Valcarcel v. State

37.07, V.A.C.C.P., presence during guilt jury’s stage If can inter- Article the trial. preted providing separate pro- two ceedings then follows that a defen- it against privilege

dant’s waiver of MILLER, J., joins opinion. by taking self-incrimination the stand at particu- stage limited guilt And is so proceeding

lar if this permitting the State to

court erred appellant

recall the for further cross-ex- stage. penalty The

amination finding guilt not terminate

mere does against privilege self-incrimination. Angeles de Los & Maria VALCARCEL noted, privilege As earlier ceases Valcarcel, Appellant, Marcos William only liability punishment when (445

longer exists. S.W.2d at v. parte Augusta, Ex supra. Also see Texas, Appellee. The STATE of sum, permitted what the State 1249-86, 1250-86. Nos. equiva- indo cause the functional Texas, Appeals of Criminal recalling testify lent of En Banc. punishment stage over his at the clearly of the The trial court erred in trial. Feb. 1989. Brumfield, su- permitting this tо occur. Brown,

pra; supra. Brumfield, Sim “spirit” supra,

mons, Denno, supra, and Jackson v. re such cases “would seem to other

quire that the could not no less” ‍​‌‌​​‌‌​​​​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​​‌​‌​‌​‌​​​‍than State punish testify

recall instance, stage

ment of his trial. In this erroneously to do permitted

the State Brum held in

indirectly what this Court

field, supra, that it could not directly. do State,

E.G., Montoya v. 744 S.W.2d Augusta, Ex parte

(Tex.Cr.App.1987), State, Johnson v. Compare

supra. 1986) (State’s (Tex.App. 9th State, v. refused). But see Walker

P.D.R. 457. Also see Moss

555 S.W.2d

State, (Tex.Cr.App.1982); S.W.2d 344 (Tex.

Stewart 1984) refused); (State’s P.D.R.

App. 5th (Tex.

Pierson v. refused). 1985) (State’s

App. 14th P.D.R.

Therefore, I result that the concur reaches, the trial opinion

majority admitting reversibly into erred stage of the punishment at the through reporter the testi- the court given at the hear-

mony appellant had was conducted outside Jr., McKinney, Amarillo,

William R. Lew- Dickson, DeGuerin, petition and Dick only, Houston, for for decretionary Review appellant. Hill,

Danny Atty. E. Dist. A. and James Farren, Atty., Amarillo, Asst. Dist. Robert Huttash, Attorney State’s W. Matthew Paul, Atty., Austin, Asst. State’s for the State.

OPINION ON APPELLANTS’ PETI- TIONS FOR DISCRETIONARY REVIEW TEAGUE, Judge.

The record before us reflects that Maria Angeles de Los Valcarcel and William Mar- Valcarcel, wife, cos who are husband and appellant аppellant henceforth Maria and William, separately joint- were indicted and ly by jury tried and a ‍​‌‌​​‌‌​​​​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​​‌​‌​‌​‌​​​‍convicted of unlaw- fully possessing grams at least 400 co- jury punishment caine. The also assessed appellant years’ for each at 99 confinement Department in the of Corrections a $100,000 fine, possible pun- the maximum ishment.

