Bustos, Victor v. State

• Court: Court of Appeals of Texas
• Decided: November 27, 2002
• Docket: 08-00-00518-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

VICTOR BUSTOS,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

'

No. 08-00-00518-CR Appeal from the 34th Impact District Court of El Paso County, Texas (TC# 20000D01991)

O P I N I O N

Victor Bustos appeals from his conviction for possession of a controlled substance, heroin, following a jury trial.  We affirm.

Facts

On December 6, 1999, members of the El Paso police department executed a search warrant at 237 Lolita in El Paso.  Prior to obtaining the warrant, Detectives Cesar Diaz and John Macias had surveilled the residence several hours a day beginning on November 29.  During that time, they observed a number of persons, known to the detectives to be heroin users in the neighborhood, approach the house.  While at the residence, the persons would exchange items with either the defendant or his brother which, from forty yards away, appeared to be a street-level narcotics transaction.  Each time the individuals would immediately leave after the exchange.  At least eight times, the detectives observed that the defendant Victor Bustos or his brother would walk to an area behind the house that contained trash cans.  Each time the men would stay in this area only a few seconds.  The area that held the trash cans could be entered through two gates from 237 Lolita, but could not be accessed from the house next door.  The detectives did not actually see anyone lift the trash cans, because the trash cans were not within their line of sight from the surveillance point.  On December 3, the detectives acquired a warrant to search 237 Lolita.  The search took place on the following Monday, December 6.

On that Monday morning, Victor Bustos left the residence at around 8:30 a.m. to pay the water bill with his father, returning at 10:30 a.m., just before the detectives arrived for that morning=s surveillance.  About an hour later, while conducting preliminary surveillance, Detective Diaz saw Victor get into a vehicle and drive away from the house.  The detective then had a marked patrol unit stop Victor=s vehicle and arrest him for outstanding traffic warrants.  When Officer Ruben Trejo, the patrolman that stopped Bustos=s vehicle, pulled the car over, he found a plastic bag containing 4.18 grams of marijuana.  Victor was arrested, served with a search warrant of 237 Lolita, placed in the back of the police car, and driven back to 237 Lolita.  The police did not read Bustos his Miranda warnings.

The police cruiser was parked in front of the driveway at 237 Lolita while the police searched the premises.  Victor sat in the back seat.  The officers searched the house and the immediate lot upon which the house sat, finding nothing inside.  Adjacent to that lot was another parcel, accessible from 237 Lolita by two gates.  It is not clear whether this lot is part of 237 Lolita or owned by the Bustos family.  When the officers started to search this area, Victor began Agoing kind of nuts and yelling@ at them from inside the car.  When Detective Diaz approached the car, Victor immediately began to yell that they were searching the neighbor=s house and that they had no authority to do that.  After Officer Diaz spoke with Victor=s father, and attempted to speak with someone at the neighbor=s house, he concluded that the connected plot was part of 237 Lolita.  Officer Diaz=s testimony continues that he then approached Victor, still in the back of the cruiser, and said, AI don=t know what your problem is.  This appears to be your yard.@  To which Victor responded, according to Officer Diaz, AOkay.  That might be our yard--that is our yard, but if you find any shit by the trash can, it=s not mine.@

Ultimately, twenty-two foil-wrapped bindles of heroin were found in a little Jack Daniels bottle under the trash can in the lot connected to 237 Lolita.  Each bindle contained a small amount of heroin with a street value of about $10.  The total weight of the heroin, including adulterants and dilutants, was 1.23 grams.

This appeal is from the second trial for this offense.  The first trial (August 8-9, 2000) ended in a mistrial when the first State=s witness, lab supervisor John Rudd of the Texas Department of Public Safety in El Paso, testified on the State=s direct examination to evidence of marijuana possession.  This was offered by the prosecution as an explanation of why Victor was being held in the back of the police cruiser throughout the search.  The prosecutor argued that the marijuana, even if an extraneous offense, met the exception for same transaction offenses.   Further, she argued that even if inappropriate, an instruction would be sufficient to correct the error.  The trial court found this comment to be error which an instruction to disregard could not correct.  When defense counsel requested an instruction to disregard, the trial judge offered to accept a motion for a mistrial.  Defense counsel then moved for a mistrial.  The jury was excused for the rest of the day.  The next morning the judge granted a mistrial.  A new trial was held November 14 and 15 of that year.  Appellant Victor Bustos brings five issues on appeal in his petition to this Court of Appeals.

