Opinion
No. 08-15-00369-CR
11-02-2016
ANTHONY JOE BENDY, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 252nd District Court of Jefferson County, Texas (TC# 14-20676) OPINION
Appellant Anthony Joe Bendy was charged with possession of one to four grams of cocaine. He was found guilty by a jury, and after pleading true to two enhancements, was sentenced by the court to twenty five years' incarceration. In two issues on appeal, Appellant contends the trial court should have excluded evidence of most of the cocaine he was alleged to have possessed and should have granted a mistrial based on improper testimony concerning extraneous offenses. We affirm.
This case was transferred from the Beaumont Court of Appeals, and we decide it in accordance with the precedent of that court to the extent required by TEX. R. APP. P. 41.3.
BACKGROUND
In the early morning hours of January 25, 2014, Beaumont police received a burglar alarm indicating a residence had been broken into. The police officers arrived at the residence before the homeowner and found that the house had been burglarized. When the homeowner arrived, they discovered his television had been stolen. The homeowner advised the officers that he had security cameras positioned around the house. The security camera video footage showed that the perpetrator had approached the residence on a bicycle, kicked the door in, and had ridden off on the bicycle with the television. The homeowner recognized the perpetrator from the video and informed the officers where he lived. The homeowner accompanied the police to the perpetrator's house, and as they pulled up, he pointed out the perpetrator, who was standing by a vehicle parked next to the house. When the officers approached the vehicle, they found Appellant sitting in the driver's seat and the stolen television in plain view in the backseat. Both Appellant and the perpetrator were handcuffed and taken into custody. When an officer searched Appellant incident to his arrest, he found 0.626 grams of crack cocaine in Appellant's jacket pocket. Officer Cesar Beattie then searched Appellant's vehicle. In the center console, he found a closed container that rattled when he picked it up. Officer Beattie opened the container and discovered 2.717 grams of crack cocaine.
DISCUSSION
The Search of the Vehicle
Appellant objected at trial to the admission of the 2.717 grams of cocaine Officer Beattie found in the closed container in the console of his vehicle, on the ground that it was the fruit of an illegal search whose admission was barred by both the Fourth Amendment of the United Stated Constitution and Article I, Section 9 of the Texas Constitution. The trial court overruled Appellant's objection. Appellant contends on appeal that the trial court erred in admitting evidence of the 2.717 grams of cocaine because the State failed to show Officer Beattie's search fell within the inventory-search exception and because under the Texas Constitution, police may not properly open a closed container found in a vehicle during an inventory search. We need not reach the substance of these issues, however, because we conclude Officer Beattie's search of Appellant's vehicle was valid under the automobile exception to a search warrant.
While Appellant also objected at trial to the admission of the 0.626 grams of cocaine found in his jacket pocket during the search incident to his arrest, Appellant does not complain about that search on appeal.
As to the inventory search, however, we note that in Florida v. Wells, 495 U.S. 1, 4-5, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1 (1990), the United States Supreme Court indicated that for an inventory search involving the opening of a closed container to be valid, the State must prove that it has a policy "with respect to the opening of closed containers encountered during an inventory search." While the State presented some evidence of its inventory search policy, it did not present any evidence whether and to what extent that policy addressed the opening of closed containers encountered during an inventory search.
Standard of Review
We review a trial court's ruling refusing to suppress evidence for an abuse of discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010); Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). In reviewing the trial court's decision, we view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). We afford almost total deference to a trial court's determination of historical facts, but review pure questions of law de novo. Alford v. State, 358 S.W.3d 647, 652 (Tex.Crim.App. 2012). Likewise, we give almost total deference to a trial court's resolution of mixed questions of law and fact if those questions turn on the credibility and demeanor of witnesses. Id. However, if credibility and demeanor are not necessary to the resolution of a mixed question of law and fact, we review the question de novo. Id. The trial court's ruling will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Ramos, 245 S.W.3d at 418; Young v. State, 283 S.W.3d 854, 873 (Tex.Crim.App. 2009).
