                          NO. 07-08-0424-CR, 07-08-0477-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                               SEPTEMBER 28, 2009
                         ______________________________

                       FRANKLIN ELOY MADRID, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

           NO. 55,127-C, 55,427-C; HONORABLE ANA ESTEVEZ, JUDGE
                      _______________________________


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


                               MEMORANDUM OPINION


       Appellant, Franklin Eloy Madrid, appeals from a judgment convicting him of

possession of a controlled substance (methamphetamine) with intent to deliver and a

second judgment convicting him of possession of a controlled substance (heroin).

Appellant further appeals the resulting sentences of 28 years incarceration and $8,000 fine

and seven years incarceration and $7,000 fine. We affirm the judgments.
                                       Background


       On January 13, 2007, law enforcement officers executed a “no knock” search

warrant at 4425 Buck Street in Potter County. Upon entering the residence, the officers

encountered appellant, an adult female, and an 11 year old child. Each of the adult

occupants was restrained and all of the occupants were brought into the living room of the

residence. Officer Chris Walters of the Potter County Sheriff’s Department then read the

statutory warnings enumerated in Texas Code of Criminal Procedure article 38.22, section

2(a),1 to appellant. Appellant verbally acknowledged that he understood the statutory

warnings that had been read to him. However, Walters did not ask appellant if he wished

to waive his rights and the statutory rights form was not signed by appellant because he

was handcuffed.     Immediately after reading the statutory rights and confirming that

appellant understood those rights, Walters asked appellant if he would talk to Walters.

Walters then explained to appellant why the police were there and asked him if there was

any contraband in the residence. Appellant stated that there was a narcotics pipe in the

residence, but that the pipe was not appellant’s. After making this statement to Walters,

appellant invoked his right to counsel and Walters terminated his questioning of appellant.

After appellant invoked his right to counsel, Officer Mays asked appellant about a safe that

was found in the residence.      Mays asked appellant if he wanted to give Mays the

combination to the safe or if Mays should make a forced entry into the safe. Appellant

gave Mays the combination to the safe, which was used to open the safe. Inside the safe,



      1
        Further reference to the warnings of rights found in Texas Code of Criminal
Procedure article 38.22, section 2(a), will be by reference to “statutory rights.”

                                             2
Mays found over 16 grams of methamphetamine, $9,006 in cash, and certain documents

that linked appellant to the items found in the safe. As a result of the discovery of the

contraband, appellant was placed under arrest. When appellant was booked into the

Potter County Correctional Center, 2.15 grams of heroin was found in the watch pocket of

his pants.


       Prior to the trial of the two charges asserted against appellant, appellant filed a

motion to suppress all evidence obtained during the search of appellant’s residence on the

basis that there was insufficient probable cause for the issuance of the search warrant and,

specifically, for the warrant to authorize a no knock entry. After a hearing on the motion,

the trial court denied the same.2 During the trial, the State offered testimony and evidence

obtained during the search of appellant’s residence. Appellant timely objected to this

evidence on three separate grounds. First, appellant objected to testimony from Walters

concerning appellant’s ownership or control of the residence as well as the presence of a

drug pipe in the residence because such statements were the result of custodial

interrogation and appellant never affirmatively and voluntarily waived his statutory rights

after they were read to him. Second, appellant objected to testimony that he gave the

combination to the safe to Mays because appellant’s statement was the result of custodial

interrogation after appellant had invoked his right to counsel. Finally, appellant objected

to the physical evidence obtained from the safe on the basis that the evidence was

obtained as a direct result of Mays’s custodial interrogation after appellant had invoked his



       2
       Appellant does not challenge the trial court’s pre-trial ruling on the motion to
suppress by this appeal.

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right to counsel and, thus, was barred by “the fruit of the poisonous tree” doctrine. The trial

court sustained appellant’s objection to statements made by appellant after he had invoked

his right to counsel, but overruled appellant’s other objections. After the case was

submitted to the jury, the jury returned a verdict finding appellant guilty of both the

possession with intent to deliver charge as well as the possession charge. After a brief

punishment hearing, the trial court sentenced appellant as indicated above.


       By two issues, appellant appeals the admission of evidence during the guilt-

innocence portion of appellant’s trial. Appellant’s first issue contends that the trial court

erred in admitting testimony from Walters that appellant stated that he owned or controlled

the residence and that there was a drug pipe in the residence because the State failed to

show an affirmative and voluntary waiver of appellant’s statutory rights. Appellant’s second

issue contends that the trial court erred in admitting the contents of the safe because such

evidence was obtained as a result of Mays’s illegal custodial interrogation. We affirm the

judgment of the trial court.


                                    Standard of Review


       As each of appellant’s issues relate to the trial court’s admission of evidence, the

abuse of discretion standard applies to both issues. See Weatherred v. State, 15 S.W.3d

540, 542 (Tex.Crim.App. 2000); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.

1996). A reviewing court applying the abuse of discretion standard should not reverse a

trial judge’s decision whose ruling was within the zone of reasonable disagreement.

