                                 NO. 07-07-0157-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL D

                                    APRIL 1, 2009

                         ______________________________


                        CARL ALLEN CARTER, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE

                       _________________________________

            FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

               NO. 4063; HONORABLE STEVEN R. EMMERT, JUDGE

                        _______________________________


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


                                       OPINION


      Appellant, Carl Allen Carter, was convicted by a jury of possession of a controlled

substance with intent to deliver in violation of section 481.112 of the Texas Health and

Safety Code. He was sentenced to twenty-five years confinement and fined $25,000.

Appellant contends the trial court erred when it: (1) denied his motion to dismiss the
indictment due to racial profiling; (2) denied his motion to suppress evidence derived from

an illegal arrest prompted by racial profiling; (3) denied his motion to suppress evidence

derived from an illegal search prompted by racial profiling; (4) denied his request to present

at trial a videotape of the arresting officer’s entire shift as evidence of racial profiling; (5)

denied his motion to suppress statements made after his arrest but prior to being read his

Miranda warnings; (6) denied his motion for mistrial because statements made by him after

being Mirandized were “fruit of the poisonous tree”; and (7) the evidence in support of the

verdict is factually insufficient. We reverse the judgment of the trial court and remand for

further proceedings in conformance with this opinion.


                                         Background


       On October 9, 2003, a Wheeler County Grand Jury returned an indictment charging

Appellant with possession of 400 grams, or more, of cocaine with intent to deliver. On

January 1, 2004, Appellant filed three motions to suppress evidence alleging that his car

was illegally searched, his arrest was without probable cause, his admission/confession

was taken when he was without counsel, and he had not intelligently and knowingly waived

his rights.


       I.     Pre-trial Suppression Hearing


       Jason Henderson, a trooper for the Texas Department of Public Safety, was the

sole witness at the hearing. He testified that, on March 31, 2003, he was patrolling


                                               2
Interstate 40 when he observed a silver Pontiac traveling eastbound in the left hand lane

next to the median. Trooper Henderson was traveling westbound on the opposite side of

the median. As the two vehicles passed, Trooper Henderson made eye contact with the

driver who then crossed over to the right lane and exited I-40 without a signal. Having

observed two traffic violations, Trooper Henderson immediately cut across the median and

activated his overhead lights.


       Trooper Henderson next observed the driver run a stop sign as he made a left hand

turn on Farm-to-Market Road 1443. Approximately one-half mile down the road, the driver

pulled over onto the shoulder. Trooper Henderson called the Shamrock Police Department

for assistance and pulled behind the vehicle. He approached and asked the driver, Craig

Willis, for his license and registration. Willis did not have a driver’s license. Appellant, a

passenger, produced a rental contract showing he had leased the vehicle.


       Trooper Henderson first spoke with Willis who told him they were coming from

Tucson, Arizona, where his little brother played basketball. Subsequently, Appellant

indicated they were coming from Phoenix, Arizona, where they had stayed at the Flamingo

Hotel and a friend’s house. Appellant indicated they had been there on vacation. Trooper

Henderson asked if there were any weapons or narcotics in the car. Appellant responded,

“Not that I know of, but it is a rental car, you never know.” Appellant then agreed to permit

Trooper Henderson to search the car.




                                              3
        Willis opened the trunk and Trooper Henderson observed laundry detergent was

strewn over the trunk’s floor. The trooper testified that laundry detergent is commonly used

to mask the odor of narcotics. He also observed a high concentration of laundry detergent

in the crease where the back seat met the floor of the trunk. He lifted the back seat and

found two packages of cocaine concealed beneath the seat. He then placed Willis and

Appellant under arrest.


        Trooper Henderson testified that, after placing Appellant in his patrol car,1 he

advised him of his Miranda rights.2 He further testified that, at that point, Appellant waived

his rights and, in answer to the trooper’s questions, stated the cocaine belonged to both

him and Willis; they paid $8,000 for the drugs and they were trying to make some money

off the drugs. Following Trooper Henderson’s testimony, the trial court denied Appellant’s

motions to suppress.




        1
            W illis was placed in the patrol car of Deputy Rick W alden.

        2
          The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), com e
into play when a person in custody is subjected to either express questioning or its functional equivalent.
Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). A confession m ay be
deem ed “involuntary” either through a failure to com ply with article 38.22 of the Code of Crim inal Procedure,
noncom pliance with the dictates of Miranda, or failure to com ply with due process or due course of law
because the confession was not freely given as a result of coercion, im proper influences, or incom petency.
W olfe v. State, 917 S.W .2d 270, 282 (Tex.Crim .App. 1996). “W hen a defendant alleges that the Miranda
protections were thwarted, the burden of showing adm issibility rests on the prosecution.” Martinez v. State,
272 S.W .3d 615, 623-24 (Tex.Crim .App. 2008).

                                                         4
        II.      Motion To Dismiss


        On July 5, 2003, Appellant filed a motion to dismiss the indictment wherein he

alleged the traffic stop was racially motivated. Appellant argued the following evidence

established that Trooper Henderson engaged in “racial profiling”: (1) videotape segments

depicting Trooper Henderson’s other traffic stops the same day he stopped Appellant; (2)

Trooper Henderson’s testimony at the suppression hearing indicating he was traveling at

a high rate of speed in the opposite direction on I-40 when he had “eye contact” with Willis

from across the median; and (3) Trooper Henderson’s initial observation that the two

occupants of the suspect vehicle were black.


        On the day of trial, March 26, 2007, the trial court again denied Appellant’s motions

to suppress evidence due to illegal arrest, illegal search, and involuntary confession. The

trial court also denied Appellant’s motion to dismiss and ordered the videotape of Trooper

Henderson’s entire shift, Defendant’s Exhibit No. 1, sealed.3




        3
          At the pre-trial suppression hearing, the State had sought the return of the videotape produced to
Appellant’s counsel during discovery. The videotape contained all of Trooper Henderson’s traffic stops for
the day Appellant was stopped and arrested. At the suppression hearing, the trial court adm itted the
videotape segm ent showing Appellant’s traffic stop but “sealed” the rem ainder of the videotape pending a
ruling on its adm issibility. Because the State disclosed the entire videotape to Appellant and the trial court did
not order the return of the tape, there was no Brady violation. See Ex parte Richardson, 70 S.W .3d 865, 870
(Tex.Crim .App. 2002). Neither did the State com m it any ethical violation, as argued by Appellant, because
the State satisfied its duty of disclosure. McFarland v. State, 928 S.W .2d 482, 511 (Tex.Crim .App. 1996),
abrogated on other grounds by, Mosley v. State, 983 S.W .2d 249, 263 (Tex.Crim .App. 1998).

