James Daniel Green v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00365-CR No. 10-05-00366-CR James Daniel Green, Appellant v. The State of Texas, Appellee From the 278th District Court Madison County, Texas Trial Court Nos. 05-10907-278-07 and 05-10909-278-07 MEMORANDUM Opinion A jury convicted James Daniel Green of two counts of burglary of a habitation and assessed his punishment at two terms of forty years’ imprisonment to run concurrently. Green contends in his sole issue that there is insufficient evidence to corroborate the accomplice testimony offered at trial. We will affirm. Twice in the first week of January, the ranch home of Tony Wolfskill was burglarized. Each time guns, ammunition, and other items were taken. Green was charged in each burglary. The primary witnesses against him were his two accomplices, Matt Driskell and Jared Tidwell. Driskell and Tidwell were arrested in possession of certain stolen within hours of the second burglary. They immediately confessed and implicated Green in the burglaries. Each accomplice testified that Green was the leader. In addition to this accomplice testimony, two sheriff’s deputies, neighbors, and other witnesses testified as to the facts of the break-ins and having seen Green in the area of the Wolfskills’ house near the time of the burglaries. Green argues in his sole issue that there is insufficient evidence to corroborate the accomplice testimony. Accomplice testimony must be corroborated by “other evidence tending to connect the defendant with the offense committed.” Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). The test for sufficient corroboration is to eliminate from consideration the accomplice testimony, and then examine the remaining inculpatory evidence to ascertain whether it tends to connect the defendant with the offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999); Phillips v. State, 72 S.W.3d 719, 722 (Tex. App.—Waco 2002, no pet.). Evidence merely proving that a crime was committed is insufficient. Tex. Code Crim. Proc. Ann. art. 38.14. We begin with a review of the non-accomplice testimony. The sheriff’s deputies and the Wolfskills testified that the house had been broken into twice. Tony Wolfskill and his brother testified that the Wolfskills’ ranch house had been burglarized on the afternoon of January 4, 2005, and on the evening of January 6, 2005. Wolfskill identified two rifles, field binoculars and other items found hidden in the woods near his house as some of the items taken. A bank bag and hunting knife found in Driskell’s vehicle were also identified by Wolfskill as being among the items stolen. Two handguns taken in the first burglary and additional rifles and ammunition stolen in the second break-in were never recovered. The Wolf skills’ neighbor Dallas Ivey testified that on the morning of January 4, he saw a jeep abandoned on the road near the Wolfskills’ ranch. Earlier in the day, Green had been seen by another witness driving that same jeep. Ivey also testified that he saw Green and another man, later identified as Tidwell, walking down the road away from the Wolfskills’ ranch on the afternoon of the first burglary. Ashley Nuss said Green and Tidwell stopped her on the road that same afternoon. When Green asked her for a ride, he also showed her two handguns, which were similar to those stolen in the first burglary. Ivey also testified that on January 6, his brother and he went to investigate a car parked on the side of the road and saw Green and Tidwell coming from the woods near the Wolfskills’ house. Green claimed to be having car trouble, but the car started immediately. A cache of the Wolfskills’ stolen guns were later found in that area of the woods. Ivey and his brother testified that later that same evening they saw a red Dodge truck which they knew to belong to Matt Driskell, driving slowly by the Wolfskills’ with its lights off. They saw the shadows of people running across the yard and jumping in the truck. Once away form the Wolfskills’ house, the headlights came on as the truck speed away. The Iveys had, in the weeks prior to the burglary, seen Green riding in Driskell’s truck and spotlighting the Wolfskills’ house. Green at that time claimed he was going to knock on the door. The question of whether sufficient corroborating evidence exists does not invoke the traditional legal or factual sufficiency analyses. Cathey, 992 S.W.2d at 462. The analysis of the sufficiency of corroborating evidence is done on a case by case basis. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). The non-accomplice evidence need not directly link the defendant to the crime, nor does it alone have to establish guilt beyond a reasonable doubt; rather the evidence need only to tend to connect the defendant to the crime. Cathey, 992 S.W.2d at 462. Presence with accomplices at or around the time of the crime is not sufficient corroboration alone, but it is an important factor. Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997); Jackson v. State, 745 S.W.2d 4, 13 (Tex. Crim. App. 1988). Evidence of a guilty demeanor coupled with other corroborating circumstances may tend to connect the defendant to the crime. Hernandez, 939 S.W.2d at 178. Possession of the fruits of the crime or even items similar to those taken is proper corroborating evidence. Bradley v. State, 48 S.W.3d 437, 441 (Tex. App.—Waco 2001, pet. ref’d); see also Cockrum v. State, 758 S.W.2d 577, 582 (Tex. Crim. App. 1988). Here, the record contains considerable non-accomplice testimony placing Green with his accomplices shortly before and after the commission of each offense and not far from the site of the offense. Such evidence adds to the weight of the corroborative evidence. Burks v. State, 876 S.W.2d 877, 887-88 (Tex. Crim. App. 1994); Bradley, 48 S.W.3d at 441. Testimony from the neighbors as to having seen Driskell’s truck and people running from the house shows when and how the crime was committed, offering further corroboration of the accomplice testimony. Bradley, 48 S.W.3d at 441 (citing Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988)). Green acted suspiciously prior to the burglary when he was seen with Driskell spotlighting the Wolfskills’ property and also aroused suspicion following the first burglary when he claimed to have car trouble but had no problems starting the car. He was also seen with handguns similar to those stolen from the Wolfskills. Although each piece of corroborating evidence taken individually might be insufficient to tend to connect the defendant to the offense, the totality of the evidence is enough for a rational jury to conclude that Green was sufficiently connected to the burglaries through non-accomplice testimony. Hernandez, 939 S.W.2d at 178-79. We overrule Green’s sole issue on appeal and affirm the conviction. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed December 13, 2006 Do not publish [CRPM] he could perform a protective body search, and Levi agreed. After the body search revealed nothing, Allovio directed Levi to sit on the curb while he searched the vehicle. At this time, Officers Lundquist and Rivas arrived on the scene. The officers stood next to Levi as he sat on the curb while Allovio searched the vehicle. After nothing was found, Allovio approached Levi and asked him if he had anything hidden in his crotch. Levi stated that he did not, but gave his consent for Allovio to search his crotch. During the search, Allovio felt a bulge that felt like a pill bottle. Thereupon, the officers handcuffed Levi and removed the object that was subsequently determined to be a pill bottle containing cocaine. The officers placed Levi under arrest. Levi filed a motion to suppress the cocaine claiming that the cocaine was illegally obtained. The trial court denied the motion, and Levi was sentenced in accord with a plea agreement to thirty years in prison. In his appeal, Levi argues that the trial court abused its discretion in overruling his motion to suppress because (1) the cocaine was discovered as a result of multiple illegal detentions; (2) his consent was involuntary; and (3) the search was constitutionally unreasonable. Standard of Review A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002); Joubert v. State, 129 S.W.3d 686, 687 (Tex. App.—Waco 2004, no pet.). "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 a 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. Illegal Detention In Levi's first issue, he argues that the trial court should have granted his motion to suppress the cocaine because it was discovered as a result of multiple illegal detentions. Levi claims that Allovio's request for consent to search the vehicle after telling Levi he was free to go constitutes a second detention because the purpose of the traffic stop was over. Levi points to his testimony that Rivas and Lundquist were standing next to him on the curb as further evidence that this was a second detention because the officers by their presence did not leave him with the impression that he was free to leave. Furthermore, he argues that this second detention was illegal because Allovio did not have a reasonable suspicion that Levi was involved in any illegal activity; and therefore, the evidence should be suppressed as fruit of the illegal detention. However, asking additional questions, including asking for consent to search a vehicle, during a legal traffic stop is not a separate detention. Vargas v. State, 18 S.W.3d 247, 252 (Tex. App.—Waco 2000, pet. ref'd). It is not unreasonable per se to request consent to search a vehicle after the completion of a traffic stop. James v. State, 102 S.W.3d 162, 173 (Tex. App.—Fort Worth 2003, pet. ref'd); Leach v. State, 35 S.W.3d 232, 235 (Tex. App.