Opinion issued February 26, 2015




                                     In The

                              Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                              NO. 01-13-00295-CR
                           ———————————
                        EDWARD FLORES, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 9th District Court
                        Montgomery County, Texas 1
                    Trial Court Case No. 12-08-08659-CR




1
     The Supreme Court of Texas transferred this appeal from the Court of Appeals for
     the Ninth District of Texas. Misc. Docket No. 13-9042 (Mar. 26, 2013); see TEX.
     GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any
     conflict between our court’s precedents and those of the Ninth Court on any
     relevant issue. See TEX. R. APP. P. 41.3.
                          MEMORANDUM OPINION

      Appellant Edward Flores was charged with possession of a controlled

substance with intent to deliver, to which he pleaded not guilty. See TEX. HEALTH

& SAFETY CODE § 481.112(a). Flores pleaded true to an enhancement paragraph

reflecting a prior conviction for felony burglary of a habitation. A jury found him

guilty, and the trial court assessed punishment at life in prison. In this appeal,

Flores brings six issues challenging his conviction. We affirm.

                                   Background

      While law-enforcement officers were executing a search warrant on the

residence of Sammy Carollo, Deputy T. Knox and Constable K. Hayden were

serving as security on the outside of the property when they observed appellant

Edward Flores driving up the driveway. Upon seeing the two law-enforcement

officers, Flores stopped and got out of his truck. Hayden signaled for Flores to

continue driving up the driveway to where the officers were located.

      As Flores got back in the truck to comply, he reached inside, grabbed a

brown bag, and threw it over the truck into some bushes. As Knox searched for the

thrown item, Hayden approached Flores and asked what he was doing at the

property. Flores responded that he was there “to see Sammy.” By this time, Knox

had recovered the brown bag, observed that it contained a clear bag of what he




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thought was methamphetamine, and signaled for Hayden to make an arrest. Lab

tests later confirmed that the bag contained 137.49 grams of methamphetamine.

      Flores was charged with possession of a controlled substance with intent to

deliver. A jury found him guilty, and the trial court sentenced him to life in prison.

This appeal followed.

                                      Analysis

      In six issues, Flores contends that (1) the evidence was legally insufficient to

support his conviction; (2) the trial court erred in making prejudicial statements to

the jury; (3) the trial court erred when it denied his motion to suppress physical

evidence gained as the result of an illegal search and seizure; (4) the trial court

erred when it denied his motion to suppress oral statements made in custody;

(5) the trial court erred in allowing testimony regarding the dangers and social

costs of methamphetamine; and (6) the trial court abused its discretion when it

permitted improper jury argument.

I.    Legal sufficiency of the evidence

      In his first issue, Flores argues that the evidence is legally insufficient to

support his conviction because no evidence establishes that he intended to deliver

the methamphetamine.

      When reviewing the legal sufficiency of the evidence, we review all the

evidence in the light most favorable to the verdict to determine whether any



                                          3
rational factfinder could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). We must

give deference to the factfinder to resolve conflicts in testimony, weigh the

evidence, and draw reasonable inferences. Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007).

      To prove possession with intent to deliver a controlled substance, the State

must show that a defendant (1) exercised care, custody, control, or management

over the controlled substance, (2) intended to deliver the controlled substance, and

(3) knew that the substance in his possession was a controlled substance. TEX.

HEALTH & SAFETY CODE § 481.112(a); Parker v. State, 192 S.W.3d 801, 805 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d). Intent can be inferred from

circumstantial evidence, including the acts, words, and conduct of the defendant, as

well as evidence that the defendant possessed the contraband; an oral expression of

intent is not required. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.

1995); Utomi v. State, 243 S.W.3d 75, 82 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d). Courts have considered several factors in determining whether such

intent is supported by the evidence, including: (1) the nature of the location where

the defendant was arrested; (2) the quantity of the drugs the defendant possessed;

(3) the manner of packaging; (4) the presence, or lack thereof, of drug



                                         4
paraphernalia (for use or sale); (5) the defendant’s possession of a large amount of

cash; and (6) the defendant’s status as a narcotics user. Utomi, 243 S.W.3d at 82.

