                                                     June 12, 2015

            NO. PD-0349-15

 IN THE COURT OF CRIMINAL APPEALS

            AUSTIN, TEXAS

***************************************

           EDWARD FLORES
                 V.
           STATE OF TEXAS

***************************************

   From Appeal No. NO. 01-13-00295-CR
      Trial Cause No. 12-08-08659-CR
            Montgomery County

***************************************

       PETITIONER’S PETITION
     FOR DISCRETIONARY REVIEW

***************************************

                           Scott Pawgan
                           122 W Davis, Ste. 116
                           Conroe, Texas 77301
                           (936) 242-6975 Phone
                           State Bar No. 24002739


                           Attorney for Petitioner


        ORAL ARGUMENT REQUESTED
                           TABLE OF CONTENTS

Index of Authorities ………………………………………………………………………………ii

Statement Regarding Oral Argument ………………………...………………………………….iii

Statement of the Case ……………………………………...…………………………………..….1

Statement of Procedural History ………………………...………………………………………..3

Ground for Review No. 1 ……...………………………………………………………………….4

      DID THE COURT OF APPEALS ERR IN HOLDING THAT THE TRIAL
      COURT DID NOT ERR IN DENYING APPELLANT’S MOTION TO
      SUPPRESS PHYSICAL EVIDENCE GAINED AS THE RESULT OF AN
      ILLEGAL SEARCH AND SEIZURE

      Reasons for Review ……………………………………….……………………….......…4

      Concise Argument………………………………………………………………………...5

Ground for Review No. 2 ……...…………………………………………………………………7

      DID THE COURT OF APPEALS ERR IN HOLDING THAT THE TRIAL
      COURT DID NOT ERR IN ALLOWING TESTIMONY REGARDING THE
      TESTIMONY OF THE EXTENT OF THE METHAMPHETAMINE PROBLEM
      AND THE GENERAL DANGERS AND SOCIETAL COSTS OF
      METHAMPHETAMINE

      Reasons for Review ……………………………………….………………………...……7

      Concise Argument for Grounds for review Numbers 2 & 3……………………………....8

Conclusion and Prayer…………………………………………………………………………….9

Certificate of Service…………………………………………………………………………….10

Appendix Follows
                                                     INDEX OF AUTHORITIES
Cases

Ebarb v. State, 598 S.W.2d 842, 850 (Tex. Crim. App. 1980) ................................................................................... 5
Ex Parte Lane, 303 S.W.3d 702 (Tex. Crim. App. 2009) ........................................................................................... 8
Henderson v. State, 965 S.W.2d 710, 713 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) .................................... 6
Hunter v. State, 955 S.W.2d 102, 104 (Tex. Crim. App. 1997).................................................................................. 6
Hunter, 955 S.W.2d at 104.................................................................................................................................... 6, 7
Lippert v. State, 664 S.W.2d 712, 720 (Tex. Crim. App. 1984) ................................................................................. 5
Terry v. Ohio, 392 U.S. 1, 20–29, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 44 Ohio Op. 2d 383 (1968) .............................. 6
Rules

Texas Rules of Appellate Procedure, Rule 66.3(c)..................................................................................................... 5
Texas Rules of Appellate Procedure, Rule 66.3(f) ................................................................................................. 5, 8




                                                                                ii
                 STATEMENT REGARDING ORAL ARGUMENT

      The issues addressed involve important questions of state law. Oral argument will

ensure a full, and fair exposition of the importance of these questions and how they

should be resolved.




                                          iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

       COMES NOW Edward Flores, Petitioner in the above entitled and numbered

cause, by and through his counsel, Scott Pawgan, and petitions the Court of Criminal

Appeals to review the decision by the Court of Appeals, and respectfully shows this

Court the following in support of this petition.

                                  Statement of the Case

       On March 22, 2012. officers from Montgonery County Precinct Four Constables

Office were serving a search warrant on Sammy Carollo’s residence, 22307 Smith Road.

