Harris v. State

HARRIS, Appellant, D. Caren Texas, Appellee.

The STATE of

No. 10-98-099-CR. Texas, Appeals

Court

Waco.

June Harris

money in the car. said items. Pirtle carrying any those vehicle,” “look in then if he could asked “pat did a consented. Pirtle Harris then searched down” got Harris the car. Pirtle testified that After searched the car. nervous as he Pirtle on the seat of found front $800 assist for another officer to radioed him. radioed for a lieense-and- He also Turner & Turner, Gottlieb, Hams, G. Robert check on which re- criminal-history Houston, appellant. for prior had a rec- vealed Harris arrest that drug After ord which included crimes. Bennett, Jr., C. William Criminal Dis- information, Pirtle continued receiving this Madisonville, Attorney, Gina De- trict M. with the and found search Unit, Bottis, Special Prosecution Hunts- it “had though box looked as ville, appellee. for help recently.” been of taken out With Weaver, Trooper Lewis Pirtle took DAVIS, Before Chief Justice Justice out of dashboard glove compartment VANCE, and Justice GRAY. appeared and found what to be cocaine. possession Harris arrested of was then OPINION a controlled substance. VANCE, BILL Justice. TO SUPPRESS MOTION by Harris charged Caren was indictment court complains that Harris first possession with of a controlled substance overruling suppress his to erred motion grams of 400 or more with intent to deliv- of during the evidence seized the search plea Harris a of guilty er. entered not was his car. He contends the search a before court and filed motion to by probable not cause and supported suppress illegally-seized evidence. After product illegal any was the of an consent evidence, hearing the the court denied the detention. suppress, motion to found Harris guilty, years’ and sentenced him to 20 confine- STANDARD OF REVIEW $5,000. presents a fine ment and of ruling a trial on We review court’s (1) three issues for review. He contends suppress a motion to the standard under overruling the court erred in his motion set forth in Guzman suppress because the evidence seized was Guzman, (Tex.Crim.App.1997). In (2) during illegal an search and the evi- articulated Appeals the Court of Criminal legally factually is insufficient to dence when the standard of review to be used Although har- conviction. we as “reason reviewing determinations such manner in bor doubts about which “probable as suspicion” able cause” obtained, consent to the vehicle follows: judgment. will nonetheless affirm the rule, courts appellate general [A]s a

... afford almost total deference should FACTS a determination of trial court’s supports that the historical facts record stopped Harris was on Interstate 45 fact court’s Trooper Jeffery driving especially Pirtle for when trial DPS based on evaluation per 65-mile-per-hour findings hour in zone. are an miles omit- and demeanor gave warning credibility [citation Pirtle Harris a ticket and ... should any appellate if The courts carrying ted]. then asked Harris was narcotics, amount deference to large afford the same illegal weapons, or sums 1996) “application trial court on rulings (voluntary of law to warrantless fact questions,” also known as “mixed search violates neither the United States fact,” Constitution, questions of law and if the resolu- Texas nor the laws Texas). questions tion of ultimate on those turns credibility an evaluation of and demean- Unlike United States Consti appellate may or. The courts review de tution, under which must prosecutors questions novo “mixed of law fact” prove by preponderance of the evidence within falling category. this freely that consent to search given, Thus, Id. at 88-89. when issue requires the Texas Constitution that the appeal determined on is an officer prove by convincing clear and evi State probable suspect, had cause to seize a “the freely dence that consent to search was judge appreciably trial is not in an better Ibarra, 242, given. v. State 953 S.W.2d position reviewing than the court to make (Tex.Crim.App.1997). 244-45 For the con that determination.” Id. at 87. There voluntary, sent to be it must not be the fore, although weight given due should be coercion, product of duress or actual or judges, the inferences drawn trial State, 471, implied. Allridge v. 850 S.W.2d suspicion determinations of reasonable and (Tex.Crim.App.1991). 493 The burden to probable cause should reviewed de novo discharged by show voluntariness is not appeal. on v. (citing Ornelas United to a claim showing acquiescence of lawful States, 690, 699, 1657, 517 U.S. 116 S.Ct. Carolina, authority. Bumper v. North 391 (1996)). 1663, 134 L.Ed.2d 911 1788, 543, 548, 1791, 20 U.S. 88 S.Ct. suppression seeking When (1968) (When peace a L.Ed.2d 797 officer evidence on allegations based unlawful represented that had a valid search he seizure, search and the accused bears the not, warrant when he did consent is presumption burden of rebutting voluntary.). police proper. conduct was Russell v.

