
                              NO. 07-12-0100-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL B

                              FEBRUARY 27, 2013




                            TOMAS MENDOZA-TORRES,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

              FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2011-432,947; HONORABLE JOHN J. "TREY" MCCLENDON, PRESIDING



                             Memorandum Opinion



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Appellant Tomas  Mendoza-Torres  was  convicted  of  possession  of  a
controlled substance greater than four grams but less than  200  grams  with
intent to deliver.  In seeking to reverse that conviction, he  contends  the
trial court erred in 1) overruling his motion to suppress, and 2)  admitting
into  evidence  two  photographs  of  a  Scarface  poster.   We  affirm  the
conviction.
      On February 24, 2011, police executed an arrest warrant  on  appellant
at a residence in Lubbock.  They knocked on the door, which was answered  by
appellant's  common-law  wife  Amada  Griselda  Gonzalez,  and  entered  the
residence.  Appellant was located in a bedroom, allowed to finish  dressing,
and handcuffed and taken to the Department of Public Safety  (DPS).   Police
then obtained both oral and written consent  from  Gonzales  to  search  the
residence.  While doing so, they located cocaine, a  handgun,  and  a  large
amount of cash.  A ledger was also taken from a vehicle parked outside.
      Issue 1 - Motion to Suppress
       In  his  first  issue,  appellant  argues  that  Gonzalez   did   not
voluntarily give consent to search the residence because 1)  she  was  under
duress, and 2) law  enforcement  officers  intentionally  removed  appellant
from the house so he could not refuse consent.  We overrule the issue.
       The trial court's ruling on a motion to suppress  is  reviewed  under
the standard discussed in St. George v. State, 237  S.W.3d  720,  725  (Tex.
Crim. App. 2007) and Guzman v. State, 955 S.W.2d 85,  89  (Tex.  Crim.  App.
1997).  Next, when determining whether consent to search was  voluntary,  we
look to the  totality  of  the  circumstances  from  the  standpoint  of  an
objectively reasonable person.  Meekins v. State, 340 S.W.3d 454, 459  (Tex.
Crim. App. 2011).  Factors to be considered include 1)  whether  the  person
was advised of his constitutional rights, 2) the length  of  the  detention,
3) whether questioning was repetitive or prolonged, 4)  whether  the  person
knew  he  could  decline  to  answer  questions,  and  5)   what   kind   of
psychological impact the questions had on the person.  Tucker v. State,  369
S.W.3d 179, 185 (Tex. Crim. App. 2012).   Finally, the State is required  to
prove the voluntariness of the consent by  clear  and  convincing  evidence.
State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App. 2011).
      Appearing of record is evidence that law enforcement officers  entered
the home around 7:00 a.m. to 7:05 a.m.  At  7:15  a.m.,  Gonzalez  signed  a
written consent to search in which she acknowledged that she understood  she
had the right to refuse to consent and that no  "promises,  threats,  force,
or physical or mental  coercion  of  any  kind  whatsoever"  had  been  used
against  her.   Officers  also  testified  that  1)  prior  to  signing  the
document, she also orally consented to the search, 2)  an  officer  reviewed
the written form with her in both Spanish and  English,  3)  she  was  "very
cooperative,"  "calm,"  and  "passive,"  4)  her  demeanor  did  not  change
throughout the time they were in her home, 5) they  did  not  believe  their
guns were drawn when they entered the house, and 6) she was  not  threatened
in any manner, including with the removal of her children.[1]
      Conversely, appellant testified that one of his children answered  the
door, and the officers entered the house  screaming  with  rifles  in  their
hands.  He also testified  that  Gonzalez  was  "very  nervous"  and  has  a
"sickness of nervousness" which causes her to not be able to  "speak  well."
Appellant further stated that he was allowed to talk to  Gonzalez  after  he
had been taken to the DPS building.  At  that  time,  she  was  nervous  and
crying, according to appellant.
      On issues of witness  credibility,  we  defer  to  the  trial  court's
determination.  Wiede v. State,  214  S.W.3d  17,  24-25  (Tex.  Crim.  App.
2007).  The trial court could have believed the testimony  of  the  officers
over that of appellant  and,  given  the  written  consent  form  signed  by
Gonzalez in which she denied being threatened or  coerced  and  acknowledged
that she had a right to refuse to give consent, we cannot find an  abuse  of
discretion on the part of the trial court.  See Kelly v. State,  331  S.W.3d
541, 547 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd) (stating that  an
officer's testimony that consent was voluntarily  given  can  be  sufficient
evidence to prove voluntariness).
      Appellant also testified that he would not have given oral consent  to
search the house once he had been handcuffed.  Yet, a  co-tenant  who  lives
at a residence may give consent  to  search  so  long  as  that  tenant  has
control over and authority to use the premises.  Georgia  v.  Randolph,  547
U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208  (2006).   Nonetheless,  when
another co-tenant is present  and  expressly  objects  to  the  search,  the
latter is not necessarily reasonable as to him.  Id. at 120,  126  S.Ct.  at
1527.  Given that, appellant asserts that he was expressly removed from  the
home so that he could not object to the search. See id. at  121,  126  S.Ct.
