Opinion issued August 30, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NOS. 01-11-00139-CR, 01-11-00140-CR ——————————— MIGUEL ANGEL NAVARRO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 240th Judicial District Court Fort Bend County, Texas Trial Court Case Nos. 10-DCR-05236A, 08-DCR-050238
MEMORANDUM OPINION
After the juvenile court waived jurisdiction1 and certified appellant, Miguel
Angel Navarro, to stand trial as an adult in criminal district court, a jury found
1 See TEX. FAM. CODE ANN. § 54.02 (Vernon Supp. 2011). appellant guilty of the offenses of murder2 and aggravated assault3 and assessed his
punishment at confinement for ninety-nine years. In his first and second issues,
appellant contends that the juvenile court erred in transferring the case to criminal
district court and not holding a hearing on his motion to suppress evidence. In his
third, fourth, and fifth issues, appellant contends that the trial court erred in not
suppressing certain evidence and instructing the jury.
We affirm.
Background
After appellant, then fifteen years of age, was charged with the murder of
Matthew Haltom4 and the aggravated assaults of Joe Eodice5 and Joel Arnold, the
State filed a Petition for Discretionary Transfer in the juvenile court, requesting
that it waive its jurisdiction and certify appellant to stand trial as an adult in
criminal district court.
Before the transfer hearing, appellant moved to suppress certain statements
that he had made to police officers. The State argued that the juvenile court was
2 See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011). 3 See id. § 22.02 (Vernon 2011). 4 Trial court cause number 10-DCR-05236A; appellate cause number 01-11-00139- CR. 5 Trial court cause number 08-DCR-050238; appellate cause number 01-11-00140- CR. 2 not required to consider the motion because a transfer hearing is “only a baseline
finding as to whether or not [the juvenile court believes] that there is probable
cause” that appellant committed the offense. The juvenile court agreed that
appellant was not entitled to a hearing on his motion, and, at the conclusion of the
transfer hearing, it granted the State’s petition.
At trial, Mackenzie Haltom, Matthew Haltom’s sister, testified that on
December 26, 2007, her brother had a “bonfire” party at their parent’s house.
When she arrived at the house, she found 40 to 50 people standing around the
bonfire in the back yard. Ten to fifteen more people, who Mackenzie and Matthew
did not know, arrived approximately thirty minutes later. Matthew became upset,
“swearing and yelling,” and asked the new arrivals to leave several times.
Although the new arrivals agreed to leave, they only relocated from the back yard
to the front yard. When Matthew learned that they had not left the property, he
walked to the front yard with a group including Arnold and Eodice. Matthew and
his friends then argued with the new arrivals, demanding that they leave the
property. The argument escalated until somebody threw a beer bottle at Matthew,
after which the two groups started fighting.
During the fight, Mackenzie saw Eodice “in a fetal position” with two
people attacking him. Later, after the fight had subsided, she saw Matthew,
bleeding profusely, collapse onto the ground. While she was waiting for
3 emergency assistance, she noticed Eodice “laid down on the street” bleeding and
Arnold “bent over holding his back.” After paramedics arrived to take the three
young men to a hospital, Mackenzie learned that Matthew had died of stab
wounds.
Sarah Strelecki testified that on December 26, 2007, she was at her cousin’s
house when her cousin’s boyfriend, Eric Hernandez, arrived in a car to pick them
up. They met with a few friends, including Jeremy Cano, Victor Olivo, and Eric’s
cousin, Antonio Hernandez, who invited them to a party. Eric, following
Cano’s car, drove Strelecki and her cousin to the party, and they arrived at the
Haltoms’ house in a group of “eight or ten” people. Matthew approached
Strelecki’s friends and asked them to leave because there were “too many people”
with them that he was unfamiliar with. Strelecki and her cousin retreated to Eric’s
car, but others in the group started “yelling vulgar things” and “screaming.” The
conflict escalated until “people started punching” each other. Eric returned to the
car and attempted to drive away from the fight, but the street was “too crowded”
for them to leave. In the car’s headlights, she saw someone, later identified as
appellant, holding a knife behind his back while “watching the fight” and “moving
side to side.” On cross-examination, Strelecki admitted that she had not seen
appellant stab anyone.