A.  The evidence presented at trial was sufficient as a matter of law to support the judgment of guilt.

Appellant Bustos claims first that the evidence presented at trial was insufficient as a matter of law to support the judgment of guilt.  Appellant was convicted of unlawful possession of a controlled substance, namely heroin, having an Aaggregate weight, including adulterants or dilutants, [of] one gram or more but less than four grams.@  Tex. Health & Safety Code Ann. ' 481.115 (Vernon Supp. 2003) (The quoted statute was enacted in 1994 and has not been modified by the legislature; thus, it is the same statute that was in effect when Victor Bustos was tried).

In reviewing the legal sufficiency of the evidence to support a criminal conviction, an appellate court must review the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000); Levario v. State, 964 S.W.2d 290, 293-94 (Tex. App.--El Paso 1997, no pet.).  This Court should not resolve any conflict of fact or assign credibility to the witnesses, as this is within the exclusive province of the finder of fact to do so.  Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex. App.--El Paso 1996, pet. ref=d).  This Court should instead determine only if the explicit and implicit findings of the jury are rational when the evidence admitted at trial is viewed in a light most favorable to the verdict.  Adelman, 828 S.W.2d at 421-22.  In doing so, we resolve any inconsistencies in the evidence in favor of the verdict.  Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991); Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.--El Paso 1995, pet. ref=d).

Where an accused is charged with unlawful possession of a controlled substance, the State must prove that:  (1) the accused exercised care, control and management over the contraband, and (2) the accused knew the substance was contraband.  Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988) (citing Nunn v. State, 640 S.W.2d 304 (Tex. Crim. App. 1982)).  Appellant=s argument is directed at the first prong of this analysis.  The evidence must affirmatively link the accused to the contraband by a showing which indicates the accused=s knowledge and control of the contraband.  Waldon v. State, 579 S.W.2d 499, 501 (Tex. Crim. App. 1979).  What constitutes an Aaffirmative link@ has no peculiar methodology typical of a legal rule; rather, it is Aonly a shorthand expression of what must be proven to establish that a person possessed some kind of drug >knowingly or intentionally.=@ Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995).  Where the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which connect the accused to the contraband.  Menchaca, 901 S.W.2d at 651.

In determining if sufficient connection between the defendant and the contraband exists, a reviewing court can examine such circumstantial factors as the amount of contraband found, its location in relationship to the defendant=s personal belongings, the defendant=s relationship to other persons with access to the premises, incriminating statements, and proximity of the defendant to the contraband.  Villegas v. State, 871 S.W.2d 894, 896 (Tex. App.--Houston [1st Dist.] 1994, pet. ref=d) (citing Frierson v. State, 839 S.W.2d 841, 849 (Tex. App.--Dallas 1992, pet. ref=d)).  Other factors to consider include whether the accused was at the place searched at the time of the search, whether there were other persons present at the time of the search, whether the contraband found was large enough to indicate the accused knew of its existence, and whether there is evidence that the defendant occupied the premises.  Id. at 896-97 (citing Classe v. State, 840 S.W.2d 10, 12 (Tex. App.--Houston [1st Dist.] 1992, pet. ref=d)).  Further, whether the defendant owned, rented, or controlled the place where the police found the contraband must be considered, as well as whether the defendant had convenient access to the contraband and whether the contraband was found in plain view or in areas private to the accused.  Id. at 897 (citing Edwards v. State, 813 S.W.2d 572, 575 (Tex. App.--Dallas 1991, pet. ref=d)).  Whether the defendant possessed other contraband when arrested and incriminating statements made by the defendant when arrested can also be considered by the trier of fact in determining if the found contraband is possessed by the defendant.  Jones v. State, 963 S.W.2d 826, 830 (Tex. App.--Texarkana 1998, pet. ref=d).  Tips from an informant that the accused was in possession of contraband can also be used.  Washington v. State, 902 S.W.2d 649, 652 (Tex. App.--Houston [14th Dist.] 1995, pet. ref=d).  Notwithstanding the previous laundry list of possible links, there is no set formula of facts that necessitate a finding of an affirmative link sufficient to support an inference of knowing possession.  Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.--Houston [14th Dist.] 2001, pet. ref=d).