                                                        5
       III.   The Trial


         At trial, the State introduced a second videotape into evidence containing only

Appellant’s traffic stop. Appellant objected because the videotape did not contain the other

traffic stops, contained hearsay statements, and incriminating statements by Appellant

prior to receiving a Miranda warning. Appellant also re-urged the objections raised in his

pre-trial motions. The trial court again overruled Appellant’s objections.


       At trial, Trooper Henderson was qualified as an expert in criminal interdiction. In

addition to reiterating his testimony during the suppression hearing, he testified Interstate

40 was a well-known drug trafficking corridor with drugs running from west to east. He

testified that, when someone immediately exits the interstate after spotting him, it is

generally because they are being evasive or attempting to throw something out of the

vehicle. The State then played the videotape of Appellant’s traffic stop and he commented

on the footage. He testified that, while he was speaking with Willis and Appellant during

the stop, they became increasingly nervous and looked away. When Willis went to the

trunk to look for his driver’s license, the trooper observed and smelled laundry detergent

spread throughout the car’s trunk. He testified laundry detergent is often used to mask the

odor of narcotics from drug-detecting dogs.        All this, plus their inconsistent stories

regarding their trip caused him to ask if he could search the car, and Appellant agreed.

Trooper Henderson then located two packages of cocaine in a storage compartment




                                             6
underneath the back seat where additional laundry detergent was spread. The cocaine

was wrapped with black electric tape and plastic.


       After the cocaine was discovered, Appellant was arrested, handcuffed behind his

back, and placed in the backseat of the trooper’s patrol car where he could observe several

deputies searching the vehicle. Shortly thereafter, Trooper Henderson entered the patrol

car and started driving. From the patrol car’s onboard video, the jury learned that, without

giving Appellant any Miranda warnings, as Trooper Henderson turned his vehicle around

in the roadway to proceed to the Shamrock Police Department, he questioned Appellant as

follows:


       HENDERSON:                  Y’all know what you are under arrest for, right?
       APPELLANT:                  Yes sir.
       HENDERSON:                  Is that cocaine or crack cocaine?
       APPELLANT:                  Cocaine.
       HENDERSON:                  It’s cocaine?
       APPELLANT:                  Yes sir.


       At this point, Appellant’s attorney objected:


       DEFENSE COUNSEL:            Judge, Objection - -
       COURT:                      Hang on. Hang on. Hang on. What?
       DEFENSE COUNSEL:            I’m going to object to those two statements, he has
                                   not been Mirandized and he’s under arrest.
       COURT:                      Overruled. Overruled. I don’t know if he’s been
                                   Mirandized or not.


                                              7
      Shortly thereafter, at the request of a juror who was feeling ill, the court took a short

recess. When the trial court returned from its recess, the following exchange occurred:


      COURT:                       I want to advise the jury that during the break I
                                   was contemplating a ruling that I made
                                   previously. And [defense counsel] had objected
                                   to some of the statements that the defendant
                                   made on the videotape and I overruled this
                                   objection. I decided the better judgment on that
                                   one was to sustain his objection, so you’re
                                   instructed to disregard and not consider for any
                                   purpose, the statement made by the defendant in
                                   the car on the video just before we took a break.
                                   Okay.
      DEFENSE COUNSEL:             Your Honor, move for mistrial.
      COURT:                       Denied.
      DEFENSE COUNSEL:             Your Honor, I’m going to object to any further
                                   statements based on the fact that he did it after
                                   he (was) Mirandized, the prior statements he had
                                   already incriminated himself and this is just
                                   further indication of the fact that he was not – the
                                   statements were not voluntary and he had
                                   already violated the rules, which is not as good as
                                   –
      COURT:                       Well, I don’t – I don’t – my understanding of
                                   Miranda is not that it – is that if you don’t give it
                                   then nothing he ever says is admissible. It’s
                                   anything he says prior to being Mirandized, once
                                   he’s Mirandized would be admissible is my
                                   understanding of the rule.
      DEFENSE COUNSEL:             Unless in this situation where he’s already
                                   incriminated himself as to the fact that it was
                                   cocaine.
      PROSECUTOR:                  It’s the State’s position that the initial question
                                   asked by Trooper Henderson was simply a
                                   rhetorical question. It was not the result of
                                   custodial interrogation. Anything after Miranda

                                              8
                           obviously then is the result of custodial
                           interrogation.
COURT:                     Okay. Well, in an abundance of precaution, I’ll go
                           ahead and rule as I did on the previous
                           statement, but at this time any statements after
                           he had been Mirandized would be admissible at
                           this time, so your objection is overruled.


Picking up again with the trooper’s onboard video, the jury heard:


HENDERSON:                 You have not been advised of your rights so you
                           don’t have to say no more and I’ll read your rights
                           here in just a second. You are under arrest for
                           possession of cocaine. Anything you say can be
                           used in a court of law; you have a right to stop
                           answering questions at any time; you have a right
                           to an attorney; if you can’t afford one, one will be
                           appointed for you. You understand all these
                           questions I covered with you today?
APPELLANT:                 [Short inaudible period followed by Henderson’s
                           radio conversation describing the search and
                           seizure of the cocaine]
HENDERSON:                 How much is it?
APPELLANT:                 Eighteen ounces.
HENDERSON:                 Over a pound.
APPELLANT:                 No sir, not a pound.
HENDERSON:                 Sixteen ounces is a pound.
APPELLANT:                 [Inaudible]
HENDERSON:                 Where did you all pick it up, out there in Phoenix
                           or where?
APPELLANT:                 Phoenix.
HENDERSON:                 [Description over the radio of the traffic stop and
                           discovery of cocaine.] I got everything good to go
                           . . . oh, cocaine . . . underneath the back seat


                                      9
                                 jammed up against the battery . . . underneath
                                 the back seat.
      HENDERSON:                 How much did you all pay for it?
      APPELLANT:                 Paid about $8,000.
      HENDERSON:                 You got any more money on you?
      APPELLANT:                 No sir.
      HENDERSON:                 Didn’t bring any cash?
      APPELLANT:                 No sir.
      HENDERSON:                 Whose cocaine is it, yours or his?
      APPELLANT:                 I’m gonna say both of ours.
      HENDERSON:                 In on it together?
      APPELLANT:                 [Inaudible response]
      HENDERSON:                 Why did you all go out there to buy it?
      APPELLANT:                 He knows somebody out there, he’s been out
                                 there before. No, I don’t buy it. My friend buy it.
      HENDERSON:                 How much you plan on makin’ off this?
      APPELLANT:                 I don’t know, he said we could make a lot of
                                 money off of it. I ain’t never been in trouble
                                 anywhere.
      HENDERSON:                 Hey you never been arrested before today.
                                 [short inaudible period]
      HENDERSON:                 Oh, you have. Well I appreciate your cooperation
                                 and honesty. That will explain your [inaudible].
      HENDERSON:                 Which one of you all put it under the back seat?


