                                 NUMBER 13-12-00379-CR

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


JULIO NARANJO IGLESIAS A/K/A
JULIO LUIS NARANJO IGLESIAS,                                                            Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                      Appellee.


                      On appeal from the 430th District Court
                            of Hidalgo County, Texas.


                                 MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Rodriguez and Longoria
           Memorandum Opinion by Chief Justice Valdez1
        By eight issues, appellant, Julio Naranjo Iglesias a/k/a Julio Luis Naranjo

Iglesias, appeals from his conviction for possession of marijuana in an amount more




        1
         The Honorable Rose Vela, former Justice of this Court, did not participate in deciding the case
because her term of office expired on December 31, 2012. In accordance with the appellate rules, she
was replaced on panel by Justice Nora L. Longoria. See TEX. R. APP. P. 41.1(a).
than 2,000 pounds, a first-degree felony offense. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.121(a), (b)(6) (West 2010). We affirm.

                                            I. BACKGROUND2

       On August 18, 2009, troopers with the Texas Department of Public Safety

(“DPS”) were advised by dispatch to be on the lookout for an eighteen-wheel truck with

Florida license plates, which according to an anonymous tipster, had been loaded with

illegal drugs at a warehouse in Hidalgo County and was currently travelling on a

northbound route.         The troopers were patrolling on U.S. Highway 281 when they

encountered a tractor trailer matching the description given by the anonymous tipster.

They observed that one of the truck’s mud flaps was in violation of the Texas

Transportation Code and initiated a traffic stop. See TEX. TRANS. CODE ANN. § 547.606

(West Supp. 2011). Appellant was the driver of the truck, and co-defendant, Quirino

Sanchez, was his passenger.

       The vehicle was registered to appellant. The troopers received consent from

appellant to search the truck, which was hauling a refrigerated rig. Inside the pallets in

the trailer, the officers discovered 2,472 pounds of marijuana. An employee of the

company that loaded the trailer with the legitimate load of grapefruit cups, Loop Cold

Storage, testified that there was no marijuana mixed with the cargo when they loaded

the trailer on August 17, 2009. There was also testimony that the Loop Cold Storage

facility was not the same warehouse identified by the anonymous tipster as the location

where appellant’s trailer was loaded with illegal drugs.

       At the time the traffic stop was initiated, the doors to the trailer were still sealed to

maintain the integrity of the load. The words “Loop Cold Storage” and the number 7566
       2
           The following undisputed facts were established at trial.

                                                      2
were stamped into the metallic seal. This information matched the information in the bill

of lading appellant provided to the DPS troopers during the traffic stop. According to the

testimony of Steven W. Whitman, the general manager of a truck stop and freight line

with 35 years of experience driving trucks, there are a number of different ways to

bypass the type of seal used on the trailer appellant was hauling. In addition, Whitman

noted that the type of clamps found on the doors of the trailer were highly unusual and

not used in the industry.        Despite this, there was no evidence of exactly how the

marijuana was loaded into the trailer.

           At the conclusion of the jury trial, appellant was found guilty. Appellant elected to

have the court determine punishment. Thereafter, the court assessed a 15-year prison

sentence. This appeal ensued.

                                 II. SUFFICIENCY OF THE EVIDENCE

           In his first issue, appellant argues that the evidence is insufficient to support the

jury’s finding of guilt. According to appellant, the evidence was primarily that he was the

driver of his own tractor trailer and marijuana was found hidden in his produce in his

trailer.     Appellant contends that there was a complete lack of affirmative links to

establish his knowledge of the possession of the drugs.

A. Standard of Review

           Under the Jackson standard, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.

App. 2010) (plurality op.) (characterizing the Jackson standard as: “Considering all of



                                                 3
the evidence in the light most favorable to the verdict, was a jury rationally justified in

finding guilt beyond a reasonable doubt”). The fact-finder is the exclusive judge of the

credibility of witnesses and of the weight to be given to their testimony. Anderson v.

State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing

Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).                 Reconciliation of

conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v.

State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies

in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406

(Tex. Crim. App. 2000)).

       In reviewing the legal sufficiency of the evidence, we look at events occurring

before, during, and after the commission of the offense, and we may rely on actions of

the appellant that show an understanding and common design to do the prohibited act.