By opinions, separate published the Sev Appeals rejected enth Court of appel all of points lants’ of error and affirmed the trial judgments court’s of conviction. See Val (Tex.App. carcel v. S.W.2d 359 1986), 7th and Valcarcel v. 718 S.W. (Tex.App.-7th 2d 368 granted petitions We discretion- ary filed on review that were behalf attorney each the same appellants’ order to review same conten- tion, Appeals to-wit: “The Court of has condoned, expressly approved if not unprecedented qualify view what can (Emphasis evidence.’’ relevant material supplied.)1 review, appellants predispose guilty finding by their a 1. In mutual use extensive, following question: going repetitious "Is it now as to a ask the nebu- lous, (or profile’ ‘drug just law that 'brainwash' and so-called be the the State can appeal, thing On direct each as whatsoever to do with the arrest of Furthermore, appellant. either serted that the trial erred admit appear gotten Williams does not to have ting presence jury testimony hearing until involved the case Williams, Wayne Department Clark sup- was held on motions to Safety Trooper, “drug Public press evidence.2 that Officer Williams had previously compiled regarding motorists appellant The evidence shows Wil- Highway who travel on Texas Interstate stopped by liam was Officer Frank Fraus- 40. that Officer to, record shows Department Safety another of Public participate any Trooper accompanied by Williams did not or have who was not then case) Miller, (11th plain ‘guilty profile’ as it occurred in this United States v. F.2d Cir. 821 546 though Ballard, 1987); and even lawfulness of the arrest States F.2d United 573 913 jury?” (5th Cir.1978). Miller, is never made an issue before the In United States v. granted appellant petition Appeals pointed We also Maria’s the Eleventh Circuit Court of 438, 441, Georgia, order to make the determination whether the out that in Reid v. 448 U.S. point appeals correctly 2752, 2754, cоurt of overruled her (1980), 100 S.Ct. 65 L.Ed.2d 890 "the error that she was denied the effective assist- concern, Supreme expressed in the air- ance of counsel because there was an actual context, port drug profile about a courier adversely affected trial conflict of interest that very large category: presum- would ‘describe representation counsel’s of both her and her travelers, ably subject innocent who would be joint husband in the trial. Because we will virtually random seizures’ if the Court validated contention, appellants’ and because sustain first profile protecting As well as the use of the we believe that the issue that Maria alleged wrongfully stopped criminals who are again raises will not arise in the event thеre is a searched, Amendment of the Con- the Fourth trials, new trial or we will not address protects citizens as well.” In stitution innocent concerning alleged Maria’s contention con- Cuartas, 717 F.2d United States v. Hernandez flict of interest. (11th Cir.1983), 552 the Eleventh Circuit held granted appellant petition We also Maria’s inherently preju- "drug profile is appeals whether the order to decide court potential dicial because of the it has for includ- correctly ruled that the evidence was sufficient profiled citizens as couriers. We innocent to sustain her conviction. We now find that our type the use of this of evidence as denounce grant appellant petition decision to Maria’s substantive evidence of a defendant’s innocence improvident, will not this reason was and thus guilt.” For a more detailed discussion of the discuss or decide that issue. particular "drug profile" subject that a courier unnecessary is for us to sum- 2. We find that it is not a talismanic label that a for air travelers marize Officer Williams’ that the government apply any given state or the can profile" "drug heard about the courier of whether set of facts to obviate consideration compiled after he Officer Frausto both at- and suspicion part police on the reasonable one-day that was con- tended the same seminar individual, interrogate stop exists to by in Amarillo New Mexico State Police ducted "airport drug courier has a that the they drug com- courier any particu- way adapting chameleon-like traveling piled Mexico Inter- for motorists New circumstances, see United States v. lar set of 40, Highway testimony closely his state because 1413, Sokolow, (9th Cir.1987). F.2d 1418 831 already been written on the resembles what has Hall, (5th F.2d 1002 Also see United States v. Cir.1981); 653 See, drug subject profiles. for exam- courier Elmore, F.2d United States v. 1, 1984, 9, Drug ple, May-June No. Law Vol. 1, 3, 1036, Cir.1979); (5th Drug No. n. Vol. “drug pro- Report, courier which discusses the 1983, commencing May-June, Reporter, Law by compiled that has been the New Mexico file" 32; 1, 27, Drug Reporter, page Law Vol. No. Police, State the same 1987, 324, May-June, page which discusses adapted for motor- that Officer Williams 1, profile”; and Vol. "Amtrak Highway who travel Texas Interstate 40. ists 5, September-October, Drug Reporter, Law No. 1, 3, May- Drug Report, Vol. No. Law Also see 1983, the "real estate