      Commenting on the portion of the videotape where he gave Appellant his Miranda

warnings, Trooper Henderson testified that Appellant acknowledged he understood and

waived his rights. Based upon Appellant’s incriminating statements, Trooper Henderson

further testified that, because Appellant and Willis had picked up the cocaine in Phoenix

                                           10
where Willis had a connection, the trip was premeditated and they were involved in drug

trafficking. He testified that its weight was significant to him “because it was a lot more

[cocaine] than one person could use . . . which led me to believe his story after being

Mirandized that it was going to be sold.” He also testified that cocaine was usually sold by

the gram for $900 and, after the cocaine was cut, Appellant and Willis would double, triple,

or quadruple their money.


       Brandon Conrad, a chemist with the Texas Department of Public Safety Crime

Laboratory in Amarillo, next testified that the cocaine found in the Pontiac weighed 491.64

grams with a sixty-seven percent purity. Thereafter, the jury returned a verdict of guilty for

possession of cocaine with intent to deliver, and the trial court entered its judgment.


                                        Discussion


       This appeal principally involves two events: Appellant’s initial traffic stop and his

subsequent admissions under questioning by Trooper Henderson prior to, and after,

receiving Miranda warnings. Initially, Appellant contends the traffic stop was racially

motivated and the result of profiling. As such, he asserts (1) the indictment should be

dismissed; (2) all evidence resulting from the traffic stop should be suppressed because his

arrest was illegal; (3) all evidence from the search of his car should be suppressed because

the search was illegal; and (4) the trial court erred when it failed to admit the entire

videotape of Trooper Henderson’s shift that day. Next, Appellant contends the trial court

erred when it failed to (5) suppress his confession made prior to receiving his Miranda

                                             11
warnings; and (6) grant his motion for a mistrial due to the erroneous admission of

statements he made after his confession that represented “fruit of the poisonous tree.”

Finally, Appellant asserts (7) the evidence in support of the verdict is factually insufficient.


       A trial court’s ruling on a motion to suppress is normally reviewed for abuse of

discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). The trial court’s

rulings receive almost total deference on questions of historical fact and the application-of-

law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v.

State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002). That said, we review de novo a trial

court’s ruling on a motion to suppress if that ruling simply involved an application of law to

uncontroverted facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997);

Hudson v. State, 247 S.W.3d 780, 784 (Tex.App.–Amarillo 2008, no pet.).


       As to issues five and six, credibility and demeanor were not issues because the facts

regarding the interrogation were preserved on videotape and are completely

uncontroverted. In effect, we are being asked to merely apply the law to uncontroverted

facts to “review the question of the efficacy of the mid-stream Miranda warning de novo.”

Martinez v. State, 272 S.W.3d 615, 629-30 (Tex.Crim.App. 2008) (Price, J., concurring).

See State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000); Mayes v. State, 8 S.W.3d

354, 357 (Tex.App.–Amarillo 1999, no pet.).




                                              12
       I.       Suppression of Evidence – Issues (1), (2), (3) and (4)


                A.       Racial Profiling – Motion to Dismiss


       Although Appellant’s motion was entitled a “Motion To Dismiss,” its substance was

directed toward having the trial court find that Appellant’s traffic stop was racially motivated,

suppress all evidence gathered as a result of the illegal stop and dismiss the indictment.

Appellant argued that, because the stop was racially motivated, Trooper Henderson lacked

reasonable suspicion or probable cause to stop the vehicle and, as a result, all evidence

derived from the traffic stop should be excluded.


       Peace officers are prohibited from engaging in racial profiling. Tex. Code Crim. Proc.

Ann. art. 2.131 (Vernon 2005).4 Evidence illegally obtained through racial profiling5 may

not be used against a defendant in a criminal trial. Art. 38.23(a). See Pruneda v. State,

104 S.W.3d 302, 305 (Tex.App.–Texarkana 2003, pet. ref’d). When a defendant asserts

his arrest was based solely on racial profiling without probable cause or reasonable

suspicion, the proper avenue for relief is a suppression motion. Ex parte Brooks, 97

S.W.3d 639, 640 (Tex.App.–Waco 2002, no pet.).6 As a result, we find that, although


        4
         For convenience, further citation to the Texas Code of Crim inal Procedure will be as “art. ____” or
“Art. ____”.

        5
          “Racial profiling” is defined as a “law enforcem ent-initiated action based on an individual’s race,
ethnicity, or national origin rather than on the individual’s behavior or on inform ation identifying the individual
as having engaged in crim inal activity.” Art. 3.05.

        6
         A m otion to suppress is a specialized objection regarding the adm issibility of evidence; Hill v. State,
643 S.W .2d 417, 419 (Tex.App.–Houston [14 th Dist.] 1982), aff’d, 641 S.W .2d 543 (Tex.Crim .App. 1982), and
suppression is the proper rem edy when evidence is illegally obtained in violation of the defendant’s rights.
Jackson v. State, 717 S.W .2d 713, 715 (Tex.App.–San Antonio 1986, pet. ref’d).

                                                       13
Appellant’s motion was entitled a “Motion to Dismiss,” it is in substance a motion to

suppress evidence due to racial profiling. See Wade v. State, 814 S.W.2d 763, 764-65

(Tex.App.–Waco 1991, no pet.) (substance of a motion is not determined by its title).


               B.     Search and Arrest


       It is generally accepted that law enforcement officers may lawfully stop a motorist

who commits a traffic violation. McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App.

1993), superseded by statute on other grounds as stated in Granados v. State, 85 S.W.3d

217, 227-30 (Tex.Crim.App. 2002); Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.

1992). Here, Trooper Henderson testified that he stopped Appellant’s car for failing to

signal two lane changes; Tex. Transp. Code Ann. § 545.104 (Vernon 1999), and running

a stop sign.    Id. at § 545.010.   His testimony regarding these traffic violations was

uncontroverted.     Thus, the trial court did not abuse its discretion in finding Trooper

Henderson’s traffic stop properly met state and federal constitutional requirements.


       Furthermore, once the purpose of a traffic stop has been effectuated, it is not

improper for an officer to ask the driver if he possesses any illegal contraband and then

solicit his voluntary consent to search the vehicle. Strauss v. State, 121 S.W.3d 486, 491

(Tex.App.–Amarillo 2003, pet. ref’d). Trooper Henderson’s testimony that he requested to

search Appellant’s rental car and Appellant voluntarily consented is also uncontroverted.