The evidence in this case shows that the heroin found was found in an area that was, if not part of 237 Lolita, then immediately adjacent to and accessible from 237 Lolita.  When found, the heroin was packaged in a manner consistent with street-level sales.  This condition of the material is consistent with activity by the defendant as observed by the surveillance team, and confirmed their suspicion that the short transactions between the defendant and those that visited the residence were, in fact, heroin sales.  Surveillance linked Bustos to the area.  The phone bill for the residence was in his name, further connecting him to the place.  Although the appellant was apprehended about a mile from the private residence, he was there immediately prior to his arrest, and he had been observed at the residence often throughout the previous week.  Further, Bustos=s demeanor while in the squad car and his comments to Detective Diaz point to his knowledge of the existence and location of the heroin.  All of this confirmed a confidential tip received by the police on November 29, 1999.  In light of this evidence, this Court cannot hold that the explicit and implicit findings of the jury are irrational when the evidence admitted at trial is viewed in a light most favorable to the verdict.  Accordingly, we must conclude that there was sufficient evidence as a matter of law to support the finding of guilt.  This portion of appellant=s first issue is overruled.

Under this issue, appellant further claims that there was insufficient evidence that the weight of heroin was over one gram or that the evidence was that the weight over one gram was attributable to adulterants or dilutants.  In light of the language of section 481.115 of the Health and Safety Code, the language of the indictment, and the definition of Aadulterants and dilutants,@ this argument attempts to assign a burden to the prosecution that the law does not.  The statute under which the appellant was convicted speaks in terms of adulterants and dilutants, making the offense possession of a controlled substance with an Aaggregate weight, including adulterants or dilutants, [of] one gram or more but less than four grams.@  Tex. Health & Safety Code Ann. ' 481.115 (Vernon Supp. 2003).  This language was precisely that used in the indictment.  The definition of Aadulterant or dilutant@ is broadly defined in the statute as Aany material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.@  Tex. Health & Safety Code Ann. ' 481.002(49) (Vernon Supp. 2003).  This definition has been effective since September 1, 1994.  Williams v. State, 936 S.W.2d 399, 405 (Tex. App.--Fort Worth 1996, pet. ref=d).  The legislature has also clearly defined the term Acontrolled substance@ such that it Aincludes the aggregate weight of any mixture, solution, or other substance containing a controlled substance.@  Tex. Health & Safety Code Ann. ' 481.002(5) (Vernon Supp. 2003).

Here, the State provided evidence that the substance found under the trash cans contained heroin and weighed, when all the bindles were considered together, without packaging, 1.23 grams.  William Todsen, a criminalist with the Texas Department of Public Safety, testified that another chemist, Ms. Falknor, had performed tests on the substance and concluded it contained heroin.  He also explained that the tests did not isolate the heroin itself or the cutting agents.

When viewed in the light most favorable to the verdict, Mr. Todsen=s testimony and the exhibits admitted into evidence are sufficient for us to conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Geesa, 820 S.W.2d at 159.  In particular, the evidence was legally sufficient to allow the jury to conclude that the substance delivered was heroin, in the amount, including adulterants and dilutants, of at least one gram but less than four grams.  Tex. Health & Safety Code Ann. '' 481.002(5), (49), 481.115 (Vernon Supp. 2003).   Bustos=s first issue is overruled.

B.  The trial court did not err in allowing the oral statements of the appellant into evidence.

In his second issue, appellant objects to the admission of oral statements attributable to appellant while he was in custody.  Specifically, the statement made by appellant while in the police squad car:  AOkay.  That might be our yard--that is our yard, but if you find any shit by the trash can, it=s not mine.@  We conclude that the admissibility of this statement depends upon whether it was in response to custodial interrogation.

A trial court=s ruling on the admissibility of evidence is reviewed for abuse of discretion.  Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  The test for an abuse of discretion is not whether, in our view, the facts present an appropriate case for the trial court=s action.  Instead, the Court of Appeals determines whether the court acted without reference to any guiding rules and principles.  Coots v. Leonard, 959 S.W.2d 299, 301 (Tex. App.--El Paso 1997, no pet.) (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)).