See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not

point directly and independently to the appellant’s guilt, so long as the cumulative effect

of all the incriminating facts is sufficient to support the conviction. Id.

       We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

307 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or unnecessarily restrict the State's theories of liability, and adequately describes

the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).



                                               4
B. Applicable Law

       Under a hypothetically correct jury charge, the State was required to prove that

appellant knowingly or intentionally possessed more than 2,000 pounds of marijuana

without legal authority to do so. See TEX. HEALTH & SAFETY CODE ANN. § 481.121. To

prove the element of unlawful possession, the State was required to prove appellant: (1)

exercised control, management, or care over the marijuana; and (2) knew the

substance possessed was contraband. See Blackman v. State, 350 S.W.3d 588, 594

(Tex. Crim. App. 2011). The State must establish, either by direct or circumstantial

evidence, that appellant’s connection with the contraband was more than merely

fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Evidence that

“affirmatively links” appellant to the contraband is sufficient to prove that he possessed it

knowingly. Id.

       The “affirmative links rule” is designed to protect the innocent bystander from

conviction based solely upon his fortuitous proximity to someone else’s drugs.

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). This rule simply

restates the common-sense notion that a person—such as a father, son, spouse,

roommate, or friend—may jointly possess property like a house but not necessarily

jointly possess the contraband found in that house. Id. Thus, the Court of Criminal

Appeals has formulated the rule that “when the accused is not in exclusive possession

of the place where the substance is found, it cannot be concluded that the accused had

knowledge of and control over the contraband unless there are additional independent

facts and circumstances which affirmatively link the accused to the contraband.” Id.




                                             5
      A nonexclusive list of factors that can be sufficient, either alone or in

combination, to establish someone’s possession of contraband include:            (1) the

defendant’s presence when a search is conducted; (2) whether the contraband was in

plain view; (3) the defendant’s proximity to and the accessibility of the contraband; (4)

whether he was under the influence of a controlled substance or narcotic when

arrested; (5) whether he possessed other contraband when arrested; (6) whether he

made incriminating statements when arrested; (7) whether he attempted to flee, (8)

whether he made furtive gestures; (9) whether there was an odor of contraband; (10)

whether other contraband or drug paraphernalia were present; (11) whether he owned

or had the right to possess the place where the contraband was found; (12) whether the

contraband was found in an enclosed place; (13) whether he was found with a large

amount of cash; (14) whether his conduct indicated a consciousness of guilt; (15)

whether he made incriminating statements connecting himself to the contraband; (16)

the quantity of the contraband; (17) whether he was observed in a suspicious area

under suspicious circumstances; and (18) whether the defendant possessed weapons.

See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Hargrove v.

State, 211 S.W.3d 379, 386 (Tex. App.—San Antonio 2006, pet. ref’d); Lassaint v.

State, 79 S.W.3d 736, 740-41 (Tex. App.—Corpus Christi 2002, no pet.). These are

simply some factors which may circumstantially establish the legal sufficiency of the

evidence to prove knowing possession. Evans, 202 S.W.3d at 162 n.12. They are not

a litmus test.   Id.   An appellate court should not focus on the absence of certain

affirmative links, but should consider the logical force of the links that are present.

Edwards v. State, 178 S.W.3d 139, 144 (Tex. App.—Houston [1st Dist.] 2005, no pet.).



                                           6
It is not the number of links that is dispositive, but rather the logical force of all of the

evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.

C. Discussion

       Appellant contends that the evidence is insufficient to prove that he actually knew

about the marijuana in his trailer. It is questionable whether the affirmative links rule

applies in this case because it is undisputed that appellant was the owner and operator

of the tractor-trailer in which the marijuana was discovered and arguably in exclusive

possession of the vehicle and its contents at the time of his arrest. See Poindexter, 153

S.W.3d at 406 (holding that the affirmative links rule applies only “when the accused is

not in exclusive possession of the place where the substance is found”). However,

given the presence of a passenger in the vehicle, the involvement of unidentified and

unnamed third parties in loading the marijuana into the trailer at a remote location, and

the absence of any objection by the State, we will assume without deciding that the

affirmative links rule applies in this case. Accordingly, we will consider the factors in this

case which serve as affirmative links.