As a result of the search, Trooper Henderson discovered two packages of cocaine hidden

beneath the rear seat of the car and arrested Appellant. Accordingly, the trial court did not

                                             14
abuse its discretion in finding Trooper Henderson’s search of Appellant’s car and

Appellant’s subsequent arrest were proper.


              C.     Racial Profiling – Exclusion of “Sealed” Videotape


       Examination of an officer’s subjective motive for a traffic stop is not a part of the

court’s evaluation of the reasonableness of a detention under search and seizure law. See

Crittenden v. State, 899 S.W.2d 668, 674 (Tex.Crim.App. 1995) (traffic stop for failing to

signal a lane change); Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992) (traffic

stop for running a stop sign); Russell v. State, 904 S.W.2d 191, 198-99 (Tex.App.–Amarillo

1995, pet. ref’d) (traffic stop for defective brake light). Where, as here, the trooper’s stop

and detention was reasonable, the subsequent search of the vehicle was consensual and

the arrest was supported by probable cause, the trooper’s motives, licit or illicit, are

irrelevant because “the exclusionary rule has no application and the intent with which [police

officers] acted is of no consequence.” Garcia, 827 S.W.2d at 943 (quoting United States

v. Causey, 834 F.2d 1179, 1185 (5th Cir. 1987) (en banc)); State v. West, 20 S.W.3d 867,

872 (Tex.App.–Dallas 2000, pet. ref’d). “As long as the facts and circumstances show a

valid and legal detention, it serves no actual Fourth Amendment function to attempt to

unearth the subjective reasons for such detention.” Garcia, 827 S.W.2d at 944.


       Here, the uncontroverted evidence shows that, after noticing Trooper Henderson,

Willis immediately changed lanes without signaling, exited the interstate, and subsequently

ran a stop sign. Accordingly, the trial court did not abuse its discretion by denying

                                             15
Appellant’s motion to suppress evidence due to racial profiling or excluding the videotape

segments of unrelated traffic stops. We overrule issues one through four.


       II.      Mid-Stream Miranda Warnings - Issues (5) and (6)


       Appellant contends the trial court erred when it failed to (5) suppress his confession

made prior to receiving his Miranda warnings; and (6) grant his motion for a mistrial due to

the erroneous admission of statements he made after his confession that represented “fruit

of the poisonous tree.” We need not review Appellant’s fifth issue because it is moot.7


       Further, because the “fruit of the poisonous tree doctrine” does not apply to violations

of the prophylactic requirements in Miranda; Montemayor v. State, 55 S.W.3d 78, 90

(Tex.App.–Austin 2001, no pet.) (quoting Baker v. State, 956 S.W.2d 19, 22 (Tex.Crim.App.

1997)), we review Appellant’s sixth issue to determine whether his privilege against

compulsory self-incrimination has been violated.8 In that context, Appellant asserts that he

was interrogated in “two stages” with the second stage being a “mere continuation” of the

first interrogation, causing the Miranda warnings administered mid-stream to be

meaningless under Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643


        7
           As Appellant aptly notes, the trial court initially overruled his objection to the adm ission of the
unwarned statem ents, but subsequently reversed itself and issued a curative instruction. He does not assert
the trial court’s curative instruction was insufficient.

        8
           Appellant preserved this issue for review. His contentions on appeal are consistent with the legal
theory underlying his objection at trial and the totality of circum stances considered by the trial court in m aking
its ruling. See Krause v. State, 243 S.W .3d 95, 103 (Tex.App.–Houston [1 st Dist.] 2007, no pet.); Hall v. State,
74 S.W .3d 521, 524 n.3 (Tex.App.–Am arillo 2002, pet. denied); Figueroa v. State, 740 S.W .2d 537, 538
(Tex.App.–Houston [1 st Dist.] 1987, pet. ref’d).

                                                       16
(2004) and Jones v. State, 119 S.W.3d 766 (Tex.Crim.App. 2003). The State contends

Appellant’s warned statements were admissible under Oregon v. Elstad, 470 U.S. 298, 105

S.Ct. 1285, 84 L.Ed.2d 222 (1985), because Trooper Henderson’s subsequent

administration of Miranda warnings sufficed to remove the conditions that precluded

admission of Appellant’s unwarned statements.


                                           Elstad


       In Elstad, the police went to the home of a juvenile suspect to take him into custody

on a charge of burglary. While effectuating the arrest pursuant to a warrant, one of the

officers stopped in the living room and spoke with the suspect’s mother. In the course of

that conversation, the officer asked the suspect if he was aware of why the officers were

there to talk to him. After the suspect responded in the negative, one of the officers stated

that he “felt” he was involved in a neighborhood burglary. In response to that statement,

prior to being given any Miranda warnings, the suspect acknowledged that he had in fact

been at the scene of the crime. Later, after having received his Miranda warnings, the

suspect gave a more detailed account of his involvement in the crime. The juvenile suspect

later argued that the second statement should be suppressed because it stemmed from the

unwarned first statement. In holding the second statement admissible and voluntary, the

Elstad Court determined that the officer’s inadvertent failure to administer the warnings prior

to obtaining an incriminating statement, unaccompanied by any actual coercion or other

circumstances calculated to undermine the suspect’s ability to exercise his free will, was not


                                              17
such conduct as would render the subsequent statement involuntary. Elstad, 470 U.S. at

318, n.5.


                                               Seibert


       The limits of Elstad and the two-step process of obtaining an incriminating statement

prior to being given Miranda warnings, and then obtaining a second incriminating statement

after being Mirandized, were further examined by the Supreme Court in Seibert. During a

custodial interrogation, without being given any Miranda warnings, after being questioned

for approximately thirty to forty minutes, Patricia Seibert gave a confession concerning a

homicide. After a twenty minute break, she was given Miranda warnings which she waived.

After waiving her rights, the questioning officer confronted her with her pre-warning

statements and obtained a second confession. Seibert, 542 U.S. at 605-06. In a plurality

opinion,9 the Supreme Court determined that a deliberate strategy of withholding Miranda

warnings until after first questioning and obtaining a confession could render a postwarning

confession inadmissible in those circumstances where the subsequent warning failed to

function “effectively” as Miranda required. Id. at 617.




        9
         Justice Souter delivered the opinion which was joined by Justices Stevens, Ginsburg, and Breyer.
Justice Kennedy concurred in the judgm ent but drafted a concurring opinion wherein he indicated he would
have decided the case on narrower grounds. Seibert, 542 U.S. at 618-622 (Kennedy, J., concurring).