4 Olivo, a friend of appellant’s since they were in first grade together, testified
that he rode to the Haltoms’ house with Cano and Antonio. When they arrived at
the party, Olivo saw appellant exit the back yard with a group of people who had
just been asked to leave. During the fight, Olivo saw appellant on the ground
“getting jumped.” Appellant had a knife in his hand and “pull[ed]” someone down
with him.” Olivo later told a police officer that he had seen appellant stab a “white
guy.” After the fighting had subsided, Olivo got into Cano’s car with appellant
and several others. He noticed blood on appellant’s sleeve and hands, and
appellant stated that he had stabbed two people during the fight.
Cano, an acquaintance of appellant’s, testified that he drove to the Haltoms’
party with Olivo and Antonio. When the fighting started, Cano entered his car
because he did not want to get involved, but his exit was blocked by the crowd.
Before he could drive away, appellant entered the car. Cano noticed that appellant
had blood on his clothing, and appellant stated that he had “stabbed”
approximately “five people,” including “two blacks.” The group returned to
Cano’s house, where appellant produced his knife, which also had blood on it.
Later, appellant claimed that he had stabbed only two people.
Giovanni Lopez, who had previously known appellant through his brother,
testified that he was invited to the party, where he saw appellant standing by the
bonfire in the back yard. During the fight, someone punched Lopez, and he fell
5 backwards into a ditch in front of the yard. Several people followed Lopez into the
ditch, including an African-American male who had punched him. Appellant
followed them into the ditch and told Lopez, “I got you,” which, Lopez thought,
meant that appellant had stabbed the African-American male. When leaving the
Haltoms’ house, Lopez got into the car with appellant, Cano, and Olivo. He saw
that appellant had a knife in his hand and a blood stain on his own shoe.
The State then moved to introduce into evidence appellant’s oral and written
statements previously made to the police officers and a knife that had been
retrieved from appellant’s house. Appellant objected and moved to suppress both
the statements and the knife, and the trial court held a hearing on his motion.
During the hearing on appellant’s motion to suppress evidence, Fort Bend
County Sheriff’s Department (“FBCSD”) Detective D. McKinnon testified that he
was assigned to investigate the stabbings at the Haltoms’ house. After Cano
indicated that appellant might have information about the incident, McKinnon
visited appellant’s house to “try to make contact with him.” He arrived at the
house with three other police officers and knocked on the door, which “swung
open” because it was ajar. A small child, later identified as appellant’s five-year-
old brother, stood in the middle of the living room, and, when McKinnon asked if
any adults were home, the child responded, “No.” McKinnon then “decided to
enter the house to check the welfare of the child.” He asked the child if appellant
6 was home, and the child pointed towards a bedroom door. McKinnon knocked on
the bedroom door, and appellant answered, looking “like he had just woken up.”
Inside the bedroom, McKinnon saw a knife lying on appellant’s bed. He asked
appellant if he knew where his parents could be found, but appellant did not know.
Several other police officers attempted to locate someone who could care for
appellant’s brother while McKinnon stayed at the house. As McKinnon waited for
appellant’s mother to return home, he asked appellant if he knew why police
officers had come to the house, and appellant started to cry. McKinnon asked if he
was involved in a fight at the Halstoms’ house, and appellant admitted that “he
might have stabbed a couple of people.”
When appellant’s mother, Maria Salazar, arrived at the house, McKinnon,
through an interpreter, Detective M. Cox, asked Salazar for consent to search
appellant’s room because appellant had been “involved in an incident.” Salazar
orally consented to the search and signed a written consent form that authorized the
police officers to search her “[h]ouse . . . [,] including appellant’s bedroom,” and to
seize “any letter, the papers, the materials of any—that can be used against me in a
criminal proceeding.” The police officers then searched appellant’s bedroom and
seized the knife on appellant’s bed, articles of clothing, and a small amount of
marijuana. McKinnon later took recorded and written statements from appellant.
7 Salazar testified that on the morning of December 27, 2006, she went to
work and left appellant to watch her younger son at home. She called appellant
when she arrived at work, but “an officer took [the telephone] away from him” and
told her that she “had to come home.” When she arrived, the officers told her she
could not enter the house, and she waited outside for approximately one hour. An
officer handed her a piece of paper, which she signed, but she did not understand it
very well. When she saw the officers, who had told her that they were “going to
get a pair of pants” from appellant’s bedroom, “moving things around” and
“picking up everything,” she asked them to stop because it became apparent that
the officers were looking for more than clothing.
