Opinion
No. 05-15-00809-CR
04-06-2016
ARTURO PUEBLA BUSTOS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 15th Judicial District Court Grayson County, Texas
Trial Court Cause No. 065000
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Francis
A jury convicted Arturo Puebla Bustos of possession with intent to deliver 200 grams or more but less than 400 grams of methamphetamine, and the trial court assessed punishment at twenty-five years in prison and a $10,000 fine. In two issues, appellant contends the trial court erred by denying his pretrial motion to suppress. For reasons discussed below, we conclude both issues are without merit. On our own motion, we modify the trial court's judgment to reflect the correct statute under which appellant was convicted. We affirm the judgment as modified.
Evidence at the suppression hearing came from the testimony of two officers and two video recordings of the stop. Appellant was a passenger in a vehicle stopped by Denison police officer Jessey Grissom for a license plate violation on U.S. 75 at about 11:30 at night. Grissom approached and smelled marijuana coming from inside the vehicle. He attempted to identify both the driver and passenger, but neither had a license or other documentation. The driver identified herself as Casey Alderman.
Grissom said appellant appeared to be nervous and kept looking at the floorboard, so he went to the passenger side of the vehicle to talk to him. Appellant opened the door, and Grissom saw an open can of beer under the seat. Appellant tried to hand him cash, which Grissom believed was a "bribe." Grissom tried to speak to appellant and asked his name. Appellant did not speak English, but identified himself as Arturo Augustus. Behind the passenger seat, Grissom saw a box for a digital scale, which he believed was used to weigh drugs. Alderman explained she and appellant had driven nonstop from Tulsa to Houston and back so that she could get money from appellant's family for her "legal fees" on a pending drug charge. Grissom, a former narcotics detective, said Alderman's explanation was significant because he knew the corridor between Houston and Tulsa was one of the main routes to transport drugs.
Given all the circumstances and based on his training and experience, Grissom believed there were drugs in the vehicle and, thirteen minutes into the stop, had Alderman and appellant step out. He patted appellant down and called for a backup unit so he could search the car. He also called in the information they gave him to verify their identities. Although Alderman's identity was confirmed, there was no return for an "Arturo Augustus."
Once a second officer arrived, Grissom began searching the vehicle while both appellant and Alderman sat on the bumper. During the search, Grissom found a digital scale with white residue under the driver's floor mat; Alderman said the residue was methamphetamine. Grissom also found a glass pipe with white residue and a baggie containing 28.09 grams of a crystallized substance he believed was methamphetamine in the console area; a white nylon bag with multiple clear bags used to separate and weigh amounts of methamphetamine; a sock containing a second digital scale under the dash area; and the box for a digital scale behind the passenger's seat. About twenty-five minutes into the stop, Grissom handcuffed Alderman, put her in his patrol car, and advised her of her rights. According to Grissom, Alderman initially claimed the drugs were appellant's but later admitted the two of them were transporting the drugs to Tulsa to sell. Grissom requested Officer Jose Cuellar, who is fluent in Spanish, to come to the scene to talk to appellant.
Forty-two minutes into the stop, Cuellar arrived at scene. Appellant was still sitting on the bumper of his vehicle and was not in handcuffs. Grissom explained to Cuellar what Alderman had told him and asked Cuellar to find out if appellant knew about the drugs and if there were more drugs in the vehicle. While Cuellar talked to appellant, Grissom continued to search.
The video recordings show Cuellar arrived at the scene thirty-eight minutes after Grissom stopped the vehicle. At the hearing, Grissom testified forty-two minutes had elapsed before Cuellar arrived. Whether the actual time was thirty-eight minutes or forty-two minutes is not dispositive of the issue, and we will use the time asserted by appellant in his brief.
Cuellar testified appellant voluntarily talked to him. First, Cuellar asked for appellant's name and date of birth, and appellant identified himself as Arturo Bustos. After Cuellar gave the information to dispatch to run, he said he talked to appellant about the methamphetamines and scales found in the vehicle. Appellant told Cuellar he and Alderman went to a club in Houston, where they met a friend who sold them one ounce of methamphetamine. The friend told them he would sell them a larger quantity "for cheap." Cuellar said he told appellant they believed there were more narcotics in the vehicle and asked where the rest was located. Appellant told him they were in "el foco," or the "light bulb" or flashlight. Appellant directed them to a large flashlight in the back part of the vehicle. Inside the flashlight was a baggie containing 218.03 grams of methamphetamine. Appellant was handcuffed and advised of his rights.