State, 7, the consent to search Whether (Tex.Crim.App. 717 S.W.2d 9 1986). voluntary in fact determined presumption by a was is to be The is rebutted totality from the of the circumstances. showing that the search or seizure oc Schneckloth, 2041; 412 curred a v. U.S. at 227 93 S.Ct. without warrant. Johnson (Tex.App.— Byrd, 714 at 226. 864 S.W.2d 835 S.W.2d Whether 1993), affirmed, custody Dallas 227 in re consenting person 912 S.W.2d was or (Tex.Crim.App.1995). proof The burden of factor strained at the time is a to be then If the is shifts the State. State was volun considered whether consent warrant, produce prove unable to a it must tarily given. Carpenter See 1997), the warrantless search or seizure was rea (Tex.App Antonio . —San Russell, sonable. at 9-10. (Tex.Crim.App.1998). aff'd, 979 S.W.2d 633 finding by If clear supports the record exceptions One of the established that consent to convincing and evidence probable require to the warrant and cause voluntarily given, we freely and search was ments of the Fourth Amendment is a finding. (cid:127)will not disturb pursuant search conducted to consent. Bustamonte, Schneckloth v. U.S. THE EVIDENCE 2041, 2043-44, L.Ed.2d 93 S.Ct.

(1973); testified Byrd v. Both Pirtle and Weaver verbal consent to the (Tex.App. pet.). gave no Constitu that Harris — Waco car. Harris testified proscriptions against tional warrantless to believe the do not come into did not. The court chose searches and seizures Harris. See play person gives when a free and volun officers and disbelieve Guzman, will look tary Brimage to a 955 S.W.2d at 87. We search. See the evidence to deter- (Tex.Crim.App. at the remainder of missing, and up,” screws were “scarred voluntary. Pirtle if the consent was mine way. only put in half driving stopped Harris for testified that im- limit. He speed over the three miles and troopers Weaver Pirtle testified mediately get asked Harris to out kept and at this time Wald arrived Wald car, gave Pirtle then which he did. and Pirtle Hams while Weaver eye an on speeding. After issu- warning ticket for the car. Pirtle testi- to search continued Pirtle walked around warning, ing between something felt that Weaver fied He looking into it from all directions. dash, so and the compartment glove if he Hams’ side and asked returned to compartment they removed the narcotics, guns, carrying any illegal con- sack which plastic a white discovered money. Hams answered testi- large sums bricks.” Pirtle “two kilo sized tained not. Pirtle then asked each one. powder that he was white fied that a put up packages, in the vehicle.” Pirtle They to “look then sealed permission them, “Sure, found responded, go they back where that Harris them testified dog unit. The “alerted” called a canine “pat Pirtle then did a down” ahead.” packages had where the no the dashboard “to make sure he had search of Harris then arrested. replaced. Harris was him,” been nothing, pro- weapons on found search the car. ceeded to voluntarily an individual When search, authority a an officer’s consents to in left that he looked the Pirtle testified limit. without the search is not perform to car, right of the walked around to the side (Tex. 496 v. DuBose door, car, opened began and side of the the 582 (citing May Crim.App.1996) that to “observe” the interior. He testified (Tex.Crim.App.1979)). S.W.2d began acting point. nervous at this Harris the limited to of the search is The extent hand put Pirtle then leaned down and scope given, and the scope of the consent seat, of the where he felt a on the center by its defined generally of the consent is approximately “lump.” He discovered (citing Florida v. object. Id. expressed why Pirtle Harris he did not asked $800. Jimeno, 248, 251, 111 S.Ct. 500 U.S. and, according to money him about the tell (1991)); Montoya v. 114 L.Ed.2d 297 Pirtle, about forgotten Harris said he had (Tex.Crim.App. backup point, At Pirtle called for it. this 1987); at The stan May, 582 S.W.2d a ran a driver’s license check and and also scope of consent is measuring for dard history on Harris. criminal check “objective” reasonableness —what have person would typical reasonable minutes Pirtle testified that two or three exchange between by understood check, he received infor- after he ran the (citing Id. Jim- the individual. officer and a criminal record mation that Harris had 1803-04). eno, at at S.Ct. 500 U.S. in Pirtle also Mississippi. in and Texas registered that the car was not discovered Jimeno, Supreme In Florida v. told Harris. He testified that Harris to a consent held the defendant’s Court Pirtle then him it was his mother’s car. car’” to “search his police request officer’s car, under looking to search the continued a extended to search for narcotics trunk, fact, finding which, and in the but in con- the hood in the car paper bags 251-53, right to the He then returned at nothing. tained narcotics. U.S. that Harris in rea- Explicit car. He testified the Court’s side of the at 1804. S.Ct. the defendant walking and started the fact that again soning acted nervous the officer’s scope Pirtle told limit the point, him at this but failed to toward ditch,” objectively reasonable in which is it was “get him to back search when any include of the car would the search that a search throughout been where he had in car which within the opened closed containers the car. Pirtle testified kept. might narcotics that some of the glove box and noticed Guzman, untarily given. a ticket. at given warning Harris was receiving He was free to leave after 87-89. Issue one is overruled.

