                                                                             ACCEPTED
                                                                         06-15-00125-CR
                                                              SIXTH COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                                                                   10/15/2015 9:53:52 AM
                                                                        DEBBIE AUTREY
                                                                                  CLERK

                  IN THE COURT OF APPEALS
      FOR THE SIXTH COURT OF APPEALS DISTRICT OF TEXAS
                     TEXARKANA, TEXAS              FILED IN
                                                 6th COURT OF APPEALS
                                                   TEXARKANA, TEXAS
                                                 10/15/2015 9:53:52 AM
                                                      DEBBIE AUTREY
CONSTANTINO RIOS MORALES          *                       Clerk

                                  *
                                  *
VS.                               *         NO. 06-15-00125-CR
                                  *
THE STATE OF TEXAS                *


               ON APPEAL FROM CAUSE NO. F48830
                249TH JUDICIAL DISTRICT COURT
                   JOHNSON COUNTY, TEXAS


LEAD COUNSEL FOR THE STATE
DALE S. HANNA
DISTRICT ATTORNEY
204 S. BUFFALO, SUITE 209
GUINN JUSTICE CENTER
CLEBURNE, TEXAS 76033
817/556-6801
BAR NO. 08918500

DAVID W. VERNON
ASSISTANT DISTRICT ATTORNEY
JOHNSON COUNTY, TEXAS
BAR NO. 00785149
davidv@johnsoncountytx.org




               ORAL ARGUMENT NOT REQUESTED
                                          TABLE OF CONTENTS

Names of All Parties ............................................................................................. v-vi

Index of Authorities ............................................................................................. vii-x

Statement of the Case................................................................................................. 1

Statement of Facts .................................................................................................. 2-3

Argument and Authorities.................................................................................... 4-41

Reply to Appellant's Issue
Number One:                                            The evidence was sufficient to support
                                                       Appellant’s conviction in Count One ..... 4-12

                                                       A.      Standard of review concerning the
                                                       sufficiency of the evidence to convict ....... 4-6

                                                       B.     Relevant law concerning possession
                                                       of a controlled substance ......................... 6-7

                                                       C.     The evidence was sufficient to
                                                       establish   that   Appellant     knowingly
                                                       possessed the methamphetamine ........... 8-10

                                                       D.        The evidence was sufficient to
                                                       establish that Appellant possessed the
                                                       methamphetamine with the intent to deliver.
                                                       .............................................................. 10-12


Reply to Appellant’s Issue
Number Two:                                            The trial judge remained a neutral arbiter
                                                       and did not deny Appellant a fair and
                                                       impartial trial ....................................... 13-21

                                                       A.        Relevant facts ............................ 14-16

                                                       B.        Relevant law and standard of review
                                                            ii
                             .............................................................. 16-17

                             C.    Appellant failed to preserve his issue
                             for appellate review ................................... 17

                             D.     The trial court’s remarks did not
                             violate Appellant’s due-process rights to a
                             fair and impartial trial ......................... 17-18

                             E.         Harmless error .......................... 18-21


Reply to Appellant’s Issue
Number Three:                The trial court properly denied Appellant’s
                             motion for mistrial ............................... 22-26

                             A.         Relevant facts ................................... 23

                             B.        Relevant law and standard of review
                             .............................................................. 23-24

                                   1. Motions for mistrial ......................... 23

                                   2. Impermissible comments by trial court
                                   on the weight of the evidence .......... 23-24

                             C.    Appellant failed to preserve his issue
                             for appellate review. ............................ 24-25

                             D.         No abuse of discretion ............... 25-26


Reply to Appellant’s Issue
Number Four:                 The trial court did not err in denying
                             Appellant’s motion to suppress ............ 27-41

                             A.         Relevant facts ............................. 28-31

                             B.    Standard of review – trial court’s
                             ruling on a motion to suppress ............ 31-32
                                  iii
                                                        C.    Relevant law and standard of
                                                        review—standing ................................. 32-33

                                                        D.    Relevant law — the doctrine of
                                                        spoliation.................................................... 33

                                                        E.     Appellant failed to preserve all but
                                                        two issues for appellate review ............ 34-36

                                                        F.     Appellant lacks standing to challenge
                                                        the search of the IPad Mini........................ 36

                                                        G.    Appellant’s due process rights were
                                                        not violated due to the doctrine of
                                                        spoliation.............................................. 36-41

Conclusion and Prayer ............................................................................................ 42

Certificate of Compliance ........................................................................................ 43

Certificate of Service ................................................................................................ 44




                                                           iv
                            NAMES OF ALL PARTIES

1. ATTORNEY FOR THE STATE
   Dale S. Hanna                              (at trial)
   18th, 249th, 249TH Judicial District
   204 S. Buffalo, Suite 209
   Guinn Justice Center
   Cleburne, Texas 76033

   Bryan Bufkin
   Assistant District Attorney

  Lindsey Lehrmann
  Assistant District Attorney


2. ATTORNEY FOR THE STATE                     (on appeal)
   Dale S. Hanna
   District Attorney
   18th, 249th, 249TH Judicial District
   204 S. Buffalo, Suite 209
   Guinn Justice Center
   Cleburne, Texas 76033

  David W. Vernon
  Assistant District Attorney

3. ATTORNEY FOR APPELLANT
   Patrick Barkman                            (at trial)
   Attorney at Law
   13 N. Main Street
   Cleburne, Texas 76031

  Jennifer Enright
  Attorney at Law
  300 N. Broadway
  Joshua, TX 76058




                                          v
4. ATTORNEY FOR APPELLANT               (on appeal)
   Lane E. Rugeley
   Attorney at Law
   16 N. Caddo Street
   Cleburne, Texas 76031

5. PRESIDING JUDGE                      (at trial)
   Honorable D. Wayne Bridewell
   249TH Judicial District Court
   204 S. Buffalo
   Guinn Justice Center
   Cleburne, Texas 76033

6. APPELLANT
   Constantino Rios Morales
   TDC # 01995563
   James Lynaugh Unit
   1098 S. Highway
   Fort Stockton, TX 79735




                                   vi
                                   INDEX OF AUTHORITIES
Cases                                                                                            Page

Aranda v. State, 640 S.W. 2d 766
  (Tex.App.-San Antonio 1982, no pet.) .................................................... 25
Becknell v. State, 720 S.W. 2d 526
  (Tex.Crim.App. 1986). ............................................................................. 24
Blue v. State, 41 S.W. 3d 129
  (Tex.Crim.App. 2000). ............................................................................. 24
Bowen v. State, 374 S.W. 3d 427
  (Tex.Crim. App. 2012). .............................................................................. 6
Brooks v. State, 323 S.W. 3d 893
  (Tex.Crim.App. 2010) ................................................................................ 5
Brown v. State, 911 S.W. 2d 744
  (Tex.Crim.App. 1995). ............................................................................... 7
Brumit v. State, 206 S.W. 3d 639
  (Tex.Crim.App. 2006). ............................................................................. 23
California v. Trombetta, 467 U.S.479 (1984). ............................................ 33
Chambers v. State, 805 S.W. 2d 459
  (Tex.Crim.App. 1991). ............................................................................... 5
Conner v. State, 67 S.W. 3d 192
  (Tex.Crim.App. 2001). ............................................................................... 5
Davis v. State, 780 S.W. 2d 945
  (Tex.App.-Fort Worth 1989, pet. ref’d.), ................................................ 25
DeMoss v. State, 12 S.W. 3d 553
  (Tex.App.-San Antonio 1999, pet. ref’d.). .............................................. 34
Evans v. State, 202 S.W. 3d 158
  (Tex.Crim.App. 2006.). .............................................................................. 7
Ex parte Little, 887 S.W. 2d 62
  (Tex.Crim.App. 1994). ............................................................................. 23
Foster v. State, 101 S.W. 3d 490
  (Tex.App.-Houston [1st Dist.] 2002, no pet.). ........................................ 17
Garner v. State, 939 S.W. 2d 802
  (Tex.App.-Fort Worth 1997, pet. ref’d.). ................................................ 16
Grant v. State, 989 S.W. 2d 428
  (Tex.App.-Houston [14th Dist.] 1999, no pet.). ........................................ 8
Guzman v. State, 995 S.W. 2d 85

