OPINION
Appellant was convicted of possession with the intent to deliver a controlled substance, namely cocaine, weighing between four and 200 grams and sentenced to 28 years in prison. On appeal, appellant raises six issues, challenging (1) the trial court’s denial of his motion to suppress evidence seized from his apartment, (2) the factual sufficiency of the evidence, (3) the admission of his prior felony convictions,
I. BACKGROUND
Appellant lived in an apartment complex in the Heights area in Houston. On February 17, 2006, Officer Chris Massey and Sergeants Larry Bronikowski and Arturo Bazan of the Houston Police Department were conducting surveillance on an unrelated tip near appellant’s apartment complex. During their surveillance, Officer Massey observed appellant engaging in suspicious activity. More specifically, around 6:30 p.m., Officer Massey testified that he observed appellant making a “heat run.” 1 As appellant was walking to his vehicle to exit the apartment complex a second time, Officer Massey saw a small brown bag partially protruding from appellant’s pocket. Officer Massey and Sergeants Bronikowski and Bazan followed appellant as he drove out of the complex, onto a highway, and observed appellant commit three traffic violations: speeding, changing lanes without signaling, and driving a vehicle without a front license plate. Because the three officers were in plain clothes, Officer Massey called in a request for a local patrol unit to stop appellant based on the traffic violations observed by the three officers. Two patrol officers, Charles Corgery and Thurston Johnson, responded to Officer Massey’s call and initiated a traffic stop. Officer Massey and Sergeants Bronikowski and Bazan followed the patrol officers and appellant to a nearby gas station where the traffic stop was completed.
Officer Thurston testified that he smelled an odor of marijuana in the vehicle when he approached appellant. The two patrol officers asked appellant for his driver’s license and insurance; however, appellant was unable to produce them. Around 7:30 p.m., appellant was arrested and given his Miranda warnings. The officers then conducted a vehicle search incident to the arrest and inventoried the vehicle. In appellant’s vehicle, the officers discovered a brown bag, similar to the bag previously observed by Officer Massey protruding from appellant’s pocket, containing 127.9 grams of cocaine including adulterants and dilutants. The officers then asked appellant where he lived. However, appellant was uncooperative and told the officers that he was homeless. For the next five hours, the officers made investigatory efforts to locate appellant’s residence.
First, officers went back to appellant’s apartment complex to search apartment 27, the apartment which Officer Massey saw appellant enter and exit earlier in the day. Officer Massey, at the same time, went to the police station to get a search warrant for apartment 27. While drafting the search warrant, Officer Massey learned that a tenant of apartment 27 had given the other officers consent to search the apartment. By this time, six to eight officers were involved in the investigation, and appellant was still in custody, handcuffed in the back of Officer Johnson’s patrol unit. When Massey arrived, the officers searched apartment 27 and discovered large amounts of cocaine, methamphetamine, and marijuana. However, it was discovered that appellant did not reside in apartment 27.
Next, the officers and appellant went to the apartment of appellant’s sister in
Subsequently, appellant was charged by felony indictment for the cocaine seized from his vehicle, namely, possession of cocaine weighing between four and 200 grams with the intent to deliver. 3 Prior to trial, appellant filed a motion to suppress the evidence recovered from his apartment. In his motion, appellant alleged that the items found in his apartment were inadmissible because (1) his consent was involuntary and (2) the search of his cell phone leading the officers to his apartment was illegal. Appellant elected to take the motion to suppress to trial, and after a suppression hearing outside the presence of the jury, the trial court denied the motion. Appellant was found guilty by the jury, and the trial court assessed punishment at 28 years in prison.
On appeal, appellant challenges (1) the trial court’s denial of his motion to suppress evidence seized from his apartment, (2) the factual sufficiency of the evidence, (3) the admission of his prior felony convictions, and (4) the trial court’s refusal to grant his request for a continuance.