Miranda and article 38.22 of the Texas Code of Criminal Procedure govern when statements by the defendant may be used at trial apply only to statements made as a result of custodial interrogation.  Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.--Austin 1997, no pet.); Morris v. State, 897 S.W.2d 528, 531 (Tex. App.--El Paso 1995, no pet.).  If appellant=s statements do not stem from custodial interrogation, neither Miranda nor article 38.22 requires their suppression.  Morris, 897 S.W.2d at 531.  Custodial interrogation requires (1) that the suspect must have been Ain custody,@ and (2) the police must have Ainterrogated@ the suspect either by express questioning or its functional equivalent.  Morris, 897 S.W.2d at 531; See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689 (1980).  A person is in Acustody@ only if, under the circumstances, a reasonable person would believe Athat his freedom of movement was restrained to the degree associated with a formal arrest.@  Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, C, 114 S.Ct. 1526, 1528-30 (1994)); see also Rodriguez, 939 S.W.2d at 216.  Here, the State does not contest that appellant was in custody at the time of the utterance in question; rather, the debate revolves around whether a statement by Detective Diaz to appellant was interrogation eliciting the response from appellant or whether the statement was voluntary.

AInterrogation@ for the purposes of Miranda and article 38.22 refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the subject.  Innis, 446 U.S. at 300-02, 100 S.Ct. at 1689-90; Jones v. State, 795 S.W.2d 171, 174 (Tex. Crim. App. 1990); Morris, 897 S.W.2d at 531.  The latter part of this definition focuses on the subjective perception of the suspect rather than the intent of the questioning officer.  Innis, 446 U.S. at 301, 100 S.Ct. at 1690.  Miranda did not hold that all statements obtained by police after a person is in custody should be considered the product of interrogation.  Innis, 446 U.S. at 299, 100 S.Ct. at 1689.  AAny statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence.  The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment . . . .@  Id. at 299-300, 100 S.Ct. at 1689 (citing Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630 (1966)) (emphasis added by the Court in Innis).  Likewise, the drafters of article 38.22 specifically exempted statements which do not Astem from custodial interrogation,@ statements which are Ares gestae of the arrest or the offense,@ and all voluntary statements, whether or not they result from custodial interrogation.  Tex. Code Crim. Proc. Ann. art. 38.22, ' 5; Morris, 897 S.W.2d at 531.

During the search of the area near the trash cans, the appellant began Agoing kind of nuts and yelling@ at the officers.  When Detective Diaz approached the car, Victor immediately began to yell that they were searching the neighbor=s house and that they had no authority to do that.  After Officer Diaz spoke with Victor=s father, and attempted to speak with someone at the neighbor=s house, he concluded that the connected plot was part of 237 Lolita.  Officer Diaz=s testimony continues that he then approached Victor, still in the back of the cruiser and said, AI don=t know what your problem is.  This appears to be your yard.@  To which Victor responded, according to Officer Diaz, AOkay.  That might be our yard--that is our yard, but if you find any shit by the trash can, it=s not mine.@

Officer Diaz=s statement does not seem to have been intended to elicit any response from Bustos.  The trial court could have reasonably concluded that the question was not designed to or reasonably likely to elicit the incriminating response.  A statement by a defendant that is beyond the scope of the inquiry of the officer is not responsive, and thus not subject to the restrictions and protections of Miranda and article 38.22.  See Etheridge v. State, 903 S.W.2d 1, 15-16 (Tex. Crim. App. 1994); Beasley v. State, 683 S.W.2d 132, 134 (Tex. App.--Eastland 1984, pet. ref=d) (citing DeHart v. State, 468 S.W.2d 435 (Tex. Crim. App. 1971)).  To hold otherwise would open huge gaps in the law when an officer asked a seemingly benign question like AHow are you?@ or a carefully worded question to avoid improper inquiries.  Consequently, the trial court did not abuse its discretion in allowing the statement into evidence.  Appellant=s second issue is overruled.

C.  The trial court did not err in denying appellant=s motion to dismiss.

Appellant=s third issue claims that his conviction is barred by double jeopardy.  The appeal before this Court is from the defendant=s second trial for the charge of possession of heroin.  The trial court declared a mistrial during the first trial after the prosecutor introduced evidence of Bustos=s possession of marijuana from the State=s first witness, a forensic scientist.  The trial judge opined that an instruction to disregard would be insufficient to cure the error.  Citing Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996) (Bauder I), appellant moved to dismiss the second trial based upon double jeopardy, which the trial court denied.

