No. 01-09-00288-CR
Opinion issued May 6, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 351st District Court Harris County, Texas, Trial Court Case No. 1115760.
Panel consists of Justices JENNINGS, HANKS, and BLAND.
GEORGE C. HANKS, Justice.
Appellant, Ramon Ruiz Sanchez, was indicted for the felony offense of possession, with intent to deliver, a controlled substance, namely cocaine, weighing more than 4 grams and less than 200 grams, enhanced for punishment with two prior felony convictions. Appellant pleaded "not guilty" to the indictment and "not true" to the punishment enhancements. The jury found appellant guilty of possession, but not intent to distribute, and the Court found the two punishment allegations true and sentenced appellant to 35 years' confinement. On appeal, appellant complains the trial judge erred by telling the venire panel that the grand jury found that appellant "probably" committed the crime charged in the indictment; that the trial court erred by refusing to grant appellant's motion to disclose the identity of a confidential informant; and that the trial court erred by admitting evidence obtained from an invalid search. We affirm.
BACKGROUND
On the evening of May 6, 2007, Pasadena police received information that a Hispanic male was selling narcotics inside Colors, a bar in Pasadena. Testimony at trial differed as to whether the information was received from an anonymous tip or a confidential informant. One officer, Detective Raymond Garivey, testified that he received a telephone call regarding the sale of narcotics in Colors. Because he was off-duty, Garivey immediately relayed the information to dispatch for further action. Garivey stated that the informant described the person selling the narcotics "from head to toe" and that he was sitting in a particular booth in Colors. Garivey stated that he knew the informant, had used the informant previously, and that the informant was a paid confidential informant with a criminal history of public intoxication convictions. Officer Garivey testified that the informant called the police from a pay telephone about a mile and a half from the bar in which the narcotics were being sold. The informant described the person selling the narcotics, including his clothes, cowboy hat, and his exact location inside the bar. Garivey first testified that the informant was inside the bar at some point, but he later clarified that the informant had not been in the bar on the evening the call was made. Pasadena Police Officer Benjamin Hickman testified he received information from police dispatch that an anonymous tip stated a Hispanic male was selling narcotics inside Colors, and that dispatch conveyed a description of the man and the clothing he was said to be wearing, and that he was sitting on the south side of the bar. Officer Hickman, accompanied by a canine unit, went to the bar and found appellant inside, wearing the clothing the informant described and sitting with his girlfriend on the south side of the bar. Officer Hickman testified that he entered the bar in full uniform, and that appellant did not do anything out of the ordinary while Hickman and the other officers approached him. In the presence of the other officers, Hickman informed appellant that he was a police officer and that he suspected appellant was in possession of narcotics. Officer Hickman asked appellant to step outside of the bar. According to Officer Hickman, appellant agreed to step outside and gave his name when requested, although the I.D. he had on him was invalid. Other officers performed an initial search of appellant while Hickman was still inside the bar. Hickman asked appellant whether he would agree to another search of his person and appellant consented to another search. While performing the search, Officer Hickman noticed a pack of cigarettes in appellant's shirt pocket and asked for permission to search inside the pack. Appellant agreed to the search of the pack, and Officer Hickman found cocaine inside, separated into 25 small individual packages. At trial, Officer Hickman conceded that he did not obtain a search warrant or an arrest warrant prior to investigating the anonymous tip, and that he likely would not have been able to do so before the bar closed. Hickman also stated that the officers did not conduct surveillance prior to approaching appellant. On cross-examination, Hickman specifically stated that he believed the information he received was from an anonymous caller, and that he did not follow up on the veracity or reliability of the caller. Hickman stated that, in light of the amount of detail in the tip conveyed by dispatch, he believed that the caller must have been in the bar at some point that evening. Hickman further stated that the canine search of appellant's car did not reveal any additional narcotics, although the dog alerted on several spots. Officer Hickman stated he did not read appellant his Miranda rights prior to performing the search. Officer Hickman also testified that appellant appeared to understand Officer Hickman's statements and instructions in English, and that appellant responded in English. At the time of trial, Hickman did not remember whether appellant's English was "broken," but he confirmed that appellant was able to give officers enough information in English to fill out a booking slip. During voir dire, the trial court made several comments to the venire panel, explaining the general process of trial and the decisions they might be faced with as jurors. He included a discussion of the grand jury indictment and the burden of probable cause: Rule No. 1, the defendant in every criminal case has been indicted and the indictment is not evidence. He's been indicted. Get over it. Okay? And don't fall into the trap of, well, he's been indicted, he must have done something.