(R.R. Vol. 6, Pages 47, 153, 164-165; Vol. 7, Page 114-15). While serving the warrant,

the deputies serving as security on the outside of the property noticed a vehicle drive up

the drive to the property the officers were searching (R.R. Vol. 6, Pages 35, 47-48, 153,

154, 169; Vol. 7, Page 16).

       The officers then flagged down the vehicle and gave the vehicle's driver hand and

verbal commands to pull his vehicle toward the officers. (R.R. Vol. 6, Pages 49, 161,

170, 174; Vol. 7, Page 17) The officers testified that the driver was not free to leave the

scene once he drove onto the property. (R.R. Vol. 6, Page 209)

       Upon driving onto the property, the driver then stopped the vehicle and exited the

vehicle. (R.R. Vol. 6, Pages 35, 48, 172; Vol. 7, Page 16-18) According to the officers,

the driver then looked around and reached back into the vehicle and threw something

over the vehicle. (R.R. Vol. 6, Pages 35, 42, 174; Vol. 7, Page 18)

       The deputies then approached the vehicle and its driver, as well as approach the

area where the driver supposedly thru the item over the vehicle. (R.R. Vol. 6, Pages 48-


                                              1
51, 174-175; Vol. 7, Page 1) The driver was identified as Appellant. (R.R. Vol. 6, Pages

51, 169; Vol. 7, Page 17)

      In the area where the item was found, officers discovered a paper bag. Inside the

paper bag was a white crystaline substance. (R.R. Vol. 6, Pages 35-36, 49-51, 176) The

substance later tested to be 137.49 grams of methamphetamine. (R.R. Vol. 6, Page 99)

Appellant was immediately handcuffed and taken into custody. (R.R. Vol. 6, Pages 54-

55, 176; Vol. 7, Page 24).

      After Appellant was detained, he was asked by Constable Hayden why he was

there. (Vol. 7, Pages 22-23) Appellant who, even though not free to leave and having not

been mirandized allegedly stated he was “going to see Sammy.” (Vol. 7, Pages 22-23)

The officers subsequently searched the truck Appellant was driving. (R.R. Vol. 6, Pages

68). NO paraphernalia commonly associated with an individual dealing drugs was found

during the vehicle search. (R.R. Vol. 6, Pages 68, 77-80, 195).

      To establish the delivery element, the State called Phillip Cash to testify. Among

the things Lt. Cash testified to was that the amount of methamphetamine would be

enough to make addicts out of 670 people. (R.R. Vol. 6, Page119). In addition, over

Appellant’s objection Lt. Cash was able to testify to such irrelevant facts such as the

violence that is associated with the drug trade, (R.R. Vol. 6, Pages 123-124) the

wholesale and retail price of methamphetamine (R.R. Vol. 6, Pages 131-132) and the

drug distribution hubs (R.R. Vol. 6, Pages 132-133). Even though there was testimony to

these inflammatory and irrelevant facts, the State never established neither Appellant nor

anyone at the property being searched had the requisite money to pay for the alleged


                                            2
Methamphetamine, nor did the State ever establish that either Appellant or anyone at the

property had engaged in any violence associated with drugs or drug dealing. As a matter

of fact, as discussed above, Appellant, even though supposedly engaged in such a

dangerous enterprise as drug dealing, did not have a weapon on him.

      During the States Closing arguments the State made an argument to convict

Appellant so this will be the last day Applicant can think about selling that crap to our

kids. (R.R. Vol. 7, page 108) Appellant objected to this argument but was overruled.

(R.R. Vol 7, page 109-110)

      After Jury selection, but before testimony in guilt innocence started, the Court held

a suppression hearing. (R.R. Vol. 5, Pages 197-296). The Court denied the motion to

suppress. (R.R. Vol. 6, Pages 6-7)

      The jury convicted Appellant of delivery of a controlled substance. The court then

held a punishment hearing. At the conclusion of the punishment hearing, The Court

sentenced Appellant to life in Texas Department of Criminal Justice. (Vol. 7, Page 51-52)

From this conviction and sentence, Appellant appeals.