Whether comments by a prosecutor or elicited by a prosecutor are such that they could not have been cured by an instruction to disregard, and whether the prosecutor acted with reckless disregard of the error in presenting the comments to the jury, is generally a fact question.  Id. at 700; State v. Lee, 15 S.W.3d 921, 926 (Tex. Crim. App. 2000).  We therefore review the trial court=s rejection of a claim of double jeopardy under an abuse of discretion standard.  Vasquez v. State, 22 S.W.3d 28, 31 (Tex. App.--Amarillo 2000, no pet.).  However, in an inquiry into mixed questions of law and fact that do not rely upon the credibility or demeanor of a witness, the court of appeals need not give deference to the trial court=s ruling.  Lee, 15 S.W.3d at 926; Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997).  Here, we are only considering whether the facts of the present case reveal misconduct by the prosecutor, specifically intentionally causing or recklessly disregarding the risk of a mistrial; therefore, the decision by the trial court to go forth with the second trial is reviewed under an abuse of discretion standard.

Generally, when a mistrial is declared in a criminal prosecution at the request of the defendant, the State is not barred from retrying the defendant because the defendant=s motion for mistrial is considered A>a deliberate election on his part to forego his valued right to have his guilt or innocence determined before the first trier of fact.=@  Bauder I, 921 S.W.2d at 698 (quoting United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195 (1978)).  However, the Texas Court of Criminal Appeals adds to Texas jurisprudence,

But we believe that the right to a trial before the jury first selected is the right to a fair trial before that jury.  And although our system does not guarantee the right to a trial free of errors and mistakes, we think it clear that, when a prosecutor=s deliberate or reckless conduct renders trial before the jury unfair to such a degree that no judicial admonishment can cure it, an ensuing motion for mistrial by the defendant cannot fairly be described as the result of his free election.

Id.  Thus, if the questionable conduct was deliberate or reckless, the prosecutor is seen as goading the defendant into foregoing his right to the fair judgment of the first trier of fact selected.  Id. at 698-99; Tex. Const. art. I, ' 14.  This rule is invoked only where the mistrial is unavoidable, a very unusual circumstance given the presumption that curative instructions are effective in removing questionable argument and evidence from the consideration of the jury.  Id. at 699-700.

The prosecutor commits an intentional or reckless act where:  (1) the act was intended to induce a motion for mistrial; (2) the prosecutor believed that proffering the objectionable evidence would materially improve chances of getting a conviction otherwise unobtainable, despite the incurable effect of such evidence even with a judicial admonishment; or (3) the prosecutor must have been aware of but consciously disregarded the risk that an objectionable event for which he or she was responsible would require a mistrial, is reasonably certain to result in a mistrial, or creates a risk that mistrial is reasonably certain.  Lee, 15 S.W.3d at 925 (citing Bauder I, 921 S.W.2d at 699; Ex parte Bauder, 974 S.W.2d 729, 732 (Tex. Crim. App. 1998) (Bauder II)).  The critical question to be asked in determining if the action of the prosecutor was such that Bauder I would bar a second trial is whether Athe appellant=s motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial.  Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed >the line between legitimate adversarial gamesmanship and manifestly improper methods=. . . that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?@  Id. at 923 (citing Bauder II, 974 S.W.2d at 732).

A mistrial is an extreme remedy for prejudicial events occurring during trial.  Bauder I, 921 S.W.2d at 698.  Violations of evidentiary rules are generally curable with an instruction to disregard.  Lee, 15 S.W.3d at 926 (citing Waldo v. State, 746 S.W.2d 750, 752 (Tex. Crim. App. 1988)).  Only when it is clear that the objectionable event is so emotionally inflammatory that curative instructions are not likely to prevent the jury from being unfairly prejudiced against defendant should a mistrial be granted.  Bauder I, 921 S.W.2d at 698 (citing Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 918, 113 S.Ct. 2361).