                                                  vii
  (Tex.Crim.App. 1997) .............................................................................. 31
Harrison v. State, 187 S.W. 3d 429
  (Tex.Crim.App. 2005) .............................................................................. 24
Hawkins v. State, 135 S.W. 3d 72
  (Tex.Crim.App. 2004). ............................................................................. 23
Hughen v. State, 265 S.W. 3d 473
  (Tex.App.-Texarkana 2008), cert. denied
  560 U.S. 911 (2010)............................................................................ 16,18
Jackson v. Virginia, 443 U.S. 307(1979) ...................................................... 5
Johnson v. State, 783 S.W. 2d 19
  (Tex.App.-Fort Worth 1990, pet. ref'd) .................................................... 5
Johnson v. State, 803 S.W 2d 272
  (Tex.Crim.App. 1990). ............................................................................. 24
Kim v. State, 331 S.W. 3d 156
  (Tex.App.-Houston [14th Dist.] 2011, pet. ref’d.). ................................. 24
Krause v. State, 243 S.W. 3d 95
  (Tex.App.-Houston [1st Dist.] 2007, pet. ref’d.). ................................... 34
Kutzner v. State, 994 S.W. 2d 180
  (Tex.Crim.App. 1999). ............................................................................... 5
Laney v. State, 117 S.W. 3d 854
  (Tex.Crim.App. 2003) .............................................................................. 32
Lewis v. State, 664 S.W. 2d 345
  (Tex.Crim.App. 1984). ............................................................................... 7
Mahaffey v. State, 937 S.W. 2d 51
  (Tex.App.-Houston [1st Dist.] 1996, no pet.) .................................... 33,40
Malik v. State, 953 S.W. 2d 234
  (Tex.Crim.App. 1997). ............................................................................ 5,6
Martinez v. State, 186 S.W. 3d 59
  (Tex.App.-Houston [1st Dist.] 2005, pet. ref’d.) ............................... 17,19
Martinez v. State, 91 S.W. 3d 331
  (Tex.Crim.App. 2002). ............................................................................. 32
Matthews v. State, 431 S.W. 3d 596
  (Tex.Crim.App. 2014) ......................................................................... 32,33
McGoldrick v. State, 682 S.W. 2d 573
  (Tex.Crim.App. 1985). ............................................................................... 6
Moreno v. State, 195 S.W. 3d 321
  (Tex.App.-Houston [14th Dist.] 2006, pet. ref’d.). ................................... 7
Moreno v. State, 755 S.W. 2d 886
                                                  viii
  (Tex.Crim.App. 1988) ................................................................................ 5
Oles v. State, 993 S.W. 2d 103
  (Tex.Crim.App. 1999). ............................................................................. 31
Ostos v. State, 713 S.W. 2d 402
  (Tex.App.-El Paso 1986, pet. ref’d.)....................................................... 25
Palmer v. State, 857 S.W. 2d 898
  (Tex.App.-Houston [1st Dist.] 1993, no pet.). .......................................... 7
Poindexter v. State, 153 S.W. 3d 402
  (Tex.Crim.App. 2005). ............................................................................... 6
Rezac v. State, 782 S.W. 2d 869
  (Tex.Crim.App. 1990). ............................................................................. 17
Robinson v. State, 174 S.W. 3d 320
  (Tex.App. –Houston [1st Dist.] 2005, pet. ref’d.)...................................... 8
Sapata v. State, 574 S.W. 2d 770
  (Tex.Crim.App. 1978). ............................................................................. 23
Silva v. State, 989 S.W. 2d 64
  (Tex.App.-San Antonio 1998, pet. ref’d.). .............................................. 16
Smith v. State, 638 S.W. 2d 200
  (Tex.App.-Houston [1st Dist.] 1982, pet. ref’d.-untimely filed) ............ 23
Steen v. State, 640 S.W. 2d 912
  (Tex.Crim.App. 1982) ................................................................................ 5
Strauss v. State, 121 S.W. 3d 486
  (Tex.App.-Amarillo 2006, pet. ref’d.). .................................................... 34
Swearingen v. State, 101 S.W. 3d 89
  (Tex.Crim.App.2003). ................................................................................ 6
U.S. v. Valenzuela-Bernal, 458 U.S. 858(1982). ........................................ 33
Wead v. State, 129 S.W. 3d 126
  (Tex.Crim.App. 2004). ............................................................................. 23
Wilson v. State, 71 S.W. 3d 346
  (Tex.Crim.App. 2002). ............................................................................. 34

Statutes
TEX. HEALTH and SAFETY CODE ANN. §481.002 (38) .......................... 6,8
TEX. HEALTH and SAFETY CODE ANN. § 481.112 (a). ............................. 6
TEX. PENAL CODE ANN. § 6.03(b). ............................................................. 8
TEX.R.APP.PROC 33.1 (a)(1) ...................................................................... 24
TEX.R.APP.PROC. 33.1 (a)(1)(A). ............................................................... 34
TEX. R. EVID. 104(a). ................................................................................. 16
                                                   ix
TEX.R.EVID.901(a)...................................................................................... 16
TEX.TRANSPORTATION CODE ANN. § 547.323 ...................................... 38
TEX.TRANSPORTATION CODE ANN. § 547.325 ...................................... 38
TEX.TRANSPORTATION CODE ANN. § 545.058 ...................................... 38




                                                    x
                                    NO. 06-15-00125-CR


                     IN THE COURT OF APPEALS
         FOR THE SIXTH COURT OF APPEALS DISTRICT OF TEXAS
                        TEXARKANA, TEXAS

                            CONSTANTINO RIOS MORALES
                                  APPELLANT

                                               VS.

                                  THE STATE OF TEXAS
                                       APPELLEE


                                       STATE'S BRIEF

TO THE HONORABLE COURT OF APPEALS, SIXTH COURT OF APPEALS
DISTRICT OF TEXAS:

     The State of Texas, by and through her District Attorney, respectfully
submits this brief in the above entitled and numbered cause.

                               STATEMENT OF THE CASE

      On September 12, 2014, Appellant was indicted for one count of
“Possession of Controlled Substance with Intent to Deliver, > 4 < 200 Grams in a
Drug Free Zone” (i.e., Count One).1 At trial, prior to the reading of the indictment,
the State announced that it was not proceeding with the “Drug Free Zone”
element.2 Thereafter, Appellant entered a plea of “not guilty.”3 After hearing all of
the evidence, the trial jury found Appellant guilty as charged and sentenced
Appellant to 45 years in TDCJ-ID, with a $10,000.00 fine.4



1
  C.R., p. 14.
2
  R.R. Vol. 11, p. 86.
3
  R.R. Vol. 11, pp. 88, 89.
4
  C.R., pp. 146, 149-154, 159; R.R. Vol. 13, pp. 53, 54; R.R. Vol. 14, pp. 119, 120.
                                                1
                                 STATEMENT OF FACTS

       On the evening of August 31, 2004, Eric Alexander, a patrol officer with the

Cleburne Police Department (in Johnson County, Texas), was approaching the

downtown intersection of Main Street and Chambers when he noticed a tan, 1999

Chevy Silverado pickup truck in violation of several Transportation Code statutes

(i.e., the rear taillights were obscured by spray paint, the passenger side brake light

was not working, and the vehicle weaved onto an improved shoulder). 5 After

Alexander initiated a traffic stop, the officer identified the driver (the lone

occupant of the vehicle) as Constantino Morales (i.e., Appellant). 6 Following this,

Alexander placed Appellant under arrest (apparently for having outstanding

warrants?) and called for his supervisor (i.e., Officer Shane Wickson) to help with

an inventory search.7 During the search, three similar laptop-type computers were

found inside the center console and, in a hidden space underneath the cup holder in

the center console, a green pouch was discovered that contained two baggies of

methamphetamine (totaling 37.79 grams), digital scales, a small Ziploc-type

baggie and $483.00 in cash.8 Thereafter, Alexander determined that one of the




5
  R.R. Vol. 11, pp. 104, 105, 109-111, 115, 117, 171, 173; R.R. Vol. 15, State’s Exhibit Nos. 1,
  6-12.
6
  R.R. Vol. 11, pp. 110, 111, 113, 115, 117, 118, 174; R.R. Vol. 15, State’s Exhibit No. 1.
7
  R.R. Vol. 11, pp. 118, 169, 171, 175, 190.
8
  Id. at 119, 121, 123-125, 127, 130-134, 137, 138, 175, 176, 178, 180; R.R. Vol. 12, pp. 11, 12,
  15, 18; R.R. Vol. 15, State’s Exhibit Nos. 1-5, 13-20.
                                                2
three laptop computers (i.e., an IPad Mini) was stolen.9       As a result of the

contraband discovered in Appellant’s vehicle, he was indicted on September 12,

2004, for one count of “Possession of Controlled Substance with Intent to Deliver,

> 4 < 200 Grams, in a Drug Free Zone.”10




9
    R.R. Vol. 11, pp. 119, 121, 163-167, 177, 182, 183, 202.
10
     C.R., p. 14.
                                                 3
REPLY TO APPELLANT’S
ISSUE NUMBER ONE:                              The evidence was sufficient to support
                                               Appellant’s conviction in Count One.


       In Appellant’s Issue Number One, he argues that the evidence was
insufficient to support his conviction in Count One. Specifically Appellant claims
the State failed to establish that he possessed (i.e., exercised care, custody, control,
or management) the methamphetamine found in the vehicle that he was driving or,
if he did, that his intent was to deliver this drug to others. The State of Texas
respectfully disagrees.

                                   ISSUES PRESENTED

                                            ONE

       Was the evidence sufficient in Count One to support the jury’s finding that
Appellant intentionally or knowingly possessed methamphetamine with the intent
to deliver?