Look, let's try this. If you haven't been indicted, you can't go to trial. Every single person that goes to trial has been indicted. The indictment is an accusation. Whether it's true or not, we will find out based on the evidence, but the fact that he's been indicted proves nothing. It doesn't prove anything because it's not proof.
What's proof? Testimony, physical evidence, expert testimony. All that comes from the witness stand, none of which happened at the Grand Jury. Ninety-nine percent of the time, including this case, the only information the Grand Jury has is what the prosecutor tells them. Of course, what does the prosecutor know? What's in the police report because they weren't there when whatever happened happened. So, they read their report. Ladies and gentlemen of the Grand Jury, based on the report, thus and so happened on thus and so day.
The Grand Jury, 12 people just like you and me, but they have a completely different job. Their job is to decide probable cause. Did a crime probably happen? Is the person charged probably the one who did it? Why the big probably? Because they don't get to see the witnesses in person. They don't get to look at the physical evidence. They don't get to hear from experts, but it's not necessary because they are not deciding is he guilty. They're deciding is there enough to go to court?
Probable cause. It's the lowest level of proof upon which anything happens in the criminal justice system.
. . . .
But probable cause gets you to court. It doesn't decide anything because it's not evidence. I might add, the Grand Jury's job is done by 12 people who do not have to make a unanimous decision. In the Grand Jury, you only need 9 of the 12 people to agree that there's probably cause to be indicted.
Elsewhere, the trial court judge compared the indictment to a traffic ticket and stated that, like a traffic ticket, the indictment was merely an accusation and without supporting evidence was "worthless." As testimony from the police officers was introduced, appellant's counsel repeatedly objected to their testimony about the tip they had received, arguing that the tip was impermissible hearsay and that it violated appellant's right to confrontation. Those objections were overruled by the trial court. Appellant previously filed a motion to disclose the informant's identity. While the police officers testified, appellant also made a verbal motion to disclose the identity of the confidential informant. The trial court denied the motion to disclose the informant's identity. ANALYSIS
On appeal, appellant complains that the trial judge erred by: (1) telling the venire panel that the grand jury found that appellant "probably" committed the crime charged in the indictment; (2) refusing to grant appellant's motion to disclose the identity of a confidential informant; and (3) admitting evidence obtained from a search conducted without appellant's consent. A. Trial Court's Statements
Appellant first complains that the trial court erred by informing the panel that the grand jury had considered the questions of "Did a crime probably happen?" and "Is the person charged probably the one who did it?". Rule 33.1 of the Texas Rules of Appellate Procedure requires that, in general, for a complaining party to preserve an alleged error for appellate review, the record must show that the party raised the issue with the trial court in a timely and specific request, objection, or motion. TEX. R. APP. P. 33.1(a); Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007). It is well established that nearly every right may be waived when a party fails to object. See Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002). Although he did not object to the trial court's statements during voir dire, appellant now argues that the statements constitute fundamental error and that he was not required to object to preserve this issue for appellate review. Appellant cites Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.), for the proposition that a defendant need not always object to voir dire statements to preserve error. In Blue, the trial court apologized to potential jurors for a long delay, explained that the delay was caused by the defendant's inability to decide whether to accept a plea bargain, and expressed its preference that the defendant enter a plea of guilty. Id. at 130. On appeal, a plurality of the Court of Criminal Appeals held the trial court's statements were fundamental constitutional error because, in certain circumstances, a judge's voir dire statements could "taint[] appellant's presumption of innocence in front of the venire, [become] fundamental error of constitutional dimension and require[] no objection." Id. at 132. As a plurality opinion, Blue is not binding precedent. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); McLean v. State, ___ S.W.3d ___, 2010 WL 335611 (Tex. App.