June 12, 2015
NO. PD-0349-15
IN THE COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
***************************************
EDWARD FLORES V. STATE OF TEXAS
From Appeal No. NO. 01-13-00295-CR Trial Cause No. 12-08-08659-CR Montgomery County
PETITIONER’S PETITION FOR DISCRETIONARY REVIEW
Scott Pawgan 122 W Davis, Ste. 116 Conroe, Texas 77301 (936) 242-6975 Phone State Bar No. 24002739
Attorney for Petitioner
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
Index of Authorities ………………………………………………………………………………ii
Statement Regarding Oral Argument ………………………...………………………………….iii
Statement of the Case ……………………………………...…………………………………..….1
Statement of Procedural History ………………………...………………………………………..3
Ground for Review No. 1 ……...………………………………………………………………….4
DID THE COURT OF APPEALS ERR IN HOLDING THAT THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT’S MOTION TO SUPPRESS PHYSICAL EVIDENCE GAINED AS THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE
Reasons for Review ……………………………………….……………………….......…4
Concise Argument………………………………………………………………………...5
Ground for Review No. 2 ……...…………………………………………………………………7
DID THE COURT OF APPEALS ERR IN HOLDING THAT THE TRIAL COURT DID NOT ERR IN ALLOWING TESTIMONY REGARDING THE TESTIMONY OF THE EXTENT OF THE METHAMPHETAMINE PROBLEM AND THE GENERAL DANGERS AND SOCIETAL COSTS OF METHAMPHETAMINE
Reasons for Review ……………………………………….………………………...……7
Concise Argument for Grounds for review Numbers 2 & 3……………………………....8
Conclusion and Prayer…………………………………………………………………………….9
Certificate of Service…………………………………………………………………………….10
Appendix Follows INDEX OF AUTHORITIES Cases
Ebarb v. State, 598 S.W.2d 842, 850 (Tex. Crim. App. 1980) ................................................................................... 5 Ex Parte Lane, 303 S.W.3d 702 (Tex. Crim. App. 2009) ........................................................................................... 8 Henderson v. State, 965 S.W.2d 710, 713 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) .................................... 6 Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997).................................................................................. 6 Hunter, 955 S.W.2d at 104.................................................................................................................................... 6, 7 Lippert v. State, 664 S.W.2d 712, 720 (Tex. Crim. App. 1984) ................................................................................. 5 Terry v. Ohio, 392 U.S. 1, 20–29, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 44 Ohio Op. 2d 383 (1968) .............................. 6 Rules
Texas Rules of Appellate Procedure, Rule 66.3(c)..................................................................................................... 5 Texas Rules of Appellate Procedure, Rule 66.3(f) ................................................................................................. 5, 8
ii STATEMENT REGARDING ORAL ARGUMENT
The issues addressed involve important questions of state law. Oral argument will
ensure a full, and fair exposition of the importance of these questions and how they
should be resolved.
iii TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW Edward Flores, Petitioner in the above entitled and numbered
cause, by and through his counsel, Scott Pawgan, and petitions the Court of Criminal
Appeals to review the decision by the Court of Appeals, and respectfully shows this
Court the following in support of this petition.
Statement of the Case
On March 22, 2012. officers from Montgonery County Precinct Four Constables
Office were serving a search warrant on Sammy Carollo’s residence, 22307 Smith Road.
(R.R. Vol. 6, Pages 47, 153, 164-165; Vol. 7, Page 114-15). While serving the warrant,
the deputies serving as security on the outside of the property noticed a vehicle drive up
the drive to the property the officers were searching (R.R. Vol. 6, Pages 35, 47-48, 153,
154, 169; Vol. 7, Page 16).
The officers then flagged down the vehicle and gave the vehicle's driver hand and
verbal commands to pull his vehicle toward the officers. (R.R. Vol. 6, Pages 49, 161,
170, 174; Vol. 7, Page 17) The officers testified that the driver was not free to leave the
scene once he drove onto the property. (R.R. Vol. 6, Page 209)
Upon driving onto the property, the driver then stopped the vehicle and exited the
vehicle. (R.R. Vol. 6, Pages 35, 48, 172; Vol. 7, Page 16-18) According to the officers,
the driver then looked around and reached back into the vehicle and threw something
over the vehicle. (R.R. Vol. 6, Pages 35, 42, 174; Vol. 7, Page 18)
The deputies then approached the vehicle and its driver, as well as approach the
area where the driver supposedly thru the item over the vehicle. (R.R. Vol. 6, Pages 48-
1 51, 174-175; Vol. 7, Page 1) The driver was identified as Appellant. (R.R. Vol. 6, Pages
51, 169; Vol. 7, Page 17)
In the area where the item was found, officers discovered a paper bag. Inside the
paper bag was a white crystaline substance. (R.R. Vol. 6, Pages 35-36, 49-51, 176) The
substance later tested to be 137.49 grams of methamphetamine. (R.R. Vol. 6, Page 99)
Appellant was immediately handcuffed and taken into custody. (R.R. Vol. 6, Pages 54-
55, 176; Vol. 7, Page 24).
