ELTON KARL HOWARD v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ELTON KARL HOWARD, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–00203–CR

Decided: April 9, 2012

Before Justices FitzGerald, Richter, and Lang–Miers

OPINION

Opinion By Justice FitzGerald

A jury found appellant Elton Karl Howard guilty of possession of a usable quantity of marihuana, less than two ounces.   The trial court assessed appellant's punishment at eighteen days' confinement in the Collin County Jail. In this Court, appellant contends there is insufficient evidence to support his conviction, the trial court erroneously denied his motion to suppress, and the trial court should have granted a mistrial after certain personal information was disclosed during trial.   We affirm the trial court's judgment.

Sufficiency of Evidence

In his third issue, appellant challenges the sufficiency of the evidence supporting his conviction.1  We determine whether the evidence is sufficient to support each element of a criminal offense by examining the evidence in the light most favorable to the judgment, and asking whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);   Brooks, 323 S.W.3d at 899–900.   We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters.  Brooks, 323 S.W.3d at 899–900.

A person commits an offense if he knowingly or intentionally possesses a usable quantity of marihuana.  Tex. Health & Safety Code Ann. § 481.121 (West 2010).   Appellant contends the State did not establish that he exercised care, custody, control or management over the marihuana.   See Martin v. State, 753 S.W.2d 384, 386 (Tex.Crim.App.1988);  see also Tex. Health & Safety Code § 481.002(38) (“ ‘Possession’ means actual care, custody, control, or management.”).

The police first made contact with appellant when Officer Aaron Yuschak came upon Jason Foote, late at night, in a parking lot behind a grocery store in Collin County.   Foote was loading pallets into a trailer behind his truck, and appellant was a passenger in the truck.   Appellant told police he had called Foote for a ride after his own car had broken down on the side of a road.   The officer called for backup, and the officers separated appellant and Foote while they investigated.   Foote was ultimately arrested for stealing the pallets, but the officers concluded appellant was not involved in the theft.   Yuschak told appellant to identify any property in the truck that was his, and appellant identified three bags.   Yuschak then asked appellant for permission to search the bags, and appellant gave his consent.   One of the bags contained a loose pill identified as trazadone;  Yuschak told appellant that trazadone is a controlled substance requiring a prescription.   Appellant explained to the officer that he had a prescription for the medication, but the bottle was in his car.   Yuschak then called for a canine unit to come and check for any further contraband.   He told appellant he would be released if the dog did not turn up anything.

Shortly after being informed the canine unit had been called, appellant informed Officer Christopher McEntire that he needed to urinate.   McEntire accompanied appellant to a line of large bushes, between twenty and thirty feet from the truck, so that appellant could relieve himself.2  Initially, a flock of birds flew out of the bush where appellant stood, startling him.   He moved a few feet away, and McEntire stood several feet behind him.   McEntire testified appellant never did urinate.   He also testified that while appellant stood facing the bush, McEntire saw him drop something on the ground and then attempt to cover the item with his foot.   When the two men returned to the investigation area, McEntire told Yuschak what he had seen.   The officers walked back to the place where appellant had been standing and retrieved a baggie containing loose marihuana and part of a joint.   They found nothing else on the ground in that area.   Appellant was arrested, handcuffed, and read his Miranda rights.3

Appellant testified at trial and stated that he had dropped a baggie containing pills, including vitamins and a second trazadone pill, when the birds startled him.4  He denied dropping or knowing anything about the marihuana.   Appellant also testified that he had seen Foote running from the same bushes when the police had first arrived.

McEntire testified he saw appellant drop an item and attempt to hide it from the officer's view.   Both he and Yuschak testified they returned to that spot and found only the bag of marihuana.   Given that testimony, a rational juror could certainly have concluded beyond a reasonable doubt that appellant had custody and control of the bag with the drug inside.   See Brooks, 323 S.W.3d at 899–900.   Appellant did directly contradict the officers' testimony, stating that he had dropped something entirely different on the ground and denying possession of the marihuana.   But the jury is the sole judge of witnesses' credibility, and the jury did not believe appellant's story.   We must defer to the jury on that issue.   See id.   We conclude sufficient evidence supports the jury's finding that appellant possessed the marihuana, and we overrule appellant's third issue.

