilitated the buy. Investigator Goetz provided the confidential informant with audio/visual equipment, so that all of the confidential informant's movements could be monitored and recorded. The confidential informant traveled to the defendant's residence, located at 1305
North Anglin Street in Cleburne, Johnson County, Texas. The confidential informant was able to make a controlled buy from the defendant and then returned to Investigator Goetz's location. The confidential informant provided Investigator Goetz with approximately 6.55 grams of what was field tested to be methamphetamine, and was later confirmed to be methamphetamine by laboratory testing.The trial court made the following conclusions of law:
3. Based on the controlled buy that took place on August 13, 2015, Investigator Goetz prepared a search warrant affidavit and a search warrant to search the defendant's residence.
4. On August 15, 2015, Investigator Goetz travelled to the home of Senior District Judge C.C. Cooke to present the search warrant affidavit and request that a search warrant be issued for the defendant's residence. Judge Cooke swore Investigator Goetz to the search warrant affidavit placing him under oath and then signed the search warrant affidavit. Judge Cooke reviewed the search warrant affidavit, found that the search warrant affidavit contained probable cause for the issuance of a search warrant, and signed a search warrant for the defendant's residence at 1305 North Anglin Street in Cleburne, Johnson County, Texas. Judge Cooke also indicated the date and time of issuance.
The court concludes that the search warrant affidavit presented by Investigator Goetz on August 15, 2015, did provide probable cause for the issuance of the search warrant. The four-corners of the affidavit contain both information from a confidential informant, who had been proven reliable on at least five prior occasions, and the observations of Investigator Goetz of a controlled buy of approximately 6.55 grams of methamphetamine from the defendant's residence. Based upon the holdings in the Dixon and Moreno cases, both scenarios can provide probable cause for the issuance of a search warrant. This court finds that there is more than enough evidence contained in Investigator Goetz's affidavit to issue a search warrant for the residence of the defendant.
Dixon v. State, 206 S.W.3d 613, 619 (Tex. Crim. App. 2006).
Shelton argues that the affidavit was deficient because many of the statements by the affiant were conclusory, including those relating to the reliability of the unnamed CI ("confidential informant" or "cooperating individual"). Shelton also notes that "Goetz did not inform the magistrate about the compensation for the CI or any relationship with the CI regarding his past or pending criminal history, even though that information was known to Goetz." Shelton additionally asserts that the affidavit included nothing from Goetz to establish that two of the other informants, Pete Gonzales and Victoria "Megan" Rogers, were credible. Finally, Shelton argues that the videotape that Goetz mentions in the affidavit does not show any drug related transactions and that the substance recovered in the controlled buy was only believed to be methamphetamine as it had not been sent to a laboratory for testing.
While Shelton challenges the reliability of the CI, a CI's reliability is only one of the factors to be considered when reviewing a search warrant affidavit from a totality of the circumstances. See State v. Griggs, 352 S.W.3d 297, 305 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). The fact that the CI provided reliable information five times previously was independently sufficient to establish probable cause. See Dixon, 206 S.W.3d at 619 (informant's veracity and basis of knowledge sufficient by themselves to establish probable cause); see also State v. Duarte, 389 S.W.3d 349, 357-58 (Tex. Crim. App. 2012). Although Shelton argues that the affiant's assertion that the CI had provided reliable information in the past was conclusory, more significant details are unnecessary. See Blake v. State, 125 S.W.3d 717, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
When an unnamed informant is relied upon in an affidavit for a search warrant, his credibility may be established by allegations that the informant has proven reliable on previous occasions. Avery v. State, 545 S.W.2d 803, 804 (Tex. Crim. App. 1977). This reliability may be established by the general assertions of the affiant, as stated in the affidavit, concerning the informant's prior reliability. Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1982). The magistrate may also rely on the experience and pertinent expertise of an affiant in evaluating the informant's report. Hackleman [v. State], 919 S.W.2d [440,] at 447 [(Tex. App.—Austin 1996, pet. ref'd, untimely filed)].Id.; see also Valadez v. State, 476 S.W.3d 661, 668-69 (Tex. App.—San Antonio 2015, pet. ref'd).