The Court of Appeal in Texarkana was recently confronted with a situation very similar to the one here.  Barnett v. State, 83 S.W.3d 810 (Tex. App.--Texarkana 2002, no pet.).  There, the defendant was indicted for possession of marijuana.  Id. at 812.  During the arrest, the arresting officer also found illicit mushrooms.  Id.  During trial, after repeated warnings from the judge not to mention the mushrooms, the prosecutor offered the mushrooms into evidence.  Id. at 813.  A mistrial was declared.  Id.  In a second trial, the defendant was convicted of possession of marijuana.  Id. at 812.  On appeal, the defendant made a claim that Bauder I barred the second trial.  Id.  The Court of Appeals disagreed and affirmed the judgment of the trial court.  Id. at 815.  The prosecutor in that case claimed to have mistakenly grabbed the wrong piece of evidence and the testifying officer properly answered what the item was.  Id.  Citing the prosecutor=s lack of experience, both the trial judge and the defense counsel agreed that the prosecutor=s actions were neither deliberate nor reckless, but at most negligent.  Id.

Common to both Bauder II and Barnett is the reviewing court=s consideration of discussion held out of the presence of the jury, to determine whether the prosecutor acted with conscious disregard of a mistrial.  Barnett, 83 S.W.3d at 815.  This discussion between the parties and the court in the present case reveals a lack of intentional or reckless behavior on the part of the prosecutor.  The prosecutor in this case insisted that the marijuana evidence was necessary to explain why appellant was in the back of the police car while the police searched the residence.  Further, she justified its admissibility based on the fact that the traffic stop, the marijuana seizure, and the search of the residence that yielded the heroin were all part of the same transaction.  When the trial judge continued to insist that even mentioning the marijuana was Agrossly inappropriate,@  the prosecutor continued to disagree with the judge but agreed to drop the subject.   Clearly, unless the prosecutor was slyly performing to cover her intentions, she did not see the potential for a mistrial even after the judge explained his concerns.  She insisted several times that an instruction to disregard was sufficient.  Even the defense attorney kept his request to the court to a motion for an instruction to disregard until the judge prompted a request for a mistrial.  Given these facts, we cannot say that the prosecutor=s actions were deliberate or reckless acts leading to a mistrial; at most they were negligent.  Therefore we find that under the Bauder standard regarding double jeopardy, appellant Bustos=s rights were not violated by the second trial.  The third issue is overruled.

D.  The trial court did not err in denying appellant=s motion to suppress.

Appellant=s fourth issue claims that the trial court erred in denying his motion to suppress evidence.  He argues, first that the search warrant failed to provide an adequate description of the place to be searched, and second that the warrant was stale when it was executed.

An appellate court should give almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s fact findings are based on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.  The same is true for the trial court=s rulings on mixed questions of law and fact if the resolution of the ultimate questions involved turn on the evolution of credibility and demeanor.  Id.  An appellate court reviews de novo mixed questions of law and fact not falling within this category as well as questions of pure law.  Id.  If the trial court does not file findings of fact and conclusions of law, an appellate court presumes that the trial court made findings necessary to support its ruling so long as those implied findings are supported by the record.  Zarychta v. State, 44 S.W.3d 155, 163 (Tex. App.--Houston [14th Dist.] 2001, pet. ref=d) (citing State v. Simmang, 945 S.W.2d 219, 221-22 (Tex. App.--San Antonio 1997, no pet.)).

Under Texas law, a warrant authorizing the search of a house also permits the search of other structures or areas inside the curtilage, or area immediately surrounding the dwelling place.  Davila v. State, 871 S.W.2d 806, 814 (Tex. App.--Corpus Christi 1994, pet. ref=d); see United States v. Moore, 743 F.2d 254 (5th Cir. 1984).  ACurtilage@ is a common law concept referring to the area immediately surrounding a house to which the intimate activity of home life extends.  Smith v. State, 722 S.W.2d 205, 208 (Tex. App.--San Antonio 1986, no pet.).

