City of Milford v. Nestor Calderon, Jr.

IN THE TENTH COURT OF APPEALS No. 10-10-00247-CV City of Milford, Appellant v. Nestor Calderon, Jr., Appellee From the 40th District Court Ellis County, Texas Trial Court No. 79,293 MEMORANDUM Opinion Appellant, City of Milford, filed a notice of appeal from an adverse judgment issued by the trial court. Now, City of Milford has filed an unopposed motion to dismiss the appeal. In the motion, City of Milford requests that we dismiss the appeal and remand the case back to the trial court for completion of the dismissal process. We are not permitted by the Rules of Appellate Procedure to dismiss the appeal and remand the case. Accordingly, we grant City of Milford’s motion in part, set aside the trial court’s judgment without regard to the merits, and remand the case to the trial court for further proceedings. See Tex. R. App. P. 42.1(a)(2)(B). TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Judgment set aside and remanded Opinion delivered and filed December 8, 2010 [CV06] e="font-weight: bold"> O P I N I O N In a single trial, Santo Buttacavoli was convicted by a jury of possession of marihuana ("case one") and cocaine ("case two"). See Tex. Health & Safety Code Ann. §§ 481.121(b)(4), 481.115(b) (Vernon 1992). He was sentenced to ten years imprisonment, probated, in each case. He appeals both convictions on identical points alleging an illegal search, improper peremptory challenges, and charge error. He also complains that the evidence is insufficient to convict him of possession of cocaine. FACTS On November 18, 1991, at approximately 2:30 p.m., Department of Public Safety (DPS) Trooper Larry Price and his partner, Trooper Ralph Billings, were patrolling Interstate 45 in Freestone County. Approximately one mile south of Fairfield, a 1981 Buick passed the troopers going north. Price said that Buttacavoli, the driver of the Buick, did not appear to be wearing a seat belt. After the troopers stopped the vehicle, Buttacavoli met them at the rear of the Buick, and Price told him why he had been stopped. Buttacavoli told the troopers that he had been wearing his seat belt, but that the shoulder strap hurt his neck so he wore it under his left arm. Price walked to the driver's side of the Buick, opened the door, examined the seat belt, and smelled what he believed to be the faint odor of burnt marihuana. Price asked the passenger, Joey Monteverde, to exit the vehicle. At Price's request, Buttacavoli opened the trunk for a brief moment—"about three seconds"—then shut it. After shutting the trunk, Buttacavoli advised Price that Monteverde had marihuana in his pocket. A search of Monteverde revealed a small amount of marihuana. Price then searched the interior of the vehicle. In the glove compartment, he found Monteverde's driver's license and a Marlboro cigarette box. Price took the keys, opened the car trunk, and observed two garbage sacks. Price felt the sacks, which were tied shut, and determined from their smell and feel that they contained marihuana. Both Buttacavoli and Monteverde were placed under arrest. An inventory search of the vehicle revealed that the Marlboro cigarette box contained cocaine. A plastic drinking straw found in the vehicle also contained traces of cocaine. WARRANTLESS SEARCH In point one of both cases, Buttacavoli complains that the court erred in admitting the marihuana and cocaine into evidence because the drugs were obtained through an illegal, warrantless search. After a hearing, the court overruled Buttacavoli's motion to suppress the evidence. In a hearing on a motion to suppress, 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. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). If the court's resolution of a controverted issue is supported by the record, a reviewing court should not disturb that decision. Muniz v. State, 851 S.W.2d 238, 252 (Tex. Crim. App. 1993). Circumstances short of probable cause will permit a temporary investigative stop for the purposes of gathering information or to determine whether a crime has been committed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A routine traffic stop is a temporary investigative stop. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). Occupants of the front seat of a passenger car must wear a safety belt when the vehicle is in operation. Tex. Rev. Civ. Stat. Ann. art. 6701d, § 107C(b) (Vernon Supp. 1993). A violation of traffic laws is sufficient authority for an officer to stop a vehicle. Armitage v. State, 637 S.W.2d 936, 939 (Tex. Crim. App. 1982). Buttacavoli argues that Price's entering the vehicle to inspect the seat belt was an illegal, warrantless search. Officer Price said he observed Buttacavoli driving without a safety belt. He was entitled to temporarily detain Buttacavoli to determine whether he was in violation of the law. See id.; Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Once stopped and informed of the charge, Buttacavoli offered the explanation that he had been wearing his seat belt with the shoulder strap under his left arm. Price then opened the driver's door "to observe the seatbelt situation, what the seatbelt looked like." An investigative stop should be "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. at 1879. Because Buttacavoli told the officer that he had been wearing a seatbelt under his arm, Price opened the door to observe the seatbelt. We hold that, given Buttacavoli's explanation, Price's opening the vehicle door did not exceed the scope of the investigative stop. See id. The police may search an automobile which they have probable cause to believe contains contraband or evidence. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Having found marihuana on the person of a passenger in the vehicle, "the question to be asked, in terms of probable cause for a further search, is whether a man of reasonable caution would be warranted in the belief that other contraband items may be located in the trunk of the car." See Osban v. State, 726 S.W.2d 107, 109 (Tex. Crim. App. 1986) (on rehearing) (search of interior of vehicle incident to an arrest for driving with suspended license that revealed small amounts of contraband and large amounts of cash gave probable cause for inventory search of locked trunk). Once a vehicle is validly stopped, the vehicle is subject to a warrantless search if the objective facts give the officer probable cause. Levine v. State, 794 S.W.2d 451, 452 (Tex. App.—Amarillo 1990, no pet.) (driver stopped for speeding "reeked" of marihuana and made statements to troopers "that he would give [the troopers] his pot"). Probable cause justifies the search of every part of the vehicle that might conceal the contraband. See id. at 454. The objective facts are: Price smelled the faint odor of burnt marihuana inside the vehicle; Buttacavoli consented to open the trunk, but left it open for only three seconds; Buttacavoli looked frightened and was breathing hard; Buttacavoli told the officers that Monteverde had marihuana; and a search of Monteverde revealed marihuana. We find that Price had probable cause to search the vehicle. See id. We overrule point one in each case. In point two of case one and point four of case two, Buttacavoli complains of the court's failure to grant his Batson motion after the State used peremptory strikes on five black panel members. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Buttacavoli directs us to the strikes used against only three of those individuals. The prosecutor stated that he struck Randolf Daniel because he was unkempt, his eyes were extremely bloodshot, and he had an alcohol problem. Daniel did not have his juror card and got "smart" with the clerk when he went to get a replacement card. The clerk had to fill out Daniel's juror card for him. Furthermore, Daniel was the only juror of those who had previously received traffic citations who stated that he had not deserved his ticket. Because Buttacavoli's defense was based on the initial traffic stop, the prosecutor said that he did not want a juror who felt he had not deserved a traffic ticket. According to the prosecutor, Jimmy Lee Carter was struck because he came in late and spoke with the judge on two occasions trying to get off of jury duty. The prosecutor stated that, in his opinion, Carter did not want to serve on a jury. He also said that Carter slept through fifty-percent of the voir dire examination and that Carter himself had stated that he "didn't belong here" and that he was not a resident of the county. Brenda Robinson was struck, the prosecutor explained, because her husband had been convicted of driving while intoxicated and, in her opinion, had been treated unfairly. The prosecutor said that, having dealt with Robinson on prior occasions concerning a lawsuit, he formed the opinion that Robinson "is of extremely low intellect, probably bordering on subnormal." He said that he did not believe she had the mental ability to grasp the case. We review the evidence adduced at the Batson hearing in the light most favorable to the trial court's ruling. See Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App.), cert. denied, —U.S.—, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). Our review of the court's determination of the issues is controlled by the "clear error" standard of review. See Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992). In applying this standard, a determination is made whether the trial judge's decision is supported by the record so that it is not clearly erroneous. Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993). Having reviewed the voir dire examination and the testimony at the Batson hearing, we find that the court's decision is supported by the record and is not clearly erroneous. Id. We overrule the points. In point three of case one and point five of case two, Buttacavoli asserts that the court erred in refusing to grant a mistrial for the State's repeated attacks on his defense counsel during closing argument. The prosecutor made numerous references to defense counsel playing "little lawyer games," to "many tricks [defense counsel] pulled," and defense counsel's "bag of tricks." Defense counsel repeatedly objected, and the court instructed the jury to disregard the arguments. Defense counsel twice moved for a mistrial. The court denied both requests. Following an objectionable argument, an instruction by the court to disregard the comment will normally obviate the harm unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by the admonishment. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990). Moreover, for an improper argument to rise to a level mandating reversal, the argument must be "extreme or manifestly improper, or inject new and harmful facts into evidence." Id. Although we do not condone these arguments, we do not find that they were extreme or manifestly improper. See id. We overrule the points. In point four of case one and point six of case two, Buttacavoli asserts that the court erred in instructing the jury on the seat belt violation. The court instructed the jury: "An officer is permitted, however, to make a temporary investigative detention of a motorist if the officer has a reasonable suspicion that some activity out of the ordinary is or has occurred." Buttacavoli argues that the appropriate standard is probable cause—that an officer must have probable cause for a traffic stop. To temporarily stop and detain an automobile, officers need only have an articulable and reasonable suspicion that a motorist is subject to seizure for violation of law. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); Amores v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991). We overrule the points. In point five of case one and point seven of case two, Buttacavoli asserts that the court erred in overruling his objection to the prosecutor's informing the jury of prior convictions during voir dire. The following dialogue took place during defense counsel's voir dire: [DEFENSE]: . . . And [Buttacavoli] has filed a sworn application for probation, many, many months before today, saying he's never before been in any trouble. And there's a reason why you file a sworn application for probation—that means under oath. [STATE]: Your Honor, he's filed no application saying he's never been in any trouble. Absolutely a misstatement. [DEFENSE]: Your Honor, we filed a sworn application. [STATE]: I think it says convicted of a felony. I never heard of -- [DEFENSE]: If he's got anything to the contrary, Your Honor, I challenge him to offer it. [STATE]: I will be happy to do that at the punishment phase, Your Honor. THE COURT: You may proceed. Defense counsel continued with his voir dire. After a lunch recess, outside the presence of the jury, defense counsel challenged the prosecutor to produce evidence of prior misconduct. Defense counsel moved for a mistrial. The court did not rule on the motion for mistrial, but indicated that he would reconsider the motion if the State did not present evidence of a prior criminal record. Buttacavoli complains on appeal that the court erred in overruling his objection to the State's informing the jury of prior convictions. To preserve a complaint for appellate review, a party must have presented to the trial court a timely objection and obtain a ruling. Tex. R. App. P. 52(a). Trial counsel did not object until thirty-five pages later in the record after the complained-of comments were made—after a lunch break. To be timely, an objection must be raised at the earliest opportunity or as soon as the ground of objection becomes apparent. Zimmerman v. State, 860 S.W.2d 89, 100 (Tex. Crim. App. 1993). The complaint was not preserved for our review. We overrule the points. In point six of case one and point eight of case two, Buttacavoli complains that the court failed to apply the law to the facts in the charge concerning the traffic stop. Paragraph six of the charge instructed the jury on reasonable suspicion in a temporary investigative detention. Paragraph six further instructed the jury that, if it found that the police officer did not have a reasonable suspicion based on articulable facts that Buttacavoli was travelling without a seatbelt, it should disregard the officer's testimony and his conclusions drawn as a result of the stop. We find that the charge adequately applied the law to the facts. We overrule the points. In point seven of case one and point nine of case two, Buttacavoli complains that the court erred in failing to instruct the jury on the definition of arrest. Buttacavoli's Requested Jury Instruction No. 1 included the following paragraphs: In that connection, you are instructed that a police officer may, without a warrant, arrest an offender for any offense committed in his presence or within his view. You are further instructed that the person is considered under arrest when he has actually been placed under restraint or his freedom of movement has been significantly impaired by a police officer's show of authority. The State suggested that a definition of arrest should be given in the charge and the court included Buttacavoli's definition. Buttacavoli requested that his definition of arrest be deleted from the charge if it was not "given in the context of the alleged failure to wear a seatbelt on a probable cause standard." Buttacavoli requested that the definition be deleted if the court was going to "erroneously appl[y] the reasonable suspicion standard to the seatbelt stop." The court removed the instruction on arrest. We held above that the court did not err in instructing the jury on "reasonable suspicion" rather than "probable cause" to detain Buttacavoli on the seatbelt violation. Buttacavoli requested the removal of the definition of arrest. Having received the relief he requested, he cannot now complain of the court's action. See Capistran v. State, 759 S.W.2d 121, 124 (Tex. Crim. App. 1982); State v. Manning, 833 S.W.2d 322, 324 (Tex. App.