The expert testimony of law enforcement officers, experienced with illicit drug

trafficking, also may be used to establish a defendant’s intent to deliver a

controlled substance. Id.

      Flores argues that, considering the above factors, the evidence fails to

establish his intent to deliver because only trace amounts of drugs were found at

the location where he was arrested, the drugs were not packed in a way that

indicated future sales, no paraphernalia was present and no cash was recovered

during the arrest, and there was no evidence that he was a drug user.

      The State, however, points to numerous factors that support the inference of

intent. First, Flores was arrested at the end of a lengthy rural driveway leading to a

residence that officers were concurrently searching for methamphetamine. That

only trace amounts of methamphetamine were discovered inside the searched

house does not refute the permissible inference that Flores intended to deliver the

drugs there, possibly to resupply the house.

      Second, Flores possessed 137.49 grams of methamphetamine, a large

quantity that indicated an intent to deliver. One of the State’s witnesses, Lieutenant

Philip Cash, testified that the quantity was the equivalent of 670 doses of

methamphetamine, which indicated that it was “not for personal use.”



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      Third, the methamphetamine was packaged in one large bag, in a quantity

that Cash testified would typically be moved from one drug trafficker to another.

Although Flores suggests that the lack of separate packing for small amounts of

methamphetamine indicates that the methamphetamine was not for distribution,

Cash testified that the packaging in this case merely indicated that had not been

prepared for direct sale to a consumer on the street. We previously have held that

bulk packaging may indicate intent to deliver when the quantity possessed is

greater than typical for personal use. See Reed v. State, 158 S.W.3d 44, 49 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d) (large amount of liquid codeine

packaged in large pint-sized bottle indicated intent to deliver when officer testified

that drug was typically diluted in that manner before distribution).

      Fourth, while the officers found no drug-sale paraphernalia on Flores or

inside his vehicle, there is also no evidence that they found drug-use paraphernalia.

We view the evidence in the light most favorable to the jury’s finding, and the lack

of drug-use paraphernalia allows an inference that Flores did not intend to use the

methamphetamine himself. Accordingly, the absence of drug-use paraphernalia

permits an inference of an intent to deliver. See Reed, 158 S.W.3d at 48 (stating

that the absence of either drug use paraphernalia or drug sale paraphernalia can be

considered in determining intent); Mack v. State, 859 S.W.2d 526, 529 (Tex.




                                          6
App.—Houston [1st Dist.] 1993, no pet.) (determining that absence of drug-use

paraphernalia is circumstantial evidence suggesting intent to deliver).

      Finally, Flores did not have any cash in his possession at the time of his

arrest. He suggests that this weighs against a finding of intent to deliver. Cash

explained at trial, however, that large narcotics traffickers frequently keep money

and drugs separated to prevent “rip offs” during the transactions. Consequently, he

explained that it is not uncommon for no money to be recovered along with a large

amount of drugs

      Thus, viewing the evidence in the light most favorable to the jury’s finding,

we conclude that a rational factfinder could have reasonably inferred that Flores

possessed the 137.49 grams of methamphetamine with an intent to deliver it to

another. Accordingly, we hold that the evidence is legally sufficient to support his

conviction for the offense of possession with intent to deliver a controlled

substance. See Brooks, 323 S.W.3d at 902.

      We overrule Flores’s first issue.

II.   Trial court’s commentary on methamphetamine

      In his second issue, Flores contends that the trial court improperly

commented on the weight of the evidence. Before the jury retired for deliberations,

the court informed them that they would have access to all of the evidence at trial,

except for the clear bag of methamphetamine recovered from the bushes. The court



                                          7
explained: “I don’t feel comfortable sending that back. If you want it sent back, I

will make it available. It’s just—it’s just a dangerous substance. I don’t want

anybody getting hurt.” 2

      Judges are prohibited from making “any remark calculated to convey to the

jury his opinion of the case.” TEX. CODE CRIM. PROC. art. 38.05. To constitute

reversible error, the court’s comment must be reasonably calculated to benefit the

State or to prejudice the defendant’s right to a fair and impartial trial. Clark v.

