                                    NO. 07-12-0100-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL B

                                    FEBRUARY 27, 2013


                             TOMAS MENDOZA-TORRES,

                                                                  Appellant
                                            v.

                                THE STATE OF TEXAS,

                                                                  Appellee
                          _____________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

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


                                Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Appellant Tomas Mendoza-Torres was convicted of possession of a controlled

substance greater than four grams but less than 200 grams with intent to deliver. In

seeking to reverse that conviction, he contends the trial court erred in 1) overruling his

motion to suppress, and 2) admitting into evidence two photographs of a Scarface

poster. We affirm the conviction.

      On February 24, 2011, police executed an arrest warrant on appellant at a

residence in Lubbock. They knocked on the door, which was answered by appellant’s
common-law wife Amada Griselda Gonzalez, and entered the residence. Appellant was

located in a bedroom, allowed to finish dressing, and handcuffed and taken to the

Department of Public Safety (DPS). Police then obtained both oral and written consent

from Gonzales to search the residence.          While doing so, they located cocaine, a

handgun, and a large amount of cash. A ledger was also taken from a vehicle parked

outside.

      Issue 1 – Motion to Suppress

      In his first issue, appellant argues that Gonzalez did not voluntarily give consent

to search the residence because 1) she was under duress, and 2) law enforcement

officers intentionally removed appellant from the house so he could not refuse consent.

We overrule the issue.

       The trial court’s ruling on a motion to suppress is reviewed under the standard

discussed in St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007) and

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Next, when determining

whether consent to search was voluntary, we look to the totality of the circumstances

from the standpoint of an objectively reasonable person. Meekins v. State, 340 S.W.3d

454, 459 (Tex. Crim. App. 2011). Factors to be considered include 1) whether the

person was advised of his constitutional rights, 2) the length of the detention, 3) whether

questioning was repetitive or prolonged, 4) whether the person knew he could decline to

answer questions, and 5) what kind of psychological impact the questions had on the

person. Tucker v. State, 369 S.W.3d 179, 185 (Tex. Crim. App. 2012).           Finally, the

State is required to prove the voluntariness of the consent by clear and convincing

evidence. State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App. 2011).

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        Appearing of record is evidence that law enforcement officers entered the home

around 7:00 a.m. to 7:05 a.m. At 7:15 a.m., Gonzalez signed a written consent to

search in which she acknowledged that she understood she had the right to refuse to

consent and that no “promises, threats, force, or physical or mental coercion of any kind

whatsoever” had been used against her. Officers also testified that 1) prior to signing

the document, she also orally consented to the search, 2) an officer reviewed the written

form with her in both Spanish and English, 3) she was “very cooperative,” “calm,” and

“passive,” 4) her demeanor did not change throughout the time they were in her home,

5) they did not believe their guns were drawn when they entered the house, and 6) she

was not threatened in any manner, including with the removal of her children. 1

        Conversely, appellant testified that one of his children answered the door, and

the officers entered the house screaming with rifles in their hands. He also testified that

Gonzalez was “very nervous” and has a “sickness of nervousness” which causes her to

not be able to “speak well.” Appellant further stated that he was allowed to talk to

Gonzalez after he had been taken to the DPS building. At that time, she was nervous

and crying, according to appellant.

        On issues of witness credibility, we defer to the trial court’s determination. Wiede

v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). The trial court could have

believed the testimony of the officers over that of appellant and, given the written

consent form signed by Gonzalez in which she denied being threatened or coerced and


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

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acknowledged that she had a right to refuse to give consent, we cannot find an abuse of

discretion on the part of the trial court. See Kelly v. State, 331 S.W.3d 541, 547 (Tex.

App.–Houston [14th Dist.] 2011, pet. ref’d) (stating that an officer’s testimony that

consent was voluntarily given can be sufficient evidence to prove voluntariness).

      Appellant also testified that he would not have given oral consent to search the

house once he had been handcuffed. Yet, a co-tenant who lives at a residence may

give consent to search so long as that tenant has control over and authority to use the

premises. Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208

(2006). Nonetheless, when another co-tenant is present and expressly objects to the

search, the latter is not necessarily reasonable as to him. Id. at 120, 126 S.Ct. at 1527.