broker’s which discusses June, 1987; 1, 5, Reporter, Drug No. Law Vol. Texas, profile." all war- client’s 3, 1983; 1, Drug September-October, Vol. No. searches, upon probable based rantless cause, even 5, 1983; Reporter, May-June, No. Law Vol. illegal, presumed and in order for are 1983; Drug Reporter, September-October, Law general exception to the State to come within an rule, 6 and Search and Law Vol. Nos. Seizure pursuant conducted such as a search Nelson, 1981; June-July, Report, Hollander defendant, it must establish consent Suspicion on the "In of a Reasonable Search unequivocal con- positive evidence that the Searches, Stops, and Sei- Road to California: IS, intentionally given the defendant. ”, sent was “Drug Vol. Courier Profile’ zures and (Tex.Cr.App. April, Meeks v. Report, Law No. Search and Seizure Seizure, 9.3; 1988; Fave, § 3 La Search driving per anyone, for vehicle miles (Tex.Cr.App.1987); and McKay Highway near hour on Texas Interstate (Tex.Cr.App.1985), S.W.2d 23 Amarillo, which constituted a violation agree appeals’ we court of 6701d, Art. V.A. provisions holding § that because Officer Williams was Thereafter, appellant gave William C.S. the first to testify witness for the State his Frausto his consent to search his Officer testimony regarding “drug pro- search, As a result of the vehicle. compiled file” that he had previously could who other officers later came not have been used to bolster Fraus- on the scene found the cocaine that was testimony. to’s later Appellant basis convictions. unable, We however, are agree passenger Maria was a in the car. with the second reason that the court of appeals rejected appellants’ The court of appeals gave. The of appeals court held contention that Officer Williams’ that Officer Williams’ should not have been admitted before “drug that he previ had gave jury. It reasons for its decision: two ously compiled “was properly admitted to Wayne Williams was Officer the jury] show that upon his [the [Officer [by in witness called the case the State] own observations gath and the Frausto’s] his and therefore could ering of further information from William purpose of have been offered for the Valcarcel, Officer Frausto had adding weight testimony. to earlier The suspicious and acted reasonably in re complained by appellant of questing to search the vehicle. Cf. Acca does not fall rule. within that The testi- 249, ria v. (Tex. however, mony properly offered, was on App.-Houston 1983, pet.).” no [1st Dist] independent Appel- another basis. disagree We with the appeals’ court of stopped legally lant’s car was holding for several reasons. The the as to offense. traffic training by received Officer First, if the court of appeals upon relied who [the Officer officer the First of Appeals Court decision of Ac- actually stopped was the vehicle that caria, supra, authority, given as its thе by appellant speed- driven William for differences between the facts of-that cause formally ing appel- arrested both and the issue that was before the of court regarding pro- the lants] appeals to in resolve that cause was that admitted show file facts the issue that is before this Court upon his own observations and the cause, resolve this its reliance on gathering of further information from Accaria, supra, was totally inappropriate Valcarcel, Frausto had William misplaced. suspicious and grounds to be acted rea- Accaria, supra, In the First of Court ve- sonably requesting to search the Appeals was confronted with the issue State, 661 hicle. Cf. Accaria v. whether or not an a search аffidavit for (Tex.App.-Houston Dist] [1st cause, warrant was In valid. how- given for pet.). was Consent ever, no sought search warrant was ever is search. Ground of error two by police. (Emphasis supplied.) overruled. Accaria, supra, appeals In the court For the reasons stated in war- the search found that the affidavit for State, (Tex. decisions Guerra Court’s finding In was rant that cause valid. 4, 1988) (Held, 69,081, May No. Cr.App., “ valid, it made that the affidavit opinion, ‘Bolster pages 35 and 36 1459”, assumption “Vain a narcotics one item evidence ing’ occurs when equiva- dog, functional detection by party add credence used improperly informant, i.e., in decid- an unnamed lent of unimpeached weight earlier to some established before it was whether by offеred piece of [relevant] 1459” was issuing magistrate that “Vain State, 739 party”); Livingston same credible, reliable and appeals the court of about equated dog to an unnamed confiden- compiled that he had attending after informant, tial and found that “Vain 1459” light seminar would why shed was both reliable and In credible. this Frausto made the decisions that he made cause, neither dog a “narcotics” detection when Officer present, Williams was not being” nor a implicat- “human informant is (1) namely: his stop appellants’ decision to ed. (2) speeding, vehicle for his decision to ask Accaria, appeals the court of William whether he would con- concluded: “A magis- neutral and detached vehicle, sent to a (3) his trate could infer from the fаcts stated in decision to