Motion to Suppress

Appellant filed a general pretrial motion to suppress that was denied.   Following the State's case, appellant moved for an instructed verdict contending that his detention was unreasonable and violated the Fourth Amendment because it was purposefully prolonged by the police in an attempt to find evidence of another offense.

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard.  St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007).   We do not engage in our own factual review;  the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.  Id.;  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).   We give almost complete deference to the trial court in determining historical facts, and we review de novo the court's application of the law of search and seizure.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000).   Under the Fourth Amendment, a warrantless detention of a suspect must be justified by a reasonable suspicion.  Terry v. Ohio, 392 U.S. 1, 21–22 (1968);  State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.2011).   A police officer has reasonable suspicion to detain a person if he has specific, articulable facts that, taken together with rational inferences from those facts, would lead him reasonably to conclude that the person detained is engaged in criminal activity.  Elias, 339 S.W.3d at 674.   We use an objective standard, disregarding the actual subjective intent or motive of the detaining officer and looking, instead, to whether there was an objective justification for the detention.   See id.   Finally, the detaining officer's actions must be reasonably related in scope to the circumstances that justified interference in the first place.  St. George, 237 S.W.3d at 725–26.   Applying these standards, we conclude the trial court correctly denied both motions.

The Pretrial Motion to Suppress

Before trial, appellant filed his motion to suppress all evidence seized as a result of his detention and arrest and any testimony related to that evidence.   The motion alleged violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as Article I, sections 9, 10, and 19 of the Constitution of the State of Texas, and article 38.23 of the Texas Code of Criminal Procedure.   Factually, the motion stated only that appellant had been arrested—and evidence had been seized—“without lawful warrant, probable cause or other lawful authority.”

The trial court ordered the motion to be submitted by affidavit and set out a schedule for the State to file its affidavits and then for appellant to file opposing affidavits.   The State timely filed affidavits from both McEntire and Yuschak.   Those affidavits described the original detention of appellant as part of the investigation into the apparent theft of pallets.   McEntire's affidavit addressed the discovery of the trazadone pill and the subsequent detention while waiting for the canine unit.   McEntire's affidavit also described observing appellant drop the baggie, and Yuschak's affidavit described the seizure of the baggie containing marihuana from the place where appellant dropped it.   Appellant did not file any controverting affidavits.   The trial court denied the motion to suppress.

We conclude the State carried its burden in the pretrial proceeding to establish reasonable suspicion to detain appellant.   The officers provided articulable facts that led them reasonably to conclude appellant was, had been, or was about to be engaged in criminal activity:  initially, the theft of pallets, and then later—following the consensual search—possession of a controlled substance without a prescription.   The trial court correctly granted the pretrial motion to suppress.

The Motion for Instructed Verdict

At the close of the State's case, appellant moved for an instructed verdict based on the purportedly prolonged nature of his detention.5  The parties argued the issue at length, based upon the evidence admitted during the testimony of Officers Yuschak and McEntire at trial.   Our review of the record indicates the trial court treated the proceeding as a second motion to suppress;  because the suppression issue was clearly re-litigated, we will as well.

The police car video admitted at trial as State's Exhibit 1 allows us to see some of the activity and to hear almost all of the conversation surrounding appellant's detention and the officers' investigation.   The video contains a clock, indicating Yuschak arrived at the parking lot at 12:52 a.m. and identified first Foote and then—at 12:54 a.m.—appellant. Appellant was handcuffed and taken into custody at 1:42 a.m. Accordingly, the maximum length of the detention was approximately fifty minutes.

Appellant contends on appeal that the sole focus of the fifty-minute-long investigation was Foote and whether Foote was stealing pallets.   He argues that appellant was merely sitting in the truck when the officers arrived and that Yuschak had determined “early-on” that appellant was not involved with the theft.   Appellant stresses that Yuschak told appellant that he would be released from the scene, and would not be going to jail, unless the canine unit turned up something incriminating.   He contends the police kept him detained at the scene after he was identified at 12:54 a.m. and then requested to search his bags because they were on a “fishing expedition” for evidence of other offenses.

The trial court found appellant was properly detained throughout the investigation of pallet theft.   And the court found the theft investigation was still ongoing as appellant's bags were identified and removed from Foote's vehicle, which was going to be impounded.   Appellant was going to be walking away, but the officers had a right to know what appellant would be carrying with him as he walked away from them.   The request to search his bags involved only a brief increase in the length of the detention, and it was reasonable.   Finally, the trial court found that once the officer found the trazadone in appellant's bag, he had reasonable suspicion and probable cause that the offense of drug possession had been committed.   Thus, appellant was properly detained when the police observed him drop the marihuana while they waited for the drug-sniffing dog to arrive.