       First, appellant was present at the time of the search.           Second, while the

marijuana was not in plain sight, it was quickly discovered by law enforcement during a

cursory search of the trailer. Third, appellant was in relatively close proximity to the

marijuana. Although its accessibility was limited due to the metallic seal placed on the

doors of the trailer, there was testimony that such seals can be bypassed in a number of

different ways, which would have given appellant access to the marijuana despite the

seal and without breaking it. Fourth, appellant made incriminating statements that were

false about his relationship with his passenger, telling the DPS troopers this was his first



                                              7
trip with Sanchez, when, in truth, they had been working together for approximately one

and a half months. In addition, appellant’s logbook contained a number of inconsistent,

if not incorrect, statements. For instance, there was testimony that appellant picked up

his load from Loop Cold Storage on August 17, 2009; however, appellant’s logbook

stated that appellant had been in the sleeper berth all day (off duty). Fifth, appellant

was the owner and operator of the tractor-trailer and had the right to control it. Sixth,

the marijuana was found in an enclosed place. Seventh, the quantity of marijuana was

substantial. Eighth, appellant’s tractor-trailer was observed in a suspicious area and

under suspicious circumstances insofar as it was seen being loaded at two different

warehouses, one being the Loop Cold Storage facility where grapefruit cups were

loaded and the second being an unidentified second warehouse in Hidalgo County

where the marijuana was loaded. In sum, the logical force of the links, alone and in

combination, demonstrates that appellant’s connection to the marijuana was more than

merely fortuitous—that appellant was not simply an innocent bystander. See id.

      Appellant argues that the outcome of this case should be controlled by the

decision of the Amarillo Court of Appeals in Valle v. State, 223 S.W.3d 538 (Tex. App.—

Amarillo 2006, pet. dism’d). In that case, the contraband was found within a pallet of

corn flour. Id. at 539. The corn flour was being hauled in a trailer of an eighteen

wheeler along with other cargo. Id. The defendant was the driver of the eighteen

wheeler.   Id.   On appeal, he argued that the evidence was legally and factually

insufficient to support his conviction for possession of the contraband. Id. at 540. The

Court of Appeals held that the evidence was legally sufficient, but reversed and




                                           8
remanded the case based on factual insufficiency. Id. In short, the holding of the Court

of Appeals in Valle is consistent with the conclusion reached in the case at bar.

      Appellant’s first issue is overruled.

                              III. ADMISSIBILITY OF EVIDENCE

      In his second issue, appellant argues that the trial court committed reversible

error in allowing a law enforcement officer to testify regarding information provided by

an anonymous tipster. The officer testified, over appellant’s hearsay objection, that the

anonymous tipster informed law enforcement that a tractor trailer with Florida license

plates was traveling with a load of marijuana.

A. Standard of Review

      An appellate court reviewing a trial court’s ruling on the admissibility of evidence

must utilize an abuse-of-discretion standard of review. Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000); Prystash v. State, 3 S.W.3d 522, 527 (Tex. Crim. App.

1999). In other words, the appellate court must uphold the trial court’s ruling if it was

within the zone of reasonable disagreement.           Weatherred, 15 S.W.3d at 542;

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In addition, the

appellate court must review the trial court’s ruling in light of what was before the trial

court at the time the ruling was made. Hoyos v. State, 982 S.W.2d 419, 422 (Tex. Crim.

App. 1998); Hardesty v. State, 667 S.W.2d 130, 133 n. 6 (Tex. Crim. App. 1984).

B. Applicable Law

      “Hearsay is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” TEX.

R. EVID. 801(d) (internal quotations omitted).    “Hearsay is not admissible except as



                                              9
provided by statute or these rules or by other rules prescribed pursuant to statutory

authority.” TEX. R. EVID. 802.

