                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00014-CR

RUBEN HEREDIA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                          From the County Court at Law
                              Navarro County, Texas
                            Trial Court No. C34853-CR


                           MEMORANDUM OPINION


      Ruben Heredia was convicted of possession of a controlled substance, cocaine,

and sentenced to 60 years in prison. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d)

(West 2010).    Heredia was the front seat passenger in a vehicle stopped by a

Department of Public Safety trooper for traffic violations, and cocaine was found in the

vehicle. Because the trial court did not err in denying Heredia’s motion to suppress or

in denying Heredia’s motion for directed verdict, the trial court’s judgment is affirmed.
MOTION TO SUPPRESS

        Heredia first contends that the trial court erred in denying Heredia’s motion to

suppress several of his statements because the statements were 1) taken in violation of

article 38.22 of the Texas Code of Criminal Procedure; and 2) inadmissible pursuant to

Texas Rules of Evidence 401, 404(b), and 403. Heredia did not request findings of fact

and conclusions of law following the denial of his motion to suppress. However, we

abated this appeal so that the trial court could supply finding of fact and conclusions of

law regarding the voluntariness of Heredia’s statements.         See Vasquez v. State, 411

S.W.3d 918, 920 (Tex. Crim. App. 2013). Those findings and conclusions were supplied,

and we reinstated this appeal.

        We employ a bifurcated standard of review when reviewing motions to

suppress. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). We measure the

propriety of the trial court's ruling under the totality of the circumstances, extending

almost total deference to the trial court's rulings on questions of historical fact, as well

as on its application of law to fact questions that turn upon credibility and demeanor.

Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012); Leza v. State, 351 S.W.3d 344,

349 (Tex. Crim. App. 2011). We review de novo the trial court's rulings on questions of

law and its rulings on application of law to fact questions that do not turn upon

credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d at 349. We view

the record in the light most favorable to the trial court's conclusion and reverse the


Heredia v. State                                                                      Page 2
judgment only if it is outside the zone of reasonable disagreement. State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006).

Waiver of Rights

           Heredia first complains under this issue that the statements were inadmissible

because they were taken in violation of article 38.22 of the Texas Code of Criminal

Procedure. Under article 38.22, no oral statement of an accused made as a result of

custodial interrogation shall be admissible against an accused in a criminal proceeding

unless (1) the statement was recorded and (2) prior to the statement but during the

recording, the accused was warned of his rights and knowingly, intelligently, and

voluntarily waived those rights. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Joseph v.

State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010). The warnings required by article

38.22 include those stated in Miranda1 and, in addition, a warning that the accused "has

the right to terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22

§§ 2(a), 3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

           Heredia’s statements were recorded on an in-car video recording device after

Heredia was placed under arrest for an outstanding warrant and placed in Trooper

Dustin Gilmore’s patrol unit. He does not argue that the statements are inadmissible

because they were not recorded or that they were improperly recorded. Rather, he

argues that the eight statements, made either by Heredia or about him, were


1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Heredia v. State                                                                   Page 3
inadmissible because he was either not properly warned of his statutory rights under

article 38.22 § 2(a) or did not waive those statutory rights.

         The first statement mentioned by Heredia in his brief is a reference to an arrest

warrant for Heredia. This statement was not made by Heredia; thus, article 38.22 is not

invoked and the trial court did not err in admitting the statement under this part of

Heredia’s issue.     Likewise, article 38.22 is not invoked for two other statements

referencing that Trooper Gilmore “found all that shit,” referencing the cocaine, and that

Gilmore and the other troopers who helped search the vehicle were “white trash.”

While Heredia made these statements, neither were the product of custodial

interrogation. Heredia was in the front seat of the patrol unit when he made those

statements; but the officer was not in the vehicle at the time and had not asked Heredia

any questions which would have provoked those statements. Accordingly, the trial

court did not err in admitting those additional statements under this theory of

exclusion.