The record comports with the trial court's findings.   The video establishes the officers' investigation proceeded logically from Foote (who had been observed loading a pallet), to appellant (who was accompanying him), to the items in the truck and trailer (pallets and personal property of the two men).   Appellant argues he should have been released “as soon as it was determined that he was not involved in the pallet theft.”   To establish that time, appellant points to Yuschak's statement to another officer that appellant was “just along for the ride.”   That statement was made at 1:32 a.m. Appellant further relies on his being told at 1:37 a.m. that he would not be arrested unless the dog turned something up.   But the officer had already discovered appellant's possession of the trazadone before either of these statements were made.   Indeed, he testified that the reason he called the canine unit was the discovery of the trazadone.

We conclude appellant's detention was based on reasonable suspicion, first of theft and then of drug possession.   And we conclude the police did not unreasonably prolong the detention.   We overrule appellant's first issue.

Mistrial

In his third issue, appellant argues the trial court erred in failing to grant him a mistrial after “personal identifying information” was disclosed to the jury.   Specifically, appellant complains that during the playing of the police video the jury heard appellant respond to the officer's request for appellant's social security number.   However, when that exhibit was offered into evidence, appellant's counsel stated he had “[n]o objection.” 6  Accordingly, appellant has not preserved error on this complaint.   See Tex.R.App. P. 33.1(a)(1).

Moreover, after the relevant portion of the tape was played, appellant—who was on the stand at the time-had a verbal outburst.   The court gave him time to consult with his counsel, who returned and stated:

Your Honor, my client would like me to request a mistrial for the publication of his—his confidential federal—federally-issued information.

Based on that objection, the trial court denied the mistrial.   In this Court, appellant contends the publication of his social security number was irrelevant and unfairly prejudicial, citing rules 402 and 403 of the Texas Rules of Evidence.   He further complains that jurors could have accessed his criminal history with knowledge of his social security number.   The objections appellant makes on appeal are not the same one he made in the trial court.   On this basis as well, appellant has failed to preserve error.   See Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App.2009) (whether party's particular complaint is preserved depends on whether complaint on appeal comports with complaint made at trial).7

We overrule appellant's second issue.

Conclusion

We have resolved all of appellants' issues against him.   Accordingly, we affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

ELTON KARL HOWARD, Appellant

No. 05–11–00203–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the County Court at Law No. 2 of Collin County, Texas.  (Tr.Ct.No.002–84274–09).

Opinion delivered by Justice FitzGerald, Justices Richter and Lang–Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 9, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

FOOTNOTES

1.  FN1. Although appellant purports to challenge both the legal and factual sufficiency of the evidence, the Texas Court of Criminal Appeals' decision in Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.  Brooks, 323 S.W.3d at 894–95.

2.  FN2. The store was closed to the public.   McEntire informed appellant he would not be cited for public urination.

3.  FN3. In arguing his motion to suppress, appellant suggests he was handcuffed for the duration of his detention.   Appellant was not handcuffed until after the marihuana was found.

4.  FN4. Appellant also testified that the police had—immediately after arrival—patted him down and discovered the bag of pills, but had given them back to him.   The officers denied searching appellant's person before his arrest, and the police video does not show such a search.   The camera, however, did not capture all events of the investigation.

5.  FN5. The pretrial motion to suppress did not raise the prolonged-detention ground for suppression.   Thus, we reject appellant's suggestion that the trial court erred in denying the pretrial motion on that ground.

6.  FN6. Appellant asserts that he had not seen the entire video before trial.   But appellant was represented by counsel.   It was counsel's role to preview items tendered by the State and to lodge an objection or not.   The fact that appellant may not have viewed the video in its entirety is of no legal effect.

7.  FN7. Appellant also argues that some statements he made—which are not identified in his brief—should have been suppressed by the trial court.   Thus, he argues, when they were disclosed during the playing of State's Exhibit 1, he was entitled to a mistrial.   This ground for mistrial was not raised in the trial court.   Moreover, we have overruled appellant's issue concerning the denial of his motions to suppress.   Accordingly, we overrule this complaint as well.

KERRY P. FITZGERALD JUSTICE

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