                                                  18
                                            Jones


       Approximately eight months before Seibert, the Court of Criminal Appeals reached

a similar result in Jones v. State, 119 S.W.3d 766 (Tex.Crim.App. 2003). Jones, a suspect,

was questioned twice about a murder while in custody. Id. at 771. Each time he received

Miranda warnings prior to questioning and, after waiving his Miranda rights during the

second interview, gave a written statement indicating he had committed the murder being

investigated. Id. More than a week later, without being administered any Miranda warnings,

Jones was interviewed by law enforcement officers about two other murders. Jones

confessed and described his involvement in the two murders.               As he did so, the

investigating officer wrote down Jones’s confession, asked questions, and eventually

transcribed the statement. Id. at 772. When Jones had finished his account, the officer

went over Jones’s legal rights appearing at the top of the written form, read the statement

with Jones, corrected any mistakes, had Jones initial any revisions, and eventually sign the

statement at the bottom. Id.


       On appeal, Jones argued that the officer’s failure to inform him of his rights at the

outset of the interrogation violated his right against self-incrimination under Miranda. Id. at

772. The State argued that, even though Jones was not warned until after he made his oral

statement, his receipt of the required warnings before signing the statement rendered it

voluntary and admissible under Elstad. Id. After examining the surrounding circumstances

and the entire course of police conduct with respect to Jones in evaluating the voluntariness


                                              19
of his written statement, the Court of Criminal Appeals could not place the subsequent

statement in the same category as the written statement at issue in Elstad because the

unwarned statement in Elstad was elicited almost inadvertently during a brief encounter with

the suspect’s mother in the living room, and it was apparent that the officer’s purpose was

not to interrogate the suspect, but to notify the suspect’s mother of the reason for his arrest.

Id. at 773-74. Further distinguishing Elstad, the Jones Court stated as follows:


       By contrast, the circumstances in the instant case reflect, at the very least, a
       serious misunderstanding by law enforcement, not about whether appellant
       was in custody, but of the dictates of Miranda. Further, in contrast to Elstad
       where the initial unwarned statement took place at the defendant’s home and
       the warned statement was given after transporting the defendant to the police
       station, the unwarned and warned statements in this case were given during
       a nearly undifferentiated single event, taking place in the same room as an
       uninterrupted and continuous process.


Id. at 775-76 (emphasis added).


       Since the parties originally briefed and argued this appeal, the Court of Criminal

Appeals has had occasion to issue an opinion addressing the Elstad - Seibert dichotomy

of cases, thereby clarifying the circumstances under which Seibert applies when appellate

courts are asked to determine the efficacy of mid-stream Miranda warnings. See Martinez

v. State, 272 S.W.3d 615, 619-621 (Tex.Crim.App. 2008).10




        10
          Martinez retroactively applies to this case because it was pending on direct appeal when the ruling
issued. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). See Sammarron v.
State, 150 S.W .3d 701, 706 n.6 (Tex.App.–San Antonio 2004, pet. ref’d).

                                                    20
                                               Martinez


       Martinez was arrested by Officer Sosa in connection with a robbery and murder but

did not receive any Miranda warnings. At the police station, Officers Sosa and Hernandez

questioned Martinez about the crime.             Shortly thereafter, Sosa and Hernandez took

Martinez to a police polygrapher where he underwent a three to four hour test. Afterwards,

Sosa and Hernandez resumed interrogation of Martinez. After telling Martinez that he failed

the polygraph test, Sosa and Hernandez took Martinez to a municipal court where a

magistrate informed him of his Miranda rights and other statutory warnings.                         Upon

Martinez’s prompt return to the central holding station, Sosa and Hernandez again

questioned Martinez about the robbery and murder. Sosa repeated the Miranda warnings,

and Martinez gave a videotaped statement incriminating himself. Id. at 618.


       The majority’s opinion 11 first determined that Sosa and Hernandez engaged in a two-

step interrogation of Martinez calculated to undermine the subsequent Miranda warnings

given by the Magistrate, and later at the station house by Sosa prior to the videotaped

statement. 272 S.W.3d at 622-23. Their finding was premised upon the failure to warn

Martinez at the time of his arrest–prior to subsequent questioning at the station house and

the polygraph examination. Because the Magistrate’s reading of the Miranda warnings

came after Martinez’s arrest, his first round of interrogation and the polygraph examination,


        11
          The m ajority opinion was authored by Judge Johnson and joined by Judges Price, W om ack,
Holcom b, and Cochran. Judge Price also filed a concurring opinion. Judge Hervey filed a dissenting opinion
in which Presiding Judge Keller and Judges Meyers and Keasler joined.

                                                   21
the Martinez Court concluded Sosa and Hernandez engaged in a two-step interrogation, as

follows:


       Here, appellant was in custody for the purposes of Miranda; he gave both
       statements to law enforcement officials after his formal arrest pursuant to an
       arrest warrant, and both statements were given at the police station. This
       indicates that the absence of Miranda warnings at the beginning of the
       interrogation process was not a mistake based on the interrogating officer’s
       mistaken belief that appellant was not in custody, but rather a conscious
       choice.


Id. at 624.


       In Martinez, the Court recognized several relevant factors bearing on the

determination of whether it would be reasonable to find that Miranda warnings delivered

midstream in the interrogation process could “effectively” function as required. Those

factors include: (1) the completeness and detail of the questions and answers in the first

round of interrogation, (2) the over-lapping content of the two statements, (3) the timing and

setting of the first and second statements, (4) the continuity of law enforcement personnel,

and (5) the degree to which the interrogator’s questions treated the second round as a

continuation of the first round. See id. at 620. See also Seibert, 542 U.S. at 601-02.


       Because the same officers conducted both interrogation sessions and Martinez was

in the presence of police personnel the entire day of his arrest, the majority rejected the

State’s assertion that there was a substantial break between the prewarning and

postwarning interrogations. 272 S.W.3d at 624-25. The Martinez Court determined that,


                                             22
although Martinez was read his Miranda warnings by the Magistrate and later at the station

house before the videotaped statement, the warnings were ineffective because “[b]oth

officers . . . failed to inform [Martinez] that, based on the lack of Miranda warnings, any prior

statement made during the previous interrogation, including the polygraph exam, could not

be used against him.” Id. at 626. The Martinez Court further stated:


       [T]he officers had the responsibility to inform [Martinez] that the questions
       asked during the polygraph test, or the test results, could not be used at trial
       and that any mention of the test at trial was likewise prohibited. This, coupled
       with the fact that the officers initiated the conversation regarding the first
       interrogation, likely created the belief in [Martinez’s] mind that he was
       compelled again to discuss the matters raised in the first interview during the
       second interview.