         The remaining statements at issue referenced the sale of cocaine, the price of

cocaine, the purchase of the cocaine by the driver and its reason, and the use of cocaine,

in general, and specifically of the use the day before of the purchased cocaine. These

statements were the product of questioning by Gilmore while Heredia was in custody.

The State argues, however, that Heredia waived his right to remain silent under article

38.22.


Heredia v. State                                                                    Page 4
        The State bears the burden of establishing a knowing, intelligent, and voluntary

waiver of one's rights under Miranda and Article 38.22. Miranda v. Arizona, 384 U.S. 436,

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim.

App. 2011); Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). Waiver must be

proven by a preponderance of the evidence. Leza, 351 S.W.3d at 349, 351; Joseph, 309

S.W.3d at 24. In determining whether there was a valid waiver of Heredia's rights, we

must look to the totality of the circumstances, "including the background, experience,

and conduct of the accused." North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755,

60 L. Ed. 2d 286 (1979); see Leza, 351 S.W.3d at 349, 352-53; Joseph, 309 S.W.3d at 25.

        A waiver can be expressly made or implied by the accused's conduct. Berghuis v.

Thompkins, 560 U.S. 370, 383, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010); Joseph, 309 S.W.3d

at 24. An implied waiver of one's rights is established upon a showing that the accused:

(1) was given the proper warnings; (2) understood the warnings and their

consequences; and (3) made an uncoerced statement. Berghuis, 560 U.S. at 381-384; see

Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Leza, 351

S.W.3d at 349. "As a general proposition, the law can presume that an individual who,

with a full understanding of his or her rights, acts in a manner inconsistent with their

exercise has made a deliberate choice to relinquish the protection those rights afford."

Berghuis, 560 U.S. at 385.




Heredia v. State                                                                          Page 5
        While it is true that a waiver cannot be presumed from an accused's silence or

the fact that a confession was made after warnings were provided, "the general rule is

that neither a written nor an oral express waiver is required." Watson v. State, 762

S.W.2d 591, 601 (Tex. Crim. App. 1988) (en banc). Simply making a statement is often

the kind of conduct viewed as indicative of one's intention to waive her rights. See

Berghuis, 560 U.S. at 384; Leza, 351 S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7. This

relatively low threshold for establishing waiver is because "[t]he main purpose of

Miranda is to ensure that an accused is advised of and understands the right to remain

silent and the right to counsel." Berghuis, 560 U.S. at 383.

        Trooper Gilmore testified at the motion to suppress hearing that he read Heredia

his rights and asked Heredia if he understood those rights. Although the reply in the

in-car video was sufficiently inaudible for the court reporter to transcribe when the

video was played during trial, Gilmore testified that Heredia said, “yeah.” Gilmore

also stated that Heredia had been arrested before, had been through the system before,

had no problem communicating with Gilmore or understanding Gilmore’s questions,

and spoke fluent English. Based on the totality of the circumstances, Gilmore believed

that Heredia understood and waived his statutory and constitutional rights to remain

silent. The video was introduced into evidence at the hearing. On cross-examination,

Gilmore’s credibility was not attacked.




Heredia v. State                                                                  Page 6
        In argument during the suppression hearing, Heredia’s counsel contended that

Heredia replied, “no,” when asked if he understood his rights. But the trial court

watched and listened to the video many times before deciding that the complained of

statements were admissible. Further, the trial court specifically found that after being

advised of his rights, Heredia answered, “yeah,” and concluded that Heredia’s

statements were voluntary and that Heredia knowingly, intelligently, and voluntarily

waived his rights set out in article 38.22. See TEX. CODE CRIM. PROC. ANN. art. 38.22

(West 2005). Based on the record, the trial court was within its discretion to have

determined that Heredia understood his rights. Further, based on our review of the

record in the light most favorable to the trial court’s conclusions, Heredia, at the very

least, impliedly voluntarily waived those rights. Accordingly, the trial court did not err

in denying Heredia’s motion to suppress on this first theory of exclusion.

