Opinion issued February 26, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00295-CR ——————————— EDWARD FLORES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court Montgomery County, Texas 1 Trial Court Case No. 12-08-08659-CR
1 The Supreme Court of Texas transferred this appeal from the Court of Appeals for the Ninth District of Texas. Misc. Docket No. 13-9042 (Mar. 26, 2013); see TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between our court’s precedents and those of the Ninth Court on any relevant issue. See TEX. R. APP. P. 41.3. MEMORANDUM OPINION
Appellant Edward Flores was charged with possession of a controlled
substance with intent to deliver, to which he pleaded not guilty. See TEX. HEALTH
& SAFETY CODE § 481.112(a). Flores pleaded true to an enhancement paragraph
reflecting a prior conviction for felony burglary of a habitation. A jury found him
guilty, and the trial court assessed punishment at life in prison. In this appeal,
Flores brings six issues challenging his conviction. We affirm.
Background
While law-enforcement officers were executing a search warrant on the
residence of Sammy Carollo, Deputy T. Knox and Constable K. Hayden were
serving as security on the outside of the property when they observed appellant
Edward Flores driving up the driveway. Upon seeing the two law-enforcement
officers, Flores stopped and got out of his truck. Hayden signaled for Flores to
continue driving up the driveway to where the officers were located.
As Flores got back in the truck to comply, he reached inside, grabbed a
brown bag, and threw it over the truck into some bushes. As Knox searched for the
thrown item, Hayden approached Flores and asked what he was doing at the
property. Flores responded that he was there “to see Sammy.” By this time, Knox
had recovered the brown bag, observed that it contained a clear bag of what he
2 thought was methamphetamine, and signaled for Hayden to make an arrest. Lab
tests later confirmed that the bag contained 137.49 grams of methamphetamine.
Flores was charged with possession of a controlled substance with intent to
deliver. A jury found him guilty, and the trial court sentenced him to life in prison.
This appeal followed.
Analysis
In six issues, Flores contends that (1) the evidence was legally insufficient to
support his conviction; (2) the trial court erred in making prejudicial statements to
the jury; (3) the trial court erred when it denied his motion to suppress physical
evidence gained as the result of an illegal search and seizure; (4) the trial court
erred when it denied his motion to suppress oral statements made in custody;
(5) the trial court erred in allowing testimony regarding the dangers and social
costs of methamphetamine; and (6) the trial court abused its discretion when it
permitted improper jury argument.
I. Legal sufficiency of the evidence
In his first issue, Flores argues that the evidence is legally insufficient to
support his conviction because no evidence establishes that he intended to deliver
the methamphetamine.
When reviewing the legal sufficiency of the evidence, we review all the
evidence in the light most favorable to the verdict to determine whether any
3 rational factfinder could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). We must
give deference to the factfinder to resolve conflicts in testimony, weigh the
evidence, and draw reasonable inferences. Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).
To prove possession with intent to deliver a controlled substance, the State
must show that a defendant (1) exercised care, custody, control, or management
over the controlled substance, (2) intended to deliver the controlled substance, and
(3) knew that the substance in his possession was a controlled substance. TEX.
HEALTH & SAFETY CODE § 481.112(a); Parker v. State, 192 S.W.3d 801, 805 (Tex.
App.—Houston [1st Dist.] 2006, pet. ref’d). Intent can be inferred from
circumstantial evidence, including the acts, words, and conduct of the defendant, as
well as evidence that the defendant possessed the contraband; an oral expression of
intent is not required. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.
1995); Utomi v. State, 243 S.W.3d 75, 82 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d). Courts have considered several factors in determining whether such
intent is supported by the evidence, including: (1) the nature of the location where
the defendant was arrested; (2) the quantity of the drugs the defendant possessed;
(3) the manner of packaging; (4) the presence, or lack thereof, of drug
4 paraphernalia (for use or sale); (5) the defendant’s possession of a large amount of
cash; and (6) the defendant’s status as a narcotics user. Utomi, 243 S.W.3d at 82.