An affidavit in support of a warrant to search for narcotics need not provide more specific details regarding the informant's reliability than to state the informant had given information in the past regarding narcotics trafficking which had proven correct. Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977).
The CI's reliability, however, is not the only factor that provided the magistrate with a basis for finding probable cause. The entire transaction between the CI and Shelton was captured on audio and video. The affidavit describes in detail what was recorded: the precautions Goetz took in preparing for the controlled buy through searching the CI and his car, both before and after the controlled buy; providing the CI with money that had been photocopied; outfitting the CI with a covert audio and visual recording device, as well as GPS tracking; the exchange between the CI and Shelton, through Rogers, of the photocopied money for the methamphetamine; the delivery of the methamphetamine from the CI to Goetz; and the field testing of the methamphetamine by Goetz. As the Court of Criminal Appeals noted in Moreno, "[u]nder the facts of this case, . . . the police observations of the controlled purchase and the reasonable inferences therefrom were sufficient to support a finding of probable cause." Moreno, 415 S.W.3d at 288; see also State v. Griggs, 352 S.W.3d 297, 305 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) ("The circumstances of a controlled buy, standing alone, may corroborate an informant's tip and provide probable cause to issue a warrant."); Davis v. State, 27 S.W.3d 664, 667-68 (Tex. App.—Waco 2000, pet. ref'd). The monitored controlled buy and the CI's past reliability provided the magistrate with a substantial basis for concluding that probable cause existed. Shelton's second issue is overruled.
C. Admission of Shelton's Statement to Law Enforcement. Shelton's third issue includes three sub-parts. He asserts that the trial court erred in admitting the statement he made to law enforcement because: (1) he was under the influence of some substance when he made the statement; (2) he was not expressly administered his Miranda warnings; and (3) the statement introduced at trial contained extraneous and prejudicial information.
(1) Voluntariness of Shelton's Statement. Article 38.21 of the Code of Criminal Procedure provides: "A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed." TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). A defendant may claim that his statement was not freely and voluntarily made, and thus may not be used as evidence against him, under several different theories: (1) failure to comply with article 38.22, section 6—general voluntariness; (2) failure to comply with Miranda, as expanded in article 38.22, sections 2 and 3; or (3) violation of due process rights. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). A statement may be involuntary under the Due Process Clause or Miranda only when there is police coercion or overreaching. Id. at 169-70. Shelton makes no allegation that there was any coercion or overreaching by law enforcement in this case.
Sections 2 and 3 of article 38.22 apply to an accused's custodial-interrogation statements and provide that only "warned and waived" statements may be admitted. Id. at 171; see TEX.CODE CRIM. PROC. ANN. art. 38.22, §§ 2, 3 (West 2018). That is, an accused's custodial-interrogation statement is not admissible unless, before making the statement, he received the warnings provided in article 15.17 or article 38.22, section 2(a) or section 3(a) (which incorporate the requirements of Miranda), and he knowingly, intelligently, and voluntarily waived those rights. Oursbourn, 259 S.W.3d at 171-72.
This article was amended after Shelton made his statement, but the amendment does not affect this appeal.
(a) Intoxication. Under articles 38.21 and 38.22, section 6, we may consider the voluntariness of a defendant's statement by evaluating factors such as the suspect's youth, intoxication, mental retardation, or any other disability that would not raise a federal due-process claim. Id. at 172-73. However, the existence of a disability, such as intoxication, does not necessarily render a statement involuntary. See Oursbourn, 259 S.W.3d at 173; see also Paolilla v. State, 342 S.W.3d 783, 792 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). "'Voluntariness' under both constitutional and state law doctrines is to be measured according to the totality of the circumstances." Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989). "When the record reflects evidence of narcotics, medications, or other mind-altering agents, the question becomes whether those intoxicants prevented the defendant from making an informed and independent decision to waive [his] rights." Paolilla, 342 S.W.3d at 792 (citing Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996)).