Extraneous Offenses

        Heredia next complains under his first issue that the same statements were

extraneous offenses and were inadmissible pursuant to Texas Rules of Evidence 401,

404(b), and 403. Initially we note that Heredia did not advise the trial court that the

statements were inadmissible pursuant to Rule 404(b).          Accordingly, that part of

Heredia’s issue does not comport with the arguments made at trial and are not

preserved for our review. See TEX. R. APP. P. 33.1; Lovill v. State, 319 S.W.3d 687, 691-692

(Tex. Crim. App. 2009). Further, Heredia fails to brief why the statement that Gilmore


Heredia v. State                                                                      Page 7
“found all that shit” or the statements that the driver of the vehicle paid for the cocaine

were inadmissible under this part of his issue. Accordingly, any complaint regarding

these two statements is improperly briefed and presents nothing for review. See TEX. R.

APP. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).

        We will review, however, the remaining statements 1) that Heredia had a

warrant for his arrest; 2) that he called the troopers “white trash;” 3) that he used the

cocaine the day before; and 4) that discussed the general price and sales of cocaine to

determine whether they were relevant and if so, whether the probative value of those

statements was substantially outweighed by the danger of unfair prejudice, because

those same arguments were made to the trial court.

Relevancy

        In his brief, Heredia does not explain how these remaining statements were

irrelevant or how they did not have "any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than

would be without the evidence." TEX. R. EVID. 401. He simply concludes that the

statements were irrelevant.

        Heredia was charged with possession of a controlled substance, cocaine, which

was found in a vehicle with two other occupants. The cocaine was not on his person;

rather, it was found in a coin purse located on the floor in between the center console

and the front seat. The back seat passenger, who was sitting behind Heredia, was the


Heredia v. State                                                                     Page 8
closest person to the pouch. Whether Heredia, the front seat passenger, was in care,

custody, or control of the cocaine found in the vehicle was a fact of consequence in the

trial. See Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006) ("the State must

prove that (1) the accused exercised control, management, or care over the

substance….”). Further, Heredia’s theory of defense was that he did not know the

cocaine was in the vehicle. Thus, the statements at issue were relevant because they

could lead to an inference that Heredia knew the cocaine was in the vehicle and had

care, custody, or control of it.

Unfair Prejudice

        Again, in his brief, Heredia simply concludes that the remaining statements at

issue were prejudicial. Evidence may be excluded under Rule 403 if the danger of

unfair prejudice substantially outweighs the probative value of the evidence. TEX. R.

EVID. 403; Greer v. State, 436 S.W.3d 1, 9 (Tex. App.—Waco 2014, no pet.). Rule 403

favors admission of relevant evidence and carries a presumption that relevant evidence

will be more probative than prejudicial. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim.

App. 2003); Jones v. State, 944 S.W.2d 642, 652-53 (Tex. Crim. App. 1996). The trial court

has broad discretion in conducting a Rule 403 balancing test, and we will not lightly

disturb its decision. Allen, 108 S.W.3d at 284; Greer, 436 S.W.3d at 9.

        All testimony and physical evidence will likely be prejudicial to one party or the

other. Jones, 944 S.W.2d at 653. It is only when there exists a clear disparity between the


Heredia v. State                                                                     Page 9
degree of prejudice of the offered evidence and its probative value that Rule 403 is

applicable. Id. The fact that Heredia knew about sales and pricing of cocaine, had a

warrant out for his arrest, used some of the cocaine the day before the remainder was

seized, and called the troopers “white trash,” were all pieces of the puzzle used by the

State to show that Heredia was in possession of the cocaine. While the statements may

have been prejudicial to Heredia, the statements were not so prejudicial that there was a

clear disparity between the degree of prejudice and the statements’ probative value.

        Accordingly, the trial court did not err in denying Heredia’s motion to suppress

these remaining statements under this theory of exclusion.