The expert testimony of law enforcement officers, experienced with illicit drug
trafficking, also may be used to establish a defendant’s intent to deliver a
controlled substance. Id.
Flores argues that, considering the above factors, the evidence fails to
establish his intent to deliver because only trace amounts of drugs were found at
the location where he was arrested, the drugs were not packed in a way that
indicated future sales, no paraphernalia was present and no cash was recovered
during the arrest, and there was no evidence that he was a drug user.
The State, however, points to numerous factors that support the inference of
intent. First, Flores was arrested at the end of a lengthy rural driveway leading to a
residence that officers were concurrently searching for methamphetamine. That
only trace amounts of methamphetamine were discovered inside the searched
house does not refute the permissible inference that Flores intended to deliver the
drugs there, possibly to resupply the house.
Second, Flores possessed 137.49 grams of methamphetamine, a large
quantity that indicated an intent to deliver. One of the State’s witnesses, Lieutenant
Philip Cash, testified that the quantity was the equivalent of 670 doses of
methamphetamine, which indicated that it was “not for personal use.”
5 Third, the methamphetamine was packaged in one large bag, in a quantity
that Cash testified would typically be moved from one drug trafficker to another.
Although Flores suggests that the lack of separate packing for small amounts of
methamphetamine indicates that the methamphetamine was not for distribution,
Cash testified that the packaging in this case merely indicated that had not been
prepared for direct sale to a consumer on the street. We previously have held that
bulk packaging may indicate intent to deliver when the quantity possessed is
greater than typical for personal use. See Reed v. State, 158 S.W.3d 44, 49 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d) (large amount of liquid codeine
packaged in large pint-sized bottle indicated intent to deliver when officer testified
that drug was typically diluted in that manner before distribution).
Fourth, while the officers found no drug-sale paraphernalia on Flores or
inside his vehicle, there is also no evidence that they found drug-use paraphernalia.
We view the evidence in the light most favorable to the jury’s finding, and the lack
of drug-use paraphernalia allows an inference that Flores did not intend to use the
methamphetamine himself. Accordingly, the absence of drug-use paraphernalia
permits an inference of an intent to deliver. See Reed, 158 S.W.3d at 48 (stating
that the absence of either drug use paraphernalia or drug sale paraphernalia can be
considered in determining intent); Mack v. State, 859 S.W.2d 526, 529 (Tex.
6 App.—Houston [1st Dist.] 1993, no pet.) (determining that absence of drug-use
paraphernalia is circumstantial evidence suggesting intent to deliver).
Finally, Flores did not have any cash in his possession at the time of his
arrest. He suggests that this weighs against a finding of intent to deliver. Cash
explained at trial, however, that large narcotics traffickers frequently keep money
and drugs separated to prevent “rip offs” during the transactions. Consequently, he
explained that it is not uncommon for no money to be recovered along with a large
amount of drugs
Thus, viewing the evidence in the light most favorable to the jury’s finding,
we conclude that a rational factfinder could have reasonably inferred that Flores
possessed the 137.49 grams of methamphetamine with an intent to deliver it to
another. Accordingly, we hold that the evidence is legally sufficient to support his
conviction for the offense of possession with intent to deliver a controlled
substance. See Brooks, 323 S.W.3d at 902.
We overrule Flores’s first issue.
II. Trial court’s commentary on methamphetamine
In his second issue, Flores contends that the trial court improperly
commented on the weight of the evidence. Before the jury retired for deliberations,
the court informed them that they would have access to all of the evidence at trial,
except for the clear bag of methamphetamine recovered from the bushes. The court
7 explained: “I don’t feel comfortable sending that back. If you want it sent back, I
will make it available. It’s just—it’s just a dangerous substance. I don’t want
anybody getting hurt.” 2
Judges are prohibited from making “any remark calculated to convey to the
jury his opinion of the case.” TEX. CODE CRIM. PROC. art. 38.05. To constitute
reversible error, the court’s comment must be reasonably calculated to benefit the
State or to prejudice the defendant’s right to a fair and impartial trial. Clark v.
