Opinion
No. 10-04-00131-CR
Opinion delivered and filed August 17, 2005. DO NOT PUBLISH.
Appeal fromthe 413th District Court, Johnson County, Texas, Trial Court No. F36947. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurring).
MEMORANDUM OPINION
Jennifer Hasty was convicted by a jury for possession of a controlled substance with intent to deliver, possession of a controlled substance over 400 grams, and delivery of a controlled substance. TEX. HEALTH SAFETY CODE ANN. §§ 481.112(d), 481.115(f), 481.112(c) (Vernon 2003). The jury assessed punishment at fifty years for possession with intent to deliver, seventy-five years for possession, and twenty years for delivery. In four issues, Hasty argues that the trial court erred (1) in denying her motion to suppress the results of a search; (2) in denying her motion to suppress her videotaped statement; (3) in denying her motion for mistrial for improper argument; and (4) in overruling her objection to improper argument. We will overrule the issues and affirm the judgment.
BACKGROUND
Narcotics officers with the Johnson County Sheriff's Office performed surveillance on Hasty's rural home. After watching an unusually high volume of vehicles arriving then leaving a short time later, the officers drove up to the residence to do a "knock and talk." While they were in the driveway, Hasty drove up to the house. The officers identified themselves as narcotics investigators and asked if she lived there. She replied that she did. They asked her if they could go inside the house, and she invited them in. Officer Whitlock testified that he asked her where Jon Dearl Hasty was, and she replied that he was in the bedroom sleeping. Whitlock asked her to wake Dearl, and she did. Whitlock testified that he again identified himself and asked for consent to search the residence. He testified that both Dearl and Hasty consented to the search. Dearl signed a written consent form. Whitlock asked Dearl and Hasty to accompany him while he searched. He found empty pill capsules, coffee filters lined with at white residue, a black digital scale, and a container wrapped in electrical tape with a white, powdery substance inside. Hasty told Whitlock that the container was hers and that the substance was "speed." Deciding that he had probable cause to get a search warrant, Whitlock stopped his search. As a result of a later search, numerous items associated with the manufacturing of methamphetamine were found inside the house and the surrounding curtilage. Hasty was arrested and taken to the Sheriff's office. After being read the Miranda warnings, she consented to a videotaped interview. Approximately one month later, another narcotics investigator was told by a confidential informant that Hasty was looking for someone to supply her with bulk quantities of ephedrine. The officer had the informant arrange a meeting between Hasty and the officer at a store parking lot. Hasty arrived at the appointed time and place, got into the officer's undercover vehicle, and told him she needed 10,000 60 mg pills of ephedrine and sixty cans of starter fluid. The officer told her he could obtain the items, and agreed to take an amount of finished methamphetamine as payment. The officer then asked Hasty if she had any samples with her. Hasty went to her truck and returned with a black cloth bag with several plastic baggies inside. She pulled out a scale, weighed a baggie and said it was worth $40.00. The officer bought two baggies for $100.00.Motion to Suppress: Search
Hasty argues that the trial court erred in denying her motion to suppress the results of the search of Hasty's home because Dearl had no authority to consent to a search of the residence. We review a trial court's denial of a motion to suppress for abuse of discretion. Welch v. State, 93 S.W.3d 50, 53 (Tex.Crim.App. 2002); Levi v. State, 147 S.W.3d 541, 544 (Tex.App.-Waco 2004, pet. ref'd). A voluntary consensual search is an exception to the probable cause and warrant requirements of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. Conde v. State, 135 S.W.3d 252, 255 (Tex.App.-Waco 2004, no pet.); see also Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App. 2003). The validity of consent to search is a question of fact to be determined from all the circumstances. Rayford, 125 S.W.3d at 528. The State has the burden to prove by clear-and-convincing evidence that consent was freely and voluntarily given. Id.; Conde, 135 S.W.3d at 255. While we give almost total deference to the trial court's determination of facts, we review de novo the trial court's application of the law. Id.; Conde, 135 S.W.3d at 255. At trial, Officer Whitlock testified that both Hasty and Dearl gave oral consent to search the home. At the pretrial hearing on the motion to suppress, however, he testified that although he asked both Hasty and Dearl if he could search, he did not remember Hasty giving consent. Dearl signed the consent form. Hasty argues that Dearl had no authority to consent to a search of Hasty's house because the house belonged to her, she and Dearl were separated, and Dearl no longer resided in the house. The State argues that Dearl had "common authority" to consent to the search. A third party may properly consent to a search when he or she has equal control over and authority to use the premises being searched. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). Common authority derives from the mutual use of the property "that leads to a finding that a third party has the right to permit the inspection of the relevant property and that others with an equal or greater interest in the property have assumed the risk that, through the grant of permission to use, the third party might permit the property to be searched." Id. We do not find sufficient evidence that Dearl had equal control over the property and authority to use the premises to support a finding that he had common authority to consent to the search. Alternatively, the State argues that Dearl had apparent authority to consent to the search. The "apparent authority" doctrine holds that a warrantless entry by law enforcement officers onto a person's premises does not violate the proscription against unreasonable searches and seizures under the Fourth Amendment when the entry is based upon the consent of a third party whom the officers, at the time of entry, reasonably believed to possess common authority over the premises, but who in fact did not have such authority. Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990). Officer Whitlock testified that prior to approaching the residence he had information from confidential informants that Dearl lived with Hasty at the residence. Dearl was asleep in the home when the officers arrived. Whitlock testified that Dearl said that he lived there. Hasty and Dearl were sitting on the couch together when Whitlock went over the consent form and asked Dearl to sign it. Hasty never refuted Dearl's authority to give consent. Under these circumstances, it was reasonable for the officers to conclude that Dearl had authority to consent to the search. The trial court did not abuse its discretion by overruling Hasty's motion to suppress. We overrule this issue.Motion to Suppress: Videotape