conduct a search signed by affidavit a Houston [that William’s vehicle after he ap- had obtained Police Officer and not Vain 1459] pellant William’s consent to search the ve- signaled by method, Vain had previ- some hicle? Because there is no evidence that affiant, ously viewed such as whin- might show or relationship establish a be- ing, barking, scratching luggage. tween might what Officer Williams have prongs Agui- affidavit satisfied both learned at the institute that Officer Fraus- (251). lar.” appeals The court of there- learn, to did not and that this somehow had found, after least dicta or obiter upon an effect making Officer Frausto’s dicta, Supreme the decision of the made, the above decisions that he we do the United States Florida v. not understand how Officer Williams’ testi- Royer, 460 U.S. 103 S.Ct. mony that he (1983), “suggested 75 L.Ed.2d 229 compiled after he one-day attended the matching drug profile a courier coupled in any seminar Amarillo was relevant to positive sniffing by dog a trained issue that the had to resolve. probable arrest”, constituted cause for an out, previously pointed As we have Offi- “agreed and (251). with this observation.” cer absolutely nothing Williams had to do (Emphasis supplied.) appellant with the arrest of either William Because of the differences between the Maria, appellant or or the search of their legal Accaria, facts and the in issues su- appears automobile. Williams not to have pra, cause, not, appellants’ and we need gotten in involved the case until the hear- not, today and do decide in a whether com- ing appellants’ pretrial was held on motions parable approve factual situation we would suppress. to disapprove Ap- what the First Court of peals Accaria, part Does the latter of the above state- supra. stated and held in ment mean that before a law enforcement appeals The court of stated and held the official can ask an individual who has been following: “The as to the train- stopped allegedly violating for some traffic ing by received Officer Williams and Offi- law, speeding, such as he must have regarding drug pro- cer Frausto the grounds suspicious to be and must act rea- file was admitted to show that sonably rеquesting in that the individual upon his and own observations [Frausto’s] give his the consent to search individual’s gathering of further information from any such vehicle? We are unaware re- Valcarcel, Officer William Frausto had quirement in our law where a law enforce- suspicious to be and acted reason- give his ment official asks an individual ably requesting in to search the ve- object, consent to search some such as a hicle....” What does the above mean? motor vehicle. Does the above mean that example, For does the above mean that Officer Williams’ about the notwithstanding the fact that Officers profile compiled after at- that he Frausto and Williams both attended the tending one-day seminar in Amarillo same seminar that was conducted Amar- jury’s in the establish that it was admitted regard- illo Mexico New State Police for High- presence probable to establish cause their “New Mexico Interstate 40 way stop appellants’ Officer Frausto to vehicle? Williams’ compiled. that he previously Dawson appellant perfect- find that (Tex.Cr.App.1972), sufficiently 279-280 this Court held We point ed hearing appellate that where a has conducted error review been purposes. suppress, defendant’s motion overruled, it is unless the there defendant Recently, in Brown v. presence after jury’s raises the issue Court, (Tex.Cr.App.1988), at least cause, probable testimony relating to implicitly, objection held that as- probable cause to ad arrest should not bе serted that certain evidence “irrele- jury’s for the mitted consideration. Also adequate vant” would be a sufficient and many, see many collated in Vols. cases preserve appellate review a Digest, Texas under Criminal claimed error that such evidence was “irrel- Key 419(1) 1169(1). Law numbers evant”, and thus Also see inadmissible. Rules Evi- Rules Criminal appellants’ When Officer Frausto saw instance, appellant’s In this trial dence. speeding, gave probable vehicle him attorney clearly objected to Officer stop appellant’s cause to vehicle. issue No Williams’ that it was raised jury’s evidence was irrelevant to issue that then presence that Officer Frausto did not have jury. before probable cause stop vehicle. No might evidence was adduced that have appellant We hold that the fact that reflected indicated that Officer Frausto later cross-examined Officer exercised coercion or duress when on which Officer appellant sought William’s consent Williams had earlier testified does not con search his vehicle. No real issue was curing stitute waiver of or of the trial jury’s pres- raised in the judge’s alleged allowing error ence that did inten- William testify. to so tionally voluntarily consent to Officer “Generally evidentiary speaking, the doc- vehicle, Frausto’s search of his admissibility trine rule of curative is a appeals court of found the consent ordinarily by appellate law that used gave William Officer Fraus- when it finds courts