        Heredia’s first issue is overruled.

DIRECTED VERDICT

        In his second issue, Heredia contends the trial court erred in denying Heredia’s

motion for directed verdict because the evidence was insufficient to prove Heredia was

in possession of the controlled substance.

        We review a challenge to the denial of a motion for directed verdict as a

challenge to the sufficiency of the evidence. See Canales v. State, 98 S.W.3d 690, 693 (Tex.

Crim. App. 2003); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). The

Court of Criminal Appeals has expressed our standard of review of a sufficiency issue

as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
Heredia v. State                                                                       Page 10
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
        (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
        "familiar standard gives full play to the responsibility of the trier of fact
        fairly to resolve conflicts in the testimony, to weigh the evidence, and to
        draw reasonable inferences from basic facts to ultimate facts." Jackson, 443
        U.S. at 319. "Each fact need not point directly and independently to the
        guilt of the appellant, as long as the cumulative force of all the
        incriminating circumstances is sufficient to support the conviction."
        Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).



Heredia v. State                                                                        Page 11
        To prove unlawful possession of any controlled substance, "the State must prove

that (1) the accused exercised control, management, or care over the substance; and (2)

the accused knew the matter possessed was contraband." Evans v. State, 202 S.W.3d 158,

161 (Tex. Crim. App. 2006); see also TEX. HEALTH & SAFETY CODE ANN. § 481.002(38)

(West 2010) ("'Possession' means actual care, custody, control, or management.").

Possession is not required to be exclusive. Roberts v. State, No. 10-14-00048-CR, 2015

Tex. App. LEXIS 78, 3-4 (Tex. App.—Waco Jan. 8, 2015, no pet. h.) (not designated for

publication). When the defendant is not in exclusive possession of the place where the

controlled substance is found, then additional, independent facts and circumstances

must link the defendant to the substance in such a way that it can reasonably be

concluded that the defendant possessed the substance and had knowledge of it. See

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). In other words, the

evidence "must establish, to the requisite level of confidence, that the defendant's

connection with the [contraband] was more than just fortuitous," which may be

established by direct or circumstantial evidence. Brown v. State, 911 S.W.2d 744, 747

(Tex. Crim. App. 1995).

        Heredia was not in exclusive possession of the place where the cocaine was

found. He was the front seat passenger of an SUV that was pulled over for traffic

violations by Trooper Gilmore. When stopped, the driver and back seat passenger

appeared fidgety. Heredia had an outstanding warrant for his arrest and was placed


Heredia v. State                                                                Page 12
under arrest and placed in the trooper’s patrol unit. The driver of the SUV, who was

also the owner, gave Gilmore permission to search the vehicle. The coin purse was

found pursuant to the search. In the purse was the cocaine.

        Heredia contends that the evidence was insufficient to show he was in

possession of the cocaine because the driver testified at Heredia’s trial that he bought

the cocaine and that Heredia did not know about it. Further, both the driver and the

female passenger pled guilty to possessing the cocaine.

        The evidence also showed, however, that when the cocaine was found, Heredia,

in the patrol car by himself, commented that the trooper “found all that shit.” He also

made a comment to himself about the troopers searching the vehicle, calling them

“white trash.” After being warned of his statutory and Miranda rights, Heredia told

Gilmore that the driver purchased the cocaine the day before for Heredia’s girlfriend,

the backseat passenger. Heredia admitted to using some of the cocaine the day it was

purchased. He was also very familiar about the going price of cocaine and how it made

him feel when he used it.

        Viewing the record in the light most favorable to the judgment, we find that the

evidence was sufficient for the jury to have found Heredia guilty of possessing the

cocaine.

        Heredia’s second issue is overruled.




Heredia v. State                                                                 Page 13
CONCLUSION

        Having overruled each of Heredia’s issues on appeal, we affirm the trial court’s

judgment.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 5, 2015
Do not publish
[CRPM]




Heredia v. State                                                                 Page 14