Id. at 626.12


       The Martinez Court then determined that, where a deliberate, two-step strategy has

been used, “postwarning statements related to the substance of prewarning statements



        12
           In his concurring opinion, Judge Price noted that, once the interrogator has obtained an unwarned
confession from a suspect, the interrogator “can count on getting its duplicate, with trifling additional trouble.”
272 S.W .3d at 629 (quoting Seibert, 542 U.S. at 613). A suspect’s likely reaction under circum stances sim ilar
to the instant case m ay be described as follows:

        Upon hearing the warnings only in the afterm ath of interrogation and just after m aking a
        confession, a suspect would hardly think he had a genuine right to rem ain silent, let alone
        persist in so believing once the police began to lead him over the sam e ground again. A
        m ore likely reaction on a suspect’s part would be perplexity about the reason for discussing
        rights at that point, bewilderm ent being an unprom ising fram e of m ind for knowledgeable
        decision. W hat is worse, telling a suspect that ‘anything you say can and will be used against
        you,’ without expressly excepting the statem ent just given, could lead to an entirely
        reasonable inference that what he has just said will be used, with the subsequent silence
        being of no avail.

Id.

                                                       23
must be excluded unless curative measures are taken before the postwarning statement

is made.” Id. at 626-67. Because the officers did not apprise Martinez of his Miranda rights

when they began the first custodial interrogation and failed to apply any curative measures

in order to ameliorate the harm caused by the Miranda violation, the Martinez Court held

that the subsequent videotaped statement was inadmissible. 272 S.W.3d at 627.13


                                                   Analysis


       Like the defendant in Martinez, Appellant was also subjected to a conscious, two-

step interrogation without any curative measures being applied. Trooper Henderson was

a highly experienced officer and an expert in criminal interdiction.14 Within nine minutes of

Appellant’s arrest for possession of a controlled substance, being handcuffed behind his

back, and placed in the backseat of the patrol car, Trooper Henderson began interrogating

Appellant without giving him his Miranda warnings. Within three short questions spanning



         13
          The dissenting opinion agreed with the m ajority that, if the police obtained an unwarned confession
and then obtained a warned confession during a nearly continuous interrogation process in the absence of
any “curative m easures,” the confession m ust be suppressed “since this confession will be considered to have
been obtained without the requisite prophylactic Miranda warnings.” 272 S.W .3d at 640 (citing Seibert, 542
U.S. at 622). However, noting that Miranda warnings were given by a Magistrate nearly an hour after the
polygraph exam ination and again twenty-one m inutes later at the station house prior to Martinez’s videotaped
statem ent, the dissenting Justices believed the record did not support a finding that Martinez had confessed
during a nearly continuous and uninterrupted interrogation process. Id. at 641.

         14
           At trial, Trooper Henderson testified he first received training when he worked for a sheriff’s office
in 1995. Since approxim ately 2001, he has been a DPS state trooper. W hile a trooper, he attended recruit
school for twenty-seven weeks, successfully com pleted a one-year probation period, and com pleted hours
of additional training in crim inal interdiction. He testified that crim inal interdiction goes way beyond the traffic
stops he m akes everyday and looks for indicators of crim inal activity when people are stopped for traffic
violations. He testified he had becom e a nationwide crim inal interdiction instructor for other law enforcem ent
agencies such as the highway patrol and routinely taught crim inal interdiction courses. He testified he was
certified as an expert in the field and has written the criteria for a num ber of forty-hour training courses.

                                                        24
approximately seventeen seconds, Trooper Henderson had the equivalent of a confession.

In fact, he asked the same incriminating question twice knowing the answers were being

recorded. Immediately after Appellant confessed, Trooper Henderson gave Appellant his

Miranda warnings, and then, immediately resumed his interrogation related to the cocaine

found in the car. Given Trooper Henderson’s experience and expertise, we find that the

absence of Miranda warnings at the beginning of Appellant’s interrogation process was not

based upon the trooper’s mistaken belief that Appellant was somehow not entitled to a

Miranda warning. Nor do we believe that his initial interrogation was a casual, rhetorical

conversation.   Someone of Trooper Henderson’s experience certainly did not need

Appellant to assist him in differentiating cocaine from crack cocaine. Based upon the facts

of this case, we have concluded that Trooper Henderson’s two-step approach was a

conscious choice, calculated to undermine Appellant’s Miranda rights.


      Neither did Trooper Henderson administer any curative measures after his custodial

interrogation yielded Appellant’s unwarned confession. Rather, Trooper Henderson’s pre-

warning questions, though brief, yielded an incriminating statement and subsequent

questioning, though simple, direct, and covering a short period of time, repeated the same

confession. The content of the two statements was overlapping. The before-warning and

after-warning statements both concerned Appellant’s knowledge of and connection to the

controlled substance found in the car. All Appellant’s statements were made in the patrol

car to the same officer within seconds of each other. Temporally and substantively, Trooper

Henderson’s questioning constituted a single, uninterrupted interrogation.      Moreover,

                                            25
Trooper Henderson made no attempt to tailor the Miranda warning he eventually gave to

the particular situation and did not convey any distinction whatsoever between the

statements that might come after the warning and those that came before.15


       The instant case is a far cry from Elstad where the initial conversation took place in

the suspect’s living room with his mother nearby. Elstad, 470 U.S. at 305-06, 311-12.

Rather, this case is more like Seibert where the defendant was under arrest and in custody

but had not received any Miranda warnings. Seibert, 542 U.S. at 604-05.


       Here, the circumstances reflect not only a serious misunderstanding regarding

whether Appellant’s unwarned statements were the result of custodial interrogation, but also

of the dictates of Miranda. At the suppression hearing, Trooper Henderson testified that he

had given Appellant his Miranda warnings after he was arrested but prior to any custodial



        15
         Trooper Henderson ended his Miranda warning with the phrase, “[y]ou understand all these
questions I covered with you today?” By this language, he essentially encapsulated Appellant’s incrim inating
responses obtained during the unwarned interrogation within the warning and what was to follow afterwards.
Under these circum stances, a rational inference would have been that Appellant’s incrim inating statem ents
would be adm issible in a court of law. Describing the “probable m isim pression” a suspect m ight likely have
under sim ilar circum stances, the Seibert Court stated the following:

        W hen the sam e officer who had conducted the first phase recited the Miranda warnings, he
        said nothing to counter the probable m isim pression that the advice that anything Seibert said
        could be used against her also applied to the details of the inculpatory statem ent previously
        elicited. In particular, the police did not advise that her prior statem ent could not be used.
        Nothing was said or done to dispel the oddity of warning about legal rights to silence and
        counsel right after the police had led her through a system atic interrogation. . . . The
        im pression that the further questioning was a m ere continuation of the earlier questions and
        responses fostered by references back to the confession already given. It would have been
        reasonable to regard the two sessions as parts of a continuum , in which it would have been
        unnatural to refuse to repeat at the second stage what had been said before.