      On July 7, 2010, the Ninth Court of Appeals affirmed Petitioner’s conviction in a

memorandum opinion. (please see Appendix) The basis for the Court of appeals

affirming the conviction was that the search was authorized under the plain view

doctrine. From this opinion, Petitioner now requests this Petition be granted and this

Court reverse the Court of Appeals.

                             Statement of Procedural History

      This is an appeal of a conviction for the offense of Possession of a controlled


                                            3
substance, pg 1, four to 200 grams. Appellant pleaded not guilty to the offense charged.

During trial, the trial court denied Appellant’s Motion to Suppress Illegally Seized

Evidence. Appellant went to the Court for punishment after a pre sentence investigation

report was done and the Court held a punishment hearing. The Court assessed

punishment at confinement for life in the Texas Department of Criminal Justice –

Institutional Division. (R.R. Vol. 7, Page 51-52). The Ninth Court of Appeals affirmed

Appellant’s conviction and sentence in an opinion dated February 26, 2015. Appellant’s

Motion for Rehearing was due on March 13, 2015. A motion for extension of time to file a

motion for rehearing pursuant to Texas Rules of Appellate Procedure 49.8 was due by

March 30, 2015. A motion for extension of time to file a motion for rehearing pursuant to

Texas Rules of Appellate Procedure 49.8 was filed March 30, 2015 and an extension was

granted and a motion for rehearing was timely filed and denied on May 12, 2015.

Appellant’s Petition for Discretionary Review is due by June 11, 2015. This petition is

being timely filed.

                               Ground for Review No. 1

       DID THE COURT OF APPEALS ERR IN HOLDING THAT THE TRIAL

COURT DID NOT ERR IN DENYING APPELLANT’S MOTION TO SUPPRESS

PHYSICAL EVIDENCE GAINED AS THE RESULT OF AN ILLEGAL SEARCH

AND SEIZURE

                                  Reasons for Review

       1.     The Court of Appeals has decided an important question of state or federal

law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals


                                            4
or the Supreme Court of the United States Texas Rules of Appellate Procedure, Rule

66.3(c);

       2.     The Court of Appeals has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a departure by a lower court, as

to call for an exercise of the Court of Criminal Appeals' power of supervision Texas

Rules of Appellate Procedure, Rule 66.3(f).

                                   Concise Argument

       The Court of Appeals stated in their opinion that Appellant’s motion to suppress was

properly granted since Appellant’s interaction with law enforcement was not a seizure but

merely an encounter, until the controlled substances were found in the brown bag Appellant

allegedly had thrown. Appellant would respectfully disagree with the Court of Appeals

since any reasonable person seeing multiple law enforcement officers approaching them and

waiving for the individual driving to stop, would feel compelled to submit to law

enforcements show of authority.

       A person’s mere presence at a location being searched with a warrant does not

supply constitutionally adequate grounds for reasonable suspicion. Lippert v. State, 664

S.W.2d 712, 720 (Tex. Crim. App. 1984). An investigative stop is a seizure that is less

intrusive than a full arrest. Ebarb v. State, 598 S.W.2d 842, 850 (Tex. Crim. App. 1980).

Actions by the police that would communicate to a reasonable person that compliance

with a police command is required constitutes a detention that must be justified by

reasonable suspicion




                                              5
       When an officer has a reasonable suspicion based on articulable facts that criminal

activity is afoot and a certain person is connected with the activity, the officer may make

an investigative stop of that person even though grounds for arrest do not exist. Terry v.

Ohio, 392 U.S. 1, 20–29, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 44 Ohio Op. 2d 383 (1968). A

mere request for an individual to stop or submit to a search does not constitute a “stop:

and such a request need not be justified by reasonable suspicion” Hunter v. State, 955

S.W.2d 102, 104 (Tex. Crim. App. 1997); Henderson v. State, 965 S.W.2d 710, 713 (Tex.