The trial court concluded that there was “nothing unlawful about the officers
going into that home” and it was “entirely appropriate for the officers to inquire of
a consent to search the home.” Although it found that the written consent form
signed by Salazar was “superfluous to the evidence,” it further found that Salazar
had “manifestly expressed that she had orally consented to the search of the
home.” The trial court also found that it was “inseparable that the clothing be
seized but the knife not be seized” because the officers were “in a lawful position
to observe the knife.” The trial court then denied appellant’s motion to suppress
the knife, but it granted appellant’s motion to suppress his oral and written
statements.
8 After the trial court admitted the knife into evidence, Tonya Dean, a forensic
scientist for the Texas Department of Public Safety, testified that DNA recovered
from the handle of the knife was identified as that of appellant and “an unknown
individual.” Dean also found Matthew’s and Eodice’s DNA on blood stains on the
knife.
The jury found appellant guilty of the murder of Halstom and the aggravated
assault of Eodice, but it acquitted him of the aggravated assault of Arnold. The
jury assessed his punishment at confinement for 99 years for the offense of murder
and 20 years for the offense of aggravated assault, with the sentences to run
concurrently.
Juvenile Court Proceedings
In his first issue, appellant argues that the juvenile court erred in
transferring the case to criminal district court because “there was no probable
cause to support the charge of aggravated assault of [Arnold]” and there was “no
evidence tying appellant to the stabbing.” In his second issue, appellant argues that
the juvenile court erred in not holding a hearing on appellant’s motion to suppress
evidence before the transfer hearing because it was required to do so.
Probable Cause
An appellate court reviews a juvenile court’s decision to waive jurisdiction
and transfer a juvenile to the adult criminal justice system for an abuse of
9 discretion. See Faisst v. State, 105 S.W.3d 8, 12 (Tex. App.—Tyler 2003, no pet.);
see also State v. Lopez, 196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet.
ref’d.). A juvenile court may waive its exclusive original jurisdiction and transfer
a juvenile to a criminal district court for criminal proceedings if (1) the child is
alleged to have committed a felony; (2) the child meets one of two age
requirements; and (3) after a full investigation and hearing, the juvenile court
determines that probable cause exists to believe the juvenile committed the alleged
offense and that the community’s welfare requires criminal proceedings because of
the serious nature of the offense or the child’s background. See TEX. FAM. CODE
ANN. § 54.02(a) (Vernon Supp. 2011).
The standard of review governing an appeal from a juvenile certification
proceeding is generally the same as that in civil cases. See TEX. FAM. CODE ANN.
§ 56.01(b) (Vernon Supp. 2011); In re T.D., 817 S.W.2d 771, 773 (Tex. App.—
Houston [1st Dist.] 1991, writ denied). The juvenile court’s findings of fact are
reviewable by the same standards as are applied in reviewing the legal sufficiency
of the evidence supporting a jury’s answers to a charge. In re G.F.O., 874 S.W.2d
729, 731–32 (Tex. App.—Houston [1st Dist.] 1994, no writ); see also In re J.P.O.,
904 S.W.2d 695, 700 (Tex. App.—Corpus Christi 1995, writ denied). When
considering a “no evidence” point of error, we look only to the evidence favorable
to the judgment to determine whether there is any evidence to support the finding.
10 In re D.L.N., 930 S.W.2d 253, 255 (Tex. App.—Houston [14th Dist.] 1996, no
writ).
Probable cause consists of sufficient facts and circumstances to warrant a
prudent person to believe that the suspect committed the offense. In re K.B.H., 913
S.W.2d 684, 689 (Tex. App.—Texarkana 1995, no writ); In re D.W.L., 828 S.W.2d
520, 524 (Tex. App.—Houston [14th Dist.] 1992, no writ).
“If a petition alleges multiple offenses that constitute more than one criminal
transaction, the juvenile court shall either retain or transfer all offenses relating to a
single transaction.” TEX. FAM. CODE ANN. § 54.02(g). “A child is not subject to
criminal prosecution at any time for any offense arising out of a criminal
transaction for which the juvenile court retains jurisdiction.” Id. If the State’s
petition charges multiple offenses, the juvenile court must expressly dispose of
each. Richardson v. State, 770 S.W.2d 797, 799 (Tex. Crim. App. 1989); Mason v.