Cuellar's interaction with appellant is in Spanish and was translated into English during Cuellar's cross-examination. During one portion of the video recording, Cuellar said they knew there were more drugs in the car because "people just won't go to pick up this one ounce of meth." He said the "last thing" the police wanted to do is "search throughout the whole car" but that they would find the drugs. At that point, appellant said the drugs were in the flashlight. After hearing the testimony and watching the video recordings, the trial court denied appellant's motion to suppress. This appeal followed.
Before turning to the merits of appellant's arguments, we first consider whether he has forfeited his complaints by affirmatively stating below that he had "no objection" to certain State's evidence that was the subject of the motion to suppress.
Generally, to preserve error on appeal after a pretrial motion to suppress evidence is overruled, the defendant need not later object at trial to the same evidence. Thomas v. State, 408 S.W.3d 877, 881 (Tex. Crim. App. 2013). But when a defendant affirmatively asserts during trial that he has no objection to the admission of the complained-of evidence, he forfeits any error in the admission of the evidence despite the pretrial ruling unless "the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his 'no objection' statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal." Id. at 885-86. Whether an earlier preserved error is forfeited is "context-dependent" and viewed in light of the entire record. Id.
Appellant filed a pretrial motion to suppress any and all evidence seized by the police in connection with his detention and arrest, testimony by law enforcement concerning such evidence, and any written and oral statements he made in connection with the case. At the beginning of the hearing on the motion, appellant's counsel indicated the principal issue was whether appellant was interrogated without being advised of his rights, at a time when a reasonable person would believe he was under arrest. The trial court denied the motion after a full evidentiary hearing, and a jury trial on appellant's plea of not guilty followed.
During trial, appellant stated he had "no objection" to the admission of the two scales, the pipe, and the baggies recovered from the vehicle after the stop. In addition, he stated he had "no objection" to (1) both video recordings of the stop in which he told the officer the drugs were in a flashlight in the vehicle and (2) the lab report identifying the substances found in the vehicle to be methamphetamine. When the actual drug evidence was later offered, appellant objected only to the "failure to lay a proper predicate for the chain of custody" rather than clarifying his intent by also referencing his previous objection. Appellant did not relitigate the issue of custodial interrogation at trial, nor did he seek an instruction disallowing the jury from considering evidence obtained in violation of the law. Finally, the trial court did not indicate anywhere on the record that it understood the suppression issue was preserved in spite of appellant's affirmative statements of "no objection" to the State's evidence. See Thomas, 408 S.W.3d at 886 (concluding record did not plainly demonstrate that neither defendant nor trial court regarded "no objection" statement as abandonment of claim when trial court commented that it presumed adverse ruling on motion to suppress would constitute "principal" issue on appeal).
Because appellant specifically stated he had "no objection" to the admission of the State's evidence, and because our review of the entire record does not plainly indicate an intention not to abandon the previous claim of error, we conclude his issues have not been preserved for review.
Even if appellant's complaints were not forfeited, we would nevertheless conclude the trial court did not err by denying his motion to suppress. We review a trial court's ruling on a motion to suppress under a bifurcated standard. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts and its conclusions with respect to mixed questions of law and fact that turn on credibility and demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2014). When a case presents only questions of the validity of a trial court's legal rulings, as in the case here, appellate review is de novo. Id.
Generally, a routine traffic 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 restrained 'to the degree associated with a formal arrest.'" Id. We evaluate whether a person has been detained to the degree associated with arrest on a case-by-case basis. Id. In making the custody determination, the primary question is whether a reasonable person would perceive the detention to be a restraint on his movement "comparable to . . . formal arrest," given all the objective circumstances. Id.
Miranda v. Arizona, 384 U.S. 435 (1966)
In evaluating whether a reasonable person would believe his freedom has been restrained to the degree of a formal arrest, we look only to the objective factors surrounding his detention. The subjective beliefs of the detaining officer are not included in the calculation of whether a suspect is in custody. Id. But if the officer manifests his belief to the detainee that he is a suspect, then that officer's subjective belief becomes relevant to the determination of whether a reasonable person in the detainee's position would believe he is in custody. Id. Conversely, any undisclosed subjective belief of the suspect that he is guilty of an offense should not be taken into consideration--the reasonable person standard presupposes an "innocent person." Id.