While Appellant challenged the evidence during trial and not in a pre-hearing motion to suppress, we have previously concluded that the same standard of review should be applied to suppression issues litigated during trial as is applied to a pretrial motion to suppress. State v. Five Thousand Five Hundred Dollars in U.S. Currency, 296 S.W.3d 696, 702 n.3 (Tex.App. - El Paso 2009, no pet.); see also LaCarbonara v. State, No. 08-13-00262-CR, 2015 WL 2437862, at *2 n.2 (Tex.App. - El Paso May 20, 2015, no pet.) (not designated for publication). In any event, a trial court' decision regarding the admissibility of evidence is also reviewed under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007); see also Jean v. State, No. AP-76,601, 2013 WL 3282956, at *3 (Tex.Crim.App. June 26, 2013) (not designated for publication). We uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. Cameron, 241 S.W.3d at 19; Jean, 2013 WL 3282956, at *3.
Although Appellant filed a pretrial motion to suppress, the record does not show that Appellant presented that motion to the court, that a suppression hearing was held, or that the trial court ruled on the motion.
The Automobile Exception
Under the Fourth Amendment, a warrantless search of property is considered per se unreasonable "subject to a 'few specifically defined and well established exceptions.'" McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003). When a search has been conducted without a warrant, the State carries the burden to establish the application of the exception from the requirement to obtain a warrant. Id.
One exception to the requirement to obtain a warrant before conducting a search is known as the automobile exception. "Under the automobile exception, law enforcement officials may conduct a warrantless search of a vehicle if it is readily mobile and there is probable cause to believe that it contains contraband." Keehn v. State, 279 S.W.3d 330, 335 (Tex.Crim.App. 2009); see also Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031 (1996) ("If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more."). "Probable cause to search exists when there is a 'fair probability' of finding inculpatory evidence at the location being searched. If this exception applies, then the police may search 'every part of the vehicle and its contents that may conceal the object of the search.' " Neal v. State, 256 S.W.3d 264, 282 (Tex.Crim.App. 2008) (quoting Wiede v. State, 214 S.W.3d 17, 24 n.29 (Tex.Crim.App. 2007); United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982)); see also Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 1301, 143 L.Ed.2d 408 (1999) (explaining that when "there is probable cause to search for contraband in a car, it is reasonable for police officers . . . to examine packages and containers without a showing of individualized probable cause for each one"). An officer's observation of contraband in plain view inside an automobile can establish probable cause to conduct a warrantless search of the vehicle and to seize contraband or evidence. Barnes v. State, 424 S.W.3d 218, 225 (Tex.App. - Amarillo 2014, no pet.).
There are two justifications behind the automobile exception: (1) the "ready mobility" of a vehicle creates an exigency; and (2) an individual has a reduced expectation of privacy in a vehicle because it is subject to pervasive government regulation. Keehn v. State, 279 S.W.3d 330, 335 (Tex.Crim.App. 2009). A vehicle parked in the driveway of a private residence is considered readily mobile and is subject to the automobile exception. Id. at 336. --------
Analysis
Officer Beattie testified at trial that he searched Appellant's vehicle in part because after Appellant was detained, Appellant wanted to release his vehicle to a third party, and that under Beaumont Police Department policy, officers were required "to conduct an inventory of the vehicle prior to releasing it or leaving it at the scene." Officer Beattie also testified, however, that he had probable cause to search the vehicle for evidence of additional stolen property after the stolen television had been seen in the backseat of the vehicle. While the homeowner had reported only that his television was missing, Officer Beattie believed the vehicle could contain more stolen property because in his experience homeowners often don't realize at the time something else is missing. In particular, while the homeowner had identified only that his television was missing, the police also found a dropped DVD player outside the homeowner's residence. Officer Beattie stated that before the vehicle was released, he needed to discover whether any other stolen property—such as a cell phone, jewelry, or coins that the owner didn't have time to determine was stolen—was in vehicle. In searching the vehicle, he was "also looking for further stolen property . . . [like] jewelry stolen from the house." Consequently, when Officer Beattie picked up the closed container he found in the console of Appellant's vehicle and he felt or heard something rattling around in the box, he suspected it might be valuable jewelry or possibly coins taken from the homeowner's residence.