ticket, he was not told although so THE SUFFICIENCY OF EVIDENCE Furthermore,

Pirtle. Harris was made to warning stand outside the car while the points, In his second and third standing ticket was issued and remained complains Harris that the evidence is le outside the car while Pirtle asked about gally factually support insufficient to a a the contents of the ear. This is factor finding intentionally knowingly which would indicate to he was possessed cocaine. He basis his argument Additionally, not free leave. consent registered fact that on the it, was obtained because Pirtle asked for him, drugs were found hidden be not because Harris offered.1 Neverthe compartment, fin hind the and no less, giving Harris was not coerced into link him gerprints were found to to the promised anything consent. He was not contraband. giving

return to. the car. Legal Sufficiency Pirtle first looked the windows of through car, if carrying then asked Harris was In determining whether the evidence is any illegal weapons, large drugs, sums verdict, legally sufficient money, finally asked to look light view the evidence in the most favor “sure, go to which Harris responded verdict, asking any able to the person ahead.” A reasonable would have rational trier of fact could have found the question understood the officer’s to be beyond of the crime essential elements request to search his car for those items Weightman reasonable doubt. just which he had asked about.2 That (Tex.Crim.App.1998); thorough would entail a search of the (Tex. State, 504, 933 507 Lane v. S.W.2d through and not a mere “look” the win Virgi v. Crim.App.1996) (citing Jackson Additionally, already dows. Pirtle had nia, 307, 318-19, 2781, 99 443 U.S. S.Ct. looking walked around the car the win (1979)); 2788-89, 61 L.Ed.2d 560 Westfall about the dows before he asked Harris State, 590, (Tex.App. v. S.W.2d sug contents-of the vehicle. This further 1998, ref'd). pet. The evidence is -Waco gests that Harris knew to what he was measured the elements of the offense consenting. jury by hypothetically as defined correct State, 953 charge for the case. Malik v. Finally, that the record shows Weaver 234, (Tex.Crim.App.1997). 238^40 also asked for consent to search when he Sufficiency Factual replied, arrived at the scene. Harris “Go factual-sufficiency it. In re conducting ahead. I’ve let this officer search Go Thus, view, im it.” not examine all of the evidence ahead and search we if it only Pir- the verdict only partially, confirmed that he had authorized and set aside search, contrary overwhelming weight the tle to but consented to the search is so wrong arid clearly evidence as to be of his car a second time before the contra- of the 404, State, unjust. The facts the Cain v. 958 S.W.2d band was found. State, 922 freely (Tex.Crim.App.1997); Clewis v. conclusion that consent was and vol- 525, (Tex.App. [1st Pirtle consent to 792 S.W.2d 1. testified asks for —Houston 1990, Also, stops, regardless every argument vehicle that he pet.). an no Dist.] any suspicion illegal activity. made, our of opinion, of In although these could be not under questionable practice. this is a facts, request that a to “look” in the windows, through not would look mean to if the 2. It is some evidence of consent defen- practice thorough The better to do a search. dant does not have to con- is warned he for consent to "search” would be to ask right to the search and has the to refuse. sent car. 493; State, Allridge, 850 S.W.2d at Martinezy. drugs and the must establish (Tex.Crim.App.1996). defendant review, performing give due with the con When that the accused’s connection our the fact assessment deference to finder’s just more than “fortuitous.” traband was credibility evi weight of the Brown, 911 S.W.2d at 747. State, v. dence. Calhoun 951 S.W.2d several Courts have enumerated ref'd). (Tex.App. pet. —Waco posses determining to consider in factors factually insuffi will find the evidence We sion. These include: prevent only necessary cient where Cain, n - whether at injustice. 958 S.W.2d manifest owned the defendant vehicle; n whether sole ac- the defendant had FACTORS TO ESTABLISH KNOWING vehicle; to the cess POSSESSION n whether made furtive defendant posses knowing To establish contraband; gestures toward the substance, a controlled the State sion of n prove only not defendant must whether the made incrimi- defendant care, control, custody actual statements; exercised or nating substance, of the controlled but also that n whether under defendant was it he was conscious his connection with contraband; influence it was. King and knew what v. n whether posses- defendant had (Tex. CritmApp.1995); para- sion of other contraband v. Manning 864 S.W.2d phernalia person; on his refd). (Tex.App. Mere pet. —Waco n whether the had access to defendant presence at the scene is sufficient contraband; possession unlawful a con establish substance, n whether trolled but which affir evidence fingerprints defendant’s con matively links defendant to the contraband; on the were prove will trolled substance suffice n plain contraband was possessed it knowingly. McGoldrick view; (Tex.Crim. 682 S.W.2d 578-79 n whether there was an odor contra- App.1985); Collins band; ref'd). 503, 1994, (Tex.App. pet. —Waco n recovered; the much was Consequently, concept of “affirmative how contraband links” has been used to determine the n whether the tried to defendant es- sufficiency possession of evidence con for cape; and Collins, 506; at victions. See 901 S.W.2d n the contraband was located (Tex. State, 745, Brochu v. area of passenger in the trunk or the 1996, pet. App. [14th Dist.] —Houston vehicle. ref'd). “Affirmative is a shorthand links” State, 738, Hurtado v. 881 S.W.2d identify expression proven to what must be 1994, pet. (Tex.App [1st Dist.] in prosecution of ille possession . —Houston ref'd); Zertuche 774 S.W.2d gal Brown v. 911 S.W.2d drugs. 1989, pet. (Tex.App. Corpus Christi (Tex.Crim.App.1995). The State — ref'd); Collins, at see also 506. specific circum point must to facts and of is less im present The number factors surrounding pos stances the defendant’s of those fac portant logical than force presence than of session—other the mere combination, tors, in in establish alone raise' a inference drugs reasonable —which Collins, the elements of the offense. ing of control of knowledge the accused’s and (quoting at 506 Martinets v. 932 901 S.W.2d the contraband. Fields v. (Tex.App pet. (Tex.App. Tyler . — — ref'd). pet.)). no The links between Austin affirmative GRAY, Justice, concurring. APPLICATION (cid:127)TOM sufficiency, opinion. To con- I in I legal foregoing determine concur in the light separately express my opinion sider evidence most favor- write Westfall, able to the verdict. 970 S.W.2d about the manner in which Although at 595. he did not own the search the vehicle was obtained. Unless occupant appellant Harris was and car is able to a violation the sole establish registered right, prohibited to his mother. He acted of a constitutional or until statute, approach and tried to the car I have no doubts about the “nervous” began requesting when the officers to search near the of an officer legality area where Al- has drugs every legally were hidden. vehicle he otherwise though initially mon- having any stopped. denied