State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.). In determining

whether the comment was either reasonably calculated to benefit the State or to

prejudice the defendant, we must examine whether the trial court’s statement was

material to the case. Id. A statement is material if the jury had the same issue

before it. Id. Furthermore, if we determine beyond a reasonable doubt that the

court’s error did not contribute to the conviction, we must hold that the error was

harmless. Id.




2
      The State argues that Flores failed to preserve this issue for appellate review.
      Immediately after the jury retired for deliberations, defense counsel objected
      “to the court telling the jury that it’s a dangerous substance. [The] objection
      is that it’s a comment on the weight of the evidence.” The State contends
      this is different than Flores’s argument on appeal, that the court’s remarks
      were improper because they conveyed its opinion of the case. We conclude
      the objection was sufficient to alert the trial court to the concern raised on
      appeal.


                                          8
       Here, the court’s statement explained why the jury would not be permitted to

take the methamphetamine into the jury room. This remark reflects an

acknowledgement that the substance was, in fact, methamphetamine. But the

disputed issue at trial was whether Flores intended to deliver the substance, not

whether the substance actually was methamphetamine. Consequently, even if the

court’s statement regarding the dangers of methamphetamine constituted error, we

conclude, beyond any reasonable doubt, that it did not contribute to Flores’s

conviction. See id.

       We overrule Flores’s second issue.

III.   Motion to suppress physical evidence and oral statements

       In his third and sixth issues Flores argues that the trial court erred in denying

his motions to suppress physical evidence and oral statements.

       When reviewing a trial court’s ruling on a motion to suppress, we must view

all of the evidence in the light most favorable to the trial court’s ruling. State v.

Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We afford almost

total deference to a trial judge’s determination of historical facts, especially when

the facts are based on an evaluation of credibility and demeanor. Id. But we review

de novo legal conclusions based on those facts. Id.




                                           9
      A.    Physical evidence

      Flores contends in his third issue that the trial court erred when it denied his

motion to suppress the bag of methamphetamine because it was obtained as a result

of an illegal search and seizure. He contends that the law-enforcement officers did

not have reasonable suspicion to detain him when he drove up the driveway of the

property where the officers were executing a search warrant.

      There are three types of interactions between citizens and law-enforcement

officers: (1) consensual encounters; (2) investigatory detentions; and (3) arrests.

State v. Woodard, 341 S.W.3d 404, 410–11 (Tex. Crim. App. 2011). Consensual

encounters do not implicate Fourth Amendment protections. Id. at 411; Florida v.

Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991). Thus, officers are free to

stop and request information from a citizen without justification. Woodard, 341

S.W.3d at 411. A citizen may terminate such a consensual encounter at will. Id. An

encounter is consensual as long as a reasonable person would “feel free to

disregard the police and go about his business.” Bostick, 501 U.S. at 434. A

citizen’s acquiescence to an officer’s request for information does not elevate a

consensual encounter to a detention or seizure, even if the officer does not

communicate to the citizen that the request may be ignored. Woodard, 341 S.W.3d

at 411.




                                         10
      No bright-line rule governs when a consensual encounter becomes a seizure,

but the encounter generally is no longer consensual when an officer restrains a

citizen’s liberty through force or showing of authority. Id. “If it was an option to

ignore the request or terminate the interaction, then a Fourth Amendment seizure

has not occurred.” Id. We consider the totality of the circumstances to determine

whether a reasonable person in the defendant’s position would have felt free to

ignore the request or terminate the interaction. Id. Although courts consider the

surrounding circumstances, including the time and place, the officer’s conduct is

the most important factor in determining whether an encounter was consensual or a

Fourth Amendment seizure. Id.

      Initially, the burden is on the defendant to rebut the presumption of proper

conduct by law enforcement and show that a seizure occurred. Id. at 412. If the

defendant meets this burden, then the burden shifts to the State to demonstrate that

the seizure was nevertheless supported by either reasonable suspicion or probable

cause, whichever is applicable. Id.

      An officer may stop and briefly detain a person for investigative purposes

only if the officer has a reasonable suspicion that an individual is violating the law.