State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). In determining
whether the comment was either reasonably calculated to benefit the State or to
prejudice the defendant, we must examine whether the trial court’s statement was
material to the case. Id. A statement is material if the jury had the same issue
before it. Id. Furthermore, if we determine beyond a reasonable doubt that the
court’s error did not contribute to the conviction, we must hold that the error was
harmless. Id.
2 The State argues that Flores failed to preserve this issue for appellate review. Immediately after the jury retired for deliberations, defense counsel objected “to the court telling the jury that it’s a dangerous substance. [The] objection is that it’s a comment on the weight of the evidence.” The State contends this is different than Flores’s argument on appeal, that the court’s remarks were improper because they conveyed its opinion of the case. We conclude the objection was sufficient to alert the trial court to the concern raised on appeal.
8 Here, the court’s statement explained why the jury would not be permitted to
take the methamphetamine into the jury room. This remark reflects an
acknowledgement that the substance was, in fact, methamphetamine. But the
disputed issue at trial was whether Flores intended to deliver the substance, not
whether the substance actually was methamphetamine. Consequently, even if the
court’s statement regarding the dangers of methamphetamine constituted error, we
conclude, beyond any reasonable doubt, that it did not contribute to Flores’s
conviction. See id.
We overrule Flores’s second issue.
III. Motion to suppress physical evidence and oral statements
In his third and sixth issues Flores argues that the trial court erred in denying
his motions to suppress physical evidence and oral statements.
When reviewing a trial court’s ruling on a motion to suppress, we must view
all of the evidence in the light most favorable to the trial court’s ruling. State v.
Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We afford almost
total deference to a trial judge’s determination of historical facts, especially when
the facts are based on an evaluation of credibility and demeanor. Id. But we review
de novo legal conclusions based on those facts. Id.
9 A. Physical evidence
Flores contends in his third issue that the trial court erred when it denied his
motion to suppress the bag of methamphetamine because it was obtained as a result
of an illegal search and seizure. He contends that the law-enforcement officers did
not have reasonable suspicion to detain him when he drove up the driveway of the
property where the officers were executing a search warrant.
There are three types of interactions between citizens and law-enforcement
officers: (1) consensual encounters; (2) investigatory detentions; and (3) arrests.
State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). Consensual
encounters do not implicate Fourth Amendment protections. Id. at 411; Florida v.
Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991). Thus, officers are free to
stop and request information from a citizen without justification. Woodard, 341
S.W.3d at 411. A citizen may terminate such a consensual encounter at will. Id. An
encounter is consensual as long as a reasonable person would “feel free to
disregard the police and go about his business.” Bostick, 501 U.S. at 434. A
citizen’s acquiescence to an officer’s request for information does not elevate a
consensual encounter to a detention or seizure, even if the officer does not
communicate to the citizen that the request may be ignored. Woodard, 341 S.W.3d
at 411.
10 No bright-line rule governs when a consensual encounter becomes a seizure,
but the encounter generally is no longer consensual when an officer restrains a
citizen’s liberty through force or showing of authority. Id. “If it was an option to
ignore the request or terminate the interaction, then a Fourth Amendment seizure
has not occurred.” Id. We consider the totality of the circumstances to determine
whether a reasonable person in the defendant’s position would have felt free to
ignore the request or terminate the interaction. Id. Although courts consider the
surrounding circumstances, including the time and place, the officer’s conduct is
the most important factor in determining whether an encounter was consensual or a
Fourth Amendment seizure. Id.
Initially, the burden is on the defendant to rebut the presumption of proper
conduct by law enforcement and show that a seizure occurred. Id. at 412. If the
defendant meets this burden, then the burden shifts to the State to demonstrate that
the seizure was nevertheless supported by either reasonable suspicion or probable
cause, whichever is applicable. Id.
An officer may stop and briefly detain a person for investigative purposes
only if the officer has a reasonable suspicion that an individual is violating the law.
Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “Reasonable
suspicion exists if the officer has specific, articulable facts that, when combined
with rational inferences from those facts, would lead him to reasonably conclude
11 that a particular person actually is, has been, or soon will be engaged in criminal
activity.” Id. Whether an officer had reasonable suspicion depends on the totality
of the circumstances. Id. at 492–93.