Seibert, 541 U.S. at 616-17.

                                                     26
interrogation. Like the investigating officer in Jones, Trooper Henderson ostensibly believed

Miranda warnings were unnecessary when he asked Appellant to identify the substance

found. Further, when confronted with the videotape at trial showing Trooper Henderson’s

interrogation of Appellant actually began prior to the required warnings, the State argued

that Appellant was not the subject of a custodial interrogation and Trooper Henderson’s

questions were merely “rhetorical,” i.e., unintended to elicit a response from Appellant. On

appeal, however, the State now admits that, because Appellant was under arrest when he

made the unwarned admissions, those statements were inadmissible at trial.


       Further, the circumstances attendant to Appellant’s unwarned and warned

interrogation were more coercive than the circumstances of the defendant’s interrogations

in either Seibert or Jones. Here, there was little, or no, time buffer between Appellant’s

arrest and Trooper Henderson’s interrogation. Unlike either Seibert or Jones, Appellant had

not been transported to a police station and placed in an interrogation room before being

questioned. Rather, Appellant was sitting in the backseat of a police car, with his hands

handcuffed behind his back, at the crime scene, looking out through a metal grill where a

number of law enforcement officers were searching his vehicle.          Moreover, Trooper

Henderson’s subsequent warned interrogation was punctuated by radio descriptions of the

car’s search, the seizure of the cocaine, and Appellant’s arrest. At one point, after

Appellant had already made incriminating statements, Trooper Henderson radioed in a




                                             27
more detailed description of the location where the cocaine was found in the car and then

immediately resumed his interrogation.16


       The State places a great deal of reliance upon two cases, United States v.

Carrizales-Toldedo, 454 F.3d 1142 (10th Cir. 2006) and United States v. Yamba, 407

F.Supp. 703 (W.D. Pa. 2006), for support of its position that reflexive questions, not

intended as interrogation, did not render subsequent incriminating statements inadmissible.

These cases either support our decision or are inapposite.                    In both cases, the unwarned

statements were in response to an officer’s open-ended questions such as “What are you

doing?” and “What are these?” that were contemporaneous with the discovery of the

contraband in Carrizales-Toledo; 454 F.3d at 1152, and stolen credit card numbers in

Yamba, 407 F.Supp.3d at 718-19. Trooper Henderson’s questions were neither open-

ended nor contemporaneous with the discovery of the contraband. Rather, his questions

were pointed, direct, and asked after he had sufficient time to assess the situation and plan

his interrogation strategy. Further, in Carrizales-Toledo, it was unclear whether the suspect

was in custody when first statements were made. The Tenth Circuit ultimately determined

that the suspect’s initial statements were voluntary and his subsequent statements were

made after being properly Mirandized; 454 F.3d at 1153. Furthermore, the court in Yamba




        16
           Although we generally only consider evidence adduced at the suppression hearing because the trial
court’s ruling is based on what is heard at the hearing rather than on evidence introduced at trial, here the trial
court sua sponte decided to re-visit its prior rulings in light of Trooper Henderson’s changed testim ony and
the contents of the videotape while the parties subsequently re-litigated the evidence and the issues. See
W hite v. State, 201 S.W .3d 233, 239-240 (Tex.App.–Fort W orth 2006, pet. ref’d).

                                                       28
ultimately determined that the officer’s spontaneous query was inadvertent and the

suspect’s response was innocuous. 407 F.Supp.2d at 718.


       Here, as in Seibert and Jones, Appellant’s unwarned and warned statements were

made while he was in custody during an undifferentiated single event, taking place in

Trooper Henderson’s patrol car as an uninterrupted and continuous interrogation process.

At no time were any curative measures taken to ameliorate the harm caused by the Miranda

violation. Under the circumstances presented here, considering all of the relevant factors,

it is clear that the Miranda warnings could not have functioned effectively. The two-step

interrogation technique had the likely effect of undermining both Appellant’s ability to assert

his right to remain silent and his ability to knowingly, voluntarily, or intelligently waive that

right. Accordingly, all post-warning statements made by Appellant to the trooper should

have been suppressed in the State’s case-in-chief.


                                      Harm Analysis


       Having found that the trial court erred in admitting Appellant’s warned statements,

we must conduct a harm analysis to determine whether the error calls for reversal of the

judgment. Tex. R. App. P. 44.2. Because a correct ruling in this instant is constitutionally

required under Miranda; see Dickerson v. United States, 530 U.S. 428, 439-40, 120 S.Ct.

2326, 147 L.Ed.2d 405 (2000), the error is constitutional error; see Alford v. State, 22

S.W.3d 669, 673 (Tex.App.–Fort Worth 2000, pet. ref’d), and Rule 44.2(a) is applicable.

Thus, we evaluate the entire record in a neutral, impartial, and even-handed manner, not

                                               29
in the light most favorable to the prosecution; id. at 586; Kane v. State, 173 S.W.3d 589,

594 (Tex.App.–Fort Worth 2005, no pet.), and must reverse unless we determine beyond

a reasonable doubt that error did not contribute to Appellant’s conviction or punishment.

Alford, 22 S.W.3d at 673. We consider the source and nature of the error, the extent it was

emphasized by the State, its probable collateral implications, the weight a juror would

probably place on the error, and whether declaring it harmless would be likely to encourage

the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.

1989). We do not focus on the propriety of the outcome, but calculate as much as possible

the probable impact on the jury in light of the existence of other evidence. Wesbrook v.

State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct.

1407, 149 L.Ed.2d 349 (2001).


      In a possession with intent to deliver case, the State must prove that the defendant:

(1) exercised care, custody, control, or management over the controlled substance, (2)

intended to deliver the controlled substance to another, and (3) knew that the substance in

his possession was a controlled substance. See Tex. Health & Safety Code Ann. §§

481.002(38) (Vernon 2003 & Supp. 2008), 481.112(a) (Vernon 2003); Nhem v. State, 129

S.W.3d 696, 699 (Tex.App.–Houston [1st Dist.] 2004, no pet.).