                           SUMMARY OF THE ARGUMENT

       The record supports Appellant’s conviction in Count One and the jury’s
finding that Appellant possessed > 4 < 200 grams of methamphetamine with the
intent to deliver. At trial, evidence was adduced that: (1) Appellant was the owner
of the pickup truck in which the contraband was found; (2) he was the driver and
sole occupant of the truck; (3) Appellant had easy access to the contraband (i.e.,
the methamphetamine and drug paraphernalia were discovered in a hidden
compartment in the center console next to the driver’s seat); (4) a significant
amount of cash ($483.00) was also discovered in the vehicle; (5) a local drug
dealer (i.e., Martha Manzo) testified that Appellant was her source and, after
Appellant was arrested, that Appellant called her to say that he had a large amount
of drug in his truck when he was stopped by the police; (6) a similar admission was
heard on a taped phone call made by Appellant to his ex-wife (i.e., Celeste
Cooley); and that the DPS Crime Lab in Waco analyzed the drug exhibits and
determined them to be 37.79 grams of methamphetamine.

A.    Standard of review concerning the sufficiency of the evidence to convict.

                                           4
       In reviewing the sufficiency of the evidence, the appellate court must view

the evidence in the light most favorable to the verdict (i.e., the prosecution) and

consider whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.11          In conducting such a review, a

reviewing court must remember that the jury is the sole fact-finder and is charged

with the duty of judging the credibility of the witnesses, reconciling conflicts in

testimony, and accepting or rejecting any or all of the evidence on either side.12

The jury is also allowed to draw reasonable inferences from basic facts to ultimate

facts.13 A verdict will be sustained if there is any evidence that, if believed, shows

the guilt of the defendant.14         All evidence, whether properly or improperly

admitted, will be considered when reviewing the evidence for sufficiency. 15 The

standard of review is the same for direct or circumstantial evidence cases.16

       The sufficiency of the evidence is measured against the elements of the

offense as defined by a hypothetically correct jury charge for the case.17 The

standard of sufficiency ensures that a judgment of acquittal is reversed for those

11
   Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W. 3d 893
   Tex.Crim.App. 2010) (The Jackson standard of review is the sole standard to be used for
   challenges to the sufficiency of the evidence).
12
   Chambers v. State, 805 S.W. 2d 459, 461 (Tex.Crim.App. 1991).
13
   Jackson v. Virginia, 443 U.S. at 319; Johnson v. State, 783 S.W. 2d 19, 20 (Tex.App.-Fort
   Worth 1990, pet. ref’d.).
14
   Moreno v. State, 755 S.W. 2d 886, 887 (Tex.Crim.App. 1988); Steen v. State, 640 S.W. 2d
    912, 914 (Tex.Crim.App. 1982).
15
   Conner v. State, 67 S.W. 3d 192, 197 (Tex.Crim.App. 2001).
16
   Kutzner v. State, 994 S.W. 2d 180, 184 (Tex.Crim.App. 1999).
17
   Malik v. State, 953 S.W. 2d 234, 240 (Tex.Crim.App. 1997).
                                               5
situations in which there is an actual failure in the State’s proof of the crime rather

than a mere error in the jury charge submitted.18

       If a criminal case is reversed for sufficiency, the judgment is reformed to

reflect a conviction for a lesser offense—regardless if the jury charge on the lesser

offense was either submitted or requested, but denied.19 Otherwise a reviewing

court vacates the judgment of conviction for insufficiency and orders a judgment

of acquittal.20

B.     Relevant law concerning possession of a controlled substance.

       To meet its burden of proof that the defendant knowingly possessed a

controlled substance, the State is required to demonstrate that the defendant (1)

exercised control, management, or care over the substance and (2) knew the matter

possessed was contraband.21 “Possession” means actual care, custody, control, or

management of an item.22

       The knowledge element of the crime of possession, being subjective, must

always be inferred to some extent, in the absence of an admission by the accused. 23

To prove knowing possession, the State must present evidence that affirmatively



18
   Id.
19
   Bowen v. State, 374 S.W. 3d 427, 432 (Tex.Crim. App. 2012).
20
   Swearingen v. State, 101 S.W. 3d 89, 97 (Tex.Crim.App.2003).
21
   Poindexter v. State, 153 S.W. 3d 402, 405 (Tex.Crim.App. 2005). See also, TEX. HEALTH
   and SAFETY CODE ANN. § 481.112(a).
22
   TEX. HEALTH and SAFETY CODE ANN. § 481.002 (38).
23
   McGoldrick v. State, 682 S.W. 2d 573, 578 (Tex.Crim.App. 1985).
                                            6
links the defendant to the controlled substance.24 This evidence may be direct or

circumstantial.25 Regardless whether the evidence is direct or circumstantial, it

must establish that the defendant’s conviction with the drug was more than

fortuitous.26

       To prove that an accused possessed a controlled substance with an intent to

deliver, the State can use circumstantial evidence.27              Factors that courts have

considered include: (1) the nature of the location at which the accused was

arrested; (2) the quantity of contraband in the accused’s possession; (3) the manner

of packaging; (4) the presence or lack thereof of drug paraphernalia (for either use

or sale); and (5) the accused’s status as a drug user.28 The number of factors

present is not as important as the logical force the factors have in establishing the

elements of the offense.29       An oral expression of intent is not required.30 Intent

can be inferred from the acts, words, and conduct of the accused.31                      Expert

testimony by experienced law enforcement officers may be used to establish an

accused’s intent to deliver.32



24
   Palmer v. State, 857 S.W. 2d 898, 900 (Tex.App.-Houston [1st Dist.] 1993, no pet.).
25
   Brown v. State, 911 S.W. 2d 744, 747 (Tex.Crim.App. 1995).
26
   Evans v. State, 202 S.W. 3d 158, 161 (Tex.Crim.App. 2006.).
27
   Moreno v. State, 195 S.W. 3d 321, 325 (Tex.App.-Houston [14th Dist.] 2006, pet. ref’d.).
28
   Id., citing, Lewis v. State, 664 S.W. 2d 345, 349 (Tex.Crim.App. 1984).
29
   Id. at 326.
30
   Id.
31
   Id.
32
   Id.
                                               7
C.      The evidence was sufficient to establish that Appellant knowingly possessed
       the methamphetamine.

       The State would first argue that the evidence was sufficient to support the

jury’s finding that Appellant knowingly possessed the methamphetamine

discovered inside the Chevy Silverado pickup truck in which Appellant was

driving. As stated in the jury charge, a person acts knowingly or with knowledge

with respect to the nature of his conduct or to circumstances surrounding his

conduct when he is aware of the nature of his conduct.33 And, “possession” means

actual care, custody, control, or management of an item. 34 Thus, given the facts of

the case sub judice, the State would have to show that (1) Appellant was aware that

the methamphetamine was inside the vehicle and (2) he exercised care, custody,

control, or management over this drug.

       Knowledge of the presence of contraband may be inferred from the

accused’s control over the vehicle in which the contraband is concealed.35 Control

over the vehicle can be shown by the accused being the sole occupant of the

vehicle.36 It may also be shown by evidence that the accused owned the vehicle.37

       Here, the record reflects that the methamphetamine was discovered in the

center console of a vehicle in which Appellant was not only the sole occupant of

33
   C.R., p. 142; R.R. Vol. 13, p. 9. See also, TEX. PENAL CODE ANN. § 6.03(b).
34
   TEX. HEALTH and SAFETY CODE ANN. § 481.002 (38).
35
   Grant v. State, 989 S.W. 2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.).
36
   Id.
37
   Robinson v. State, 174 S.W. 3d 320, 325 (Tex.App. –Houston [1st Dist.] 2005, pet. ref’d.).
                                                8
the vehicle, but also the driver.38 The record also reflects that Appellant was the

owner of the vehicle. Rene Ozuna, a salesman at Dugger Motor Company in

Cleburne, Texas testified that the vehicle (a tan, 1999 Chevy Silverado pickup

truck,) was first sold to Mr. Eric Mills and that a “Mexican guy” bought if from

Mills (i.e., took over the payments).39 Mills testified that he sold the vehicle to

Appellant (a person with a Spanish surname) and then identified Appellant in court

as the person to whom he sold the Silverado pickup truck.40 And, Martha Manzo

(an acquaintance of Appellant’s) testified that Appellant was the owner of the

truck, that he had purchased it about a month before his August 31, 2014 arrest,

and that he had spray painted the taillights (one of the reasons for Officer

Alexander’s traffic stop).41        Thus, a rational jury could have found beyond a

reasonable doubt that Appellant had knowledge of the methamphetamine found

inside the Silverado pickup truck.