—Waco 1992, no pet.). We overrule the points. In point eight of case one and point ten of case two, Buttacavoli complains that the court failed to properly instruct the jury on probable cause. The court's charge read: By the term "probable cause," as used herein is meant where the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. The court denied Buttacavoli's Requested Jury Instruction No. 2 that read: You are further instructed, however, that a police officer's good faith belief does not rise to the level of "probable cause" if it amounts to nothing more than suspicion that is based upon an inarticulate hunch. In other words, "probable cause" does not exist where the facts known to the officer make it just as reasonable to indulge in the belief that an offense was not being committed. The State argues that the definition of probable cause that was given was taken verbatim from Jury Charges for Texas Criminal Practice. See Paul J. McClung, Jury Charges for Texas Criminal Practice 300 (1993). A similar definition is suggested in section 10.106[2] of the Texas Criminal Practice Guide. Marvin O. Teague & Barry P. Helft, 1 Texas Criminal Practice Guide § 10.106[2] (1993). We do not find that the court erred in failing to give the requested instruction. We overrule the points. In point two of case two, Buttacavoli asserts that the evidence is insufficient to convict him of possession of cocaine. Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). A defendant must exercise care, custody, control, and management over illicit drugs, knowing them to be drugs, before he is guilty of their possession. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). If the defendant is not in sole possession of the premises where drugs are found, the state must prove an affirmative link between the contraband and the defendant to establish his possession. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981). Possession of a controlled substance need not be exclusive; if the evidence shows that the accused jointly possessed the controlled substance with another, unlawful possession is established. Oaks v. State, 642 S.W.2d 174, 176 (Tex. Crim. App. 1982); Brazier v. State, 748 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1988, pet. ref'd). An affirmative link is established by facts and circumstances from which one may reasonably infer that the defendant knew the contraband existed and that he exercised care, custody, control, and management over it. Dickey, 693 S.W.2d at 389. After Buttacavoli's arrest, an inventory search of the vehicle revealed a cigarette box with cocaine in the glove compartment and a plastic drinking straw with white powder residue. The straw was found in the sun visor on the passenger's side. Monteverde's driver's license was lying next to the cigarette box in the glove compartment. Buttacavoli was the owner and driver of the automobile. See Deshong, 625 S.W.2d at 329; Merideth v. State, 603 S.W.2d 872, 873 (Tex. Crim. App. [Panel Op.] 1980); Moreno v. State, 821 S.W.2d 344, 351 (Tex. App.—Waco 1991, pet. ref'd). The contraband was found in the glove compartment of Buttacavoli's vehicle—a location easily accessible to him. See Moreno, 821 S.W.2d at 351. Price detected the smell of burnt marihuana in the interior of the vehicle. A search of the trunk revealed over twelve pounds of marihuana. Viewing the evidence in the light most favorable to the verdict, we find the evidence sufficient for the jury to have inferred Buttacavoli's possession of the cocaine. We overrule the point. In point three of case two, Buttacavoli asserts that the court erred in giving an instruction in the opening paragraph of the charge that did not track the indictment and conflicted with another instruction. The opening paragraph of the charge stated: "The defendant, Santo Buttacavoli, stands charged by indictment with the offense of Possession of a controlled substance to-wit: Cocaine less than 28 grams." Paragraph 5 of the charge stated: Now, if you find from the evidence beyond a reasonable doubt that on or about the 18th day of November 1991, in Freestone County, Texas, the defendant Santo Buttacavoli, did intentionally or knowingly possess a controlled substance, to-wit: Cocaine of an aggregate weight including any adulterants or dilutants less than 28 grams, then you will find the defendant guilty of possession of a controlled substance, to-wit: Cocaine of an aggregate weight including any adulterants or dilutants less then 28 grams. Buttacavoli complains that the words "including adulterants or dilutants" authorized the jury to convict on different proof than that alleged in the indictment. Testimony indicated that the plastic straw contained trace amounts of cocaine. The substance in the Marlboro box also contained cocaine. Possession of cocaine less than twenty-eight gram, including adulterants and dilutants, is a second-degree felony. Tex. Health & Safety Code Ann. § 481.115(b). There is no lesser charge than possession of less than twenty-eight grams. Buttacavoli could not have been harmed by any error in the instruction in the opening paragraph. We overrule the point. We affirm the judgment. BILL VANCE Justice Before Chief Justice Thomas, Justice Cummings, and Justice Vance Affirmed Opinion delivered and filed November 10, 1993 Do not publish