       Testimony by an officer to the effect that he went to a certain place or performed

a certain act in response to generalized “information received” is normally not

considered hearsay because the witness should be allowed to give some explanation of

his behavior.   Poindexter, 153 S.W.3d at 408 n.21.        But details of the information

received are considered hearsay and are inadmissible—unless the officer’s conduct has

been challenged, for instance, as lacking probable cause. Id. As the Court of Criminal

Appeals stated in Schaffer v. State:

       Frequently, testimony will have an impermissible hearsay aspect along
       with a permissible nonhearsay aspect. Almost always it will be relevant
       for a testifying officer to relate how she happened upon the scene of a
       crime or accident; thus, it is permissible for her to testify that she was
       acting in response to “information received.” “An arresting officer should
       not be put in the false position of seeming just to have happened upon the
       scene, he should be allowed some explanation of his presence and
       conduct.” McCormick [on Evidence (Cleary rev. ed. 1984)] Section 249, p.
       734. n.3. The police officer, however, should not be permitted to relate
       historical aspects of the case, replete with hearsay statements in the form
       of complaints and reports on grounds that she was entitled to tell the jury
       the information upon which she acted.

Schaffer v. State, 777 S.W.2d 111, 114–15 (Tex. Crim. App. 1989).

       In Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999), the Court of

Criminal Appeals explained that whether testimony constitutes impermissible hearsay

“turns on how strongly the content of the out-of-court statement can be inferred from the

context.”   The appropriate inquiry focuses on whether the “information received”

testimony is a general description of possible criminality or a specific description of the

defendant’s purported involvement or link to that activity. Poindexter, 153 S.W.3d at

408 n.21. For example, “I received information of possible drugs being sold at 5th and

                                            10
Main” is, under Head, an admissible general description of why an officer investigated

the situation.   Id.   More specific statements, pointing to the defendant, such as “I

received information that drugs were being sold from the defendant’s house,” clearly

convey the content of the out-of-court statement and are inadmissible indirect hearsay

under Head. Id. Of course, if the material issue is whether an officer had probable

cause to arrest or search a person, the reasonableness of the officer’s conduct is called

into question, and the hearsay details of information that he received are admissible.

This was acknowledged in Schaffer, where the Court of Criminal Appeals stated in a

footnote that “an officer’s actions may be made an issue before the jury . . . and thus it

may be necessary for the officer to testify not only how he happened upon the scene,

but also the specific information received so that the jury may resolve any issues

regarding an officer’s actions.” Schaffer, 777 S.W.2d at 115 n.4; see also Benford v.

State, 895 S.W.2d 716, 718 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (holding

that officer could testify that third party told him defendant “was the guy with the rocks”

because statement was necessary to determine whether probable cause existed to

detain and search defendant).

C. Discussion

       In this case, appellant challenged the conduct of the DPS troopers on the

grounds that they lacked reasonable suspicion for the traffic stop and probable cause

for his arrest. Accordingly, the details of the out-of-court statements by the anonymous

tipster were admissible to show the reasonableness of the officer’s conduct.          See

Poindexter, 153 S.W.3d at 408 n.21 (holding that details of out-of-court statements may




                                            11
be admissible if “the officer’s conduct has been challenged, for instance, as lacking

probable cause”).

       At trial, the information provided by the anonymous tipster was used to show how

and why appellant came to the attention of the DPS troopers. In this sense, it was

admissible to prove that the troopers detained appellant after they acquired specific

information concerning a drug-smuggling operation involving a tractor-trailer whose

description matched the appearance of appellant’s tractor-trailer. See id. The specific

information provided to the troopers by the anonymous tipster was admissible to prove

that the troopers had a reasonable basis to conclude that the particular person driving

the tractor-trailer actually was, had been, or soon would be engaged in criminal activity

involving the smuggling of illegal drugs. See id. Accordingly, the trial court did not

abuse its discretion in allowing the troopers to testify regarding the information received

from the anonymous tipster.

       Appellant’s second issue is overruled.

                           IV. DENIAL OF LIMITING INSTRUCTION

       In his third issue, appellant argues that the trial court erred in denying his request

for a limiting instruction regarding the anonymous tip.

A. Standard of Review

       We review a trial court’s refusal to give a limiting instruction under an abuse of

discretion standard. See Shea v. State, 167 S.W.3d 98, 103–04 (Tex. App.—Waco

2005, pet. ref’d).