II. MOTION TO SUPPRESS
In his first issue, appellant contends that the trial court erroneously denied his motion to suppress evidence seized from apartment 36. In his motion to suppress, appellant sought to suppress the following evidence found in the apartment: three handguns, one rifle, kilo wrappers, a bullet proof vest, $2,243 in cash, three bongs, and a kilo press. Appellant challenges the trial court’s suppression ruling on two bases: (1) appellant’s written consent to search his apartment was involuntary and (2) the search of his cell phone leading officers to his apartment was illegal.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a bifur
At a suppression hearing, the trial court is the sole factfinder and may choose to believe or disbelieve any or all of the witnesses’ testimony.
State v. Ross, 32
S.W.3d 853, 855 (Tex.Crim.App.2000);
Weems v. State,
B. Legality of the Cell Phone Search
Appellant also challenges the legality of the search of his home based upon the alleged illegal search of his cell phone. Appellant contends that the cell phone search was illegal because he had already been arrested and the possession of cocaine offense was completed. Still, the officers searched his cell phone approximately four to five hours after his arrest to locate his residence and determine whether he had additional drugs in his apartment. Appellant contends that the State offered not exception to the warrant requirement supporting the later search of the cell phone eventually leading officers to his house.
1. Waiver
In response, the State initially argues that appellant has waived any challenge to the cell phone search because it was not presented to the trial court below. In his written motion to suppress, appellant challenged the search of his apartment on two bases: the cell phone search was illegal and his consent was involuntary. However, appellant did not orally challenge the search of the cell phone at the suppression hearing; he focused exclusively on the voluntariness of his consent. The State asserts that because appellant did not orally argue the legality of the cell phone search at the suppression hearing, he failed to preserve error on this particular basis. We must therefore determine whether appellant’s challenge to the search of the cell phone, specifically articulated in his motion to suppress, was waived when not argued orally to the trial court at the suppression hearing.
The State relies on a body of well-established caselaw reasoning that a party waives error when (1) a suppression motion makes
global arguments
citing little more than constitutional and statutory provisions and (2) fails to argue any specific grounds for suppressing evidence at the suppression hearing.
See Swain,
Additionally, appellant’s counsel initiated the suppression hearing by asking the court if he could “please have our hearing on the motion to suppress.” After the motion was denied, appellant objected to the evidence thereafter during trial based on “his motion to suppress” previously filed. Because appellant’s motion to suppress did not present global arguments, but rather articulated two specific grounds, including the cell phone search, and he objected to the evidence based on his motion to suppress, error has been preserved.
2. Search of Appellant’s Cell Phone
Assuming without deciding whether the admission of the complained-of evidence was error, we find its admission to be harmless. Because the search of the cell phone implicates the right to be free of unreasonable searches and seizures under the United States and Texas constitutions, we conduct a constitutional harm analysis.
See Hernandez v. State,
While the cell phone search ultimately led the officers to find a bullet proof vest, guns, drug paraphernalia, and money in appellant’s apartment, the search did not reveal the existence of additional contraband. The record reflects that appellant was not charged with unlawfully possessing the guns or other items found in his apartment. Although not articulated in the State’s briefing, the record reflects that the State offered the items found in appellant home as evidence of appellant’s intent to deliver the contraband found in his vehicle; however, appellant does not challenge the evidence of his intent to deliver. Furthermore, the testimony of Officer Massey and the chemist wholly incriminated appellant in the instant crime. Both testified that the quantity of the cocaine found in appellant’s vehicle was substantial and clearly an amount to distribute. As discussed in the section of this opinion relating to the factual sufficiency of the evidence to support guilt, there was a great deal of direct and circumstantial evidence obtained from sources other than the search in question that linked appellant to the crime, particularly the evidence of appellant making “heat runs” and Officer Massey’s observing a brown bag protruding from appellant’s pocket similar to the brown bag found in appellant’s vehicle containing the cocaine. Accordingly, we find the admission of the complained-of evidence to be harmless. See Tex.RApp. P. 44.2(a).
C. Voluntariness of Appellant’s Consent
Appellant first contends that the trial court erroneously denied his motion to suppress the evidence found in his
Whether consent was voluntary involves a question of fact that is determined from the totality of the circumstances.