State, 778 S.W.2d 487, 488 (Tex. App.—Houston [14th Dist.] 1989, no pet.). It
can transfer only those offenses which it finds probable cause to believe were
committed, and it must dismiss the others. See Turner v. State, 796 S.W.2d 492,
494–95 (Tex. App.—Dallas 1990, no writ).
Appellant argues that because there is no evidence supporting the probable-
cause determination on the offense of the aggravated assault of Arnold, the
juvenile court erred in transferring the murder case and the case concerning the
11 aggravated assault of Eodice to the criminal district court. The record from the
transfer hearing contains much of the same evidence that was presented at trial.
Although appellant asserts that “[n]o witness said they saw appellant fight with or
stab” Arnold, the record contains other evidence from which the juvenile court
could have reasonably concluded that there was probable cause to believe that
appellant stabbed Arnold. Mackenzie Haltom testified that Arnold “collapsed right
in front of [her] mailbox” and he had been stabbed along with her brother and
Eodice. Cano testified that he told a police officer that appellant, in the car after
the fight, had said that he had stabbed “five people” including “two black kids.”
Although Lopez testified at the transfer hearing that he did not remember seeing
appellant during the fight, the State played his recorded statement given to a police
officer to the juvenile court. In the statement, Lopez noted that he was followed
into a ditch by two African-American males, heard appellant say, “I got you,” and
saw appellant stab one of the African-American males. Of the three complainants,
only Arnold was African-American, and he suffered stab wounds similar to those
suffered by Matthew and Eodice. Viewing this evidence in a light favorable to the
juvenile court’s finding, it could have reasonably believed that appellant
committed the aggravated assault of Arnold. Accordingly, we hold that the
juvenile court did not err in finding that there was probable cause to believe that
appellant committed the aggravated assault of Arnold.
12 We overrule appellant’s first issue.
Suppression Hearing
At a transfer and certification hearing, a juvenile court need only determine
if there is “probable cause” that the juvenile committed the charged offense. In re
D.W.L., 828 S.W.2d 520, 524 (Tex. App.—Houston [14th Dist.] 1992, no writ).
The transfer and certification hearing is a nonadversary preliminary hearing, in
which the juvenile court may rely upon hearsay as well as written and oral
testimony. L.M.C. v. State, 861 S.W.2d 541, 542 (Tex. App.—Houston [14th
Dist.] 1993, no writ). A transfer hearing “does not require the fine resolution of
conflicting evidence that an adjudication of guilt or innocence requires”; the
hearing’s only goal is to determine the proper forum in which to adjudicate the
defendant’s guilt or innocence. Id.
Numerous courts of appeals have held that juvenile courts are not required to
consider the admissibility of statements at a transfer hearing. See, e.g., In re
T.L.C., 948 S.W.2d 41, 44 (Tex. App.—Houston [14th Dist.] 1997, no writ);
L.M.C., 861 S.W.2d at 542; In re M.E.C., 620 S.W.2d 684, 686–87 (Tex. Civ.
App.—Dallas 1981, no writ); In re Y.S., 602 S.W.2d 402, 404–05 (Tex. Civ.
App.—Amarillo 1980, no writ). For example, in L.M.C., a juvenile defendant
argued that the juvenile court erred in admitting his confession at a transfer
hearing. 861 S.W.2d at 541–42. The court noted that the juvenile court was
13 required to consider whether there was “evidence on which a grand jury may be
expected to return an indictment,” and a grand jury is not bound by the rules of
evidence in making a probable cause determination. Id. at 542 (citing TEX. FAM.
CODE ANN. § 54.02(f)(3) (Vernon 1986)). The court further noted that a juvenile
defendant’s constitutional rights would not be violated by considering the
confession during a transfer hearing because:
A transfer hearing does not require the fine resolution of conflicting evidence that an adjudication of guilt or innocence requires . . . . Moreover, appellant’s rights will be fully protected when the case reaches trial, whether it ultimately takes place before the juvenile court or the criminal district court.
Id.