       A rational jury could also have found beyond a reasonable doubt that

Appellant possessed the methamphetamine. In addition to the aforementioned

affirmative links, the record reflects that the contraband was secreted in a hiding

space within the center console which was within easy access of Appellant.42



38
   R.R. Vol. 11, pp. 117, 118, 174; R.R. Vol. 15, State’s Exhibit No. 1.
39
   R.R. Vol. 12, pp. 188, 191, 193.
40
   Id. at 65.
41
   Id. at 58, 65, 66, 107, 108.
42
   R.R. Vol. 11, pp. 121-125, 130, 137, 138; R.R. Vol. 15, State’s Exhibit Nos. 1-5, 13, 19, 20.
                                                9
Also, drug paraphernalia (i.e., a glass pipe, a small Ziploc baggie, and digital scales

were found with the methamphetamine along with a significant amount of cash—

$483.00).43      Moreover, Manzo testified that she was a local dealer of

methamphetamine, that Appellant was her source, that he had told her just prior to

his arrest that he was going to purchase some methamphetamine, and that he called

her after the arrest and stated that he had a large amount of methamphetamine in

the truck when he was arrested.44 Such an admission is also on a taped telephone

call (presumably made from the county jail) between Appellant and his ex-wife

(i.e., Celeste Cooley).45 Therefore, the evidence was sufficient to establish that

Appellant knowingly possessed the methamphetamine found in the Chevy

Silverado pickup truck.

D.     The evidence was sufficient to establish that Appellant possessed the
       methamphetamine with the intent to deliver.

       The State would also argue that the evidence was sufficient to establish that

Appellant’s possession of the methamphetamine was done with the intent to

deliver. Using the aforementioned factors, the State would first note that Appellant

was found with a large amount of methamphetamine (i.e., 37.79 grams).46 Both

Alexander and Wickson testified that this was by far the largest amount of

43
   R.R. Vol. 11, pp. 124, 125, 127, 130-134, 151, 178, 180; R.R. Vol. 15, State’s Exhibit Nos. 1,
   13, 15-17.
44
   R.R. Vol. 12, pp. 58, 59, 66-70.
45
   Id. at 80, 101-103, 111-113, 138, 139, 146-148, 150; R.R. Vol. 15, State’s Exhibit Nos. 22, 26.
46
   R.R. Vol. 11, pp. 138, 178; R.R. Vol. 12, p. 18; R.R. Vol. 15, State’s Exhibit No. 20.
                                               10
methamphetamine that they had ever encountered on a traffic stop.47 And, Adam

King (i.e, the commander of the STOP Task Force) testified as an expert witness

that most users only consume a quarter of one gram at a time, that much more than

that amount would likely be fatal, and that 37.79 grams indicated an intent to

deliver.48 In addition, King testified that the drug paraphernalia found with the

methamphetamine (i.e., a glass pipe, digital scales, and small baggie) and the

$483.00 further indicated that Appellant had the intent to deliver the

methamphetamine.49 And, King, Alexander, and Wickson all testified that the

presence of the stolen IPad Mini suggested that Appellant was a dealer (noting that

dealers commonly trade drugs for stolen merchandise such as electronics). 50

Moreover, as previously mentioned, Manzo testified that she was a local dealer of

methamphetamine, that Appellant was her supplier, and that just prior to his arrest

Appellant had stated that he was going to purchase some methamphetamine.51

Consequently, a rational trier of fact could also have found beyond a reasonable

doubt that the methamphetamine was not for Appellant’s personal use, but that he

possessed it with the intent to deliver. Therefore, for the reasons stated above, the

evidence was sufficient to support Appellant’s conviction in Count One.



47
   R.R. Vol. 11, pp. 108, 109, 138, 178, 179.
48
   R.R. Vol. 12, pp. 165-167, 172.
49
   Id. at 165, 170.
50
   R.R. Vol. 11, pp. 119, 121, 175-177, 182, 183, 202; R.R. Vol. 12, pp. 170, 171.
51
   R.R. Vol. 12, pp. 58, 59, 66-70.
                                               11
Accordingly, Appellant’s Issue Number One should be overruled.




                               12
REPLY TO APPELLANT’S
ISSUE NUMBER TWO:                              The trial judge remained a neutral
                                               arbiter and did not deny Appellant a
                                               fair and impartial trial.

       In Appellant’s Issue Number Two, he argues that the trial judge denied him
his due process rights when, in guilt/innocence, the judge ceased to be a neutral
arbiter and became a prosecutor involved in the fray. Specifically, Appellant
claims that after the judge admitted the lab results, it was error for him to then pose
a question to both sides (outside the presence of the jury) whether the State had
fully proven the chain of custody. The State of Texas respectfully disagrees.

                                   ISSUES PRESENTED
                                          ONE

        When the objection on appeal fails to comport with the objection lodged at
trial, has Appellant preserved his issue for appellate review?

                                            TWO

      If the trial judge has plenary power to reconsider an interlocutory ruling
made during trial, is it error for the judge to take a recess and ask both sides to
research if the ruling was correct?

                                           THREE

       If an alleged error by the trial court inures to the benefit of Appellant, is the
error reversible?

                              SUMMARY OF ARGUMENT

        Appellant failed to preserve his issue for appellate review because his
argument on appeal does not comport with the objection lodged at trial. In
addition, the trial court’s post-ruling pondering as to whether or not the chain of
custody was proven was not error because the court retains plenary power during
trial to reconsider an interlocutory ruling. Finally, Appellant cannot claim that the
alleged error was reversible because the benefit of the ruling inured to Appellant
(i.e., the prosecution went to the unnecessary steps to fill in the chain of custody
gaps).

                                          13
A.     Relevant facts.

       In guilt/innocence, the State, having established the first leg in the chain of

custody for the drug exhibits (i.e., from their discovery by law enforcement to their

transfer to the Cleburne Police Department property room), called James Milam (a

forensic scientist at the Texas Department of Public Service Crime Lab in Waco)

to testify about the results of his analysis of said exhibits.52 Testifying as to the last

step of the chain of custody, Milam explained that the two drug exhibits (contained

in an envelope marked as State’s Exhibit No. 19) both exhibited the unique lab

number, the case and exhibit number, the date of resealing, and his initials.53

Milam next stated that he personally performed the lab analysis on both drug

exhibits.54 At this point, State’s Exhibit No. 19 was offered and admitted without

any objection by defense counsel.55 Milam, who was then shown State’s Exhibit

No. 20 (i.e., the lab report), testified that the report accurately reflected the results

of his analysis and carried the same unique lab number as State’s Exhibit No. 19.56

The State then offered its Exhibit No. 20 which, like No. 19, was also admitted

without any objection by defense counsel.57 Then, after his cross-examination of

Milam, defense counsel (with agreement by the prosecution) stated that he had no


52
   R.R. Vol. 11, pp. 129-132, 134-137, 141, 142.
53
   R.R. Vol. 12, pp. 11, 12, 14, 15.
54
   Id. at 15.
55
   Id.
56
   Id. at 16, 17.
57
   Id. at 17, 18.
                                              14
objection to the court excusing Milam.58 The court responded by having the bailiff

take the jury out of the courtroom for a 15 minute break.59

        During the break, the trial court (apparently having some confusion as to

whether chain of custody was properly proven) asked Milam to remain seated and

suggested that it might be a good idea for both sides to use the break to research

the issue.60 At the end of the break (and before the jury was brought back into the

courtroom), defense counsel approached the bench and lodged two objections —

(1) that the chain of custody was not proven as to State’s Exhibit No. 19 and (2)

that the trial court’s statements during the recess about whether the prosecution had

met the chain of custody requirement was an impermissible comment on the

weight of evidence.61 Defense counsel then asked for a mistrial.62 In response, the

State argued that it had proven chain of custody by showing the first and last leg

and that the gaps in between went to the weight of the evidence and not its

admissibility.63 The prosecution then reminded the trial judge that defense counsel

failed to object to the admission of State’s Exhibit No. 19 and argued that a




58
   Id. at 18, 19.
59
   Id. at 19.
60
   Id. at 19, 20.
61
   Id. at 21.
62
   Id.
63
   Id. at 21, 22.
                                         15
mistrial was not warranted.64 The trial judge then overruled defense counsel’s

objections and denied his motion for mistrial.65

B.     Relevant law and standard of review.

       While it is true that a defendant has a due process right to a fair trial before a

fair tribunal, the trial court has plenary jurisdiction to reconsider its interlocutory

rulings, and retains that ability, until a final judgment or order is entered in the

cause and the decree becomes final without violating this due-process right.66

Such interlocutory rulings involve preliminary questions concerning the

admissibility of evidence.67

       TEX. R. EVID. 901(a) provides that, “The requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” This rule does not require the State to prove anything.68 Instead, it

requires only a showing that satisfies the trial court that the matter in question is

what the State claims; once that showing is made, the exhibit is admissible. 69 The

State meets the authentication requirement for admissibility once it “has shown the

beginning and the end of the chain of custody, particularly when the chain ends at