Flores contends that the brown bag of methamphetamine that he threw was
obtained as a result of an unlawful detention. To this end, he characterizes the
interaction with the officers as a detention from the moment the officers waved at
him. Therefore, he argues that he was detained by the officers at a time when they
did not have reasonable suspicion to justify the detention, and that the drugs that he
threw into the bushes were recovered as a result of a Fourth Amendment violation.
In spite of Flores’s characterization of the entire encounter as a detention,
the totality of the circumstances indicates that no Fourth Amendment seizure
occurred until after the brown bag of methamphetamine was thrown into the
bushes. The officers testified that Flores stopped his truck “immediately” upon
turning onto the property and making eye contact with them. At that time, Flores
exited the vehicle and the officers motioned for him to drive forward. Instead, he
grabbed the brown bag and threw it into the bushes. Under these circumstances, the
officers’ actions–merely motioning to Flores to drive forward–did not amount to
force or a show of authority which restrained Flores’s liberty. See Woodard, 341
S.W.3d at 411.
12 Consequently, the encounter had not yet escalated to a detention when
Flores threw the bag of methamphetamine into the bushes, and no justification was
necessary for the officers to motion Flores forward. See id.
We overrule Flores’s third issue.
B. Oral statements
In his sixth issue, Flores argues that the trial court erred in denying his
motion to suppress his oral statement to Constable Hayden that he “was there to
see Sammy.” He asserts that this statement was made while he was in custody, and
before he received Miranda warnings.
The Fifth Amendment requires a defendant subjected to custodial
interrogation must receive Miranda warnings, and the failure of law enforcement
to advise the defendant of those rights prohibits the later use of those statements
against him. See Miranda v. Arizona, 384 U.S. 436, 104 S. Ct. 3138 (1966).
Here, the parties dispute only whether Flores was in custody at the time he
told Hayden that he “was there to see Sammy.” The determination of whether a
defendant is in custody requires a court to “examine all of the circumstances
surrounding the interrogation, but the ultimate inquiry is simply whether there
[was] a formal arrest or restraint on freedom of movement to the degree associated
with a formal arrest.” Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App.
2010). This is an objective determination, and the primary question is whether a
13 reasonable person would perceive the detention to be a restraint on his movement
comparable to formal arrest. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App.
2012).
A routine stop does not automatically place a person in custody for Miranda
purposes, but such a stop may escalate from a non-custodial detention into a
custodial detention when formal arrest ensues or a detainee’s freedom of
movement is restricted to the degree associated with a formal arrest. Id. at 372.
Thus, in State v. Ortiz, the Court of Criminal Appeals held that a routine traffic
stop had escalated beyond a detention at the time the suspect was questioned by the
police, because: (1) officers expressed their suspicion that Ortiz possessed drugs or
knew that his wife was in possession of drugs; (2) the detention had escalated
beyond that of a routine traffic stop because at least two police cars and three
officers, as opposed to the usual one car and two officers, were present when he
made the statements; (3) officers handcuffed him when a pat-down revealed
something illegal or dangerous in his wife’s possession; and (4) after he was
handcuffed, officers informed him that something illegal had been found on his
wife, signaling that he was under detention for something more serious than a
speeding infraction. Id. at 373–75.
In this case, the officers approached Flores to speak with him after he threw
the brown bag into the bushes. As one of the officers searched for the bag, Flores
14 told the other that he “was there to see Sammy.” At the time Flores made the
statement to Hayden, there had been no formal arrest and his freedom of
movement was not restricted in any manner. Examining all the circumstances, we
conclude that a reasonable person would not have determined that the detention
was a restraint on his movement comparable to a formal arrest. See id. at 372. Nor
were any of the factors present that led the Ortiz Court to hold that a routine traffic
stop had escalated to a formal arrest. At the time he made his statement, Flores was
not questioned by an unusual number of officers, handcuffed, or made aware that
the officers had discovered the methamphetamine. See id. at 373–75.