Id.
at 686-87;
Johnson,
Appellant contends that his consent was involuntary because: (1) he was under arrest; (2) multiple officers converged on the scene during his arrest and while he remained in custody thereafter; (3) officers subjected him to repetitive questioning at different locations; (4) he chose to remain silent and was uncooperative throughout the time in which he was in custody; (5) he was in custody for approximately five and a half hours; (6) he was not given food, water, or a bathroom break while in custody; and (7) the officers made physical threats against him. Giving his account, appellant testified that the officers became frustrated with him hours after they were unsuccessful in locating his apartment. According to appellant, Sergeant Moreira threatened to “knock [appellant’s] teeth down his throat,” and Sergeant Bronikow-ski asked appellant if he was “ready for a long ride” and tightened appellant’s handcuffs, causing his hands to numb. Appellant testified that after riding around in a patrol unit in handcuffs for five and a half hours and being threatened by the officers, he just “wanted to go to jail” and felt that he had no choice but to sign the consent form.
The State strongly disputes appellant’s account of the events leading up to the search. At the suppression hearing, the State produced evidence that appellant was lawfully arrested for possession of the contraband found in his vehicle; appellant neither disputes the legality of the traffic stop nor the search of his vehicle. Upon his arrest, appellant was given his
Miranda
warnings. Officer Massey further testified that appellant first gave oral consent to search apartment 36 and then he voluntarily signed the written consent form. Officer Massey testified that appellant read the consent form before he
Although some of the factors we use in determining voluntariness weigh in appellant’s favor, the factors, overall, weigh in the State’s favor. The fact that appellant was handcuffed and under arrest at the time he gave consent is partially neutralized by giving appellant his
Miranda
warnings.
See Manzi v. State,
Appellant insists that two officers, including Sergeant Bronikowski, threatened him; however, Sergeant Bronikowski denied making any threats towards appellant. Officers Massey and Johnson also testified that appellant was not threatened by any of the officers. At the suppression hearing, the trial court determined the facts and was free to accept or reject any or all of the evidence presented.
Brooks v. State,
The record also reflects that appellant was uncooperative; however, one “who refuses to cooperate with the police on the grounds that he is constitutionally permitted to do so, may change his mind at some later time and decide to voluntarily cooperate.”
See Manzi,
The testimony of Sergeant Bronikowski and Officers Massey and Johnson, combined with appellant’s signature on the consent form and other factors discussed
III. FACTUAL SUFFICIENCY
In appellant’s second issue, he contends that the evidence is factually insufficient to show that he knowingly possessed the contraband found in his vehicle.
4
In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party.
Watson v. State,
For the offense possession of a controlled substance with intent to deliver, the State must prove that the defendant: (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew the substance in his possession was a controlled substance.
See
Tex. Health & Safety Code §§ 481.002(38), 481.112(a), (f). These elements may be proven by circumstantial evidence.
Poindexter v. State,
Appellant argues that the evidence is factually insufficient on the element of possession, i.e., exercising care, custody, control, or management over the contraband, because he was not the exclusive owner of the vehicle in which the contraband was found and the other co-owner had been using the vehicle earlier that day before releasing it to appellant. However, regardless of actual ownership of the vehicle, appellant’s right to use it is undisputed. The jury could have disbelieved appellant’s testimony that another person co-owned the vehicle and that this co-owner left the contraband in the vehicle proceeding appellant’s use of the vehicle.
Sharp v. State,
Appellant further argues that the verdict is undermined by the absence of additional possible “affirmative links” showing that he knowingly possessed the cocaine. When an accused in not in exclusive possession of a place where the controlled substance is found, the State must affirmatively link the accused to the contraband.
See Evans v. State,
Many of the evidentiary factors used to establish affirmative links between an accused and the contraband are present in this case. Appellant owned the vehicle in which the contraband was found. He was driving the vehicle alone and was the only person in possession of the vehicle at the time the contraband was found. Additionally, the contraband was conveniently accessible to appellant and in close proximity to him. An odor of marijuana emanated from the vehicle, and appellant was uncooperative in the subsequent investigation by officers. Moreover, the amount of contraband present was greater than the typical quantity possessed for a user’s personal use. Officer Massey also previously observed appellant with a brown bag identical to the brown bag in which the contraband was found. Appellant was observed making “heat runs” in the vehicle prior to his arrest. Additionally, officers found drug paraphernalia and a large amount of cash in appellant’s apartment.