B. Applicable Law




                                             12
       Under Rule 105(a) of the Texas Rules of Evidence, if the opposing party

requests a limiting instruction for evidence which is admissible for one purpose, such as

to prove probable cause, but not for another, such as guilt, the court must restrict the

evidence to its proper scope. See TEX. R. EVID. 105(a). Limiting instructions of this kind

are usually not necessary when evidence is relevant only to the issue for which it was

admitted or when the evidence may properly be considered on any issue in the case to

which it is relevant. Lewis v. State, 815 S.W.2d 560, 566 (Tex. Crim. App. 1991) (citing

Richardson v. State, 786 S.W.2d 335, 337 (Tex. Crim. App. 1990); Cantrell v. State, 731

S.W.2d 84, 95 (Tex. Crim. App. 1987)). In such event, there is typically no danger that

rational jurors will make use of the evidence for an impermissible purpose. Id.

C. Discussion

       Appellant made his request for a limiting instruction during a pre-trial hearing,

after his motion to suppress had been overruled. After appellant requested the limiting

instruction, the trial court responded, “Those objections are overruled.” The trial court

did not specifically rule on appellant’s request for a limiting instruction. See TEX. R. APP.

P. 33.1(a).

       Later, during trial, when the first witness testified about the information received

from the anonymous informant, appellant made a hearsay objection to the testimony,

which was overruled, but he did not renew his request for a limiting instruction.

Thereafter, three additional witnesses testified, without objection, to the same

information, and again, appellant failed to renew his request for a limiting instruction.

       “[A] trial court does not have discretion to postpone giving a properly requested

limiting instruction when that request is made at admission of the evidence.” Hammock



                                             13
v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). However, “[a] failure to request a

limiting instruction at the time evidence is presented renders the evidence admissible for

all purposes and relieves the trial judge of any obligation to include a limiting instruction

in the jury charge.” Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim. App. 2008);

Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007).

       It is unclear whether appellant’s pre-trial request for a limiting instruction would

have been sufficient to preserve this issue for appeal.          See TEX. R. APP. P. 33.1.

However, we do not need to reach that issue because the trial court did not rule on

appellant’s pre-trial request. See id. Thus, it is clear that appellant was required to

request a limiting instruction at the time the evidence was admitted at trial.             See

Hammock, 46 S.W.3d at 894. Appellant’s failure to do so relieved the trial court of any

obligation to give the jury a limiting instruction. See Williams, 273 S.W.3d at 230.

Accordingly, the trial court did not abuse its discretion in failing to give the jury a limiting

instruction.

       Appellant’s third issue is overruled.

               V. INVOCATION OF FIFTH AMENDMENT RIGHT BY CO-DEFENDANT

       In his fourth issue, appellant argues that the trial court erred in allowing the State

to call his co-defendant as a witness because the witness then proceeded to invoke his

right against self-incrimination multiple times in front of the jury.       Appellant did not

preserve the trial court’s error, if any, by making a timely and specific request, objection,

or motion to the trial court and obtaining a ruling.          See TEX. R. APP. P. 33.1(a).

Accordingly, appellant’s fourth issue is overruled.

                             VI. IMPROPER CLOSING ARGUMENT



                                               14
       In his fifth issue, appellant argues that the trial court erred by allowing the

prosecution to argue to the jury that appellant was transporting drugs for a cartel. The

prosecutor referred to the testimony of Steven Whitman, concerning a different case in

which a man had unknowingly delivered “about 10,000 pounds” of marijuana to a Wal-

Mart Distribution Center. The prosecutor argued to the jury that the cartels would not

make the same mistake again.         Appellant objected that the prosecutor’s remarks

assumed facts not in evidence. The objection was overruled.

       Later in the closing, the prosecutor again mentioned that “somebody from the

cartels has to follow him up all the way to his destination, to then retrieve it . . . The

cartel is not in the business of sticking dope with unsuspecting drivers and then losing a

million dollars worth of profit. That’s not good business. Ladies and gentlemen of the

jury, that’s not reasonable.”

       The prosecutor continued, “So let’s think about this, again. If [appellant] didn’t

know this marijuana was here, how is the cartel going to get their pot back? How are

they going to get their 1.4 million dollars worth of product? . . . . This is a business.

And the cartel is not in the business of losing business.”