In support of his argument that the juvenile court erred in not holding a
hearing on his motion to suppress evidence, appellant relies on two cases from the
San Antonio Court of Appeals. See In re S.A.R., 931 S.W.2d 585 (Tex. App.—San
Antonio 1996, writ denied); R.E.M. v. State, 541 S.W.2d 841 (Tex. App.—San
Antonio 1976, writ ref’d n.re.). In S.A.R., the juvenile defendant argued that his
statements were inadmissible at the transfer hearing because they were obtained in
violation of section 51.09(b) of the Texas Family Code, which provides that “the
statement of a child is admissible in evidence in any future proceeding concerning
the matter about which the statement was given if” the child is read his legal rights
and told the consequences and sentencing possibilities of admitting to various
14 crimes. 931 S.W.2d at 587 (citing TEX. FAM. CODE ANN. § 51.09(b) (Vernon
Supp. 1996)). The State argued that it was unnecessary to consider the
admissibility of the statements because “a waiver and certification hearing” is “not
adjudicatory in nature.” Id. The court held that the plain language of section
51.09(b), which refers to “any future proceeding,” requires the juvenile court to
consider the admissibility of the juvenile defendant’s statements at the transfer
hearing. Id.
The court in S.A.R. relied in part on R.E.M., in which the juvenile defendant
argued that the juvenile court improperly relied on witness testimony from a
previous transfer hearing in waiving its jurisdiction. R.E.M., 541 S.W.2d at 845.
The juvenile defendant relied on the evidentiary rule that “the testimony of a
witness given at a prior trial of the same case” may only be introduced into
evidence if the witness is otherwise unable to testify. Id. (citing Houston Fire &
Cas. Ins. Co. v. Brittian, 402 S.W.2d 509, 510 (Tex. 1966)). The court held that
there is “no reason why the rule should not be applied in a hearing for the purpose
of determining whether a youthful offender is going to be deprived of the
protection afforded by the juvenile court system.” Id. The court concluded that
the juvenile court erred in relying on the prior witness testimony, and it remanded
the case to juvenile court. Id. at 847.
15 Appellant notes that the Juvenile Justice Code was amended to delete the
provision that the juvenile court, during a transfer hearing, “shall consider, among
other matters . . . whether there is evidence on which a grand jury may be expected
to return an indictment.” Act of May 27, 1995, 74th Leg., R.S., ch. 262, § 106(a),
1995 Tex. Gen. Laws 2517, 2591. However, as noted in L.M.C., the consideration
of grand-jury evidence was only one justification for not requiring juvenile courts
to rule on the admissibility of evidence during a transfer hearing. 861 S.W.2d at
541–42. The Texas Family Code still only requires a juvenile court to determine
whether there is probable cause that the juvenile committed the alleged offense.
TEX. FAM. CODE ANN. § 54.02(a)(3). Thus, a transfer hearing remains a
“nonadversarial preliminary hearing” and “appellant’s rights will be fully protected
when the case reaches trial.” L.M.C., 861 S.W.2d at 542; see also State v. Lopez,
196 S.W.3d 872, 874 (Tex. App.—Dallas 2006, pet. ref’d) (holding juvenile
defendant was not entitled to jury trial at transfer hearing because, during such
hearing, juvenile court “is not required to conform to all of the requirements of a
criminal trial or even of the usual administrative hearing” and transfer hearing “is
comparable to a criminal probable cause hearing and the court need not resolve
evidentiary conflicts beyond a reasonable doubt”). Accordingly, we opt to agree
with our sister court in L.M.C. and hold that the juvenile court was not required to
resolve the admissibility of appellant’s statements before the transfer hearing.
16 We overrule appellant’s second issue.
Motion to Suppress
In his third issue, appellant argues that the trial court erred in denying his
motion to suppress the knife recovered from his bedroom because the State failed
to prove that Salazar, his mother, consented to the search of the bedroom and the
initial entry of the police officers was not justified under the community-caretaking
doctrine.
We review a ruling on a motion to suppress evidence for an abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We
generally consider only the evidence adduced at the suppression hearing unless
the parties consensually re-litigate the issue at trial, in which case we also consider
relevant trial testimony. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.