The trial court made the following findings of fact in relation to Shelton's statement to law enforcement:
1. On August 19, 2015, the defendant was detained when members of the S.T.O.P Special Crimes Unit executed a search warrant of the defendant's residence at 1305 North Anglin Street in Cleburne, Johnson County, Texas.
2. While law enforcement was in the process of the search, the defendant made a statement to S.T.O.P. Special Crimes Unit Investigator Larry Sparks, indicating that everything they would find in the house belonged to the defendant. This statement was not made in response to questioning by law enforcement, but was a spontaneous statement by the defendant.
3. In response to this statement, Investigator Sparks retrieved an audio recording device and approached the defendant in an attempt to get a recorded statement. At this time, the defendant was still being detained.
. . .
11. The defendant actively engaged in the questioning done by Investigator Sparks.
12. The defendant never asked to terminate the interview.
13. The defendant never asserted his right to remain silent.
14. The defendant did not ask for an attorney.
15. Law enforcement did not deny the defendant any request for food, water, or bathroom breaks.
16. Law enforcement did not subject the defendant to police brutality or intimidation tactics.
17. Law enforcement did not make any affirmative promises to the defendant to induce him to make these statements.
18. The defendant was not coerced or threatened to make these statements.
19. There is no evidence that the defendant was under the influence of alcohol, any controlled substance, or any other mind altering substance.
20. There is no evidence that the defendant suffers from any form of mental handicap.
The trial court concluded that Shelton knowingly, intelligently and voluntarily waived his rights and that the waiver of his rights, based on a totality of the circumstances, was the exercise of a free and deliberate choice without intimidation, coercion, or deception.
As previously noted, the trial court found that Shelton was not under the influence of any substance at the time he gave his statement to law enforcement, and there is nothing in the record to reflect otherwise. Shelton points to the testimony of Sparks who testified that Shelton moved slowly. However, Sparks explained that Shelton stated his slowness was due to an old injury. Shelton then argues that Sparks failed to question Shelton regarding what drugs he may have been taking or to call in medical assistance to evaluate him because of that prior injury. Sparks, though, testified that Shelton gave no appearance of being on any medication, that Shelton's speech was not slurred or otherwise impaired, and that Shelton appeared to be in full possession of his faculties. Nothing in the record refutes Sparks' testimony.
We conclude that the evidence, viewed in the light most favorable to the trial court's finding, supports the finding that Shelton was not under the influence of any mind altering substance or that he otherwise suffered from a mental handicap at the time he gave his statement to Sparks. Based upon those factual findings, we further conclude that the trial court did not err in determining that Shelton knowingly, intelligently, and voluntarily waived his rights.
(b) Improper Warning. As previously noted, an accused's custodial-interrogation statements are admissible only if they are "warned and waived." Oursbourn, 259 S.W.3d at 171. Shelton does not argue that his statement was taken in violation of Miranda, but that it was taken in violation of the requirements of article 38.22. Specifically, Shelton notes that Sparks failed to advise him that his statement could be used as "evidence" against him. The warning given to Shelton by Sparks otherwise complied with article 38.22.
The trial court made the following pertinent findings in regard to the warnings given to Shelton:
4. An accurate and unaltered electronic recording was made of the statement by a competent operator (Investigator Sparks) and prior to the statement but during the recording the defendant was read the following warnings by Investigator Sparks:
a. He had the right to remain silent and not make any statement at all, but any statement he made may be used against him at his trial;
b. Any statement he made may be used against him in court;
. . .
7. After the defendant indicated that he would speak to law enforcement, Investigator Sparks provided the defendant a card that contained his rights on one side and a waiver of those rights on the other side with a signature line for the defendant.
8. Investigator Sparks asked the defendant to sign the back of the card containing his rights, verifying that he understood those rights and would speak with law enforcement. Above the signature line for the defendant, the card contained the following language:
WAIVER
1. Do you understand each of these rights I have explained to you?
2. Having these rights in mind, do you wish to talk to us now?
BURLESON POLICE DEPARTMENT
9. The defendant signed the back of the card containing his rights, then Investigator Sparks signed and dated it as well.The warning card specifically noted, "Any statement you make may be used as evidence against you in court." The trial court concluded that "the warnings as read to the defendant substantially complied with article 38.22, as they conveyed the exact meaning of the statute."