Evidence suggests that, although one needed to proceed through a gate to get to the area in which the heroin was found, these trash cans were used by the residents of 237 Lolita.  If, as the evidence appears to suggest, the property that contained the trash cans under which the heroin was found was part of 237 Lolita, then it is within the scope of the warrant describing the residence at 237 Lolita.  If the lot is not part of 237 Lolita, as the defense testimony appears to at times claim, or outside of the area considered to be part of the curtilage, then appellant has insufficient privacy interest in the place and cannot claim that the search was unlawful as far as he is concerned.  See Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966-67 (1969) (AFourth Amendment rights are personal rights which . . . may not be vicariously asserted.@); Oliver v. United States, 466 U.S. 170, 176, 104 S.Ct. 1735, 1740 (1984) (citing Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446 (1924) (A>[T]he special protection accorded by the Fourth Amendment to the people in their Apersons, houses, papers, and effects,@ is not extended to the open fields.  The distinction between the latter and the house is as old as the common law.=@)); Lewis v. State, 598 S.W.2d 280, 283-84 (Tex. Crim. App. 1980); Gonzalez v. State, 588 S.W.2d 355, 360 (Tex. Crim. App. 1979).

Appellant also claims that the information was stale by the time the search was executed.  For a search warrant to be valid, the facts relied upon in the underlying affidavit must not be stale by the time the warrant is issued.  Morris v. State, 62 S.W.3d 817, 822 (Tex. App.--Waco 2001, no pet.); Rowell v. State, 14 S.W.3d 806, 809-10 (Tex. App.--Houston [1st Dist.] 2000), aff=d, 66 S.W.3d 279 (Tex. Crim. App. 2001).  When the activity alleged in the affidavit for the warrant is of a continuous nature, the passage of time between the activity and the issuance of the warrant becomes less significant.  Rowell, 14 S.W.3d at 809.  That appellant possessed heroin was suggested by activity at 237 Lolita over the course of several days of surveillance.  The detectives began their surveillance after receiving a tip from a confidential informant on November 29, 1999.  Over the next several days, they observed activity that they believed was the sale of heroin.  On December 3, 1999, a search warrant was issued.  The warrant was executed on December 6, 1999.  AThe time allowed for the execution of a search warrant shall be three whole days, exclusive of the day of its issuance and of the day of its execution.@  Tex. Code Crim. Proc. Ann. art. 18.07 (Vernon 1977).  The search took place within this time.  Issue Four is overruled.

E.  The trial court did not err in admitting the deposition testimony of appellant=s father.

Prior to trial, appellant took the deposition of his eighty-eight year-old father Silvestre Bustos, who was present during the search.  Since he had been in a traffic accident between the time of the search and the time of the deposition, appellant moved that his competency be examined based on his poor medical condition and that the injury made his father=s memory unreliable.  Apparently, the off-the-record discussion resolved the matter and allowed the deposition to continue.  The interpreter was late, so the first few minutes of testimony were interpreted by the judge upon the suggestion of defense counsel.  At that time, there were five people in the room that could speak Spanish, and they were invited to correct him.  The deposition was taken to preserve the father=s testimony in case his injuries made him unavailable to testify.  The prosecution moved to introduce portions of the deposition due to the father=s Abodily infirmity.@  Tex. Code Crim. Proc. Ann. art. 39.12 (Vernon 1979).  In his fifth issue, appellant complains that the interpreter at the deposition was not sworn to provide a true and correct translation, and thus he was deprived of a fair trial when parts of the deposition were entered into evidence.

The situation in which a deposition of a non-English speaking witness is taken and ultimately presented before the jury is analogous to the situation in which that witness presents his testimony at trial, and the safeguards of article 38.30 apply.  See Leal v. State, 782 S.W.2d 844, 849 (Tex. Crim. App. 1989).  Texas Code of Criminal Procedure article 38.30 provides that when Aa person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for him.@  Tex. Code Crim. Proc. Ann. art. 38.30(a) (Vernon Supp. 2003).  At the time that the interpreter began, she was asked her name and then invited to perform her duty as an interpreter.  No oath was administered, but no objection was made by defense counsel at the time.

At trial, a party must object to the failure to administer an oath to the interpreter, like any witness, in order to preserve the error.  See Beck v. State, 719 S.W.2d 205, 211-12 (Tex. Crim. App. 1986); Lara v. State, 761 S.W.2d 481, 482 (Tex. App.--Eastland 1988, no pet.).  Appellant=s failure to object waived his right to complain on appeal of the failure to administer the interpreter=s oath.  Appellant=s fifth issue is overruled.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

November 27, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)