—Austin 2000, no pet.). On the contrary, a police officer may request consent to search a vehicle after the purpose of the traffic stop has been accomplished as long as it is reasonable under the circumstances and the officer has not conveyed a message that compliance with the officer's request is required. Leach, 35 S.W.3d at 235; see Simpson v. State, 29 S.W.3d 324, 328 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd)(citing Ohio v. Robinette, 519 U.S. 33, 37-39, 117 S.Ct. 417, 420-21, 136 L. Ed. 2d 347, 353-55 (1996)). Therefore, the relevant question is whether the officer in asking for Levi's consent gave the impression that an affirmative answer was required. Levi was told he was free to leave before Allovio requested his consent to search. The officers testified that Levi did not appear nervous or intimidated by them. The officers did not brandish their weapons, nor did they handcuff Levi until after the contraband was discovered. Levi was not placed in a patrol car, but asked to sit on the curb for his safety. The evidence shows that Allovio and the other officers did not convey a message that compliance with Allovio's request for consent to search the vehicle was required. James, 102 S.W.3d at 173. Therefore, we overrule Levi's first issue. Involuntary Consent In his second issue, Levi argues that the trial court should have granted his motion to suppress because his consent was involuntary. For consent to be voluntary, it cannot be the product of duress or coercion, express or implied. Conde, 135 S.W.3d at 255 (citing Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000)). Voluntary consent must be positive and unequivocal, and it is not shown by an acquiescence to a claim of lawful authority. Conde, 135 S.W.3d at 255 (citing Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000)). In determining whether consent was voluntary, we look to certain relevant factors, such as: 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. Hunter v. State, 102 S.W.3d 306, 311 (Tex. App.—Fort Worth 2003, no pet.); Reasor, 12 S.W.3d at 818. Additionally, testimony by law enforcement officers that no coercion was involved in obtaining the consent is evidence of the consent's voluntary nature. Martinez v. State, 17 S.W.3d 677, 683 (Tex. Crim. App. 2000); Hunter, 102 S.W.3d at 311. A police officer's failure to inform the accused that he can refuse consent is a factor to consider in determining the voluntariness of consent; however, the absence of such information does not automatically render the accused's consent involuntary. Johnson v. State, 68 S.W.3d 644, 653 (Tex. Crim. App. 2002); Hunter, 102 S.W.3d at 311. There is no evidence of the level of Levi's intellect, but the evidence shows that Levi is an adult who has experienced previous encounters with law enforcement officials. The officers did not inform Levi that he could refuse to give his consent. However, Levi was told he was free to go before Allovio asked for his consent. Levi was not arrested or handcuffed before being asked to give his consent; therefore, there is no evidence of physical punishment. Evidence as to the length of the detainment is conflicting, but at its longest it was twenty minutes. The evidence shows that on each of the three occasions that Allovio asked for consent to search different areas, Allovio asked only once. Levi repeatedly points to the officers standing over him while he sat on the curb as evidence that he was coerced into giving his consent. However, there is no evidence that the officers acted in any manner to coerce Levi. Testimony that the officers stood over Levi is no evidence that they exhibited any behavior calculated to coerce him into giving his consent. There is no evidence that the officers' actions intimidated Levi. On the contrary, the evidence shows that Levi was calm and did not seem nervous. Because we must give appropriate deference to the trial court's determination of historical facts and the credibility of the witnesses, we hold that the trial court did not abuse its discretion in finding that Levi's consent was voluntary. Conde, 135 S.W.3d at 254; Joubert, 129 S.W.3d at 687; Hunter, 102 S.W.3d at 312. We overrule Levi's second issue. Constitutionally Unreasonable Search In Levi's third issue, he argues that the search which revealed the cocaine hidden in his crotch area was an unreasonable search under the Fourth Amendment because the search exceeded the scope of Levi's consent. U.S. Const. amend. IV; Harris v. State, 994 S.W.2d 927, 931 (Tex. App.—Waco 1999, pet. ref'd). Levi testified that after he consented to the crotch search, Allovio unbuckled Levi's pants and placed a flashlight down his crotch. On the other hand, Allovio testified that the crotch search was performed by only feeling of Levi's crotch through his pants. Allovio could not remember using a flashlight, but stated that a flashlight is commonly used in a search incident to an arrest after illegal drugs have been found. Because there is conflicting evidence as to the manner of the search, we must defer to the trial court's determination of the credibility of the witnesses. Conde, 135 S.W.3d at 254. Therefore, we hold that the trial court did not abuse its discretion in its determination that the search was reasonable. We overrule Levi's third issue. CONCLUSION Having overruled all of Levi's issues, we affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed August 25, 2004 Publish [CR25]