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



                                          11
that a particular person actually is, has been, or soon will be engaged in criminal

activity.” Id. Whether an officer had reasonable suspicion depends on the totality

of the circumstances. Id. at 492–93.

      Flores contends that the brown bag of methamphetamine that he threw was

obtained as a result of an unlawful detention. To this end, he characterizes the

interaction with the officers as a detention from the moment the officers waved at

him. Therefore, he argues that he was detained by the officers at a time when they

did not have reasonable suspicion to justify the detention, and that the drugs that he

threw into the bushes were recovered as a result of a Fourth Amendment violation.

      In spite of Flores’s characterization of the entire encounter as a detention,

the totality of the circumstances indicates that no Fourth Amendment seizure

occurred until after the brown bag of methamphetamine was thrown into the

bushes. The officers testified that Flores stopped his truck “immediately” upon

turning onto the property and making eye contact with them. At that time, Flores

exited the vehicle and the officers motioned for him to drive forward. Instead, he

grabbed the brown bag and threw it into the bushes. Under these circumstances, the

officers’ actions–merely motioning to Flores to drive forward–did not amount to

force or a show of authority which restrained Flores’s liberty. See Woodard, 341

S.W.3d at 411.




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      Consequently, the encounter had not yet escalated to a detention when

Flores threw the bag of methamphetamine into the bushes, and no justification was

necessary for the officers to motion Flores forward. See id.

      We overrule Flores’s third issue.

      B.     Oral statements

      In his sixth issue, Flores argues that the trial court erred in denying his

motion to suppress his oral statement to Constable Hayden that he “was there to

see Sammy.” He asserts that this statement was made while he was in custody, and

before he received Miranda warnings.

      The Fifth Amendment requires a defendant subjected to custodial

interrogation must receive Miranda warnings, and the failure of law enforcement

to advise the defendant of those rights prohibits the later use of those statements

against him. See Miranda v. Arizona, 384 U.S. 436, 104 S. Ct. 3138 (1966).

      Here, the parties dispute only whether Flores was in custody at the time he

told Hayden that he “was there to see Sammy.” The determination of whether a

defendant is in custody requires a court to “examine all of the circumstances

surrounding the interrogation, but the ultimate inquiry is simply whether there

[was] a formal arrest or restraint on freedom of movement to the degree associated

with a formal arrest.” Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App.

2010). This is an objective determination, and the primary question is whether a



                                          13
reasonable person would perceive the detention to be a restraint on his movement

comparable to formal arrest. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App.

2012).

      A routine stop does not automatically place a person in custody for Miranda

purposes, but such a stop may escalate from a non-custodial detention into a

custodial detention when formal arrest ensues or a detainee’s freedom of

movement is restricted to the degree associated with a formal arrest. Id. at 372.

Thus, in State v. Ortiz, the Court of Criminal Appeals held that a routine traffic

stop had escalated beyond a detention at the time the suspect was questioned by the

police, because: (1) officers expressed their suspicion that Ortiz possessed drugs or

knew that his wife was in possession of drugs; (2) the detention had escalated

beyond that of a routine traffic stop because at least two police cars and three

officers, as opposed to the usual one car and two officers, were present when he

made the statements; (3) officers handcuffed him when a pat-down revealed

something illegal or dangerous in his wife’s possession; and (4) after he was

handcuffed, officers informed him that something illegal had been found on his

wife, signaling that he was under detention for something more serious than a

speeding infraction. Id. at 373–75.

      In this case, the officers approached Flores to speak with him after he threw

the brown bag into the bushes. As one of the officers searched for the bag, Flores



                                         14
told the other that he “was there to see Sammy.” At the time Flores made the

statement to Hayden, there had been no formal arrest and his freedom of

movement was not restricted in any manner. Examining all the circumstances, we

conclude that a reasonable person would not have determined that the detention

was a restraint on his movement comparable to a formal arrest. See id. at 372. Nor

were any of the factors present that led the Ortiz Court to hold that a routine traffic

stop had escalated to a formal arrest. At the time he made his statement, Flores was

not questioned by an unusual number of officers, handcuffed, or made aware that

the officers had discovered the methamphetamine. See id. at 373–75.