       At the conclusion of the State’s closing argument, the prosecutor again

emphasized a connection between appellant and the cartels:

       The question is: Did he know it, or not? I want you to ask yourselves.
       Okay. If he didn’t know, then what? And if he did know, then what? Does
       it make more sense that he knew when he was taking this somewhere to
       be unloaded so the cartels could make their money? Or does it make
       more sense that the cartels trusted 1.4 million dollars worth of marijuana
       of something that he didn’t know was there? Ladies and gentleman of the
       jury, if he didn’t know, how were the cartels going to make their money?




                                            15
Appellant objected that there was no evidence of cartels, and the court sustained the

objection. Appellant did not seek further relief.

A. Applicable Law

       Jury argument is permissible if it constitutes a summation of the evidence, a

reasonable deduction from the evidence, an answer to argument of opposing counsel,

or a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App.

2008). To complain of improper jury argument, a defendant must generally object to the

argument and pursue his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d

73, 89 (Tex. Crim. App. 1996); Nadal v. State, 348 S.W.3d 304, 319 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref'd).     If the trial court sustains the objection, the

defendant must also request an instruction to disregard and move for a mistrial. Cook

v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); Campos v. State, 946 S.W.2d

414, 417 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

B. Discussion

       The general rule is that a party must request the desired relief to preserve a

complaint on appeal. McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). If

a trial court sustains an objection to improper jury argument, as it did in this case, the

complaining party must request an instruction to disregard to preserve error on appeal if

an instruction to disregard could have cured the prejudice resulting from the argument.

See id. If the prejudice arising from an erroneous jury argument were incurable, a

defendant would be required to request a mistrial to preserve error on appeal because a

mistrial would be the appropriate remedy. Id.




                                             16
       In this case, appellant requested neither an instruction to disregard nor a mistrial.

Accordingly, appellant may not complain about the improper jury argument on appeal.

See id.

       Appellant’s fifth issue is overruled.

                                  VII. PUNISHMENT RANGE

       In his sixth issue, appellant argues that the trial court erred in refusing to consider

the full range of punishment.       During the sentencing hearing, appellant requested

community supervision; however, the trial court stated that he would not give community

supervision due to the amount of drugs involved in this case:

       Well, first of all, the probation is going to be denied, I just don’t feel it’s
       appropriate, for this amount of drugs, to have a suspended sentence [in a
       case involving] . . . 2,472 pounds. I mean, it’s not only me but all of the
       other judges in this area who send people up to the penitentiary for a lot
       less drugs that this. And this is more than a ton of drugs in a vehicle that,
       apparently, [appellant] owned.

A. Applicable Law

       The Fourteenth Amendment provides that the state may not “deprive any person

of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV; see

also TEX. CONST. art. I, § 19. Due process requires that the trial court conduct itself in a

neutral and detached manner. Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973); Brumit v.

State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006); Jaenicke v. State, 109 S.W.3d 793,

796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). “[A] trial court’s arbitrary refusal to

consider the entire range of punishment in a particular case violates due process.” Ex

parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005); see also Brumit, 206 S.W.3d

at 645. However, absent a clear showing of bias, we presume the trial court’s actions

were correct. Brumit, 206 S.W.3d at 645. Bias is not shown when (1) the trial court

                                               17
hears extensive evidence before assessing punishment, (2) the record contains explicit

evidence that the trial court considered the full range of punishment, and (3) the trial

court made no comments indicating consideration of less than the full range of

punishment. See id.

B. Discussion

      Rule 33.1 of the Texas Rules of Appellate Procedure provides that a timely

objection is required to preserve error for appeal. See TEX. R. APP. P. 33.1(a). In this

case, appellant made no objection when the trial court announced that his probation

would be denied.      Under current precedent, it is unclear whether appellant has

preserved this issue for review. See Brumit, 206 S.W.3d at 644–45 (“We need not

decide today whether an objection below is required to preserve an error of this nature

on appeal because the record here does not reflect partiality of the trial court or that a

predetermined sentence was imposed.”).

      Assuming without deciding that the issue has been preserved for our review, we

conclude that appellant has failed to demonstrate bias or partiality of the trial court or

that a predetermined sentence was imposed. See id. On the contrary, the record

shows that the trial court considered appellant’s request for community supervision and

based his decision to deny the request on the evidence he heard regarding the offense

for which appellant had been found guilty, specifically, the substantial quantity of drugs

involved in the offense.   Furthermore, there is explicit evidence that the trial court

considered the full range of punishment, noting on the record that he could sentence

appellant from anywhere from 5 to 99 years to life imprisonment.