1996). We give almost total deference to a trial court’s determination of historical
facts, especially if those determinations turn on witness credibility or demeanor,
and we review de novo the trial court’s application of the law to facts not based on
an evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281
(Tex. Crim. App. 2008). At a suppression hearing, a trial court is the sole and
exclusive trier of fact and judge of the witnesses’ credibility. Maxwell v. State, 73
S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, a trial court may choose
17 to believe or to disbelieve all or any part of a witnesses’ testimony. State v. Ross,
32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
When the trial court makes findings of fact with its ruling on a motion to
suppress, an appellate court does not engage in its own factual review but
determines only whether the record supports the trial court’s fact findings.
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Unless a trial
court abuses its discretion in making a finding not supported by the record, we
will defer to the trial court’s fact findings and not disturb the findings on appeal.
Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).
Initial Entry
In regard to the police officers’ initial entry into the Salazar home, the
Fourth Amendment does not bar police officers from making warrantless entries
and searches when they reasonably believe that a person within a place is in need
of immediate aid. Laney v. State, 117 S.W.3d 854, 858 (Tex. Crim. App. 2003)
(citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 2413 (1978)). The
need to protect or preserve life or avoid serious injury is justification for what
would be otherwise illegal absent an exigency or emergency. Id. Such a
warrantless search must be “strictly circumscribed by the exigencies which justify
its initiation.” Id.
18 For example, in Laney, police officers responded to a call at the defendant’s
mobile home and eventually arrested the defendant. Id. at 856. After they placed
the defendant in their patrol car, the officers noticed “two young boys” alone in
the mobile home. Id. An officer testified that because he had detained the
defendant, “it was his responsibility to get the children out of the trailer and find
out who their parents were.” Id. He then entered the mobile home to locate the
children and, while doing so, found and seized photographs depicting child
pornography. Id. The Texas Court of Criminal Appeals held that the officer
lawfully entered the mobile home to ensure the safety of the children, noting that
“[a]rguably, the deputies would have been criminally liable” for abandoning the
children. Id. at 862–63. The court concluded that both the initial entry into the
home and the seizure of evidence in plain view were lawful.
Id. at 863.
Likewise, here, Detective McKinnon testified that upon arrival at the
Salazar home, he found the front door ajar. When he knocked on the door, it
swung open, and he saw appellant’s five-year-old brother standing alone in the
living room. When McKinnon asked him if there were any adults in the house,
the child responded, “No.” McKinnon then entered the home in order to “check
on the welfare of the child.” A second police officer testified that when the
officers knocked on the door, the child answered the door, appeared to understand
19 their questions, and responded that no adults were home. McKinnon then asked
the child if appellant was at home, and the child pointed toward appellant’s
bedroom door. When McKinnon knocked on the door, appellant opened the door,
and McKinnon saw the knife lying on appellant’s bed in plain view. Although
appellant asserts that the officers could not lawfully remain in Salazar’s home
after taking the child to a neighbor’s house, we note that McKinnon testified that
the officers committed no further search of the home and merely waited for
Salazar to arrive so that they could obtain her consent to search. Accordingly, we
cannot conclude that the trial court abused its discretion in finding that the officers
lawfully made their initial entry into the home.
Consent
Appellant further argues that the trial court erred in admitting the knife into
evidence because Salazar’s consent was “not shown to be voluntary by clear and
convincing evidence” and the police officers’ search of appellant’s bedroom
exceeded the scope of any consent that she gave.
The State must prove by clear and convincing evidence that any consent to
search was voluntary. State v. Ibarra, 953 S.W.2d 242, 243 (Tex. Crim. App.
1997); Vasquez v. State, 324 S.W.3d 912, 922 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d). We consider the totality of the circumstances to assess whether
20 a consent to search was voluntary. Reasor v. State, 12 S.W.3d 813, 818 (Tex.
Crim. App. 2000).
Appellant asserts that “[m]any factors refute the court’s conclusion that the
mother gave voluntary consent,” including the presence of “[m]ultiple armed
officers,” Salazar’s “not [being] allowed in the house for an hour” after her
arrival, her not “understand[ing] the written consent form,” and the facts that
Salazar has only a “first grade education” and “speaks no English.” However,
there was conflicting testimony regarding many of these factors.
For example, Detective McKinnon testified that after locating appellant, all
of the officers left the home besides himself, who waited with appellant, and
Detective Cox, who acted as an interpreter. He noted that when Salazar returned
to the house, she spoke with him and Cox. Regarding her understanding of the
written consent form, we note that the trial court specifically did not rely on it in
making its determination that she consented to the search. Also, Cox testified that
Salazar did not have any difficulty communicating with her in Spanish.