      Because Flores was not in custody at the time he made the contested

statement, the trial court did not err when it denied the motion to suppress the

statement.

      We overrule Flores’s sixth issue.

IV.   Admission of testimony regarding methamphetamine

      In his fourth issue, Flores argues that the trial court erred when it allowed

testimony regarding the dangers and social costs of methamphetamine.

      During the guilt-innocence phase of trial, Lieutenant Phillip Cash, a

narcotics officer, testified to matters regarding methamphetamine, such as its

production and addictive qualities. Flores argues generally that Cash’s testimony

was similar to testimony in Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App.



                                          15
2009), in which the Court of Criminal Appeals held that testimony regarding the

societal problems caused by methamphetamine was irrelevant and unfairly

prejudicial at the punishment phase of a trial for unlawful possession of a

controlled substance. Lane, 303 S.W.3d at 714–15.

      A complaint is not preserved for appeal unless it was made to the trial court

“by a timely request, objection or motion” that “stated 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.” TEX. R. APP. P. 33.1(a). Furthermore, a defendant’s

brief must “contain a clear and concise argument for the objections made, with

appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i). The

failure to present argument and authorities results in waiver of the point of error.

See Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).

      The State charitably identifies several objections to Cash’s testimony based

on relevance, but much of Cash’s testimony that elicited objections was later

admitted without objection. That testimony generally discussed particulars of the

methamphetamine trade, including how the drug is produced, how money is

handled, and the danger of violence for its participants. Under such circumstances,

there can be no reversible error in admitting the evidence. See Leday v. State, 983

S.W.2d 713, 718 (Tex. Crim. App. 1998).



                                         16
      Moreover, Flores does not identify any particular testimony that should be

deemed irrelevant and unfairly prejudicial like the testimony in Lane. In that case,

the court declined to hold that all testimony regarding the dangers and societal

costs of drug use was irrelevant at the punishment stage of a trial for possession or

delivery of controlled substances, but held that the particular testimony at issue

was irrelevant because it went beyond the context for the offense and unfairly

prejudiced the defendant. See Lane, 303 S.W.3d at 714–15. Specifically, the

narcotics officer in Lane testified that he was familiar with people who had died

from methamphetamine, including a woman who used the drug during her

pregnancy, and that the community has to subsidize the costs of “health care, clean

up, and theft associated with methamphetamine” because its users are typically

unemployed and steal to get drug money. Id. at 713. Flores does not point to any

testimony that compares to the testimony in Lane, and he makes no meaningful

argument that the entirety of Cash’s testimony was irrelevant or prejudicial.

      Because he has failed to adequately brief the issue for review or demonstrate

that it was preserved in the trial court, we overrule Flores’s fifth issue. See TEX. R.

APP. P. 33.1(a), 38.1(i).

V.    Closing argument

      In his fifth issue, Flores contends that the trial court erred when it overruled

his objection to improper jury argument. Flores asserts that the prosecutor’s



                                          17
statement during closing argument, directed to him, that “[t]oday will be the last

day you can ever think you can sell that crap to our kids,” was nearly identical to

prohibited argument in Lane in which the prosecutor stated that the defendant was

bringing drugs into the county to poison children and turn them into addicts. See

Lane, 303 S.W.3d at 711–12.

      However, Flores’s specific objection at trial was to the prosecutor getting

too physically close and speaking directly to him. Flores did not object to the

statements as improper jury argument. A defendant’s failure to object to jury

argument or pursue an adverse ruling to his objection forfeits his right to complain

about the argument on appeal. Threadgill v. State, 146 S.W.3d 654, 670 (Tex.

Crim. App. 2004). Furthermore, the point of error on appeal must comport with the

objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.

2012).

      Because Flores did not object to the prosecutor’s statements as improper jury

argument, he has forfeited the issue on appeal. See Threadgill, 146 S.W.3d at 670.

      We overrule Flores’s fifth issue.




                                          18
                                   Conclusion

      Having overruled Flores’s six issues, we affirm the trial court’s judgment.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Jennings, Massengale, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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