After Appellant was detained, he was asked by Constable Hayden why he was
there. (Vol. 7, Pages 22-23) Appellant who, even though not free to leave and having not
been mirandized allegedly stated he was “going to see Sammy.” (Vol. 7, Pages 22-23)
The officers subsequently searched the truck Appellant was driving. (R.R. Vol. 6, Pages
68). NO paraphernalia commonly associated with an individual dealing drugs was found
during the vehicle search. (R.R. Vol. 6, Pages 68, 77-80, 195).
To establish the delivery element, the State called Phillip Cash to testify. Among
the things Lt. Cash testified to was that the amount of methamphetamine would be
enough to make addicts out of 670 people. (R.R. Vol. 6, Page119). In addition, over
Appellant’s objection Lt. Cash was able to testify to such irrelevant facts such as the
violence that is associated with the drug trade, (R.R. Vol. 6, Pages 123-124) the
wholesale and retail price of methamphetamine (R.R. Vol. 6, Pages 131-132) and the
drug distribution hubs (R.R. Vol. 6, Pages 132-133). Even though there was testimony to
these inflammatory and irrelevant facts, the State never established neither Appellant nor
anyone at the property being searched had the requisite money to pay for the alleged
2 Methamphetamine, nor did the State ever establish that either Appellant or anyone at the
property had engaged in any violence associated with drugs or drug dealing. As a matter
of fact, as discussed above, Appellant, even though supposedly engaged in such a
dangerous enterprise as drug dealing, did not have a weapon on him.
During the States Closing arguments the State made an argument to convict
Appellant so this will be the last day Applicant can think about selling that crap to our
kids. (R.R. Vol. 7, page 108) Appellant objected to this argument but was overruled.
(R.R. Vol 7, page 109-110)
After Jury selection, but before testimony in guilt innocence started, the Court held
a suppression hearing. (R.R. Vol. 5, Pages 197-296). The Court denied the motion to
suppress. (R.R. Vol. 6, Pages 6-7)
The jury convicted Appellant of delivery of a controlled substance. The court then
held a punishment hearing. At the conclusion of the punishment hearing, The Court
sentenced Appellant to life in Texas Department of Criminal Justice. (Vol. 7, Page 51-52)
From this conviction and sentence, Appellant appeals.
On July 7, 2010, the Ninth Court of Appeals affirmed Petitioner’s conviction in a
memorandum opinion. (please see Appendix) The basis for the Court of appeals
affirming the conviction was that the search was authorized under the plain view
doctrine. From this opinion, Petitioner now requests this Petition be granted and this
Court reverse the Court of Appeals.
Statement of Procedural History
This is an appeal of a conviction for the offense of Possession of a controlled
3 substance, pg 1, four to 200 grams. Appellant pleaded not guilty to the offense charged.
During trial, the trial court denied Appellant’s Motion to Suppress Illegally Seized
Evidence. Appellant went to the Court for punishment after a pre sentence investigation
report was done and the Court held a punishment hearing. The Court assessed
punishment at confinement for life in the Texas Department of Criminal Justice –
Institutional Division. (R.R. Vol. 7, Page 51-52). The Ninth Court of Appeals affirmed
Appellant’s conviction and sentence in an opinion dated February 26, 2015. Appellant’s
Motion for Rehearing was due on March 13, 2015. A motion for extension of time to file a
motion for rehearing pursuant to Texas Rules of Appellate Procedure 49.8 was due by
March 30, 2015. A motion for extension of time to file a motion for rehearing pursuant to
Texas Rules of Appellate Procedure 49.8 was filed March 30, 2015 and an extension was
granted and a motion for rehearing was timely filed and denied on May 12, 2015.
Appellant’s Petition for Discretionary Review is due by June 11, 2015. This petition is
being timely filed.