Although the State’s evidence is disputed by appellant, a decision is not manifestly unjust merely because the trier of fact resolved conflicting views of the evidence in favor of the State.
See Cuong Quoc Ly,
IV. ADMISSION OF PRIOR CONVICTIONS
In issues three through five, appellant complains that the trial court erroneously admitted evidence of his: (1) November 16, 1992 conviction for unauthorized use of a motor vehicle; (2) November 16, 1992 conviction for auto theft; and (3) February 3, 1993 conviction for aggravated assault. Citing to
Theus v. State,
appellant contends that his prior convictions were remote and had little probative value.
The record reflects that, prior to trial, the State gave appellant notice that it intended to use appellant’s prior convictions for impeachment purposes. Appellant later filed a Theus motion requesting that the trial court allow appellant to testify free of impeachment from the 1992 and 1993 convictions. The trial court conducted a brief hearing on appellant’s Theus motion and ruled that appellant’s convictions were admissible. Thereafter, appellant admitted on direct examination to being previously convicted of unauthorized use of a motor vehicle, auto theft, and aggravated assault and discussed the punishments he had received for those convictions.
As a general rule, a complaint regarding improperly-admitted evidence is waived if the same evidence is introduced by the defendant himself.
See Rogers v. State,
V. REQUEST FOR CONTINUANCE
In his sixth issue, appellant complains that the trial court erroneously denied his motion for continuance to secure Amanda Phillips as an expert witness. Appellant unsuccessfully attempted to subpoena Phillips, another HPD chemist who tested the cocaine seized in apartment 27. Appellant anticipated that Phillips would testify that the cocaine found in appellant’s vehicle came from a different source than the cocaine found in apartment 27 because they contained different adulterants. Appellant insists that this testimony would
We review a trial court’s ruling on a motion for continuance for abuse of discretion.
Vasquez v. State,
Here, appellant has not shown the materiality or relevance of Phillips’ testimony. Appellant speculated that Phillips would have testified that the cocaine found in his vehicle came from a different source than the cocaine found in apartment 27. However, appellant was never connected to apartment 27, and in fact, another individual who occupied that apartment was ultimately held responsible for that contraband. Evidence that the cocaine found in appellant’s vehicle came from a different source than the cocaine found in apartment 27 would have had little, if any, relevance to the instant offense in which appellant was charged and convicted. Accordingly, appellant has failed to show how he was prejudiced without Phillips’ testimony. We find that the trial court did not abuse its discretion in denying appellant’s motion for continuance. We overrule appellant’s sixth issue.
Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
Notes
. Officer Massey testified that appellant left the apartment complex in his vehicle, made a few erratic turns while driving on the street, returned to the apartment complex, and then left the complex for a second time. Officer Massey testified that, based on his training, it was his opinion that appellant was performing a "heat run,” which is a driver's effort to determine whether or not he is under surveillance.
. Appellant testified that by this time in the investigation, the officers were increasingly frustrated because they were unsuccessful in locating his apartment. According to appellant, two officers then threatened him: Sergeant Moreira threatened to "knock [his] teeth down [his] throat,” and Sergeant Broni-kowski asked appellant if he was "ready for a long ride” and tightened his handcuffs. Sergeant Bronikowski and Officers Massey and Johnson testified that appellant was never threatened by any of the officers during the investigation.
. Appellant was not charged for the contraband found in apartment 27.
. Because a factual sufficiency review begins with the presumption, that the evidence supporting the jury's verdict is legally sufficient, and because appellant challenges only the factual sufficiency of the evidence, appellant effectively concedes the evidence is legally suffi-cienl to sustain his conviction.
See Santellan v. State,
. After the trial court ruled that appellant's prior convictions were admissible, defense counsel stated that "in light of the court's ruling, it’s the defense's [sic] plan to have the defendant admit them ... to take the sting out, ... [but do we] not waive error.”
. The State argues that this issue is not preserved for appellate review because appellant failed to raise the issue in a motion for new trial. In
Taylor v. State,
the Court of Criminal appeals held that “[t]he only means of preserving error in the overruling of a motion for continuance due to an absent witness is a motion for new trial.”