to to search his was a vehicle valid consent by admitting court erred into evidence over search, holding to which is not before us proper timely objection and certain evi- Appellants’ for review. vehicle not was testimony dence or that should not have by stopped Officer Frausto as a result evidence, been admitted into but it because conducting Frausto’s that time some also finds that the defendant thereafter investigation; stopped sort of criminal he presented the same kind of evidence or solely vehicle because it was testimony previously to which he had ob- speeding and thereafter obtained jected, the deemed error is to have been William’s consent to search the vehicle. or curеd waived defendant....” State, (Tex.

The record reflects that when Offi v. S.W.2d Sweeten 693 456 exception cer testifying Cr.App.1985). Williams commenced about An to rule of this Drug “the 40 Pro in Texas Interstate Courier law is “that the error the admission of ap he previously compiled, testimony file” that had or or evidence not cured if, pellants’ attorney objected putting on on waived the defendant “highly testimony that Williams’ would be the same kind of evidence or inflammatory, erroneously prejudicial and since he admitted into evi- court, case, did not this he would noth ‍​‌‌​​‌‌​​​​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​​‌​‌​‌​‌​​​‍ dence the trial did work have defendant] [the rebut, destroy, explain to not— so to only relevant contribute that would totally it that would be effect the evidence irrelevant erroneously had therеtofore admitted highly prejudicial Defendants.” been timely objection.” over Sweet- (Emphasis supplied.) proper The trial over State, en, 668 objection permitted at 456. Daniel v. supra, ruled the Officer Cf. (Held, (Tex.Cr.App.1984) 392 testify about the courier S.W.2d 418 401, supra. Consequently, any item improper admission evidence does Rule if the