64
   Id. at 22.
65
   Id. at 22, 23.
66
   Hughen v. State, 265 S.W. 3d 473, 479-480, 482 (Tex.App.-Texarkana 2008), cert. denied,
   560 U.S. 911 (2010).
67
   TEX. R. EVID. 104(a).
68
   Silva v. State, 989 S.W. 2d 64, 67-68 (Tex.App.-San Antonio 1998, pet. ref’d.).
69
   Garner v. State, 939 S.W. 2d 802, 805 (Tex.App.-Fort Worth 1997, pet. ref’d.).
                                             16
a laboratory. Any gaps and minor theoretical breaches go to the weight rather than

the admissibility of the evidence, absence a showing of tampering.”70

       The trial court has discretion to determine the sufficiency of the predicate of

authentication and, absent an abuse of discretion, the trial court’s judgment will not

be reversed on appeal.71

C.     Appellant failed to preserve his issue for appellate review.

       The State would first argue that Appellant has failed to preserve his issue for

appellate review. It is well settled that to preserve error on appeal, an objection

raised on appeal must comport with the objection lodged at trial.72 Here, Appellant

complains an appeal that his due process rights were violated by the complained-of

comments by the trial judge because in making them, the judge became an

advocate for the prosecution. At trial, however, defense counsel’s objections were

that the prosecution had not proven up the chain of custody concerning State’s

Exhibit No. 19 and that the judge’s remarks constituted an impermissible comment

on the weight of the evidence.73 Consequently, Appellant has not preserved his

issue for appellate review.

D.     The trial court’s remarks did not violate Appellant’s due-process rights to a
       fair and impartial trial.


70
   Martinez v. State, 186 S.W. 3d 59, 62 (Tex.App.-Houston [1st Dist.] 2005, pet. ref’d.).
71
   Foster v. State, 101 S.W. 3d 490, 498 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
72
   Rezac v. State, 782 S.W. 2d 869, 870 (Tex.Crim.App. 1990).
73
   R.R. Vol. 12, p. 21 (ls. 1-10).
                                                17
         In addition to Appellant having failed to preserve his issue for appellate

review, the State would next argue that the trial court’s remarks did not violate

Appellant’s due-process rights to a fair and impartial trial. Caselaw holds that a

trial court has plenary jurisdiction to reconsider its interlocutory rulings and retains

that ability until a final judgment or order is entered in the cause and the decree

becomes final.74 This enhances the fairness of a trial by giving the trial court an

opportunity to correct error in its rulings. For this reason, such reconsideration

does not deny a defendant due process of law.75

         Here, although the trial court had correctly ruled that State’s Exhibit Nos. 19

and 20 (i.e., the lab report) were admissible (i.e., they were properly authenticated

when the first and last links of the chain of custody were shown), the trial court,

having second thoughts about the admissibility requirements, merely suggested

that both sides review the law on this issue during a 15 minute recess. This

precautionary action resulted in the trial court being reassured that it had made the

correct ruling in its admission of these exhibits. Consequently, the trial court’s

action of reconsidering its ruling did not deny Appellant his due-process rights.

E.       Harmless error.

         In the event that the trial court’s reconsideration of its ruling (i.e., the

admission of State’s Exhibit Nos. 19 and 20) was error, the State would argue that

74
     Hughen, 265 S.W. 3d at 479.
75
     Id. at 482.
                                           18
Appellant was not harmed. First, the trial court was correct in admitting these

exhibits. As previously stated, the authentication requirement for admissibility is

met once the State has shown the beginning and end of the chain of custody,

particularly when the chain ends at a laboratory. 76 Any gaps and minor theoretical

breaches go to the weight of rather than the admissibility of the evidence, absent a

showing of tampering.77

       Here, Officer Alexander testified that he packaged the evidence recovered

from the inventory search, sealed them, put a case number and his name on each

package, and delivered them to the property room. 78 Later at trial, James Milam,

the forensic scientist for the DPS lab in Waco who analyzed the drug exhibits,

testified that he recognized the two drug exhibits inside the envelope marked as

State’s Exhibit No. 19, that the bags had identification markings on them (i.e., the

law enforcement case number, date that Milam resealed the bags, and the unique

lab exhibit number assigned to the bags) and that they showed no signs of

tampering prior to his analysis.79 Thus, the trial court did not err in admitting the

drug exhibits (and the analysis of them) because the beginning and end of the chain

of custody was shown.




76
   Martinez, 186 S.W. 3d at 62.
77
   Id.
78
   R.R. Vol. 11, pp. 129-132, 134-137, 141, 142; R. R. Vol. 15, State’s Exhibit Nos. 14-19.
79
   R.R. Vol. 12, pp. 14, 15.
                                               19
          Secondly, the trial court’s ruling on the admissibility of the drug exhibits and

lab report was not affected by its suggestion that both sides do some legal research

on the issue of authentication and chain of custody. The record reflects that at the

end of the 15 minute recess, the State instructed the court concerning the law on

chain of custody and how it supported his ruling.80 Thereafter, the court overruled

defense counsel’s untimely objection concerning the chain of custody and let its

ruling stand.81 Consequently, Appellant’s due-process rights were not violated by

the trial court’s proper ruling on the admissibility of State’s Exhibit Nos. 19 and

20.

          Finally, any benefit from the trial court’s reconsideration of its ruling inured

to Appellant.         As a result of the trial court’s suggestion that the issue of

authentication and chain of custody be researched, the State decided to take the

unnecessary step of having Milam fill in the gaps of chain of custody. Following

the recess, Milam testified that State’s Exhibit Nos. 19 and 20 were delivered to

the lab by Sam Thomas of the Cleburne Police Department, that these exhibits

were received by Kristina Aguirre (an evidence tech at the lab), that Aguirre placed

the exhibits in the return vault, that evidence tech Sandra Cull took the exhibits and

placed them in the drug vault, and that he retrieved the exhibits from the drug vault



80
     Id. at 21, 22.
81
     Id. at 22.
                                             20
for testing.82 Milam then testified that after his analysis, his supervisor (i.e.,

Araceli Utmore) reworked the analysis, that Utmore returned the exhibits to the

drug vault, that the exhibits were thereafter transferred to the return vault before

Cull retrieved them and gave them back to Thomas.83 As such, Appellant received

the benefit of the State demonstrating far more of the chain of custody than the law

requires.        Therefore, Appellant was not harmed by the trial court’s act of

reconsideration.

          Accordingly, for the reasons stated above, Appellant’s Issue Number Two

should be overruled.




82
     Id. at 24, 25.
83
     Id. at 25.
                                          21
REPLY TO APPELLANT’S
ISSUE NUMBER THREE:                           The trial court properly denied
                                              Appellant’s motion for mistrial.

       In Appellant’s Issue Number Three, he argues that the trial court reversibly
erred during guilt/innocence when it denied his motion for mistrial regarding the
trial court’s remarks made outside the presence of the jury, (i.e., about whether the
State had met the authentication requirements to show chain of custody for State’s
Exhibit Nos. 19 and 20). Specifically, Appellant maintains that these remarks
constituted an impermissible comment on the weight of the evidence in violation
of Art. 38.05 V.A.C.C.P.

                               ISSUES PRESENTED

                                        ONE

      If Appellant failed to lodge a timely objection following the alleged
improper comment on the weight of the evidence by the trial court, has he
preserved error for appellate review?

                                        TWO

       If complained-of remarks by the trial court were made outside the presence
of the jury and did not impermissibly comment on the weight of the evidence (i.e.,
did not imply approval of the State’s argument, did not indicate a disbelief in the
defense’s position, and did not diminish the credibility of the defense’s approach to
the case), does the trial court abuse its discretion in denying Appellant’s motion for
mistrial?

                          SUMMARY OF ARGUMENT

       Appellant failed to preserve his issue on appeal (i.e., that the complained-of
statements made by the trial court constituted an impermissible comment on the
weight of the evidence). In addition, the complained –of remarks did not constitute
an impermissible comment on the weight of the evidence because (1) they were
made outside the presence of the jury and, as such, could not have affected their
verdict and (2) they neither implied approval of the State’s argument, indicate any
disbelief on the defense’s position, or diminished the credibility of the defense’s
approach to the case. As such, the trial court did not abuse its discretion in
denying Appellant’s motion for mistrial.
                                         22
A.     Relevant facts.

       The State wishes to incorporate Subsection A (i.e., “Relevant facts”) of its

Reply to Appellant’s Issue Number Two herein for purposes of showing the

relevant facts surrounding Appellant’s Issue Number Three.