      When, as here, the accused is not in exclusive possession of the place where the

contraband is found, there must be additional, independent facts that link him to the

contraband in such a way that it can be concluded that the accused had knowledge of the


                                            30
contraband and exercised control over it.                 See Guiton v. State, 742 S.W.2d 5, 8

(Tex.Crim.App. 1987) (heroin concealed inside chair cushion in rented room); Presswood

v. State, 548 S.W.2d 398, 399-400 (Tex.Crim.App. 1977) (marihuana concealed in glove

compartment of a borrowed car).


       Intent to deliver may also be proven by circumstantial evidence. See Garrett v.

State, 161 S.W.3d 664, 671 (Tex.App.–Fort Worth 2005, pet. ref’d).                           Courts have

considered several factors in determining intent, including (1) the nature of the location

where the accused was arrested (known drug-dealing or high crime area), (2) the quantity

of contraband in the accused’s possession (between 1,000 and 3,013 grams of cocaine),17

(3) the manner of the packaging (individual packets or units for resale), (4) the presence or

absence of drug paraphernalia (for use or sale), (5) whether the defendant possessed a

large amount of cash in addition to the drugs (typically in denominations indicative of

multiple drug sales), and (6) the defendant’s status as a drug user. See Jordan v. State,

139 S.W.3d 723, 726 (Tex.App.–Fort Worth 2004, no pet.).                           Expert testimony by

experienced law enforcement officers may also be used to establish an accused’s intent to

deliver. See Morrow, 757 S.W.2d at 488.




        17
          See Morrow v. State, 757 S.W .2d 484, 488 (Tex.App.–Houston [1 st Dist.] 1988, pet. ref’d), cert.
denied, 493 U.S. 921, 110 S.Ct. 285, 107 L.Ed.2d 265 (1989) (3,013 gram s of cocaine); Pitts v. State, 731
S.W .2d 687, 692 (Tex.App.-Houston [1 st Dist.] 1987, pet. ref’d) (1,025 gram s of cocaine); Hurtado v. State,
722 S.W .2d 184, 189 (Tex.App.–Houston [14 th Dist.] 1986, no pet.) (over 1,000 gram s of cocaine); Vasquez
v. State, 699 S.W .2d 294, 296 (Tex.App.–Houston [14 th Dist.] 1985, no pet.) (over twenty-three thousand
capules of m andrax).



                                                     31
       The record before us is clear that reversal is warranted. Appellant’s confession was

the very cornerstone of the State’s case. In its opening statement, the State connected

Appellant with the cocaine found in the car through his “voluntary acknowledge[ment] that

he was, in fact, in possession of the cocaine,” and promised to establish its case through

Appellant’s statements telling Trooper Henderson “where he was, where he went to get [the

cocaine] and where they were headed.” The State’s entire case rested on Trooper

Henderson’s testimony,18 the onboard videotape of the traffic stop, and Appellant’s

responses to Trooper Henderson’s interrogation. The State played Appellant’s videotaped

responses to Trooper Henderson’s questions and argued that they amounted to a complete

confession of every element of the crime being tried. In fact, there is no question that

Appellant’s responses to Trooper Henderson’s questions are thoroughly incriminating.


       A confession such as Appellant’s is “generally likely to have a profound impact on

a jury, especially at the guilt stage of a trial.” Jones, 119 S.W.3d at 783 (citing McCarthy

v. State, 65 S.W.3d 47, 56 (Tex.Crim.App. 2001), cert. denied, 536 U.S. 972, 122 S.Ct.

2693, 153 L.Ed.2d 862 (2002). See Arizona v. Fulminante, 499 U.S. 279, 292, 111 S.Ct.

1246, 113 L.Ed.2d 302 (1991) (“a defendant’s confession is probably the most probative

and damaging evidence that can be admitted against him”). This is particularly so here




        18
          The State’s only other witness was Brandon Conrad, the State’s chem ist who testified the substance
found in the car was 491.64 gram s of cocaine.

                                                    32
where there is virtually no other testimony or physical evidence linking Appellant to the

contraband or establishing that he intended to deliver the contraband to someone else.19


       Although the State correctly cites Rule 44.2 of the Texas Rules of Appellate

Procedure for the applicable standard of review, the State asserts only that sufficient

evidence of Appellant’s possession of cocaine was adduced from which the jury could have

concluded that Appellant was in possession of a controlled substance. The State does not

address the “intent to deliver” element. In support of its assertion that any error was

harmless, the State relies upon Akins v. State, 202 S.W.3d 879, 890-91 (Tex.App.–Fort

Worth 2006, pet. ref’d.). Although the defendant in Akins was charged with possession with

intent to deliver, the improperly admitted evidence went only to the issue of Akin’s

possession of a controlled substance. See id. at 891-92. The State argues that the

following evidence of possession presented at trial is sufficient to render any error harmless:

(1) Appellant rented the car in which the cocaine was found; (2) he and the driver were

traveling a well-known drug corridor; (3) both men were nervous during the stop; (4) their

stories were inconsistent; (5) Appellant’s luggage was in the trunk where laundry detergent

had been spread; and (6) there was a large amount of cocaine found under the backseat.

While these facts may arguably be sufficient to link Appellant to the controlled substance,

         19
           At trial, the State’s case against Appellant for “intent to deliver” hinged alm ost entirely on Appellant’s
incrim inating statem ents. W hile a large am ount of drugs such as 1,000 gram s of cocaine or 23,000 narcotic
pills, coupled with expert testim ony, can show intent to deliver, such am ounts are not involved here. In this
case, we have 491 gram s of cocaine found in a vehicle with a driver and a passenger. Further, there is no
evidence that Appellant: possessed an excessive am ount of cash m uch less any cash at all; the cocaine was
packaged in a m anner indicating intent to sell; Appellant possessed any baggies, scales, or other item s used
in sales or transactions involving drugs; Appellant was arrested in an area known for drug sales; Appellant
had any weapons in the car; or that Appellant attem pted to flee.

                                                        33
there is little, if any, meat on these bones inso far as the “intent to deliver” element. See

supra, n.19. The jury almost certainly relied on Appellant’s confession to convict.


       The question, here, is not whether sufficient evidence to convict existed without the

confessions, “but whether there is a reasonable possibility that the erroneously admitted

evidence contributed to the verdict obtained.” Jones v. State, 883 S.W.2d 118, 127

(Tex.Crim.App. 1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 678 (1993).

Having reviewed the entire record, we cannot say beyond a reasonable doubt that the error

made no contribution to Appellant’s conviction. Accordingly, although Appellant’s fifth issue

is moot, his sixth issue is sustained. Appellant’s remaining issue is pretermitted.


                                        Conclusion


       We reverse the trial court’s judgment and remand for further proceedings consistent

with this opinion.




                                                        Patrick A. Pirtle
                                                             Justice
Publish.




                                             34
