VICTOR VAZQUEZ v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Myers

Appellant, Victor Vazquez, was convicted of possession with intent to deliver a controlled substance, and was sentenced to fifteen years in prison and a $1,000 fine.   In only one issue, he argues the trial court erred by denying his request for an article 38.23 instruction in the jury charge.   We affirm.

Background and Procedural History

Appellant was arrested and charged with possession with intent to deliver methamphetamine.   Prior to trial, appellant moved to suppress any and all physical evidence that was seized from his bedroom as the result of the warrantless search.   Appellant complained he “did not give free and voluntary consent to search his bedroom, that he was the only one authorized to give said consent, that the police did not have apparent authority to search [appellant's] bedroom, and the police began their search before even asking for [appellant's] consent to search.”

The trial court conducted a hearing on appellant's motion.   Dallas Police Officer Ben Ortiz testified police received a “citizen complaint” that a “Latin male” by the name of “Victor” was selling methamphetamine from 623 Buckalew Street in Dallas, Texas.   Officers went to the location, knocked on the front door, and asked for permission to search the residence for drugs.   Alonso Vazquez, appellant's brother, answered the door and told the officers appellant lived there.   Officers did not ask Vazquez whether he was the owner or lessor of the residence.   Alonso gave consent for the residence to be searched, and he informed the police that he lived there with appellant and a cousin.   Ortiz testified another officer, Daniel Foster, told him that when police entered the residence, appellant was in his room with the door closed.

At some point after the police entered the residence and began searching, Ortiz spoke to appellant.   Ortiz testified appellant could be heard on an audio recording of the search giving his consent to search.   Ortiz explained he asked appellant if he lived at the residence, “he said yes,” and then the officer asked appellant for consent to search.   Appellant “said uh-huh.”   Ortiz interpreted this response as “a definite yes, it's okay.”   Foster later told Ortiz appellant had already consented to a search of his room.   During the search of appellant's room, police discovered methamphetamine, “[b]aggies,” a drug scale, and pipes.   Ortiz also testified that, at no time during their search of the residence, did anyone attempt to revoke the consent to search.

A CD containing the audio recording of the search at the residence was admitted and played without objection during the hearing and then later at trial.   On track one of the recording, which recorded the search of the residence, Ortiz knocked on the door, and then told Alonso, who answered, that they had received a complaint “that there is drug activity at this location.”   He asked Alonso for permission to search the residence in order to “clear the complaint,” and Alonso invited them inside.   Ortiz asked Alonso if there was “anybody else here,” and Alonso said his children, a cousin, and appellant were also there.   The officers collected names and some personal information from Alonso and appellant.   At approximately five minutes and forty seconds into the recording, Ortiz told appellant the officers received a complaint of “some drug activity at this location,” and that “your brother allowed us to search.”   Someone on the audio recording can be heard saying, “He said it was okay.”   Ortiz then asked, “It was all right with you, too?”   Appellant responded, “Mmm,” and Ortiz said, “Okay.”

On track two, which recorded a conversation between police and appellant after his arrest for the instant offense, the officer speaking on the recording is not identified.   At the beginning of the interview, appellant was read his Miranda rights.   When the officer asked appellant whether he understood the rights that had been read to him, appellant responded, “Mmm.” The officer asked appellant his name, and appellant confirmed his name was Victor Vazquez.   Appellant stated he did not usually stay at the Buckalew residence.   His friends came over, they did drugs, and they sometimes left drugs behind.   Appellant denied buying or delivering drugs, stating, “I ain't got no money.   I got nothing.”   Appellant added that if he had known the drugs were in his room, he would not have let the police enter his room:  “If I would not have known about that, ․ I would not even have [expletive] let you come in.”

Appellant testified at the hearing that he was in his room with the door closed when the police entered the residence, where appellant had been staying for “[a]bout a month and a half.”   He opened his door when they knocked.   According to appellant, the police told him to “step out” of his room and to “have a seat on the couch.”   Officers then went into his room and started searching the room, closing the door behind them.   It was at this point, according to his testimony, that appellant spoke with Ortiz.   Appellant testified he did not feel he had any choice to consent since the police “were already going through everything.”   Asked whether he said “uh-huh” in response to the officer's question, appellant testified, “Might have been.   Might not.”   He denied saying, specifically, “yes, you can search my room.”