We conclude there was probable cause to search the vehicle under the automobile exception because there was a fair probability of finding additional stolen property in the vehicle. The evidence showed that the homeowner, upon returning to his residence and finding the police investigating a burglary, was preoccupied with reviewing the security footage, identifying the perpetrator, and leading the officers to the perpetrator's residence. The trial court could have reasonably concluded from this evidence that the homeowner likely did not have time to identify all the property that had been taken from his house, particularly in light of the discovery of the dropped DVD player found outside the house, which the homeowner had not reported was stolen. The officers' subsequent discovery of the stolen television in plain view in Appellant's vehicle would further support a conclusion that there was a fair probability of finding additional stolen property in the vehicle. Because there was probable cause at that point to search for additional contraband in the vehicle, it was reasonable for Officer Beattie to examine any packages and containers found in the automobile "without a showing of individualized probable cause for each one[.]" Houghton, 526 U.S. at 302, 119 S.Ct. at 1301. Accordingly, we conclude the trial court did not abuse its discretion in admitting into evidence the 2.717 grams of cocaine Officer Beattie discovered in the closed container in Appellant's automobile. Issue One is overruled.
Motion for Mistrial
In his second issue, Appellant complains the trial court erroneously denied his motion for mistrial after a Beaumont police detective testified that Appellant's name had come up in different crimes he was investigating, which Appellant contends constitutes an improper reference to extraneous offenses. We conclude Appellant has waived error, and that in any event, the detective's testimony was not a reference to extraneous offenses, and even if it was, the trial court did not abuse its discretion in denying a mistrial.
Standard of Review
A mistrial is an appropriate remedy in "extreme circumstances" for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex.Crim.App. 2009). We review the denial of a mistrial for an abuse of discretion. Id. We must uphold the ruling if it was within the zone of reasonable disagreement. Id. In determining whether a trial court abused its discretion by denying a mistrial, we balance three factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect); (2) the effectiveness of the curative measures taken; and (3) the certainty of conviction or the punishment assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).
Background
The State called Beaumont police Detective John Courts as a witness. Detective Courts was the officer who interrogated Appellant at the police station after he was taken into custody. At the beginning of Detective Courts' testimony, the following exchange occurred:
Q. And what are your current duties with the Beaumont Police Department?At this point, defense counsel interrupted and objected on the ground the testimony was "nonresponsive," which the trial court sustained. When counsel then requested an instruction to disregard, the trial court stated: "The jury will disregard the question. Go ahead." The trial court then denied Appellant's motion for mistrial.
A. I'm a detective in the burglary unit.
Q. Okay. And back on January 25th of 2014, were you investigating a burglary at that time?
A. No, sir, I was not. I was - had a couple of different crimes that I was investigating, and the name of the defendant had come up and -
After the trial court had denied Appellant's motion for mistrial, the prosecutor had Detective Court clarify the Appellant's name had come up only "as a possible witness" in the crimes he had been investigating:
I had some cases that I was working at that time and [Appellant's] name had come up as a possible witness and that's why I needed to talk to him. And I'd sent out an e-mail requesting, you know, officers if they'd come across Mr. Bendy, to notify me.
Analysis
As an initial matter, Appellant failed to preserve error that Detective Courts' testimony improperly referred to extraneous offenses. Appellant's sole objection at trial was that the testimony was "nonresponsive." The Court of Criminal Appeals has instructed that when a party attempts to adduce evidence of extraneous offenses, in order to preserve error on appeal, the opponent of that evidence must optimally object on the ground the evidence is inadmissible under Texas Rule of Evidence 404(b). Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990). But, an objection that the evidence is not "relevant," or that it constitutes an "extraneous offense" or "extraneous misconduct," although not as precise as it could be, will ordinarily be sufficient to apprise the trial court of the nature of the complaint and to preserve error. Id. The Court has specifically concluded, however, that an objection only that the witness's answer was nonresponsive, although propounded immediately after mention of the extraneous offense, does not preserve error for review. McFarland v. State, 845 S.W.2d 824, 838 (Tex.Crim.App. 1992), overruled on other grounds, Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App. 1994); see also Davila v. State, 930 S.W.2d 641, 650 (Tex.App. - El Paso 1996, pet. ref'd) ("An objection as to nonresponsiveness does not preserve error as to the inadmissibility of extraneous offenses."). Because Appellant objected at trial only on the ground that Detective Courts' testimony was nonresponsive, he has not preserved error on appeal that the testimony improperly referred to extraneous offenses.