not constitute reversible error same probability of evidence that alters the proved by other admit- consequential facts are fact is relevant because evidence). State, see ted Also Purtell v. fact probabilities to alter of a there (Tex.Cr.App.1988). 761 S.W.2d subjective relationship be a be- must proffered evidence and the tween instance, appel- In we hold that when this words, In other faсt. for an ultimate attorney lants’ trial cross-examined Officer probabilities to alter the item of evidence about the consequential fact of the existence Williams had earlier testified about logically thus be relevant it must merely attempting over he was knowledge increase one’s and! enhance destroy pre- the effect of Officer Williams’ ascertaining the likelihood of truth testimony. Ap- viously admitted irrelevant [sought proved]. the fact to be cross-examining pellant, by Officer Fraus- to, did not his claim that waive Review, see Vol. 20 Houston Law Also admitting judge erred Officer Williams’ (1983); “Texas Rules of Evidence” Wen irrelevant about the Schlueter, Evi dorf and Texas Rules of compiled. previously he had (1988); Evi dence Manual Weinstein’s (1987); Brown, Evidenсe deciding In dence Manual Rules whether the complaining Magis Courts and witness’ the United States Elkindi, cause, (1985); testimony concerned emo- Federal Cotchett and trates her, rape (1986); Burgess- tional effects that the Evidence Courtroom evidence, admissible Jackson, Legal relevant thus Epistemic Approach “An following: stated the Relevance”, Law Mary’s Vol. 18 St. Jour is, State, nal; 751 S.W.2d 866 Holloway The issue that must be resolved there- v. State, fore, nothing relevancy. (Tex.Cr.App.1988); Marquez than one of v. more case, Although applicable to this (Tex.Cr.App.1987); v. S.W.2d Werner Tex.R.Cr.Evid., states defi- State, (Tex.Cr.App.1986); Rule relevancy nition of as follows: “Relevant (Tex.Cr.App. Bush having any Evidence’ means tendency to the existence make cause, undisputed facts of Given consequence is of deter- fact that consequential had no we find that the probable or mination of the action more concerning either issue to resolve factual probable it would be without less than stopping appellants’ ve- Frausto’s evidence.” Plante subsequent thereof that or the hicle (Tex.Cr.App.1985), Judge con- he enforcement officials and other law Court, Campbell, writing for the accu- con- pursuant to William’s ducted relevancy to be evidence rately defined gave Officer Fraus- to search that sent proof perti- of a ‘which conduces to the out, pointed Officer previously As to. pertinent hypothesis hypothesis nent —a absolutely nothing to do with had Williams sustained, which, logi- would being one if appellant or the search of either arrest Hence it is influence the issue. cally of their automobile. any put to in evidence circum- relevant Williams’ find and hold that Officer We proposi- to make the stance which tends “Texas Interstate testimony about the probable more less tion at issue either or previous- profile” that he had drug courier id., at ... ... omitted].’ [citation any that ly to issue compiled was irrelevant subjec- a Relevancy predicated ... on decide, jury to was then later before proffered relationship tive between right inherently prejudicial to and was is of conse- and a ‘fact that evidence impartial a fair and receive appellants to quence of the aс- to the determination tion_’ The clear- jury. trial before 401 Tex.R.Cr.Evid. Rule to hear permitting ly erred Therefore, only if it is relevant evidence drug courier testimony about the Williams’ make existence of tends to ‘the [that compiled. previously profile that he probable probable....’ more less fact] course, This, affirmatively petition. Tex.R.App.Pro. is not to refuse the See 202(k). about a imply state or Rule profile that some law enforcement event, In any that assertion is at odds previously compiled will official has never recognition by appel- with its State in holding be Our admissible. Officer appellants’ argument late brief below that testimony about the Williams’ alleged irrelevant, went to “the inflam- compiled previously he had was mаtory prejudicial testimony,” and any issue in case is irrelevant to limit- Brief, 34-35.1 flies in State’s It also course, ed to the of this case. Of a facts given by face of court of one reason jury in case is decide from a criminal to appeals overruling point of for the related charge evidence and the court’s admissible error, viz: prosecution whether has established its “_ Troopers The [of against beyond case the accused a reason- Wayne and Frank Frausto] It able doubt. is not to decide the accused offered, properly however, on another person’s guilt on evidence irrelevant or ir- independent Appellant’s basis. car was United testimony. relevant see Also legally stopped for a traffiс offense. Miller, States v. and United States The and Officer Williams Cuartas, supra. Hernandez v. regarding cour judgments The of appeals the court properly ier admitted show are and reversed these causes are remand- upon own and the observations proceedings ed to the trial court for gathering of further information from opinion. inconsistent appellant], William Valcarcel [or suspicious Frausto had to be CLINTON, Judge, concurring. reasonably requesting and acted State, v. Accaria Cf. the vehicle. The contention addressed the Court is (Tex.App. S.W.2d ground — Houston peti- for review in both number one pet.).” [1st Dist.] discretionary tions for Each certif- review. State, icate of service therein Valcarcel v. states counsеl at 364 Id., copy petition served of the 1986); the state (Tex.App. at 374. — Amarillo prosecuting attorney local judicial and the district its This Court exercised attorney. provide thirty days Our rules determining for discretion in review that party the opposing reply to file a to a reason for Court. decision Amarillo 202(h). petition. Tex.R.App.Pro. (c), 4.04, 44.45(b) Rule Nei- Articles V.A. § 200(b) attorney oppor- C.C.P.; Tex.R.App.Pro. ther the State took Rules Degrate tunity reply. (c)(2), 202(a), (d)(5) (k); make see (Tex.Cr.App.1986). Now, time, for the in its brief on the right is also on the merits of ground merits the State asserts that The testi- improvi- for review number one. for review “should be dismissed as mony question for rea- was inadmissible dently granted appellant’s because conten- sons progression- that lend themselves to а ap- tion not advanced in court of Brief, explanation. al peals.” State’s at 6. timely orderly