      Accordingly, appellant’s sixth issue is overruled.



                                           18
                       VIII. VIOLATION OF FIFTH AMENDMENT RIGHTS

       In his seventh issue, appellant argues that the trial court violated his Fifth

Amendment rights by telling appellant that he would sentence him to less prison time if

he would admit that he was guilty. During the punishment phase of trial, the judge

asked appellant he had anything to say. Appellant answered, “No, sir. I don’t have

anything to say.” Then, the judge stated, “[I]t would be better for you . . . [if] you

acknowledged your responsibility and admitted fault, and [said] you were sorry for what

you did . . . I will give you credit. But y’all are pretending like you have no knowledge of

2,472 pounds of drugs in your trailer.”

       The judge continued in relevant part:

       I know that you exercised your right to remain silent, not to say anything at
       your trial . . . . But now you’re at the sentencing phase, and you need to
       convince me . . . I got the broadest range of punishment allowed by law . .
       . but they look at whether you show some remorse, and whether you
       admit your guilt. And—you know, I give your credit for that, if you do. I’ll
       sentence you to a lesser amount—you know—I just feel you’re insulting
       my intelligence if you have the 2,472 pounds of drugs in your tractor-
       trailer, and you have no idea how it got there . . . the jury disbelieved
       that—and I am having a very hard time believing that you didn’t know
       anything about it.

       Now if you were to admit to me, and apologize to me, and just say,
       “Judge? I made a mistake . . . . Please don’t sentence me to a long
       period of time . . . . . I made a mistake[] . . . .

       But if you need me to consider the low sentence you need to tell me
       something. I mean—either don’t say anything if you’re just going to tell
       me you had no idea that it was there . . . . All right. Well, do you want to
       say anything to me, [appellant], before I make a decision?

Appellant answered in the negative and did not make a further statement to the court.

A. Applicable Law




                                            19
      It is a fundamental tenet of Texas and federal constitutional jurisprudence that

every person has the right to avoid self-incrimination by exercising the privilege

provided him by the Fifth Amendment and the Texas Constitution.             U.S. CONST.

amend. V; TEX. CONST. art. I, § 10.          A criminal defendant does not lose this

constitutional protection merely because he has been convicted of a crime. Chapman

v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003). A criminal defendant retains the Fifth

Amendment right to remain silent at a sentencing proceeding, and a trial court may not

draw an adverse inference from such silence. Carroll v. State, 42 S.W.3d 129, 130

(Tex. Crim. App. 2001).

B. Discussion

      Failure to make a timely objection at trial waives any appellate complaint

regarding error. See Collins v. State, 378 S.W.3d 629, 631 (Tex. App.—Houston [14th

Dist.] 2012, no pet.) (citing TEX. R. APP. P. 33.1(a)). However, an exception exists in the

classic penalty situation, where a person is threatened with punishment for relying upon

his Fifth Amendment privilege. Chapman, 115 S.W.3d at 6. The key inquiry is “whether

the accused was deprived of his free choice to admit, to deny, or to refuse to answer.”

Id. The leading “penalty” case on the use of self-incriminating statements is Minnesota

v. Murphy, 465 U.S. 420 (1984), in which the Supreme Court held that the defendant’s

failure to invoke his Fifth Amendment privilege was not excused.          Id. at 440.   As

explained in Murphy:

      If the State, either expressly or by implication, asserts that invocation of
      the privilege would lead to revocation of probation, it would have created
      the classic penalty situation, the failure to assert the privilege would be
      excused, and the probationer’s answers would be deemed compelled and
      inadmissible in a criminal prosecution.



                                            20
Id. at 435.

       In the context of a sentencing hearing, the Court of Criminal Appeals has focused

on whether the trial court stated that the defendant would receive a greater sentence if

he chose not to testify. See Johnson v. State, 357 S.W.3d 653, 659 (Tex. Crim. App.