Appellant testified that before he moved into the residence, it had belonged to his brother and his sister-in-law.   Appellant testified he paid rent and his room was “[s]olely mine.”   Some of his cousin's “things” were stored in appellant's room because he stayed there occasionally.   Appellant maintained Alonso did not have any control over his room.

At the conclusion of the hearing, the trial court denied appellant's motion, entering the following findings of fact and conclusions of law:

THE COURT:  Findings of Fact and Conclusions of Law. Officers got consent.   Mr. Vazquez was paying a portion of the rent, that he was living in this residence.   Mr.—who else?

[PROSECUTOR]:  Alonso.

THE COURT:  Alonso gave consent.   It's evident that plaintiff Vazquez also gave consent under the law and that's sufficient.

At trial, Dallas Police Officer Chris Wagner testified that after receiving a complaint that a “Latin male” named “Victor” was selling methamphetamine from 623 Buckalew Street, he and four other officers went to the house at approximately 1:00 p.m. on Monday, November 23, 2009, to do a “knock and talk investigation.”   Police did not conduct any surveillance before approaching the house, and they did not make a “controlled buy.”

At the house, Alonso Vazquez answered the door and gave Ortiz consent for the police to enter and search the house for drugs.   Wagner noted he was not the officer who knocked on the door or spoke to the person who answered the door.   In addition to Alonso, Alonso's children, a cousin, and appellant were also present at the house.

Wagner began his portion of the search at the back of the house while Foster and another officer, J. Guzman, were at the front of the house talking to appellant.   Wagner testified appellant occupied a room in the house, and appellant gave Ortiz consent for the police to search.   Wagner, however, did not speak with appellant and was not present when appellant consented for his room to be searched.   Wagner stated, “I didn't hear the conversation.”

A large bag of crystal methamphetamine was found on the floor next to the dresser in appellant's room.   Empty “baggies,” unused “baggies,” a drug scale, and two pipes were found on the dresser.   Laboratory analysis of the drug indicated the amount of the methamphetamine was 7.6 grams and the total weight of the substance was 10.8 grams.   Later in the investigation, Wagner learned appellant also gave consent to Foster to search his room.

Ortiz testified he and his fellow officers went to the house on Buckalew street on November 23 because they received a “citizen complaint” about a “Latin male named Victor selling methamphetamine.”   They knocked on the front door, Alonso answered, and they asked him if he resided there.   He said yes.   Ortiz testified they asked Alonso “if we can come in and look for drugs.   He gives permission.”

The officers went inside the house.   Ortiz asked if there were other individuals in the house, and Alonso replied that his children, a cousin, and appellant were there.   Ortiz testified that when Foster and Guzman encountered appellant, they asked for, and appellant gave Foster, consent for the police to search his room.   Ortiz acknowledged this consent cannot be heard on the audio recording of the “knock and talk.”   Ortiz also testified that, at some point after appellant spoke to Foster, he spoke with appellant and appellant again consented to a search of his room.   On cross-examination, Ortiz was asked about appellant's consent.   The relevant portion of the record reads as follows:

Q. [DEFENSE COUNSEL:] You don't hear drawers opening and close in the background when you say to him “yeah, your brother said we can search.”   Foster says yeah, yeah, he said it's all right about his brother saying to search.   You don't hear the drawers?

A. [ORTIZ:] I hear a lot of background noises.

Q. And no where on the tape does Victor Vazquez say yes, you can search my room.

A. Right on the tape I asked Victor if he resides there and he said yes.   I asked for consent to search.   He gives it to me by stating, “uh-huh.”

Q. You said huh?

A. Uh-huh.

Q. This however is occurring after the police are in his room, correct?

A. After they had been inside his room, that's correct.

Q. They have gone inside his room before you got him to allegedly consent to anything, right?

A. Foster told me he had gone inside his room and he was in there.

Q. Okay. Foster tells you later on he got consent.   Never shows up on the police reports that consent was given to Foster.

A. He didn't tell me.   When we do the investigation if I'm talking and recording, somebody calls me over speaking with somebody, automatically I ask if they reside there.   If they say yes I ask do I have consent to search.