-Houston [1 Dist.], Jan. 28, 2010); Ganther v. State, 187 S.W.3d 641, 650 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). Further, Blue is distinguishable from these facts, because the trial judge's statements in this case were not so serious as to taint the presumption of innocence and obviate appellant's need to object. The comments to which appellant objects were part of a longer discourse on the role of a grand jury and the distinction between the burdens of probable cause and reasonable doubt. Contrary to appellant's argument on appeal, the trial court repeatedly emphasized that the grand jury's indictment of the appellant was not evidence and should not be considered at trial. The trial court emphasized that the grand jury did not hear much, if any, of the evidence the jury would hear during appellant's trial and even cautioned that an indictment alone was "worthless." Further, the trial court cautioned the panel members that the grand jury employs a lower standard of proof — probable cause. We do not find the comments of which appellant complains, placed in their proper context, to be fundamental error. See Jasper, 61 S.W.3d at 421 (holding that, even under the reasoning of the Blue plurality, the trial judge's comments would not rise to the level of fundamental error); Ganther, 187 S.W.3d at 650-51 (concluding that, even if court of appeals were bound by the Blue plurality, the trial judge's comments during voir dire did not rise to the level of tainting the presumption of innocence or vitiating the impartiality of the jury). Accordingly, appellant was required to object to these comments at trial and his failure to do so waives this issue on appeal. B. Motion to Disclose Identity of Confidential Informant
Appellant argues in his second issue that the trial court erred in refusing to require the State to disclose the identity of its confidential informant. Appellant bases his argument on Rovairo v. U.S., 353 U.S. 53, 60-61, 77 S. Ct. 623, 628 (1957), which held that an informant's identity must be disclosed if they participated in the offense, were present at the time of the offense or arrest, or were otherwise shown to be a material witness to the transaction. In Anderson v. State, the Court of Criminal Appeals noted the common law standard formerly followed in Texas was based on Roviaro but that it had been supplanted by Rule 508 of the Texas Rules of Evidence, and that the circumstances under which disclosure of an informant's identity is required under Rule 508 are broader than under Rovairo. 817 S.W.2d 69, 71-72 (Tex. Crim. App. 1991) (citing Bodin v. State, 807 S.W.2d 313, 317 (Tex. Crim. App. 1991)). Accordingly, we turn to Rule 508 to determine whether the trial court erred by denying the motion to disclose the identity of the informant. The State has the "privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in a criminal investigation." TEX. R. EVID. 508(a). Among other exceptions, the confidential informant's identity must be disclosed if the informant's testimony is necessary to fairly determine the accused's guilt or innocence. See TEX. R. EVID. 508(c)(2). The accused bears the burden to establish a plausible showing that the confidential informant's testimony is necessary for a fair determination of guilt or innocence. See Bodin, 807 S.W.2d at 318; Long v. State, 137 S.W.3d 726, 732 (Tex. App.-Waco 2004, pet. ref'd). The accused must show the informant's testimony would significantly aid the jury in determining the guilt or innocence. Id. He must show the informant "participated in the offense, was present at the time of the offense or arrest, or was a material witness to the transaction." Lary v. State, 15 S.W.3d 581, 584 (Tex. App.-Amarillo 2000, pet. ref'd). When, however, the informant's information is used only to establish probable cause and the informant was not a participant in the offense for which the defendant is charged, the identity of the informant need not be disclosed because his testimony is not essential to a fair determination of guilt. See Washington v. State, 902 S.W.2d 649, 656-57 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). If the accused meets this burden, the trial court must then conduct a hearing outside the presence of the jury to allow the State to rebut the accused's plausible showing. Bodin, 807 S.W.2d at 318-19; Long, 137 S.W.3d at 732 (citing Bailey v. State, 804 S.W.2d 226, 230 (Tex. App.-Amarillo, no pet.)). We review the trial court's determination to deny appellant's motion for an abuse of discretion. Sanchez v. State, 98 S.W.3d 349, 356 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). Appellant's brief states that "the informant played a material part in the criminal activity as he was intimately knowledgeable of the appellant's activity since he knew the appellant possessed cocaine." Appellant also contends that the informant "had to have been someone inside the bar." But Detective Garivey, to whom the informant spoke, testified at trial that the informant was not inside the bar that evening, and that the telephone call through which he received the information was placed from a mile and a half away from the bar. Further, appellant consented to a search of his person when requested by police, and then the officers found cocaine in his possession. In other words, the evidence upon which appellant's conviction is based was gained from a search of his person and not from the testimony or presence of an informant at the scene. Under these circumstances, the informant's testimony related only to the officer's formation of whether probable cause may have existed during their investigation. The evidence does not establish that the informant's testimony would have significantly aided the jury in determining appellant's guilt or innocence. Bodin, 807 S.W.2d at 318. We overrule appellant's second issue and next turn to review the search of his person prior to his arrest. C. Admission of Evidence Found During Search