2012) (“The trial court never told Appellant he would receive a greater sentence if he

chose not to testify.”). In this case, the trial court told appellant, “[I]f you need me to

consider the low sentence you need to tell me something.” The clear implication is that

appellant would receive a greater sentence if he did not testify.          Thus, this case

presents the classic penalty situation, where appellant’s failure to object is excused.

See Chapman, 115 S.W.3d at 6.

       Although the issue is preserved for review, it is ultimately without merit because

appellant was not compelled to testify in violation of the Fifth Amendment. On the

contrary, appellant did not testify during the punishment phase of trial. Moreover, to the

extent appellant argues that the trial court did not consider the “low sentence” as a

result of his refusal to testify, the record is to the contrary. The trial court specifically

stated that the punishment range was anywhere from 5 to 99 years to life imprisonment,

and the court also stated that it was considering a 50-year sentence. Ultimately, the

court gave appellant a 15-year sentence, which is clearly a “low sentence” in light of the

foregoing. Thus, appellant’s contention is without merit.

       Appellant’s seventh issue is overruled.

                                 IX. MOTION TO SUPPRESS

       In his eighth issue, appellant argues that the trial court erred in denying his

motion to suppress. According to appellant, the traffic stop leading to his arrest was



                                             21
conducted in violation of the Fourth Amendment. During the evidentiary hearing on

appellant’s motion to suppress, the trial court heard testimony from the officer that

appellant was stopped due to a traffic violation (high mud flaps). According to appellant,

the officer had no reasonable suspicion to conduct a traffic stop. The trial court denied

the motion to suppress and subsequently entered a written order with findings of fact

and conclusions of law.

A. Standard of Review

       We review a trial court’s ruling on a motion to suppress for abuse of discretion,

using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim.

App. 1997); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Generally,

with respect to a suppression ruling, the trial court’s findings of historical fact supported

by the record, as well as mixed questions of law and fact that turn on an evaluation of

credibility and demeanor, are given “almost total deference.” Guzman, 955 S.W.2d at

89. A de novo standard is applied to a trial court’s determination of the law and its

application of law to the facts that do not turn upon an evaluation of credibility and

demeanor. Id. We will uphold a trial court’s ruling on a motion to suppress if the ruling

is reasonably supported by the record, and the ruling is correct under any theory of law

applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

B. Applicable Law

       To suppress evidence on an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper

police conduct.    Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).              A

defendant satisfies this burden by establishing that a search or seizure occurred without



                                             22
a warrant. Id. Once the defendant has made this showing, the burden of proof shifts to

the State where it is required to establish that the search or seizure was conducted

pursuant to a warrant or was reasonable. Id.

       An officer conducts a lawful temporary detention when he has reasonable

suspicion to believe that an individual is violating the law. Id. Reasonable suspicion

exists if the officer has specific, articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably conclude that a particular

person actually is, has been, or soon will be engaged in criminal activity. Id. This is an

objective standard that disregards any subjective intent of the officer making the stop

and looks solely to whether an objective basis for the stop exists. Id. A reasonable-

suspicion determination is made by considering the totality of the circumstances. Id. at

492–93.

C. Discussion

       In this case, the trial court found that the DPS troopers received information

identifying appellant’s vehicle as being used in criminal activity involving the smuggling

of illegal drugs.   The trial court found that based on this specific information, the

troopers believed that appellant, as the driver of the vehicle, was violating the law. In

addition, the trial court found that the troopers had observed that appellant’s vehicle was

in violation of a provision of the transportation code regulating mud flaps. See TEX.

TRANS. CODE ANN. § 547.606. Based on the foregoing findings, which are supported by

the record, the troopers had two independent grounds for initiating a traffic stop, both of

which pass muster under the Fourth Amendment. See Ford, 158 S.W.3d at 492.




                                            23
      Moreover, the trial court found that, after the traffic stop was initiated, the

troopers requested and obtained appellant’s voluntary consent to search the trailer.

Thus, it was not necessary for the State to establish probable cause for the warrantless

search. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (“Consent to

search is one of the well-established exceptions to the constitutional requirements of

both probable cause and a warrant.”). The trial court did not err in denying appellant’s

motion to suppress.

      Appellant’s eighth issue is overruled.

                                     X. CONCLUSION

      The judgment of the trial court is affirmed.

                                                      ___________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
17th day January, 2013.




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