Ground for Review No. 1
DID THE COURT OF APPEALS ERR IN HOLDING THAT THE TRIAL
COURT DID NOT ERR IN DENYING APPELLANT’S MOTION TO SUPPRESS
PHYSICAL EVIDENCE GAINED AS THE RESULT OF AN ILLEGAL SEARCH
AND SEIZURE
Reasons for Review
1. The Court of Appeals has decided an important question of state or federal
law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals
4 or the Supreme Court of the United States Texas Rules of Appellate Procedure, Rule
66.3(c);
2. The Court of Appeals has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned such a departure by a lower court, as
to call for an exercise of the Court of Criminal Appeals' power of supervision Texas
Rules of Appellate Procedure, Rule 66.3(f).
Concise Argument
The Court of Appeals stated in their opinion that Appellant’s motion to suppress was
properly granted since Appellant’s interaction with law enforcement was not a seizure but
merely an encounter, until the controlled substances were found in the brown bag Appellant
allegedly had thrown. Appellant would respectfully disagree with the Court of Appeals
since any reasonable person seeing multiple law enforcement officers approaching them and
waiving for the individual driving to stop, would feel compelled to submit to law
enforcements show of authority.
A person’s mere presence at a location being searched with a warrant does not
supply constitutionally adequate grounds for reasonable suspicion. Lippert v. State, 664
S.W.2d 712, 720 (Tex. Crim. App. 1984). An investigative stop is a seizure that is less
intrusive than a full arrest. Ebarb v. State, 598 S.W.2d 842, 850 (Tex. Crim. App. 1980).
Actions by the police that would communicate to a reasonable person that compliance
with a police command is required constitutes a detention that must be justified by
reasonable suspicion
5 When an officer has a reasonable suspicion based on articulable facts that criminal
activity is afoot and a certain person is connected with the activity, the officer may make
an investigative stop of that person even though grounds for arrest do not exist. Terry v.
Ohio, 392 U.S. 1, 20–29, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 44 Ohio Op. 2d 383 (1968). A
mere request for an individual to stop or submit to a search does not constitute a “stop:
and such a request need not be justified by reasonable suspicion” Hunter v. State, 955
S.W.2d 102, 104 (Tex. Crim. App. 1997); Henderson v. State, 965 S.W.2d 710, 713 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d). Only if the officer conveyed a message that
compliance was required has a consensual encounter become a detention. Hunter, 955
S.W.2d at 104. Actions by the police that would communicate to a reasonable person that
compliance with a police command is required constitutes a detention that must be
justified by reasonable suspicion. Id.
In the present case, there was no reasonable suspicion for the police to detain
Appellant when he drove upon Mr. Carollo’s property. There is nothing illegal or
objectively could be considered illegal about driving onto someone’s property,
particularly where there is no gate or do not enter signs. In addition, there were additional
houses that attached to the driveway Appellant drove down, and Appellant could have
very easily driven to where he did to get turned and return to a residence whose entrance
he had inadvertently missed down the driveway closer to the main road.
The actions by the police that day would have communicated to a reasonable
person that compliance with the police command to stop Appellant’s truck was required,
and thus the stop of Appellant’s vehicle constitutes a detention that must be justified by
6 reasonable suspicion. Hunter, 955 S.W.2d at 104. There were multiple officers in the yard
advancing on Appellant and waiving to Appellant to stop his vehicle. Given the number
of officers, and that apparent show of force from the number of officers, waiving for
Appellant to stop his vehicle would have compelled most any citizen to submit to the
officers’ demands to stop the vehicle. Appellant was not trying to move or drive towards
the officers, until the officers motioned and commanded Appellant to drive towards the
officers, forcing Appellant to believe he had to submit to their authority.
Since the initial interaction with police was not merely an encounter but a seizure
lacking reasonable suspicion, as detailed in Appellant’s original brief in the Court of
Appeals, this Court has erred in overruling Appellant’s third point of error. Appellant
respectfully requests that this Court reconsider the Court of Appeal’s overruling of
Appellant’s point of error number three and grant point of error number three and reverse
Appellant’s judgment and sentence.
Ground for Review No. 2
COURT DID NOT ERR IN ALLOWING TESTIMONY REGARDING THE
TESTIMONY OF THE EXTENT OF THE METHAMPHETAMINE PROBLEM AND
THE GENERAL DANGERS AND SOCIETAL COSTS OF METHAMPHETAMINE.