Because Flores was not in custody at the time he made the contested
statement, the trial court did not err when it denied the motion to suppress the
statement.
We overrule Flores’s sixth issue.
IV. Admission of testimony regarding methamphetamine
In his fourth issue, Flores argues that the trial court erred when it allowed
testimony regarding the dangers and social costs of methamphetamine.
During the guilt-innocence phase of trial, Lieutenant Phillip Cash, a
narcotics officer, testified to matters regarding methamphetamine, such as its
production and addictive qualities. Flores argues generally that Cash’s testimony
was similar to testimony in Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App.
15 2009), in which the Court of Criminal Appeals held that testimony regarding the
societal problems caused by methamphetamine was irrelevant and unfairly
prejudicial at the punishment phase of a trial for unlawful possession of a
controlled substance. Lane, 303 S.W.3d at 714–15.
A complaint is not preserved for appeal unless it was made to the trial court
“by a timely request, objection or motion” that “stated the grounds for the ruling
that the complaining party sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were
apparent from the context.” TEX. R. APP. P. 33.1(a). Furthermore, a defendant’s
brief must “contain a clear and concise argument for the objections made, with
appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). The
failure to present argument and authorities results in waiver of the point of error.
See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).
The State charitably identifies several objections to Cash’s testimony based
on relevance, but much of Cash’s testimony that elicited objections was later
admitted without objection. That testimony generally discussed particulars of the
methamphetamine trade, including how the drug is produced, how money is
handled, and the danger of violence for its participants. Under such circumstances,
there can be no reversible error in admitting the evidence. See Leday v. State, 983
S.W.2d 713, 718 (Tex. Crim. App. 1998).
16 Moreover, Flores does not identify any particular testimony that should be
deemed irrelevant and unfairly prejudicial like the testimony in Lane. In that case,
the court declined to hold that all testimony regarding the dangers and societal
costs of drug use was irrelevant at the punishment stage of a trial for possession or
delivery of controlled substances, but held that the particular testimony at issue
was irrelevant because it went beyond the context for the offense and unfairly
prejudiced the defendant. See Lane, 303 S.W.3d at 714–15. Specifically, the
narcotics officer in Lane testified that he was familiar with people who had died
from methamphetamine, including a woman who used the drug during her
pregnancy, and that the community has to subsidize the costs of “health care, clean
up, and theft associated with methamphetamine” because its users are typically
unemployed and steal to get drug money. Id. at 713. Flores does not point to any
testimony that compares to the testimony in Lane, and he makes no meaningful
argument that the entirety of Cash’s testimony was irrelevant or prejudicial.
Because he has failed to adequately brief the issue for review or demonstrate
that it was preserved in the trial court, we overrule Flores’s fifth issue. See TEX. R.
APP. P. 33.1(a), 38.1(i).
V. Closing argument
In his fifth issue, Flores contends that the trial court erred when it overruled
his objection to improper jury argument. Flores asserts that the prosecutor’s
17 statement during closing argument, directed to him, that “[t]oday will be the last
day you can ever think you can sell that crap to our kids,” was nearly identical to
prohibited argument in Lane in which the prosecutor stated that the defendant was
bringing drugs into the county to poison children and turn them into addicts. See
Lane, 303 S.W.3d at 711–12.
However, Flores’s specific objection at trial was to the prosecutor getting
too physically close and speaking directly to him. Flores did not object to the
statements as improper jury argument. A defendant’s failure to object to jury
argument or pursue an adverse ruling to his objection forfeits his right to complain
about the argument on appeal. Threadgill v. State, 146 S.W.3d 654, 670 (Tex.
Crim. App. 2004). Furthermore, the point of error on appeal must comport with the
objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.
Because Flores did not object to the prosecutor’s statements as improper jury
argument, he has forfeited the issue on appeal. See Threadgill, 146 S.W.3d at 670.
We overrule Flores’s fifth issue.
18 Conclusion
Having overruled Flores’s six issues, we affirm the trial court’s judgment.
Michael Massengale Justice
Panel consists of Justices Jennings, Massengale, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).