ey, in cash hidden on the was found $800

front seat of the car. When asked about

it, it.” “forgot Harris said that he about grams

Over 400 of cocaine was hidden in

behind the box the dashboard. logical

The force of these factors estab-

lishes the elements the offense.

This is sufficient evidence to find that Har- Grening Gloria WOLK Bialkin care, control, custody, ris exercised Books, Appellants, management over the contraband and possession Harris knew con- he was legally traband. We find the evidence suf- PARTNERS, INC., Appellee. LIFE ficient finding guilt. Is- sue two is No. overruled. 10-99-128-CV. Texas, sufficiency Appeals

We turn to the factual com- Court of plaint, taking all the evidence into consid- Waco. prism light eration without the of “in the June Clewis,

most favorable to verdict.” produced 922 S.W.2d at 129. Harris evi- people occasionally

dence that other would day and that on

drive his mother’s car car at

prior to his arrest the had been left paint body shop. Harris testified in- money found to purchase

tended clothes for his children.

There is no evidence that Harris made statements, under the

incriminating drugs, possessed

influence of other con- person.

traband on There were no contraband,

fingerprints on the and it was Nevertheless, plain compar-

not in view. record, to the we cannot

ing the verdict contrary

say that the verdict is so

overwhelming weight of the evidence as to unjust. clearly wrong Issue

three is overruled. issues, overruled all

Having Harris’ judgment.

affirm the

Case Details

Case Name: Harris v. State

Court Name: Court of Appeals of Texas

Date Published: Jun 23, 1999

Citation: 994 S.W.2d 927

Docket Number: 10-98-099-CR

Court Abbreviation: Tex. App.