A For to be it must more medium for admissible dispute at raising reply is the to a material issue in questions that nature relevant review; Garza petition discretionary it will trial. State, v. Williams responsible making (Tex.Cr.App.1986); an 644 alert the 344, (Tex.Cr.App.1984); at 346 putative problem, to a so that 622 S.W.2d initial review State, 663, at 655 his Elkins v. and, making in 647 S.W.2d may inform himself Rubio v. Court, quoting report petition (Tex.Cr.App.1983), direct from to the State, 607 the threshold S.W.2d 498 (Tex.Cr.App.1980) its attention to the matter at 506); Stone v. grant (concurring opinion, to at of its determination of whether throughout emphasis unless other- wise noted. 1. All is mine 420

State, 85, (Tex.Cr.App. knowing 574 S.W.2d at 89 of the possession fact of of a State, controlled substance. See Vines v. 322, (Tex.Cr.App.1972). at 324 S.W.2d Evidence is not relevant inad- is Therefore, testimony pur- admitted for the State, missible. Johnson v. pose grounds of showing suspicion 154, (Tex.Cr.App.1985); Tex.R.Cr.Evid. request of a reasonableness to search was 402. Rule any disputed not relevant to material issue “Relevancy prop- is makes that which the at trial of this cause. probable.” at issue more or less osition say, That such is to evidence has State, 644; v. Waldrop Garza v. supra, at tendency any to make the fact existence State, 166, Tex.Cr.R. S.W.2d 969 consequence that is to the determination (1939), quoting Branch’s from Ann.Penal probable criminal action more than (1916) Code 97: § it Tex.R. would be without evidence. “Relevancy defined to be is that which compare, e.g., 401. See and Cr.Evid.Rule to proof pertinent hy- conduces of a State, (that Johnson v. supra, infor- at 160 pothesis pertinent hypothesis being —a gun” mant “a when mentioned not relevant which, sustained, if logically one would regarding gun there contested was no issue influence the Hence it is issue. relevant identity nor did tend to make of killer it in put any to circumstance State, Franks v. likely); more or less su- proposition which tends make the pra, (testimony at 114 un- less probable.” more or cle accused to rob influenced banker Id., 970; 133 S.W.2d 1 Branch’s at Ann.Pe- in murder of relevant to issue trial for (2d 136, 120; 1965) nal Code Tex.R. ed. § banker). appeals erroneously The court Rule Cr.Evid. 401. upheld admitting on that ba- “No circumstance is relevant which does sis. more probable propo- not make or less agree Thus I conclusion at issue.” sition Branch’s Ann.Penal Code consid- respect; Court in that we must now 62, 97; (1916) 1 Branch’s Ann.Penal Code § error er whether the contributed to (2d 1965) 137, Franks Compare ed. 120. § guilty jury.2 returned verdict of State, v. 138 S.W.2d Tex.Cr.R. Indeed, every case is er- where there State, (1940), with Stewart at 114 proceedings ror below the mandate 103, at Tex.Cr.R. 104-105 81(b)(2) ap- Tex.R.App.Pro.Rule is that the (1939). court shall reverse the pellate judgment Trooper Frausto “had Whether “beyond unless the court determines a rea- suspicious reasonably and acted to be sonable that the error made no con- doubt requesting to the vehicle” were not search punish- tribution the conviction or to the jury contested issues before —much ment.” less issues all. The state mind of priоr to The error here was committed stopping speeding officer motorist does conviction, prosecution appropriat- and the more that the probable not make motorist urge the evidence to ed inadmissible possessing a substance con- controlled viz: appellants guilty, to find in, vehicle; motor on cealed argument of final is to may purpose reflect “The request his a belief you situation, so that but summarize the evidence.... that could reasonable- you can to final decision whether per se his belief is not an on come ness of issue probative your the State charge, nor is it are satisfied mind that the merits traveling Bearing prejudicial suspects Cuban 40,” on Interstate [west] nature of the error is 2. appellants, Trooper stopped by Trooper upon Williams before further large Trooper said he "made three being presumably recalled in rebut- tal, “two three were Appeals, of those noted Amarillo Court narcotics seizures” descent;” Trooper over of Cuban 371. After Valcarcel permitted testify as to in detail Williams was prosecutor drew attention "some of these and, dates, again, weight personally of substances seized [had] courier busts that [he] involving "specifically both Cubans. to those were made” and proved Defendants, has that these Mr. suspicion tablish reasonable —“should Valcarcel, and Mrs. guilty beyond are critically.”3 a viewed The Eleventh Circuit reasonable doubt. “drug has found that testi mony inherеntly prejudicial,” “is you nothing first witness Troop- heard was Williams, opinion more than er of thing and one those officers specif- that he conducting investigation,” and, ically stated accord ingly, has denounced way type was in “use of ‍​‌‌​​‌‌​​​​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​​‌​‌​‌​‌​​​‍this no of involved this case. evidence as substantive evidence of a de What he is involved in is developing guilt.” fendant’s innocence or United Drug Profiles; these Courier he has tak- Hernandez-Cuartas, States v. 717 F.2d part, himself, en a just not but other law (11th Cir.1983). at 555 officers, enforcement just in this state, states, but in other in developing major Here the substantive evidence re- profiles. these lied on support State to its indict-

The reason these developed are is be- ment is of pro- cause these are common file, characteristics appellants matched it and how they have many observed on successfully arrests Trooper Williams and They traffickers. just don’t Trooper then Frausto utilized it. up come with one or two common charac- circumstances, all those surely one teristics .... must harbor reasonable doubt that the He listed some odd 17 characteristics error made contribution to the verdicts they look they for when are arrest- jury. Texas, See Satterwhite v. they when want they to—after have U.S.-, 108 S.Ct. 100 L.Ed.2d 284 stopped the Defendants.” (1988). Counsel then reiterated most of the charac- Therefore, I judgment concur in the teristics listed Trooper Williams, and the judgment Court to reverse the as to proceeded place Trooper cоnviction. Frausto in juxtaposition with each charac- teristic he claimed to have observed vis a MILLER, J., joins opinion. appellants, vis summing up as follows: McCORMICK, Judge, dissenting on “Now, folks, he noted almost 15 of 17 Appellants’ Petition Discretionary Now, characteristics for these it’s folks. Review. conceivable to me that a Cuban husband retirement, Judge Prior to his John F. traveling wife could be down the prepared Onion adopt dissent I highway going on vacation Vegas to Las my opinion. from Miami in a rented car in another

person’s name carrying this vial of co- majority “The reverses these convictions caine being drug without them traffick- basis of the State’s ers. merits, first witness at the trial on the Williams,