Q. Officer, officer, that's not my question.   My question was, doesn't show up anywhere in your police report that consent was given to Foster.

A. No, inside, no.

Q. Consent was given to you.

A. Yes.

Q. Not to Officer Foster.

A. Correct.

Q. Officer Foster was inside Victor's room before you got this alleged consent, right?

A. Yes.

Q. You said it was given to you by him saying Uh-huh?

A. Correct.

Ortiz testified he did not determine whether Alonso owned or leased the residence, and no determination was made regarding whether Alonso had any control over appellant's room.

Foster testified that when he and his fellow officers entered the home, he and Guzman proceeded to the front room, where they first saw appellant.   Foster did not recall whether they knocked on or simply opened the door to appellant's room.   Foster explained to appellant that Alonso had given them consent to search the house for drugs, and Foster asked appellant whether “that was okay with him.”   Appellant “said it was.”   Foster then took appellant “over to Officer Ortiz[,] who's wearing the recorder.   They went over it again on the recorder.”   Foster testified that at no time did appellant indicate the officers could not search or that they should stop searching.

Guzman testified that, after Alonso answered the front door, he gave them consent to search the residence.   During the search of the residence, Guzman and Foster found appellant in his room.   Guzman testified that “Foster talked to him and that's where Victor explained that was his room.   Foster told him why we were there, if it was okay to search his room.   He gave consent to Foster.”   Guzman also testified he was standing next to Foster when appellant gave him consent to search his room.

Appellant testified that Alonso rented the house at 623 Buckalew.   Appellant lived there and paid rent.   According to appellant, Alonso did not have control of appellant's room and did not have permission to allow people to “come and go” from appellant's room, nor could appellant allow people to “come and go” from Alonso's room.   On the day of the search, appellant was in his room watching television when he heard “the bell.”   When he heard the police officers, he became scared and locked his bedroom door.   Officers knocked on his door and told him to step out of the room and sit on the couch.   Appellant denied giving Foster or Guzman consent to search his room.   When Ortiz asked for appellant's consent, appellant felt as though he did not have a choice since Foster and Guzman were already in his room searching.   Appellant did not recall saying “uh-huh” to Ortiz:

Q. [DEFENSE COUNSEL:] Ortiz testified that you said uh-huh.   Is that what happened?

A. [APPELLANT:] Ah, I have no recollection of that.   Everything happened so fast.   They were in my room.   Everything happened so fast.

Q. Did you say yes, you can search?

A. Never did.

Q. Did you feel you had the ability to say no?

A. I don't think I ever got the chance.

Appellant testified he was employed by a friend of his father, and that he worked in construction for cash.   He made $10 per hour and was paid $120 per day.   According to appellant, he was home at the time of the search because he had taken drugs over the weekend, “got wasted,” and “didn't show up for work Monday.”   Appellant testified he had had a drug problem since he was fifteen or sixteen years old, and that he started using methamphetamine at the age of nineteen.   According to appellant, the “dope” and the pipe found in his room were his, but the “baggies” and scale belonged to a friend.   Appellant estimated he was using approximately three or four grams of methamphetamine per day.

Appellant paid approximately $350 for his drugs.   He testified he would work all week to earn money, then purchase drugs.   He maintained it was not his intention to sell the drugs he purchased and “[i]t was all personal.”   Appellant denied that any of the drugs found in his room were in “plain view” on his dresser.   Appellant contended he “put it up” because his “brother would walk in” and appellant “couldn't be allowed to have it around.”

At the conclusion of the testimony during the guilt-innocence phase of the trial, the trial court issued further findings, which it dictated into the record:

Let me dictate my findings.

Prior to November 23, 2009, Dallas Police Department received an anonymous complaint—these are Findings of Fact—that drugs were sold at 623 Buckalew, Dallas, Dallas County, Texas.   Officers went to the residence to do a knock and talk, that is ask for consent to search.

Dallas Police Department had no warrant to search the premises.   They knock, ID themselves and requested permission to search.