App.—Houston [1st Dist.] 1998, pet. ref’d). Only if the officer conveyed a message that

compliance was required has a consensual encounter become a detention. Hunter, 955

S.W.2d at 104. Actions by the police that would communicate to a reasonable person that

compliance with a police command is required constitutes a detention that must be

justified by reasonable suspicion. Id.

       In the present case, there was no reasonable suspicion for the police to detain

Appellant when he drove upon Mr. Carollo’s property. There is nothing illegal or

objectively could be considered illegal about driving onto someone’s property,

particularly where there is no gate or do not enter signs. In addition, there were additional

houses that attached to the driveway Appellant drove down, and Appellant could have

very easily driven to where he did to get turned and return to a residence whose entrance

he had inadvertently missed down the driveway closer to the main road.

       The actions by the police that day would have communicated to a reasonable

person that compliance with the police command to stop Appellant’s truck was required,

and thus the stop of Appellant’s vehicle constitutes a detention that must be justified by


                                              6
reasonable suspicion. Hunter, 955 S.W.2d at 104. There were multiple officers in the yard

advancing on Appellant and waiving to Appellant to stop his vehicle. Given the number

of officers, and that apparent show of force from the number of officers, waiving for

Appellant to stop his vehicle would have compelled most any citizen to submit to the

officers’ demands to stop the vehicle. Appellant was not trying to move or drive towards

the officers, until the officers motioned and commanded Appellant to drive towards the

officers, forcing Appellant to believe he had to submit to their authority.

       Since the initial interaction with police was not merely an encounter but a seizure

lacking reasonable suspicion, as detailed in Appellant’s original brief in the Court of

Appeals, this Court has erred in overruling Appellant’s third point of error. Appellant

respectfully requests that this Court reconsider the Court of Appeal’s overruling of

Appellant’s point of error number three and grant point of error number three and reverse

Appellant’s judgment and sentence.

                                Ground for Review No. 2

       DID THE COURT OF APPEALS ERR IN HOLDING THAT THE TRIAL

COURT DID NOT ERR IN ALLOWING TESTIMONY REGARDING THE

TESTIMONY OF THE EXTENT OF THE METHAMPHETAMINE PROBLEM AND

THE GENERAL DANGERS AND SOCIETAL COSTS OF METHAMPHETAMINE.

                                   Reasons for Review

       1.     The Court of Appeals has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a departure by a lower court, as

to call for an exercise of the Court of Criminal Appeals' power of supervision. Texas


                                              7
Rules of Appellate Procedure, Rule 66.3(f).

                    Concise Argument For Ground for Review Number 2

       The Court of Appeals stated in their opinion that Appellant’s issue was not briefed or

error properly preserved for Appellate review. Appellant would respectfully disagree and

assert that the issue was properly briefed and preserved for Appellant review.

       While the Court in its opinion, stated that Appellant had not identified particular

testimony that was irrelevant and unfairly prejudicial, Appellant clearly identified in his

statement of facts the irrelevant and prejudicial statements made by Lt. Cash. Appellant

clearly identified among the things Lt. Cash testified to was that the amount of

methamphetamine would be enough to make addicts out of 670 people. (R.R. Vol. 6,

Page119). In addition, over Appellant’s objection Lt. Cash was able to testify to such

irrelevant facts such as the violence that is associated with the drug trade, (R.R. Vol. 6,

Pages 123-124) the wholesale and retail price of methamphetamine (R.R. Vol. 6, Pages

131-132) and the drug distribution hubs (R.R. Vol. 6, Pages 132-133). (see Appellant’s

brief at page 4).

       Appellant also clearly gave the Court of Appeals, in Appellant’s brief, authority on

which the ground of error was based. That authority was Ex Parte Lane, 303 S.W.3d 702

(Tex. Crim. App. 2009). (see Appellant’s brief at page 13).

       As far as preserving error for review, Appellant would contend that this issue was

properly preserved. Appellant’s trial counsel made several relevancy objections to the

complained of testimony. Those objections were overruled, thus preserving the

complaints for Appellant review.