But, pro- isn’t as to a it coincidental that 15 out majority file. The thus were sustains a common noted with these factors appellants. for review of the folks. Fifteen.” Appeals joint appellants United States Courts of “Prior to the for the filed Circuits, Fifth suppress and Eleventh motions to geographi- they the fruits of what cal illegal boundaries of which ports embrace claimed was an search. After entry motions, at or near the hearing southernmost borders on the said in which Offi- country Florida, testified, of this from Texas to are cer Williams the motions were experienced most “drug pro- appellants preserved overruled and thus files,” they are believing uniform in legality review error as to the using them as Appellants pleas evidence—even es- the search. entered (La.1979). opinion 3. See casеs cited and discussed in of So.2d 547 Brown, 2; see also State v. Court at n. guilty joint

not in their bolstering trial and the burden decided the although contention proof placed was thus on the State. that contention is not involved in What ensued was a contested case. ground for nor review briefed or relied upon by appellants.

“The first witness at the trial Williams, merits who testified discussing error, “Without whether the if suppression hearing, as he had at the as to any, properly preserved at the trial development profile. of a level, ignoring that the basis of the only objections testimony The to his were ground for review was not raised or “prejudicial” “irrelevant” and and “inflam- pushed Appeals, on the Court of matory,” normally general objections which majority reverses the convictions because preserved nothing for The review. arrest- testimony of the admission of the of the ing officer, Frausto, stop testified as witness, Williams, State’s first con- vehicle on the highway for cluding (with- from the record as a whole search, speeding, the consent to the search cross-examination) mentioning out discovery and the of the contraband. On appellants challenged stop direct testify examination Frausto did not or the consent to search. profile. as to a On cross-ex- may “Whatever be said about the order appellants inquired amination as to his witnesses, giv- in which the State called its profile training, what factors case, I en the circumstances of this dissent present were the instant a,nd majority to such action of the to the present. case and factors were not reversal of these convictions for the reason jury The case to the was submitted as a given.” stipulations contested case. There were stop legal that the and the consent to DAVIS, J., joins W.C. this dissent. search was valid. appeal appellants “On claimed that Offi-

cer Williams’ was inadmissible ‘bolstering.’ All

because of cases cited support

their briefs in of such contention ‍​‌‌​​‌‌​​​​​​‌‌‌‌​​‌​‌​​‌‌‌‌​​‌‌‌‌‌​​​‌​‌​‌​‌​​​‍‘bolstering.’ observing

related to Without ‘bolstering’

that no was made trial, Appeals rejected ap- the Court of pellants’ separate points finding of error GRIFFIN, Appellant, Barbara Ann bolstering that no occurred as there was no earlier for Officer tes- Williams’ Texas, timony to bolster. Appellee. STATE ‘bolstering’ “Completely abandoning the No. 955-86. contention, appellants jointly advanced Texas, Appeals of Criminal ground concerning a distinct of review Of- En Banc. ficer which was not Williams’ passed upon by raised or the Court of Feb. 1989. Apparently recognizing ap- Appeals.1 this Court pellants are not before review, ground majority

with the of discuss-

uses a cover or a smoke screen Appeals correctly whether the Court of extensive, repe- guilty finding by jointly urged use of for review 1. "The nebulous, separate appellants briefs reads: as to a so-called titious condoned, (or just plain "guilty "drug profile" Appeals The Court of has if not case) expressly approved unprecedented of an view even it occurred in this qualify material evi- of what can as relevant though and search is lawfulness of the arrest ” going Is it now to be the law that the dence. jury?’ made an issue before the never predispose "brainwash” and State an

Case Details

Case Name: Valcarcel v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Feb 1, 1989

Citation: 765 S.W.2d 412

Docket Number: 1249-86, 1250-86

Court Abbreviation: Tex. Crim. App.