10. After the defendant had acknowledged his understanding of his rights, agreed to speak to law enforcement, and signed the back of the card containing his rights, Investigator Sparks began to interview the defendant.
The trial court's factual findings are supported by the record. Sparks' testimony at the suppression hearing and the recording from his interview with Shelton reflect that Sparks advised Shelton of his rights, that Shelton understood his rights, and that Shelton voluntarily agreed to waive those rights. Shelton additionally signed the card provided by Sparks that listed Shelton's rights, and Shelton's signature on the card acknowledged that he understood his rights and agreed to waive them.
A minor violation of article 38.22 does not automatically render a statement invalid. See Hardesty, 667 S.W.2d at 135. The warnings given a suspect are sufficient under article 38.22 so long as they substantially comply with its requirements. Rutherford v. State, 129 S.W.3d 221, 224 (Tex. App.—Dallas 2004, no pet.); see also Hernandez v. State, 533 S.W.3d 472, 480 (Tex. App.—Corpus Christi 2017, pet. ref'd). "A warning that conveys on the face of the statement, in only slightly different language, the exact meaning of the statute is sufficient to comply with the statute." Rutherford, 129 S.W.3d at 224. While a total failure to administer an article 38.22 warning is reversible error, an incomplete or incorrect warning may be sufficient for substantial compliance. Id.
In this case, the trial court did not err in finding that the warnings given by Sparks substantially complied with article 38.22 and that Shelton understood his rights and voluntarily waived them.
3. Extraneous and Prejudicial Material. In his final issue, Shelton contends that the trial court improperly allowed a portion of the statement Shelton provided to law enforcement to be admitted at trial when it contained extraneous and prejudicial material. We first note that Shelton did not make a timely objection to the introduction of the statement. At the pre-trial hearing on Shelton's motion, the Court ruled that sections of Shelton's statement that referred to Shelton's incarceration, prior conviction, and parole should be deleted from the audio recording that was to be presented at trial. One such statement included an exchange between Shelton and Sparks, wherein Sparks asked Shelton how long he had "been slinging dope," and Shelton responded, "Since the third day I was out." The statement to which Shelton objects included a reference to "three days."
At the pre-trial hearing, the State played each portion of the audio recording it intended to offer at trial. After each section was played, Shelton was provided the opportunity to make an objection. He agreed that no other sections of the recording required deletion, both at the pre-trial hearing and during trial when the trial court again inquired whether there were objections to the edited recording before it was presented to the jury. Shelton objected after the recording was played at trial, and the trial court overruled his objection. Because Shelton's objection was not timely, the trial court did not err in overruling the objection.
Even if the trial court erred, any error was harmless. From a totality of the circumstances, including the weight of the evidence against Shelton, we find that the mere mention of "three days" had only a slight, if any, effect upon the jury. The recordings of the transactions between Shelton and the CI established that Shelton distributed methamphetamine to the CI in exchange for $250.00. Shelton spontaneously admitted to law enforcement, after they entered his residence to execute the search warrant, that anything found in the house belonged to him. After being warned of his Miranda rights and voluntarily waiving them, Shelton directed the officers conducting the search where to find the methamphetamine in his house. Shelton also confessed to distributing methamphetamine, offering specifics as to price and amounts. In addition to the approximately 6.5 grams of methamphetamine sold to the CI, law enforcement recovered approximately 130 grams of methamphetamine from Shelton's residence, as well as packaging material associated with the distribution of illicit drugs and multiple sets of digital scales. Shelton's third issue is overruled.
Having overruled all of Shelton's issues on appeal, we affirm the judgment of the trial court.
REX D. DAVIS
Justice Before Chief Justice Gray,* Justice Davis, and Justice Scoggins
*(Chief Justice Gray concurs in the judgment of the Court to the extent it affirms the trial court's judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed September 19, 2018
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