B.     Relevant law and standard of review.

1.     Motions for mistrial

       The decision to grant or deny a motion for mistrial is within the discretion of

the trial court, which was broad power to deal with unexpected situations occurring

during trial.84 The trial court’s denial of a motion for mistrial is reviewed under an

abuse of discretion standard.85 A trial judge abuses his discretion by granting a

mistrial when less dramatic alternatives were available.86 The trial court’s denial

of a motion for mistrial must be upheld as long as the ruling is within the zone of

reasonable disagreement.87

2.     Impermissible comments by trial court on the weight of the evidence.

       Due process requires a neutral and detached judge.88 Art 38.05 V.A.C.C.P.

states that a trial judge shall not, at any stage of the proceeding previous to the

return of the verdict, make any remark calculated to convey to the jury his opinion
84
   Smith v. State, 638 S.W. 2d 200, 202 (Tex.App.-Houston [1st Dist.] 1982, pet. ref’d.-untimely
   filed), citing, Sapata v. State, 574 S.W. 2d 770 (Tex.Crim.App. 1978).
85
   Hawkins v. State, 135 S.W. 3d 72, 76-77 (Tex.Crim.App. 2004).
86
   Ex parte Little, 887 S.W. 2d 62, 66 (Tex.Crim.App. 1994).
87
   Wead v. State, 129 S.W. 3d 126, 129 (Tex.Crim.App. 2004).
88
   Brumit v. State, 206 S.W. 3d 639, 644-45 (Tex.Crim.App. 2006).
                                               23
of the case.     To constitute reversible error, the comment must be reasonably

calculated to benefit the State or to prejudice the rights of the defendant.89 A trial

court’s comment does so if it (1) implies approval of the State’s argument, (2)

indicates any disbelief in the defense’s position, or (3) diminishes the credibility of

the defense’s approach to the case.90

C.     Appellant failed to preserve his issue for appellate review.

       The State would first argue that Appellant has failed to preserve his issue for

appellate review. Normally, to preserve error for review, an appellant must make a

timely, specific objection and obtain an adverse ruling.91 An objection is timely if

the party objects as soon as the ground for objection becomes apparent. 92 Failure

to object to an Art. 38.05 violation waives the issue for appellate review unless the

comment is so egregious that it constitutes fundamental, constitutional error.93

       Here, the record reflects that Appellate lodged no objection to the

complained-of remark by the trial court when, after excusing the jury for a 15

minute recess, it wondered if the prosecution had shown the requisite chain of

custody concerning the already admitted State’s Exhibit Nos. 19 and 20.94 At this



89
   Becknell v. State, 720 S.W. 2d 526, 531 (Tex.Crim.App. 1986).
90
   Kim v. State, 331 S.W. 3d 156, 160 (Tex.App.-Houston [14th Dist.] 2011, pet. ref’d.).
91
   Harrison v. State, 187 S.W. 3d 429, 433 (Tex.Crim.App. 2005); TEX. R. APP. PROC.
   33.01(a); TEX. R. EVID. 103(a)(1).
92
   Johnson v. State, 803 S.W 2d 272, 291 (Tex.Crim.App. 1990).
93
   Blue v. State, 41 S.W. 3d 129, 132-33 (Tex.Crim.App. 2000).
94
   R.R. Vol. 12, p. 19.
                                              24
point, defense counsel lodged no objection.95 Only upon returning from the recess

did defense counsel raise his objections (i.e., that the State failed to show the chain

of custody for State’s Exhibit No. 19 and that the trial court’s remarks were a

comment on the weight of the evidence). As such, Appellant’s objection was not

timely. Moreover, for reasons stated in Paragraph D of the State’s Response to

Appellant’s Issue Number Two and Paragraph D of the State’s Response to

Appellant’s Issue Number Three, the complained-of remarks were not egregious

and did not constitute fundamental or constitutional error.                      Consequently,

Appellant has failed to preserve his Issue Number Three for appellate review.

D.     No abuse of discretion.

       In the alternative that Appellant preserved his issue for appellate review, the

State would next argue that the trial court did not abuse its discretion in denying

Appellant’s motion for mistrial because the complained-of remarks did not

constitute an impermissible comment on the weight of the evidence. First, to run

afoul of Art. 38.05, the complained-of comments must have been made in front of

the jury.96 Otherwise, the complained-of comments could not have affected the

jury’s verdict.97 Here, the complained-of remarks were made after the judge had



95
   Id. at 19, 20.
96
   Davis v. State, 780 S.W. 2d 945, 949-50 (Tex.App.-Fort Worth 1989), pet. ref’d.), citing,
   Ostos v. State, 713 S.W. 2d 402, 403 (Tex.App.-El Paso 1986, pet. ref’d.); Aranda v. State, 640
   S.W. 2d 766, 774 (Tex.App.-San Antonio 1982, no pet.).
97
   Id.
                                               25
called for a 15 minute recess and after the bailiff had escorted the jury outside of

the courtroom.98 Secondly, the complained-of comments reflected (1) the trial

court’s confusion as to whether the State had properly authenticated its Exhibit

Nos. 19 and 20 (i.e., by showing the requisite chain of custody) and (2) the court’s

desire to make sure its ruling (i.e., the admitting of these exhibits) was correct.

Contrary to Appellant’s assertions, the court’s comments were not calculated to

benefit the State or prejudice Appellant in any way. Moreover, they did not imply

approval of an argument by State, they did not indicate a disbelief in the defense’s

position, and they did not diminish the credibility of the defense’s approach to the

case.       Consequently, the trial court’s comments did not offend Art. 38.05.

Therefore, the trial court did not abuse its discretion by denying Appellant’s

motion for mistrial.

          Accordingly, for the reasons stated above, Appellant’s Issue Number Three

should be overruled.




98
     R.R. Vol. 12, pp. 19, 20.
                                          26
REPLY TO APPELLANT’S
ISSUE NUMBER FOUR:                            The trial court did not err in denying
                                              Appellant’s motion to suppress.

      In Appellant’s Issue Number Four, he argues that the trial court erred in
denying his motion to suppress. Specifically, Appellant claims that : (1) there was
no evidence showing that he was arrested (warranting an inventory search of his
vehicle); (2) there was no evidence showing the Cleburne Police Department
inventory search procedure; (3) there was no evidence that Officers Alexander and
Wickson used an inventory sheet during the search of Appellant’s vehicle; (4) the
search of the IPad Mini laptop computer was not based on probable cause and was
conducted without a warrant; (5) there was no evidence that he was arrested on
outstanding warrants prior to the inventory search; and (6) that the State violated
his due process rights under the doctrine of spoliation (i.e., the police released his
vehicle to a towing service which he had the result of preventing him from later
examining the vehicle for favorable and material evidence). The State of Texas
respectfully disagrees.


                               ISSUES PRESENTED

                                        ONE

      If four of the six claims raised by Appellant in his Issue Number Four do not
comport with the objections raised at his suppression hearing, has Appellant
preserved these four claims for appellate review?

                                        TWO

      If Appellant has no property or possessory interest in the stolen IPad Mini,
did he have standing to challenge Officer Wickson’s search of this laptop?

                                      THREE

       If Appellant cannot establish (1) that the complained-of evidence was lost or
destroyed, (2) that his vehicle contained favorable and material evidence and (3)
that law enforcement released the vehicle to a towing service in bad faith, has his
due process rights been violated under the doctrine of spoliation?


                                         27
                             SUMMARY OF ARGUMENT

       Four of the six claims raised by Appellant in this Issue Number Four were
not preserved for appellate review because they do not comport with the objections
lodged at the suppression hearing. Of the remaining issues, (i.e., the alleged illegal
search of the IPad Mini found in the center console of Appellant’s vehicle and the
violation of his due process rights due to the doctrine of spoliation), Appellant
lacks standing to challenge the search of the IPad because it was stolen and
Appellant cannot meet the requirements of spoliation (i.e., proving that (1)
evidence was lost or destroyed, (2) the evidence had exculpatory and material
value, and (3) that its destruction was the result of bad faith on the part of law
enforcement).

A.        Relevant facts.

          On March 4, 2015, defense counsel filed a motion to suppress which alleged,

in relevant part, the following: “the actions of the Cleburne Police Department

violated the constitutional and statutory rights of the Defendant under the Fourth,

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article

I, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of

Criminal Procedure”, and “Any tangible evidence seized in connection with a 1999

Tan Chevrolet Sierra, VIN# 2GCEK19VXX1261302, Plate #DNZ7036, was seized

without probable cause or other lawful authority in violation of the rights of

Constantino Morales pursuant to the Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution, Article I, Sections 9, 10 and 19 of

the Constitution of the State of Texas.”99



99
     C.R., pp. 80, 81.
                                           28
        The relief sought by defense counsel in said motion was, in relevant part, the

suppression at trial in this cause of “[A]ny and all tangible evidence seized by law

enforcement officers or others in connection with the detention and arrest of

Constantino Morales in this case or in connection with the investigation of this

case, including but not limited to any items seized from a 1999 Tan Chevrolet

Sierra, VIN# 2GCEK19VXX1261302, plate # DNZ7036, and any testimony by the

Cleburne Police Department or any other law enforcement officers or others

concerning such evidence.100

        At the beginning of the suppression hearing, held on April 14, 2015, defense

counsel stipulated that Appellant was arrested on outstanding warrants and then

announced that he was proceeding under the doctrine of spoliation.101 According

to defense counsel, the releasing of Appellant’s vehicle by the Cleburne Police

Department to a towing service (1) prevented him from verifying Officers

Alexander’s and Wickson’s offense report (and expected testimony) that the

vehicle’s tail lamp assembly (including reflectors) was obscured by spray paint and

(2) theoretically rendered useless (through likely contamination) any fingerprints

that were later obtained from the inside of the center console by CPD.102 For these

reasons, defense counsel claimed that he was prevented from challenging the


100
    Id. at 81.
101
    R.R. Vol. 11, pp. 1, 6, 7.
102
    Id. at 7-10.
                                          29
legality of the stop and/or allegations that Appellant had contact with the hidden

compartment inside the center console.103 In response, the prosecution stated that

it had located the vehicle, that it was still in Cleburne, and that defense counsel

could go inspect it if he so chose.104

        Following the presentment of evidence, defense counsel, in his closing

argument, reurged the issue of spoliation, but also indicated that the $483.00 cash

discovered in the vehicle should not be admitted under TEX.R.EVID 403 and that

the information gleamed from Wickson’s search of the IPad Mini should be

suppressed because, citing Riley v. California, it was conducted without a

warrant.105

        In its response, the State, citing TEX. TRANSPORTATION CODE ANN.