Alonso Vazquez identifies himself as a resident of the premises, gave consent to search the premises.   Officers then began to search and Officer Foster encounters the defendant Victor Vazquez in a room which the defendant identifies as his room.   Foster requested consent of the defendant to search.   The defendant gave it in the hearing of Officer Guzman.   Officer Foster took the defendant to Officer Ortiz and recorded the consent.   Only after DPD received consent from Alonso Vazquez and the defendant as to his room did DPD begin the search of the defendant's room where the alleged drugs and other physical evidence were found.

Conclusions of law, valid consent freely and voluntarily made was given by Alonso Vazquez to DPD. They had legal authority to search defendant's room.   Valid consent freely and voluntarily made was given by defendant Victor Vazquez to DPD. They did have legal authority to search defendant's room.

Therefore the defendant's motion to suppress is denied.

After the close of testimony during the guilt-innocence phase, appellant requested the following “38.23 instruction” be included in the trial court's charge to the jury:

You are instructed that our law provides no evidence obtained by an officer or other person in violation of any provisions of the Constitution or the laws of the State of Texas, or of the Constitution or the laws of the United States of America, shall be admitted in evidence against the accused on the trial of any case.   The police may only search a specified location pursuant to the existence of a valid warrant, or in the absence of said warrant, with the consent of the person with authority over the premises or effects to be searched.   In order for the consent to be valid, it must be made freely and voluntarily as a positive and unequivocal act.   Consent is not the mere peaceful submission to a claim of authority.   Therefore, if you believe from the evidence beyond a reasonable doubt that the Dallas Police officers obtained the valid consent of Victor Vazquez prior to searching his bedroom then you may consider evidence, if any, obtained therefrom.   However, if you do not so believe, or if you have a reasonable doubt as to whether valid consent was obtained prior to the search of Victor Vazquez's bedroom, then you will wholly disregard any evidence obtained as a result of the search and not consider such evidence for any purpose whatsoever.

During a hearing outside the presence of the jury, the trial court stated it was rejecting appellant's proposed instruction.   Appellant objected, arguing the State failed to prove Alonso had authority to consent to the search of appellant's room or that appellant consented to the search.   Appellant argued he had raised a question, through his cross-examination of the State's witnesses and his own testimony, regarding who had the actual authority to consent to a search of appellant's room.   He argued there was a fact issue as to whether he actually consented to the search of his room and whether it was freely and voluntarily given.   The trial court again denied appellant's requested instruction:

The Court overrules your objection, denies the use of the requested instruction.   The Court believes that the testimony by Mr. Vazquez specifically that his brother came and went in his room any and all times.   And that's why he didn't leave the drugs out.   It was especially illuminating on Mr. Alonso Vazquez having joint control and apparent authority to give consent.

The jury found appellant guilty of the charged offense, and the court sentenced him to fifteen years in prison.

Discussion

In his only issue, appellant argues the trial court erred by denying his request for an article 38.23 instruction in the jury charge.

When reviewing claims of jury charge error, we first determine whether an error actually exists in the charge.   See Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003)).   If error exists and appellant objected to the error at trial, reversal is required if the error “is calculated to injure the rights of [the] defendant,” which means there must be “some harm” to appellant from the error.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh'g).   Whether the defendant suffered some actual harm is evaluated in light of the entire jury charge, the state of the evidence, counsel's arguments, and any other relevant information in the record.   See id.

Article 38.23(a) of the Texas Code of Criminal Procedure provides as follows:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex.Code Crim. Proc. Ann. art. 38.23(a).   An article 38.23 instruction directs a jury to disregard evidence if it resolves, in a defendant's favor, a factual dispute concerning the manner in which the evidence was obtained.   Hanks v. State, 104 S.W.3d 695, 700 (Tex.App.—El Paso 2003), aff'd, 137 S.W.3d 668 (Tex.Crim.App.2004).   If the defendant successfully raises factual disputes over whether evidence was illegally obtained, inclusion of a properly worded article 38.23 instruction is mandatory.  Id. (citing Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App.1996)).

A defendant's right to the submission of jury instructions under article 38.23(a) is limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.  Madden v. State, 242 S.W.3d 504, 509–10 (Tex.Crim.App.2007).   Where no issue is raised by the evidence, the trial court acts properly in refusing a request to charge the jury.  Id. at 510.   A defendant must meet the following three requirements before he is entitled to submission of an article 38.23(a) jury instruction:  (1) The evidence heard by the jury must raise an issue of fact;  (2) the evidence on that fact must be affirmatively contested;  and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.  Id.