1. The Court of Appeals has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned such a departure by a lower court, as
to call for an exercise of the Court of Criminal Appeals' power of supervision. Texas
7 Rules of Appellate Procedure, Rule 66.3(f).
Concise Argument For Ground for Review Number 2
The Court of Appeals stated in their opinion that Appellant’s issue was not briefed or
error properly preserved for Appellate review. Appellant would respectfully disagree and
assert that the issue was properly briefed and preserved for Appellant review.
While the Court in its opinion, stated that Appellant had not identified particular
testimony that was irrelevant and unfairly prejudicial, Appellant clearly identified in his
statement of facts the irrelevant and prejudicial statements made by Lt. Cash. Appellant
clearly identified among the things Lt. Cash testified to was that the amount of
methamphetamine would be enough to make addicts out of 670 people. (R.R. Vol. 6,
Page119). In addition, over Appellant’s objection Lt. Cash was able to testify to such
irrelevant facts such as the violence that is associated with the drug trade, (R.R. Vol. 6,
Pages 123-124) the wholesale and retail price of methamphetamine (R.R. Vol. 6, Pages
131-132) and the drug distribution hubs (R.R. Vol. 6, Pages 132-133). (see Appellant’s
brief at page 4).
Appellant also clearly gave the Court of Appeals, in Appellant’s brief, authority on
which the ground of error was based. That authority was Ex Parte Lane, 303 S.W.3d 702
(Tex. Crim. App. 2009). (see Appellant’s brief at page 13).
As far as preserving error for review, Appellant would contend that this issue was
properly preserved. Appellant’s trial counsel made several relevancy objections to the
complained of testimony. Those objections were overruled, thus preserving the
complaints for Appellant review.
8 Because Appellant’s fourth point of error was properly preserved, and properly
briefed, it was error for The Court of Appeals to overrule point of error number four
without considering the error on its merits as briefed. Appellant requests that this court
reconsider The Court of Appeal’s overruling of Appellant’s fourth point of error as not
preserved and consider the point of error on its substantive grounds and then affirm the
error.
Conclusion and Prayer
Petitioner prays that this Court grant this Petition for Discretionary Review and
reverse the Ninth Court of Appeals opinion and remand the case to the trial court with an
order of acquittal, remand the case to the Court of Appeals to consider on the merit’s
Appellant’s fourth point of error in Appellant’s Appeal Brief or other relief as this Court
feels Petitioner is entitled.
Respectfully submitted,
__________________________ Scott Pawgan 122 W Davis, Ste. 116 Conroe, Texas 77301 (936) 242-6975 Phone State Bar No. 24002739
CERTIFICATE OF SERVICE
9 I HEREBY CERTIFY that Petitioner’s Petition for Discretionary Review was filed through the State’s e-filing service and through the electronic service of the e-filer, copies of the Petition were served upon the 9TH District Attorney, Montgomery County, Conroe, Texas; and to the State prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, on the 11th day of June, 2015.
__________________________ Scott Pawgan Attorney for Petitioner
10 APPENDIX 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).
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Case # PD-0349-15 Case Information Location Court Of Criminal Appeals Date Filed 06/11/2015 10:47:29 PM Case Number PD-0349-15 Case Description Lower Court Number Assigned to Judge Attorney Scott Pawgan Firm Name Individual Filed By Scott Pawgan Filer Type Not Applicable Fees Convenience Fee $0.00 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $0.00 Total Provider Tax Fees $0.00 Grand Total $0.00 Payment Account Name Scott Pawgan Court Appointment Account Transaction Amount $0.00 Transaction Response Transaction ID Order #
Petition for Discretionary Review Filing Type EFileAndServe Filing Code Petition for Discretionary Review Filing Description Petition for Discretionary Review Reference Number PDR 1 Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 Rejection Information Rejection Time Rejection Comment Reason The petition for discretionary review does not contain a certification of compliance
https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=f4606ef8-21cd-4e88-a6be-8cd28d53dd88[6/12/2015 11:29:22 AM] Envelope Details
06/12/2015 Other 11:27:06 with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the identity of Judge, Parties and Counsel [Rule 68.4(a)]. Your petition remains due June AM 10, 2015 and is untimely at this time. Documents Lead Document Flores PDR with Attachment.pdf [Original]
eService Details Name/Email Firm Service Type Status Served Date/Time Opened Jason Larman 06/12/2015 Individual EServe Sent Yes jason.larman@mctx.org 08:56:28 AM Lisa C. McMinn State Prosecuting EServe Sent Yes Not Opened lisa.mcminn@spa.texas.gov Attorney's Office
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