Regarding the scope of the search, although Salazar testified that she
believed that the officers entered appellant’s bedroom only to search for clothing,
McKinnon testified that he actually asked for oral and written consent to search
the bedroom. The trial court specifically noted that Salazar did not object to the
seizure of the knife found on appellant’s bed or the marijuana found underneath
21 appellant’s mattress as evidence that Salazar understood the search to be a search
of appellant’s bedroom, and not merely for clothing. Instead, Salazar did not
object until McKinnon found a paper bag containing “multiple ID cards” and
asked her about them.
Viewing this evidence in the light most favorable to the trial court’s ruling,
we conclude that the trial court could have formed a firm belief or conviction that
Salazar orally and voluntarily consented to the search of appellant’s bedroom.
Accordingly, we hold that the trial court did not err in admitting into evidence the
knife found in appellant’s bedroom.
We overrule appellant’s third issue.
Jury Charge
In his fourth and fifth issues, appellant argues that the trial court erred in not
instructing the jury regarding the right to self-defense against multiple assailants
and the right to defend a third party against multiple assailants because “the
evidence is clear that [he] and his brother were both threatened by multiple
assailants.”
In analyzing a jury charge issue, our first duty is to decide whether error
exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If we
find error, we then analyze that error for harm. Id. The degree of harm necessary
for reversal depends on whether the defendant preserved the error by objection.
22 Id. Reversal is required for a jury charge error when the defendant has properly
objected to the charge and we find “some harm” to his rights. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985). When the defendant fails to object
or states that he has no objection to the charge, we will not reverse for jury-charge
error unless the record shows “egregious harm” to the defendant. Bluitt v. State,
137 S.W.3d 51, 53 (Tex. Crim. App. 2004); Almanza, 686 S.W.2d at 171. Thus,
we review alleged charge error by considering: (1) whether error existed in the
charge; and (2) whether sufficient harm resulted from the error to compel reversal.
See Posey v. State, 966 S.W.2d 57, 60 & n.5 (Tex. Crim. App. 1998).
A trial court errs in not submitting a defensive instruction to the jury only if
the record indicates that the trial court understood the request “to encompass the
matters” raised on appeal. Bennett v. State, 235 S.W.3d 241, 243 & n.9 (Tex.
Crim. App. 2007); Jackson v. State, 288 S.W.3d 60, 63 (Tex. App.—Houston [1st
Dist.] 2009, pet. ref’d). A trial court has no duty to instruct the jury on
unrequested defensive issues, even when those issues are raised by the evidence.
Posey, 966 S.W.2d at 62; Jackson, 288 S.W.3d at 63. Defensive instructions
must be requested in order to be considered applicable law of the case requiring
submission to the jury. Bennett, 235 S.W.3d at 242. Thus, generally no error
exists in the charge when a defensive issue was not requested or otherwise
brought to the court’s attention. Posey, 966 S.W.2d at 61–62.
23 Here, at the charge conference, appellant’s counsel stated that he had “no
objection” to the trial court’s charge, and there is nothing in the record to indicate
that appellant proffered a jury charge containing an instruction for self-defense
against multiple assailants or the right to defend a third party against multiple
assailants. Appellant now asserts that “trial counsel recently advised appellate
counsel that she did object to the lack of multiple assailants charges” in a “charge
conference held off the record” and he will “seek to perfect an agreed amendment
to the record on this issue, or, alternatively, an out-of-time formal bill of
exception.” However, appellant has not submitted an agreed amendment or a bill
of exception to this Court.
Accordingly, because there is nothing in the record indicating that appellant
requested a jury charge on multiple assailants, we hold that no error exists in the
trial court’s charge to the jury. See Bennett, 235 S.W.3d at 243 & n.9 (finding no
error in charge because defendant’s complaint was insufficient to convey issue
presented on appeal); Jackson, 288 S.W.3d at 63 (holding that trial court did not
err in omitting unrequested instruction sought for first time on appeal).
We overrule appellant’s fourth and fifth issues.
24 Conclusion
We affirm the judgments of the trial court.
Terry Jennings Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).