                                              8
         Because Appellant’s fourth point of error was properly preserved, and properly

briefed, it was error for The Court of Appeals to overrule point of error number four

without considering the error on its merits as briefed. Appellant requests that this court

reconsider The Court of Appeal’s overruling of Appellant’s fourth point of error as not

preserved and consider the point of error on its substantive grounds and then affirm the

error.

                                  Conclusion and Prayer

         Petitioner prays that this Court grant this Petition for Discretionary Review and

reverse the Ninth Court of Appeals opinion and remand the case to the trial court with an

order of acquittal, remand the case to the Court of Appeals to consider on the merit’s

Appellant’s fourth point of error in Appellant’s Appeal Brief or other relief as this Court

feels Petitioner is entitled.

                                                 Respectfully submitted,




                                                 __________________________
                                                 Scott Pawgan
                                                 122 W Davis, Ste. 116
                                                 Conroe, Texas 77301
                                                 (936) 242-6975 Phone
                                                 State Bar No. 24002739

                                                 Attorney for Petitioner


                                CERTIFICATE OF SERVICE



                                             9
        I HEREBY CERTIFY that Petitioner’s Petition for Discretionary Review was
filed through the State’s e-filing service and through the electronic service of the e-filer,
copies of the Petition were served upon the 9TH District Attorney, Montgomery County,
Conroe, Texas; and to the State prosecuting Attorney, P.O. Box 12405, Austin, Texas
78711, on the 11th day of June, 2015.




                                                  __________________________
                                                  Scott Pawgan
                                                  Attorney for Petitioner




                                             10
APPENDIX
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




                                         2
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.”



                                          5
      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.




                                         12
      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).




                                           19
Envelope Details


  Print this page

  Case # PD-0349-15
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             06/11/2015 10:47:29 PM
   Case Number                            PD-0349-15
   Case Description
   Lower Court Number
   Assigned to Judge
   Attorney                               Scott Pawgan
   Firm Name                              Individual
   Filed By                               Scott Pawgan
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.00
   Total Court Case Fees                  $0.00
   Total Court Filing Fees                $0.00
   Total Court Service Fees               $0.00
   Total Filing & Service Fees            $0.00
   Total Service Tax Fees                 $0.00
   Total Provider Service Fees            $0.00
   Total Provider Tax Fees                $0.00
   Grand Total                            $0.00
   Payment
   Account Name                           Scott Pawgan Court Appointment Account
   Transaction Amount                     $0.00
   Transaction Response
   Transaction ID
   Order #

   Petition for Discretionary Review
   Filing Type                                            EFileAndServe
   Filing Code                                            Petition for Discretionary Review
   Filing Description                                     Petition for Discretionary Review
   Reference Number                                       PDR 1
   Comments
   Status                                                 Rejected
   Fees
   Court Fee                                              $0.00
   Service Fee                                            $0.00
   Rejection Information
   Rejection Time       Rejection Comment
   Reason
                        The petition for discretionary review does not contain a certification of compliance


https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=f4606ef8-21cd-4e88-a6be-8cd28d53dd88[6/12/2015 11:29:22 AM]
Envelope Details

           06/12/2015
   Other   11:27:06 with T.R.A.P. 9.4(i)(3). The petition for discretionary review does not contain the
                      identity of Judge, Parties and Counsel [Rule 68.4(a)]. Your petition remains due June
           AM
                      10, 2015 and is untimely at this time.
   Documents
   Lead Document             Flores PDR with Attachment.pdf                                [Original]


   eService Details
   Name/Email                Firm                                   Service Type              Status        Served        Date/Time Opened
   Jason Larman                                                                                                           06/12/2015
                             Individual                             EServe                    Sent          Yes
   jason.larman@mctx.org                                                                                                  08:56:28 AM
   Lisa C. McMinn            State Prosecuting                      EServe                    Sent          Yes           Not Opened
   lisa.mcminn@spa.texas.gov Attorney's Office




https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=f4606ef8-21cd-4e88-a6be-8cd28d53dd88[6/12/2015 11:29:22 AM]