Given that, appellant asserts that he was expressly removed from the home so that he

could not object to the search. See id. at 121, 126 S.Ct. at 1527 (stating there must be

no evidence that the police removed the potentially objecting tenant from the residence

for the sake of avoiding a possible objection). Our review of the record uncovered no

evidence supporting the contention.

      Appellant had been arrested and handcuffed under a valid warrant. At that point,

there was no reason for him to remain at the residence, and it was logical that he would

be transported to law enforcement offices or to jail. Nor did he cite us to any evidence

of record suggesting that at the time of his arrest, he uttered words or engaged in

conduct evincing any objection to the officers searching his home.        Indeed, at the

suppression hearing he was asked whether or not he would have consented to such

had he been asked and his reply was that it depended upon when and how the request

was made. That hardly suggests that the officers knew he would not consent and,

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therefore, ushered him outside and away from any conversation between his wife and

the officers. In short, appellant’s complaint is founded upon mere speculation, and the

trial court was free to reject it. See Young v. State, No. 07-08-0309-CR, 2009 Tex. App.

LEXIS 7126, at *12 (Tex. App.–Amarillo September 4, 2009, pet. ref’d) (not designated

for publication) (holding that testimony that officers failed to ask the defendant for

consent to search after he had been removed from the house and placed in a patrol car

prior to seeking his mother’s consent is not evidence of an intent to avoid a possible

objection).

       Issue 2 – Admission of Poster

       In his second issue, appellant complains of the admission into evidence of two

photographs of a poster. The poster depicted “Scarface,” a movie starring Al Pacino,

and was found in the same closet where drugs were found. He contends the probative

value of the poster is outweighed by its prejudice under Rule 403 of the Rules of

Evidence. 2

       We review the trial court’s ruling for abuse of discretion. McCarty v. State, 257

S.W.3d 238, 239 (Tex. Crim. App. 2008). The following four factors are often reviewed

to determine if evidence should be excluded under that rule. They are 1) the probative

value of the evidence, 2) the potential for the evidence to impress the jury in some

irrational yet indelible way, 3) the time needed to develop the evidence, and 4) the

proponent’s need for the evidence. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim.

App. 2005).

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

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       Appellant relies upon Conerly v. State, No. 14-07-00542-CR, 2008 Tex. App.

LEXIS 5517 (Tex. App.–Houston [14th Dist.] July 24, 2008), pet. ref’d) (not designated for

publication) in which the court upheld the trial court’s exclusion of a photograph of a

similar poster even though the defendant sought to have it admitted to prove his

defensive theory. In that case, the trial court excluded the photographs found in the

victim’s home because they had little if any probative value as to whether the defendant

committed that particular offense, they would suggest that a person hanging a movie

poster in their house automatically identified with the lifestyle of the film, and there was

a substantial amount of other evidence showing that the victim and his brother identified

with a life of guns and violence. Id. at *1. The Court of Appeals found that the evidence

only “incrementally” furthered the defendant’s defense, could impress the jury in an

irrational way, and the need for the evidence was minimal. Id. at *14-16. Those are not

the circumstances here.

       According to the State, the poster served to illustrate appellant’s mens rea or the

element of intent to deliver. Indeed, one officer testified that the movie “Scarface” was

about drug trafficking and that drug dealers tended to identify with it and its subject

matter. Another testified that such posters were present at 99 percent of the locations

he investigated for drugs.        Should the trial court couple that information with the

discovery in appellant’s home of a large sum of money, a firearm, a quantum of drugs

suggesting more than mere personal use, and a ledger, it had basis to perceive the

posters as relevant to appellant’s intent, that is, his desire to also be a drug dealer like

“Scarface.”3   Additionally, the time spent on developing the evidence was minimal.

       3
       What tends to be ignored is that neither the movie nor its protagonist met with a happy end.
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Given this, trial court’s decision that the probative value of the posters was not

substantially outweighed by their potential prejudice fell within the zone of reasonable

disagreement and did not constitute an instance of abused discretion.

      Having overruled all issues, we affirm the judgment.



                                               Brian Quinn
                                               Chief Justice

Do not publish.




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