§§’s 547.323, 547.325, 545.058, and Dietiker v. State, 345 S.W. 3d 422 (Tex.App-

Waco 2011), summed up the evidence that supported the legality of Alexander’s

traffic stop, argued that defense counsel had failed to meet the requirements of

proving spoliation (i.e., there was no showing of evidence being destroyed that was

material and exculpatory and no showing of bad faith or part of law enforcement),

challenged defense counsel’s assertion that the probative value of the cash was

substantially outweighed by the danger of unfair prejudice to Appellant, and


103
    Id.
104
    Id. at 11.
105
    Id. at 72-77.
                                         30
pointed out that Appellant had no standing to challenge Wickson’s search of the

stolen IPad Mini.106 Having heard arguments from both sides, the trial court

denied the motion to suppress.107

B.     Standard of review -trial court’s ruling on a motion to suppress.

       On appeal, a trial court’s ruling on a motion to suppress is generally

reviewed on appeal for an abuse of discretion.108 The process for such a review

was articulated by the Court of Criminal Appeals in Guzman v. State.109 Using a

bifurcated standard of review, almost total deference is given to a trial court’s

determination of historical facts—especially when the trial court’s findings are

based on an evaluation of credibility and demeanor.110           The same amount of

deference is given to the trial court’s ruling on application of law-to-fact questions

if the resolution of those questions turn on an evaluation of credibility and

demeanor.111     Applications of law-to-fact question that do not turn on the

evaluation of credibility and demeanor of witness testimony at the suppression

hearing, however, are reviewed de novo.112

       The reviewing court must uphold a trial court’s ruling on a motion to

suppress if the ruling is reasonably supported by the record and correct on any

106
    Id. at 77-83.
107
    Id. at 85.
108
    Oles v. State, 993 S.W. 2d 103, 106 (Tex.Crim.App. 1999).
109
    See, Guzman v. State, 995 S.W. 2d 85 (Tex.Crim.App. 1997).
110
    Id.
111
    Id.
112
    Id.
                                             31
theory of law applicable to the case.113 This is so even if the trial judge gives the

wrong reason for the decision.114 A reviewing court, however, may not reverse a

trial court’s ruling on any theory or basis that might have been applicable to the

case, but was not raised.115

C.     Relevant law and standard of review—standing.

       The rights protected by the Fourth Amendment to the Unites States

Constitution and Article 1, Section 9 of the Texas Constitution are personal.116 As

such, an accused must show that the search violated his, rather than a third party’s,

legitimate expectation of privacy.117 He must show (1) that he exhibited an actual

subjective expectation of privacy in the place invaded (i.e., a genuine intention to

preserve something as private), and (2) that society is prepared to recognize that

expectation of privacy as objectively reasonable.118

       To determine whether a person’s expectation of privacy is reasonable, an

appellate court examines the totality of circumstances surrounding the search,

guided by a non-exhaustive list of factors:

           whether the accused had a property or possessory interest in the place
            invaded;



113
    Laney v. State, 117 S.W. 3d 854, 857 (Tex.Crim.App. 2003).
114
    Id.
115
    Martinez v. State, 91 S.W. 3d 331, 336 (Tex.Crim.App. 2002).
116
    Matthews v. State, 431 S.W. 3d 596, 606 (Tex.Crim.App. 2014).
117
    Id.
118
    Id.
                                             32
             whether he was legitimately in the place invaded;

             whether he had complete dominion or control and the right to exclude
              others;

             whether, before the intrusion, he took normal precautions customarily
              taken by those seeking privacy; and

             whether his claim is consistent with historical notions of privacy.119

Although a reviewing court defers to the trial judge’s fact findings, it reviews the

legal issue of standing de novo.120

D.     Relevant law — the doctrine of spoliation.

       The duty to preserve evidence is limited to evidence that possesses an

exculpatory value that was apparent before the evidence was destroyed.121

Therefore, a defendant must demonstrate that the lost evidence was both favorable

and material to his case.122 A showing that the lost evidence might have been

favorable does not satisfy the materiality requirement.123 Further, to establish that

the failure to preserve the evidence constitutes a violation of due process or due

course of law rights, appellant must demonstrate that the police acted in bad

faith.124



119
    Id. at 606-07.
120
    Id. at 607.
121
    Mahaffey v. State, 937 S.W. 2d 51, 53 (Tex.App.-Houston [1st Dist.] 1996, no pet.), citing,
   California v. Trombetta, 467 U.S.479, 489 (1984).
122
    Id., citing, U.S. v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982).
123
    Id.
124
    Id.
                                               33
E.     Appellant failed to preserve all but two issues for appellate review.

       The State would first argue that Appellant has failed to preserve all but two

of his issues for appellate review. To preserve error for appellate review, the

Texas Rules of Appellate Procedure require a defendant to make a timely request,

objection, or motion to the trial court, stating “the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make

the trial court aware of the complaint, unless the specific grounds were apparent

from the context.125        A motion to suppress is a specialized objection to the

admissibility of evidence, and thus must be timely and sufficiently specific to

inform the trial court of the complaint.126 In a motion that does not identify

specific constitutional violations, the defendant’s argument and questions of

witnesses at a suppression hearing may suffice to make the grounds apparent from

the context.127 If a defendant moves to suppress evidence and his motion is denied,

his points of errors on appeal must comport with his grounds for suppression in the

trial court.128     The spirit of the preservation rule is violated when, at the

suppression hearing, defense counsel narrows the issues he wishes for the court to

consider, but changes or expands his issues on appeal.129



125
    TEX.R.APP.PROC. 33.1 (a)(1)(A).
126
    Krause v. State, 243 S.W. 3d 95, 102 (Tex.App.-Houston [1st Dist.] 2007, pet. ref’d.).
127
    DeMoss v. State, 12 S.W. 3d 553, 557-58 (Tex.App.-San Antonio 1999, pet. ref’d.).
128
    Wilson v. State, 71 S.W. 3d 346, 349 (Tex.Crim.App. 2002).
129
    Strauss v. State, 121 S.W. 3d 486, 489-90 (Tex.App.-Amarillo 2006, pet. ref’d.).
                                               34
          Here, defense counsel made a general allegation in his motion to suppress—

claiming that the evidence was seized without probable cause or other authority in

violation of Appellant’s rights under the Fourth, Fifth, Sixth and Fourteenth

Amendments to the United States Constitution and Article I, Section 9 of the Texas

Constitution.130 At the suppression hearing, defense counsel became more specific

in his complaint — asking the trial court to suppress the evidence because (1) his

due process rights were violated under the doctrine of spoliation (i.e., the Cleburne

Police Department released Appellant’s vehicle to a towing service which

prevented inspection of the vehicle’s tail light assembly for spray paint and

theoretically prevented the collection of useable fingerprints), (2) the probative

value of the $483.00 found in the vehicle (and later returned to Appellant) was

substantially outweighed by the danger of unfair prejudice, and (3) the IPad Mini

was illegally seized due to a lack of a warrant.131

          On appeal, although Appellant reurges the issues of spoliation and the illegal

search of the IPad Mini, he also claims that (1) there was no evidence adduced at

the suppression hearing that he was arrested (warranting on inventory search) (2)

there was no evidence that he was arrested on outstanding warrants, (3) there was

no evidence detailing the Cleburne Police Department inventory search procedure,

and (4) that there was no evidence that either Alexander or Wickson used an

130
      C.R., pp. 80, 81.
131
      R.R. Vol. 11, pp. 72-77.
                                            35
inventory sheet during the search of Appellant’s vehicle. As such, because these

additional four claims do not comport with the objections raised at the suppression

hearing, they are not preserved for appellate review.