Hasty argues that the trial court erred in denying her motion to suppress her videotaped statement because that statement was taken in violation of her Sixth Amendment right to counsel. We do not need to reach the issue of whether the trial court abused its discretion in overruling the motion to suppress, because Hasty waived her right to complain on appeal by introducing the videotaped statement as evidence at trial. Rodriguez v. State, 919 S.W.2d 136, 138 (Tex.App.-San Antonio 1995, no pet.) (citing Decker v. State, 717 S.W.2d 903, 908 (Tex.Crim.App. 1983)). Hasty offered the videotape into evidence and published it to the jury. When a defendant offers her confession as evidence at trial, any objection to the admission of such evidence is waived. Id. We overrule this issue.Improper Argument
Hasty's third issue argues that the trial court erred in denying her motion for mistrial regarding improper jury argument. During closing argument, the prosecutor stated, regarding the possession count: "Now, if just for argument's sake, and it's not a good argument, if she's not the methamphetamine cook, she let it happen at her house didn't she? See, more than one person can be arrested for the same offense. Called the law of parties in the State of Texas." Defense counsel objected on the basis that the jury was not charged with the law of parties. The trial court sustained the objection. Defense counsel did not request an instruction. Defense counsel then asked for a mistrial, which the trial court denied. To show that the trial court erred in denying the motion for a mistrial, Hasty must show that an instruction to disregard would have been inadequate to cure the prejudicial effect of the allegedly improper argument. See Long v. State, 823 S.W.2d 259, 267 (Tex.Crim.App. 1991) (Reversal results from improper prosecutorial argument only when the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and is thus so inflammatory that its prejudicial effect cannot reasonably be cured by judicial instruction to disregard argument.). Following an objectionable argument, an instruction by the court to disregard the comment will normally obviate the error, unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by such an admonishment. Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1993). We find that the State's argument was not so prejudicial that its effect could not have been cured by a judicial instruction. The trial court thus did not err in denying the motion for mistrial. We overrule the third issue. Hasty's fourth issue argues that the trial court erred in overruling her objection regarding another jury argument. During closing arguments, the prosecutor told the jury: "Fingerprints, I will tell you that as [defense counsel] said, both sides of a case have the ability to subpoena witnesses. That is true. Defense side also has the ability to request for any scientific test that they want. [Defense counsel] wants that thing fingerprinted, he could have done it." Defense counsel objected that the prosecution's argument shifted the burden of proof to the defense. The prosecutor argued that he was responding to defense counsel's prior argument. The trial court overruled the objection. A proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999). Hasty argues that the prosecutor's argument did not fall into any of these areas. Assuming without deciding that Hasty's argument on appeal comports with her objection at trial, we find no abuse of discretion by the trial court in overruling the objection. Defense counsel argued at trial that if the State had fingerprinted the evidence it had collected the results would have shown that persons other than Hasty were responsible for cooking methamphetamine on her property. Thus the trial court could have found that the prosecution's argument was an answer to defense counsel's argument. We overrule this issue.CONCLUSION
Having overruled the issues, we affirm the judgment.CONCURRING OPINION
The dicta contained under the heading "Motion to Suppress: Search" is indicative of a recurring problem. The Court first concludes: "We do not find sufficient evidence that Dearl had equal control over the property and authority to use the premises to support a finding that he had common authority to consent to the search." This discussion and conclusion is totally unnecessary to the disposition of the appeal. It is dicta. It should be removed from the opinion. I also believe it is wrong. I know that it is unnecessary because the search is validated on other grounds. One valid ground is all that is necessary no matter how many straw men are set up as obstacles only to be knocked down later. If we, as a court, would limit our discussion to only the issues necessary to the disposition of an appeal, we could be more efficient. The efficiency comes from two points. First, the author can focus on the issues actually necessary for disposition of the appeal. Second, the other members of the Court only have to review and decide if the language in the more focused opinion is necessary and correct. This case presents a good example of inefficiency. The result of the analysis about equal control is totally irrelevant. The answer to the question does not impact the result in the case regardless of how it is answered. Further, I do not believe the Court's conclusion is supported by the facts or the legal analysis. And I could spend a good deal of time explaining why, but then that too would be more useless analysis, dicta, inefficiency. I concur in the judgment but not in the opinion.