In his first issue, appellant asserts the trial court erred "in failing to supress [sic] defendants [sic] confession and evidence seized as a result of that confession after warentless [sic] arrest." The four pages devoted to this issue in his brief contain three pages of general legal principles. Viewing the argument in a liberal light, appellant asserts he was under arrest once Grissom found the glass pipe and baggie containing 28.09 grams of methamphetamine in the center console; thus, he claims he was in custody when Cuellar questioned him about the location of other drugs in the vehicle without advising him of his Miranda rights. As support, he points to two circumstances: (1) although he was not handcuffed, he was ordered to stand in front of the patrol car "until a significant time had passed" and (2) was "intentionally badgered" by Cuellar about whether there were more drugs.
Specifically, he directs us to the following comments by Cuellar: "We know there is more drugs here. Okay? Where is the other drug? There is more. Don't lie to me." --------
Beginning with the first circumstance, after Grissom found the pipe and drugs in the center console, which events occurred within view of appellant, he handcuffed Alderman and put her in his patrol car. Appellant, on the other hand, was allowed to remain seated on the bumper of Alderman's vehicle. He was not handcuffed or otherwise physically restrained. A reasonable person in his position would likely believe he was not under arrest, given the difference in how he was handled compared to Alderman. As for the "significant time" that elapsed, once Alderman was handcuffed, put in the patrol car, and read her rights, Grissom called for an officer who spoke Spanish to come to the scene to talk to appellant. Because of the language barrier, Grissom was not able to effectively communicate with appellant. Moreover, he had not been able to identify appellant because appellant had given a false name. Cuellar arrived about fifteen minutes after Alderman was handcuffed.
As for the second circumstance (appellant's interaction with Cuellar), Cuellar and appellant spoke in Spanish to each other. On the video recording, Cuellar's tone was even and nothing in his demeanor appeared to be intimidating or coercive nor was there anything in appellant's response to Cuellar to suggest he felt intimidated. Although appellant contends he was "badgered," the record shows Cuellar explained to appellant that the police believed there were more drugs in the car because it was unlikely someone would drive nonstop from Tulsa to Houston and back for one ounce of methamphetamine. Cuellar said police would search the entire vehicle, if needed, and would find any more drugs. Appellant then told him the drugs were in the flashlight.
Having reviewed the record, appellant's argument, and the objective facts, we conclude a reasonable person in appellant's position would not have believed he was "physically deprived of his freedom of action . . . to the degree associated with an arrest" at the time Grissom found the drugs in the console or at the time appellant told Cuellar about the drugs in the flashlight. We overrule the first issue.
In his second issue, appellant argues the trial court erred "in failing to supress [sic] evidence siezed [sic] pursuant to a warentless [sic] search." It appears appellant is complaining the police were required to obtain a warrant before searching the flashlight. To the contrary, law enforcement may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained. California v. Acevedo, 500 U.S. 565, 580 (1991). We overrule the second issue.
Finally, although neither party has raised the issue, our review of the record reveals an error in the trial court's judgment. The judgment reflects the statute under which appellant was convicted as "481.115(e) Health and Safety." Section 481.115(e) governs possession of 200 grams or more but less than 400 grams of controlled substances in Penalty Group 1. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(e) (West 2010). Appellant was convicted of possession with intent to deliver 200 grams or more but less than 400 grams of a Penalty Group 1 controlled substance, which is governed by section 481.112. See id. § 481.112(a), (e).
We have the authority to correct a judgment below to make the record "speak the truth" when we have the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to reflect the correct statute for the offense as section 481.112 of the health and safety code.
We affirm the trial court's judgment as modified.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P.47.2(b) 150809F.U05
JUDGMENT
On Appeal from the 15th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 065000.
Opinion delivered by Justice Francis; Justices Lang-Miers and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To reflect the "Statute for Offense" as section 481.112(a), (e) of the Texas Health and Safety Code. As MODIFIED, the judgment is AFFIRMED. Judgment entered this 6th day of April, 2016.