F.        Appellant lacks standing to challenge the search of the IPad Mini.

          The State would also argue that Appellant lacked standing to challenge the

search of the IPad Mini.               The record of the suppression hearing reflects the

following: that Officer Wickson first opened up the IPad and then opened up

Settings; from Settings, Wickson ascertained the name of the owner of the IPad

(i.e., Daniel Martinez) and his telephone number; that Martinez (who was

contacted about the device) stated that the IPad belonged to him and that it was

stolen; and that the IPad was returned to Martinez per CPD policy. 132 Thus,

because Appellant did not have a property or possessory interest in the IPad, could

not make a legitimate claim to information contained inside the IPad, did not have

the right to exclude others from using the IPad, had not taken normal precautions

customarily taken by those seeking to keep information contained in the IPad

private, and his claim is inconsistent with historical notions of privacy, he lacks

standing to challenge Wickson’s search of this device.

G.        Appellant’s due process rights were not violated due to the doctrine of
          spoliation.



132
      Id. at 46, 51, 52, 60, 61, 65-68, 70, 71.
                                                  36
       Finally, the State would argue that Appellant’s due-process rights were not

violated due to the doctrine of spoliation — either as to his hope of challenging the

legality of the traffic stop or the affirmative links to the methamphetamine.

Concerning the inspection of the vehicle to challenge the legality of the traffic

stop, Appellant cannot show (1) that CPD’s release of the vehicle caused evidence

to be lost or destroyed, (2) that an inspection of the rear tail lamp assembly (had

the vehicle been secured in CPD’s impound lot) would have produced evidence

that was both favorable and material to his case or (3) that the evidence was lost or

destroyed in bad faith.

       The record of the suppression hearing indicates that after Officer Alexander

released Appellant’s vehicle to a towing service, it was repossessed by Dugger

Motor Company (and possibly resold), and that later (during the State’s trial

preparation), the prosecution had Alexander locate the vehicle and take pictures of

both the center console (i.e., State’s Exhibit Nos. 2-5) and the left and right rear tail

lamp assembly (i.e., State’s Exhibit Nos. 6-12).133 The record further reflects that

that the truck was in the same condition as when Alexander initiated the traffic

stop.134    And, the prosecution indicated to the trial court that defense counsel was




133
    R.R. Vol. 7, pp. 5, 7; R.R. Vol. 10, pp. 4, 5; R. R. Vol., 11, pp. 7, 11, 29-35, 45, 62; R.R. Vol.
    15, State’s Exhibit Nos. 2-12.
134
    R.R. Vol. 11, pp. 29, 31, 33, 45.
                                                 37
aware of the vehicle’s location and could inspect it at any time (if he so chose). 135

As such, the vehicle was not, in effect, lost or destroyed under the doctrine of

spoliation.

      In addition, an inspection of the rear tail lamp assembly would not have

yielded evidence of favorable or material value.        As demonstrated by State’s

Exhibit Nos. 1 and 13. (Alexander’s in-car and body video and Wickson’s body

video respectively), the rear tail lamp assembly on both sides of the vehicle had

spray paint covering them which obscured the brake lamps and reflectors in

violation of TEX. TRANSPORTATION CODE ANN. §§ 547.323 and 547.325.136

Moreover, Alexander’s in-car video demonstrates that Appellant’s vehicle drifted

onto the improved shoulder in violation of §545.058.137 Thus, an inspection of

Appellant’s vehicle (if it had been secured in CPD’s impound lot) would not have

led to evidence which could challenge probable cause for the stop.

      Lastly, both Alexander and Wickson testified that Appellant’s vehicle was

not released to the towing service in bad faith.138 According to these officers’

testimony, the vehicle was not an elementary fact of an offense and, as such, it was

departmental policy (1) to not secure it in the CPD impound lot and (2) to release it


135
    Id. at 11.
136
    Id. at 13-15, 19-21, 57, 58; R.R. Vol. 15, State’s Exhibit Nos. 1, 13. See also,
   TEX.TRANSPORTATION CODE ANN. §§ 547.323 and 547.325.
137
    R.R. Vol. 15, State’s Exhibit No. 1. See also, TEX. TRANSPORTATION CODE ANN. §
    545.058.
138
    R.R. Vol. 11, pp. 25-27, 29, 35, 37, 45, 61-63, 69, 70.
                                          38
to a towing service (i.e., for space reasons, it is impossible to secure all the vehicles

in which drugs are found).139

          As for the inspection of the vehicle to challenge affirmative links to the

methamphetamine (i.e., possession of the contraband), Appellant again cannot

show (1) that CPD’s release of the vehicle caused evidence to be lost or destroyed,

(2) that fingerprinting the center console would yield evidence that was favorable

and material to his case, or (3) that the evidence was lost or destroyed in bad faith.

          Although Appellant’s vehicle was not secured in the CPD’s impound lot, the

opportunity to obtain meaningful evidence from fingerprinting the center console

was not lost or destroyed. Under the facts of this case, fingerprint evidence would

have yielded three results — regardless of whether or not Appellant’s vehicle was

impounded in CPD’s secured lot.          First, Appellant’s fingerprints theoretically

would have been found inside the center console, the hidden compartment, or both.

Such evidence would only have served to further support the jury’s finding of

guilt. Secondly, fingerprints theoretically would have been found but, due to

contamination, were unusable. In that the jury found Appellant guilty without

fingerprint evidence, this scenario would not have altered Appellant’s conviction.

The third scenario is that, theoretically, no fingerprints were found inside the

center console (potentially affecting the jury’s verdict). Consequently, potential


139
      Id. at 25-27, 29, 37, 61, 62.
                                           39
fingerprint evidence was not, in effect, lost or destroyed under the doctrine of

spoliation.

          Moreover, the theoretical fingerprint evidence would not be both favorable

and material to Appellant’s case. Caselaw holds that the materiality requirement of

spoliation is not met if the evidence might have been favorable.140            As stated

above, the theoretical fingerprinting of Appellant’s vehicle would yield three

potential results —two of which would not be favorable or material. Concerning

the third possible scenario (i.e., the center console was theoretically fingerprinted

and Appellant’s prints were not found) it is not certain that such a finding would

have altered the jury’s verdict. First, it is important to note that the jury found

Appellant guilty without evidence that his fingerprints were inside the center

console. Secondly, the theoretical absence of Appellant’s fingerprints could be

dismissed by a jury due to the possibility of his wearing gloves. Thus, Appellant

has not shown that fingerprinting the center console would yield evidence that was

favorable and material to his case.

          Finally, as previously stated, the record reflects that any loss or destruction

of potential fingerprint evidence (by CPD’s action of releasing Appellant’s vehicle

to a towing service) was not done in bad faith, but per department policy. 141



140
      Mahaffey, 937 S.W. 2d at 53.
141
      R.R. Vol. 11, pp. 25-27, 29, 35, 37, 45, 61-63, 69, 70.
                                                  40
      Accordingly, for the reasons stated above, Appellant’s Issue Number Four

should be overruled.




                                     41
                          CONCLUSION AND PRAYER

      For the reasons previously stated, it is respectfully submitted that there was

no reversible error.

      WHEREFORE, PREMISES CONSIDERED, the State respectfully prays that

Appellant's conviction for “Possession of Controlled Substance with Intent to

Deliver, >4 < 200 Grams” (i.e. Count One), be affirmed.



                                             /s/ David W. Vernon
                                      David W. Vernon
                                      Assistant District Attorney
                                      18th, 249th, 249th Judicial District
                                      204 S. Buffalo, Suite 209
                                      Guinn Justice Center
                                      Cleburne, Texas 76033
                                      817/556-6803
                                      Fax No. 817/556-6814
                                      Bar No. 0078514
                                      davidv@johnsoncountytx.org




                                        42
                       CERTIFICATE OF COMPLIANCE

      The State of Texas, by and through her District Attorney, hereby certifies

that it’s brief contained 8,635 words and that it met the length requirement for a

computer generated document as dictated by TEX. R. APP. PROC. 9.4(i)(2) (eff.

12/01/2012).




                                            /s/ David W. Vernon
                                     David W. Vernon
                                     Assistant District Attorney
                                     18th, 249th, 249th Judicial District
                                     Guinn Justice Center
                                     204 S. Buffalo, Suite 209
                                     Fax No. 817/556-6816
                                     Bar No. 00785149




                                       43
                          CERTIFICATE OF SERVICE

      I HEREBY certify that a true copy of the State's Brief was sent by electronic

service, to Lane Rugeley, Attorney at Law, 16 N. Caddo Street, Cleburne, Texas

76031 and to Constantino Morales, TDC# # 01995563, James Lynaugh Unit,

1098 S. Highway, Fort Stockton, TX 79735, on this the 15th day of October 2015.



                                      /s/ David W. Vernon
                                      David W. Vernon
                                      Assistant District Attorney
                                      18th, 249th, 249th Judicial District
                                      204 S. Buffalo, Suite 209
                                      Guinn Justice Center
                                      Cleburne, Texas 76033
                                      817/556-6803
                                      Fax No. 817/556-6814
                                      Bar No. 0078514




                                       44