Therefore, there must be a genuine dispute about a material fact.  Id. If there is no disputed factual issue, the legality of the conduct is determined by the trial court alone, as a question of law.  Id. And if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct, the disputed fact issue is not submitted to the jury because it is not material to the ultimate admissibility of the evidence.  Id. The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct.   Id. at 511.   The factual dispute required to trigger an article 38.23(a) instruction can only be raised by affirmative evidence, not cross-examination questions or argument.   See Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App.2008).

Consent to search is one of the well-known exceptions to the constitutional requirements of both a warrant and probable cause.  Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973);  see also Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App.2000).  “The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and ‘voluntariness is a question of fact to be determined from all the circumstances.’ ”  Ohio v. Robinette, 519 U.S. 33, 40 (1996) (quoting Schneckloth, 412 U.S. at 248–49).   To be valid, consent must “not be coerced, by explicit or implicit means, by an implied threat or covert force.”  Schneckloth, 412 U.S. at 228.   The United States Constitution requires the State to prove the validity of consent by a preponderance of the evidence;  the Texas Constitution requires the State to prove the consent by clear and convincing evidence.   See Carmouche, 10 S.W.2d at 331.

On track one of the audio recording, appellant is not heard giving consent to a search of his room to Foster or Guzman.   But appellant's conversation with Ortiz, which occurred after appellant encountered Foster and Guzman, can be heard.   During that conversation, Ortiz told appellant his brother had consented to a search of the residence.   Someone can be heard saying, “He said it was okay.”   Ortiz then asked appellant, “It was all right with you, too?”   Appellant's response to this question, as with a similar response from appellant on track two of the audio recording, indicated he answered Ortiz in the affirmative.   Furthermore, on track two of the recording appellant stated,” If I would not have known about that, ․ I would not even have [expletive] let you come in.”   Appellant testified at the suppression hearing that his response to Ortiz might or might not have been consent, and at trial appellant testified he did not give Foster or Guzman consent to search his room.   Appellant did not recall giving consent to Ortiz because “[e]verything happened so fast,” and he did not recall saying, “[Y]es, you can search.”   Appellant also testified he did not leave the drugs in his room out in the open because his brother “would walk in,” and appellant “couldn't be allowed to have it around.”

We conclude appellant was not entitled to an article 38.23 instruction in the court's charge because there was no genuine dispute regarding the consent he gave the police to search his room.   Appellant's consent was recorded and Ortiz testified appellant consented to a search of the room.   Appellant's ambiguous testimony regarding whether his response to Ortiz might or might not have been consent, that he did not recall giving consent because “[e]verything happened so fast,” or that he did not say, specifically, “[Y]es, you can search,” does not create a genuine fact issue such that appellant was entitled to an article 38.23(a) instruction.   We also note that, given appellant's consent, Alonso's apparent authority over the searched premises was not material to the ultimate admissibility of the evidence found during the search of appellant's room.   See Madden, 242 S.W.3d at 518.

Appellant also points to his testimony at trial that, when Ortiz asked for his consent, he felt he did not have any choice because the officers were already in his room searching.   Beyond this testimony, however, there is no evidence appellant was subjected to any duress or coercion by the police, either explicit or implicit, or that he was threatened or compelled to provide consent.   See Carmouche, 10 S.W.3d at 331–32;  Cadoree v. State, 331 S.W.3d 514, 522–23 (Tex. App—Houston [14th Dist.] 2011, pet. ref'd) (citing Carmouche, 10 S.W.3d at 331).   There was no genuine fact issue regarding whether appellant's consent was voluntary.   Accordingly, the trial court did not err by denying the requested instruction.   We overrule appellant's issue.

We affirm the trial court's judgment.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

VICTOR VAZQUEZ, Appellant

No. 05–11–00055–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court No. 3 of Dallas County, Texas.  (Tr.Ct.No.F09–61613–J).

Opinion delivered by Justice Myers, Justices Morris and Fillmore participating.

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

Judgment entered April 5, 2012.

/Lana Myers/

LANA MYERS

JUSTICE

LANA MYERS JUSTICE