Rodney Hudson v. State

Rodney Hudson v. The State of Texas IN THE TENTH COURT OF APPEALS No. 10-97-228-CR RODNEY HUDSON, Appellant v. THE STATE OF TEXAS, Appellee From the 40th District Court Ellis County, Texas Trial Court # 22680CR O P I N I O N Rodney Lamar Hudson was charged with possession of a controlled substance, i.e., cocaine, a first degree felony. Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a)(e) (Vernon Supp. 1998). After the court overruled his pretrial claim that the cocaine was illegally seized, he pled not guilty. A trial resulted in the jury's convicting him and assessing 30 years in prison and a $10,000 fine. Tex. Pen. Code Ann. § 12.32 (Vernon 1994). Hudson appeals on six points by which he attacks the pretrial ruling on the motion to suppress evidence, three evidentiary rulings, and the court's refusal to direct a verdict of not guilty. FACTS Hudson was driving a car that had been rented by Donald Bail. He was stopped for speeding by DPS trooper Michael Turner, who was accompanied by Casey Borders, an Ennis Police Officer. When Turner discovered that Hudson did not own the car, he asked him to get out. He said that Hudson appeared to be nervous and told him that he was traveling with the vehicle behind him, which Turner had also stopped. Turner left Hudson and talked to the other driver, Bail, whom he said was also nervous. Both Bail and Hudson denied having any drugs or weapons in their cars, and Turner did a "pat down" search of Hudson. He said that he smelled a strong odor of what he believed to be cocaine coming from Hudson's body. Although he felt a "hard substance" in Hudson's crotch, which he suspected was cocaine, he only told Hudson to sit in the patrol car. Turner walked to Hudson's car, then returned to the passenger side of the patrol car. He pulled his weapon, pointed it at Hudson, and told him he "wanted the bag of cocaine he was carrying in his underware." Turner unbuckled Hudson's pants and removed a bag of white powder from inside his clothing. Hudson was arrested and charged with possession of cocaine. MOTION TO SUPPRESS EVIDENCE Hudson's first point essentially attacks the court's ruling on his motion to suppress the evidence (cocaine) on the basis that no probable cause existed for Turner to seize it. In a hearing on a motion to suppress evidence, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the court's rulings on application of law to fact questions, known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We review "de novo" mixed questions of law and fact not falling into this category. Id. We must examine the circumstances leading up to Turner's pat-down search of Hudson's person. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (the standard for reviewing the existence of probable cause is the "totality of the circumstances" test); see also Amos v. State, 819 S.W.2d 156, 161 (Tex. Crim. App. 1991), cert. denied, 504 U.S. 917, 112 S.Ct. 1959, 118 L.Ed.2d 561 (1992). As the State notes, Hudson does not contest Turner's right to have stopped him for speeding. Thereafter, according to Turner, Hudson gave him a rental agreement for the car showing it was rented to someone else, was nervous, and gave contradictory answers. After Hudson gave Turner permission to search the car, because Hudson was wearing baggy clothing, Turner decided for his own protection to search Hudson for weapons. The search of Hudson's person caused Turner to believe that he was carrying cocaine beneath his clothing. He gave these reasons: (1) a strong odor of cocaine; (2) a bag he felt during the pat-down; and (3) his experience that it was common for persons transporting narcotics to rent a vehicle so that their personal vehicle could not be seized if they were discovered. When a “Terry stop” is made, an officer may conduct a search when the facts available would warrant a person of reasonable caution to believe that such a search is appropriate to protect the officer or others. Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968). A “Terry stop” permits a search for weapons that reasonably could harm the officer. Davis v. State, 829 S.W.2d 218, 221 (Tex. Crim. App. 1992). Although a pat-down search is not justified simply because an officer has a mere suspicion that the defendant is armed, we believe the evidence establishes that the facts surrounding Turner's detention of Hudson warranted his belief that a pat-down search was necessary. See Miller v. State, 786 S.W.2d 494, 496 (Tex. App.—San Antonio 1990, no pet.). Once Turner approached Hudson, detected an odor he thought was cocaine, and felt a bag beneath his clothing, probable cause arose that allowed him to seize the substance in the bag. Based upon the totality of the circumstances, we do not find that the court abused its discretion in overruling the motion to suppress the substance seized by Turner. We overrule point one. We should note at this point Hudson's assertion that the testimony of Don Taylor, a DPS chemist, disproves Turner's testimony about cocaine having an identifiable odor. Taylor did not testify at the hearing on the motion to suppress the evidence, and his testimony can neither support or undermine the court's ruling on that motion. Hudson urges, however, that the motion to suppress should have been granted during trial when the chemist disproved Turner's testimony about detecting an odor upon which he acted. Hudson's remedy at that point was to have the question submitted to the jury, which could determine the factual dispute and determine for itself whether the evidence had been illegally seized. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 1998) (jury may be instructed to disregard evidence it finds was obtained in violation of article). EVIDENTIARY POINTS Hudson asserts in points two, three, four, and five that the court erred in admitting testimony about the street value of the cocaine, the exhibit containing the cocaine, and a lab report about it. street value of the cocaine In point two, Hudson asserts that testimony about the street value of the cocaine should not have been admitted. The State points out that a section of Hudson's brief entitled "Argument and Authorities under Points of Error Numbers One and Two" does not cite any authority to sustain the point. We further note that there are no references to the record where the testimony and ruling complained of may be found. Nothing is presented for our review. Tex. R. App. P. 38.1(h). Point two is overruled. testimony of the chemist about the cocaine and report Points three, four, and five attack the admissibility of Exhibit One, the cocaine, Exhibit Two, a report about the cocaine, and testimony from the chemist about the cocaine. The specific objections were that a proper predicate for the evidence had not been laid, the chain of custody of the cocaine from the time of arrest until trial had not been established, and it had been illegally seized. Having already addressed the third, we turn to the remaining two objections. Taylor testified that Exhibit One was marked with "a unique laboratory case number"—L6W-72108. He said that the exhibit also contained his initials, which he pointed out as being "over the heatseal." Officer Turner had previously identified Exhibit One as being the bag containing white powder taken from Hudson. He testified that it contained his initials also. He said that he personally delivered the substance to the DPS laboratory in Waco. Rule 901 of the Rules of Criminal Evidence provides that authentication or identification of items offered into evidence "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Crim. Evid. 901(a). Among the examples given is testimony of a witness with knowledge who testifies that a matter is what it is claimed to be. Id. at 901(b)(1); Hall v. State, 829 S.W.2d 407, 409 (Tex. App.—Waco 1992, no pet.). Under Rule 901, proof of a chain of custody in some circumstances is necessary to "support a finding that the matter in question is what its proponent claims." Moore v. State, 821 S.W.2d 429, 431 (Tex. App.—Waco 1991, no pet.) (citing Tex. R. Crim. Evid. 901(a)); see also Schlueter, Identification of Evidence: That's the Knife, 54 TEX. B. J. 1107 (1991). In those instances in which proof of a chain of custody is necessary, the state must adduce such proof to establish that the evidence is what the state says it is—evidence connected to the defendant and to the offense—evidence having that degree of security and integrity to justify its admission. See Moore, 821 S.W.2d at 421 (citing Stone v. State, 794 S.W.2d 868, 870 (Tex. App.—El Paso 1990, no pet.)). "[M]inor theoretical breaches in the chain of custody" will not affect admissibility in absence of "affirmative evidence of tampering or commingling." Id. We cannot say that the court abused its discretion in admitting Exhibit One into evidence in view of the positive identification of clearly relevant evidence—the bag and its contents—by both Turner and Taylor. We overrule points three, four, and five. INSTRUCTED VERDICT Hudson's final points maintain that the court should have instructed a verdict at the close of the State's case or should have instructed a verdict of "not guilty" after all the evidence had been adduced. At the close of the State's case, Hudson moved for an instructed verdict, which the court denied. In point six, he re-asserts his contentions that the evidence was illegally obtained and that a valid chain of custody had not been proven. In point seven he complains of the court's overruling his objection to the charge based on the grounds that it should have instructed a verdict of not guilty. In support of these points, he again urges the same arguments that we have discussed under points one, three, four, and five above. For the reasons given, noting that at trial Turner's testimony was substantially the same as it was at the hearing on the motion to suppress the cocaine as evidence, we now overrule points six and seven. CONCLUSION Having overruled all of Hudson's points of error, we affirm the judgment. BILL VANCE Justice Before Chief Justice Davis, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed February 25, 1998 Do not publish