Green, 934 S.W.2d at 102. If the trial judge's decision is correct on any theory of law


                                              4
applicable to the case, the decision will be sustained. See State v. Ross, 32 S.W.3d 853,

855-56 (Tex.Crim.App. 2000).


                   Issue One - Appellant’s Waiver of Statutory Rights


       Appellant’s first issue contends that appellant’s statements relating to his ownership

of the residence and the presence of a drug pipe in the residence were the result of

custodial interrogation without an affirmative and voluntary waiver by appellant of his

statutory rights. It is undisputed that appellant was in custody when Walters asked

appellant about his ownership and control of the premises and whether there was any

contraband in the residence. Additionally, the evidence is undisputed that appellant was

read the statutory rights found in Texas Code of Criminal Procedure article 38.22, section

2(a), and that he expressly stated that he understood those rights. Appellant’s first issue

solely relates to whether appellant affirmatively and voluntarily waived his statutory rights

before making the challenged statements. The State responds to appellant’s first issue by

contending that appellant waived his statutory rights because he was read an affirmation

that stated that “I further agree that any statement which I now make is made of my own

free will after I knowingly, intelligently and voluntarily waive the above rights” and,

thereafter, responded to Walters’s interrogation.


       A waiver of rights may be inferred from the actions and words of the person

interrogated. Hargrove v. State, 162 S.W.3d 313, 318 (Tex.App.–Fort Worth 2005, pet.

ref’d). The Texas Court of Criminal Appeals has stated that “we do not . . . interpret the

oral confession statute to require an express verbal statement from an accused that he


                                             5
waives his rights prior to giving the statement.      In reaching the voluntariness of a

confession, this Court looks at the totality of the circumstances.” Barefield v. State, 784

S.W.2d 38, 40-41 (Tex.Crim.App. 1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3256, 111

L.Ed.2d 766 (1990). Further, “the Court of Criminal Appeals has approved the inference

of a waiver from the totality of the circumstances in the situation where an oral confession

contains a recitation of the art. 38.22 warnings and the defendant indicates he understands

his rights and proceeds without hesitation to participate in the interview.” State v. Oliver,

29 S.W.3d 190, 193 (Tex.App.–San Antonio 2000, pet. ref’d).


       In the present case, the evidence establishes that appellant was read his statutory

warnings, appellant affirmed that he understood his rights as read to him, appellant did not

expressly waive those rights, and appellant immediately agreed to answer Walters’s

questions. Thus, considering the totality of the circumstances, we cannot say that the trial

court abused its discretion in allowing the admission of the challenged statements

concerning appellant’s ownership and control of the residence and presence of a drug

pipe. Because the trial court did not abuse its discretion in allowing the admission of this

evidence, we overrule appellant’s first issue.


                         Issue Two - Fruit of the Poisonous Tree


       By appellant’s second issue, appellant contends that the evidence that was

discovered in the safe was obtained as a direct result of Mays’s interrogation of appellant

after appellant had invoked his right to counsel and, therefore, the trial court abused its

discretion in allowing the evidence to be admitted. The State responds that the search of


                                             6
the residence was conducted under the authority of a valid search warrant and, therefore,

the discovery of the contents of the safe would have been obtained with or without

appellant’s provision of the combination of the safe.


       The trial court properly excluded testimony that appellant gave the combination of

the safe to Mays. Further, it is true that the evidence obtained from the safe was obtained

by use of the combination that was acquired in violation of appellant’s constitutional rights.

As such, the evidence would ordinarily be required to be excluded. TEX . CODE CRIM . PROC .

ANN . art. 38.23(a) (Vernon 2005). However, subsection (b) of article 38.23 provides that

“It is an exception to the provisions of Subsection (a) . . . that the evidence was obtained

by a law enforcement officer acting in objective good faith reliance upon a warrant issued

by a neutral magistrate based on probable cause.” TEX . CODE CRIM . PROC . ANN . art.

38.23(b). In the present case, there is no evidence that Mays was not acting in good faith

reliance on the search warrant. The search warrant authorized the officers to search the

residence for methamphetamine and necessarily covered all contents of the residence in

which methamphetamine could be located, such as the safe. Further, while appellant filed

a motion to suppress the evidence obtained from the safe on the basis that the warrant

was not supported by sufficient probable cause, that motion was heard and overruled by

the trial court. Appellant has not presented any issue relating to the validity of the warrant

by this appeal. Thus, because the evidence obtained from the safe was obtained by a law

enforcement officer acting in objective good faith reliance upon a warrant issued by a

neutral magistrate based on probable cause, we conclude that the trial court did not abuse




                                              7
its discretion in allowing the evidence obtained from the safe to be admitted. We overrule

appellant’s second issue.


                                        Conclusion


         Having overruled both of appellant’s issues, we affirm the judgments of the trial

court.




                                                 Mackey K. Hancock
                                                     Justice



Do not publish.




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