at 1527 (stating there must be no  evidence  that  the  police  removed  the
potentially objecting tenant from the residence for the sake of  avoiding  a
possible objection).   Our  review  of  the  record  uncovered  no  evidence
supporting the contention.
      Appellant had been arrested and handcuffed under a valid warrant.   At
that point, there was no reason for him to remain at the residence,  and  it
was logical that he would be transported to law enforcement  offices  or  to
jail.  Nor did he cite us to any evidence of record suggesting that  at  the
time of his arrest, he uttered words or  engaged  in  conduct  evincing  any
objection to the officers searching his home.  Indeed,  at  the  suppression
hearing he was asked whether or not he would have consented to such  had  he
been asked and his reply was that it depended upon when and how the  request
was made.  That hardly suggests that the officers knew he would not  consent
and, therefore, ushered him outside and away from any  conversation  between
his wife and the officers. In short, appellant's complaint is  founded  upon
mere speculation, and the trial court was free to reject it.  See  Young  v.
State, No. 07-08-0309-CR, 2009 Tex. App. Lexis  7126,  at  *12  (Tex.  App.-
Amarillo September 4, 2009, pet. ref'd)  (not  designated  for  publication)
(holding that testimony that  officers  failed  to  ask  the  defendant  for
consent to search after he had been removed from the house and placed  in  a
patrol car prior to seeking his mother's  consent  is  not  evidence  of  an
intent to avoid a possible objection).
      Issue 2 - Admission of Poster
      In his  second  issue,  appellant  complains  of  the  admission  into
evidence of two photographs of a poster.  The poster depicted "Scarface,"  a
movie starring Al Pacino, and was found in the same closet where drugs  were
found.  He contends the probative value of the poster is outweighed  by  its
prejudice under Rule 403 of the Rules of Evidence.[2]
      We review the trial court's ruling for abuse of  discretion.   McCarty
v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008).   The  following  four
factors are often reviewed to  determine  if  evidence  should  be  excluded
under that rule.  They are 1) the probative value of the  evidence,  2)  the
potential for the evidence to  impress  the  jury  in  some  irrational  yet
indelible way, 3) the time needed  to  develop  the  evidence,  and  4)  the
proponent's need for the evidence.  State v. Mechler, 153  S.W.3d  435,  440
(Tex. Crim. App. 2005).
      Appellant relies upon Conerly v. State, No. 14-07-00542-CR, 2008  Tex.
App. Lexis 5517 (Tex. App.-Houston [14th Dist.] July 24, 2008), pet.  ref'd)
(not designated for  publication)  in  which  the  court  upheld  the  trial
court's exclusion of a photograph  of  a  similar  poster  even  though  the
defendant sought to have it admitted to prove his defensive theory. In  that
case, the trial court excluded the photographs found in  the  victim's  home
because they had little if any probative value as to whether  the  defendant
committed that particular offense, they would suggest that a person  hanging
a movie poster in their house automatically identified  with  the  lifestyle
of the film, and there was a substantial amount of  other  evidence  showing
that the victim  and  his  brother  identified  with  a  life  of  guns  and
violence.  Id. at *1.  The Court of Appeals found  that  the  evidence  only
"incrementally" furthered the defendant's defense, could  impress  the  jury
in an irrational way, and the need for the evidence  was  minimal.   Id.  at
*14-16.  Those are not the circumstances here.
      According to the State, the poster served  to  illustrate  appellant's
mens rea  or  the  element  of  intent  to  deliver.   Indeed,  one  officer
testified that the movie "Scarface" was  about  drug  trafficking  and  that
drug dealers tended to identify with it and  its  subject  matter.   Another
testified that such posters were present at 99 percent of the  locations  he
investigated for drugs.  Should the  trial  court  couple  that  information
with the discovery in appellant's home of a large sum of money,  a  firearm,
a quantum of drugs suggesting more than mere personal use, and a ledger,  it
had basis to perceive the posters as relevant to  appellant's  intent,  that
is, his desire to also be a drug dealer like  "Scarface."[3]   Additionally,
the time spent on developing the evidence was minimal.   Given  this,  trial
court's  decision  that  the  probative  value  of  the  posters   was   not
substantially outweighed by their potential prejudice fell within  the  zone
of reasonable disagreement and did not  constitute  an  instance  of  abused
discretion.
      Having overruled all issues, we affirm the judgment.


                                        Brian Quinn
                                        Chief Justice
Do not publish.


-----------------------
      [1]One officer did testify that he told appellant in his interview  at
the DPS office that if he did not cooperate with police, they  would  assume
that anything found at his home belonged to the adults living  there,  which
would also result in the arrest of Gonzalez, and Child  Protective  Services
would be called to take care of the children.

      [2]The rule provides that relevant evidence may  be  excluded  if  its
probative  value  is  substantially  outweighed  by  the  danger  of  unfair
prejudice,  confusion  of  the  issues,  or  misleading  the  jury,  or   by
considerations of  undue  delay,  or  needless  presentation  of  cumulative
evidence.  Tex R. Evid. 403.

      [3]What tends to be ignored is that neither the movie nor its
protagonist met with a happy end.