Appellant's third issue challenges the voluntariness of the search performed by Officer Hickman. Appellant argues that he was essentially coerced into consenting to the search, thus rendering it constitutionally invalid and rendering the evidence found during the search inadmissible. Appellant filed two motions to suppress and a brief in support of those motions, but the record on appeal does not contain a record of a hearing on the merits of those motions, nor does it contain any order resolving the motions to suppress. Further, the reporter's record does not reflect that appellant objected to testimony regarding the evidence gained from the search during trial. The objections appellant made, and the motion he secured a ruling upon, related to his motion to compel disclosure of the confidential information and his objection to admission of evidence relating to the information he or she conveyed. Under the Fourth and Fourteenth Amendments to the Unites States Constitution, a search conducted without a warrant issued upon probable cause is per se unreasonable limited to a few well-delineated exceptions. U.S. Const. amend. IV, XIV; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973). A search pursuant to voluntary consent is an exception to the requirement that a search be based upon a warrant supported by probable cause. Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). For consent to be valid, however, it must be voluntary. Id. at 817-18. At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The validity of an alleged consent to search is a question of fact to be determined from the totality of the circumstances. Id. The federal constitution requires the State to prove the voluntariness of the consent by a preponderance of the evidence, while the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely and voluntarily given. Id. The appropriate standard for reviewing a trial court's ruling on a motion to suppress is bifurcated, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Among the factors to be considered in determining voluntariness are whether the consenting person is in custody, whether he or she was arrested at gunpoint, and whether the person was informed that he or she did not have to consent. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). Other factors include the youth of the accused, the education of the accused, the intelligence of the accused, the constitutional advice given to the accused, the length of the detention, the repetitiveness of the questioning, and the use of physical punishment. Reasor, 12 S.W.3d at 818. When the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). As a prerequisite to review on appeal, Texas Rule of Appellate Procedure 33.1(a) requires appellant to show that he presented his motion to suppress the evidence gained from the search of his person to the trial court by a timely objection or motion that stated the grounds for suppression with sufficient specificity and that the trial court ruled on that objection or motion or refused to rule and appellant objected to the refusal. TEX. R. APP. P. 33.1(a). Here, the appellate record lacks a ruling on appellant's motions to suppress and appellant did not object to the admission of the evidence during trial. Accordingly, appellant has failed to preserve this issue for our review. See, e.g., Coleman v. State, 113 S.W.3d 496, 499 (Tex. App.-Houston [1st Dist.] 2003), affirmed on other grounds, 145 S.W.3d 649 (Tex. Crim. App. 2004) (mere filing of a motion to suppress, without obtaining ruling on motion, did not preserve issue for appeal where no objection was made to admission of evidence at trial). We note that, in Montanez v. State, the Texas Court of Criminal Appeals held that the suppression issue was not waived even though the record in that case lacked a ruling on the suppression motion, because the trial court's certification of the appellant's right to appeal a pre-trial ruling "unquestionably indicated" that the trial court had denied the motion to suppress, and the docket sheet in the record showed that the court had considered the suppression issue. 195 S.W.3d 101, 105 (Tex. Crim. App. 2006). In this case, unlike in Montanez, the record does not "unquestionably" reflect that the trial court specifically denied appellant's motion to suppress the evidence gained from the search of his person — instead, the record reflects only that the trial court heard and ruled upon the motion regarding the confidential informant and whether the testimony regarding that informant should be excluded, and an ambiguous discussion regarding a "motion to suppress" that may actually have been the motion regarding the confidential informant. Even if appellant had preserved this issue under Montanez, and we presumed that the trial court heard and denied the motion to suppress, appellant has failed to present a record of the suppression hearing for our review. Appellant has therefore waived the issue of whether the facts elicited at the suppression hearing supported the trial court's implied denial of the motion to suppress the evidence seized from the search. We overrule appellant's third issue. Conclusion
We overrule each of appellant's issues on appeal and affirm the judgment of the trial court.