In any event, no extraneous offense evidence was admitted. An improper reference to an extraneous offense occurs where the evidence shows both a crime and that the defendant was connected to or involved in it. Holmes v. State, 962 S.W.2d 663, 672 (Tex.App. - Waco 1998, pet. ref'd, untimely filed). "Evidence of an extraneous offense must necessarily involve evidence of prior criminal conduct by the accused." McKay v. State, 707 S.W.2d 23, 31-32 (Tex.Crim.App. 1985); Nguyen v. State, 177 S.W.3d 659, 667 (Tex.App. - Houston [1st Dist.] 2005, pet. ref'd). Evidence of an extraneous offense is not established if the evidence presented does not show an offense was committed or fails to connect the defendant to it. McKay, 707 S.W.2d at 32; Nguyen, 177 S.W.3d at 667.
Here, Detective Courts' testimony did not unambiguously refer to any extraneous offenses committed by Appellant. Detective Courts had testified only that Appellant's name had come up in some prior criminal investigations, when the objection of Appellant's counsel cut him off. When Detective Courts was allowed to fully testify following the objection, he clarified that Appellant's name had come up only "as a possible witness." The evidence presented thus did not show any prior criminal conduct by Appellant. Accordingly, there was no error because no extraneous-offense evidence was admitted, and the trial court could not have abused its discretion in refusing to grant a mistrial when no extraneous-offense evidence was admitted.
Moreover, even applying the balancing test does not show an abuse of discretion. The conduct was not severe, and the magnitude of any prejudicial effect was low. The only evidence the jury heard was a single, isolated statement that Appellant's name had come up in an unspecified criminal investigation. And, no other reference was made to this evidence in the guilt-innocence phase of the trial. Further, the trial court promptly instructed the jury to disregard. "Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer[.]" Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). And, on appeal, we generally presume the jury follows the trial court's instructions in the manner presented. Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App. 2005). Even an improper reference to an extraneous offense will generally be rendered harmless by a prompt instruction to disregard. Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) (holding testimony referring to or implying extraneous offenses can be rendered harmless by an instruction to the jury to disregard).
We do recognize, as Appellant points out, that the trial court's instruction to disregard was to "disregard the question," as opposed to the evidence or testimony. We agree that this may have blunted the effectiveness of the instruction to some extent. But, the written jury charge instructed the jury to disregard any extraneous-offense evidence that was not proven beyond a reasonable doubt, and we presume that the jury followed this instruction. Muhammad v. State, No. AP-77,021, 2015 WL 6749922, at *35 (Tex.Crim.App. Nov. 4, 2015), cert. denied, 136 S.Ct. 2462 (2016). Because there was no evidence to support a belief beyond a reasonable doubt that an extraneous offense had been committed, the jury could not have considered any such evidence. Moreover, the prosecutor immediately moved to correct any misunderstanding by having Detective Courts clarify that Appellant's name came up only as a witness, thereby mitigating any harmful effect of any juror confusion. See Hawkins, 135 S.W.3d at 84 ("Although a prosecutor's self-corrective action might not carry the same weight as a trial court's instruction to disregard, it is nevertheless a relevant consideration in determining harm and can, in the appropriate circumstances, render an improper comment harmless.").
Prejudice is incurable only when the objectionable material is clearly calculated to inflame the minds of the jury or is of such a damaging character as to suggest it would be impossible to remove the harmful impression from the jurors' minds. See Young, 283 S.W.3d at 878; Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Because of the remedy's extreme nature, a mistrial "should be granted only when residual prejudice remains after objections are sustained and curative instructions given." Barnett v. State, 161 S.W.3d 128, 134 (Tex.App. - Fort Worth 2005), aff'd, 189 S.W.3d 272 (Tex.Crim.App. 2006); see also Ocon, 284 S.W.3d at 884-85. We conclude that Detective Courts' testimony, to the extent it could be considered a reference to extraneous offenses, was not incurable, and that any prejudice was cured by the trial court's prompt instructions as well as Detective Courts' clarifying testimony.
In considering the certainty of Appellant's conviction absent the misconduct, we note that Appellant did not contest at trial that he had possessed cocaine; instead he attacked only the proof of the amount of cocaine he possessed, arguing that the lab analysis concerning the amount of cocaine found in the closed container was faulty, as was the chain of custody of that sample. The evidence fully supported both the chain of custody of the sample and the lab results showing that the cocaine removed from Appellant's vehicle weighed 2.717 grams, which was sufficient to support his conviction for possession of one to four grams of cocaine.
Given the brevity of Detective Courts' testimony, the effectiveness of the curative actions taken by the trial court and the prosecutor, the lack of prejudice, and the strength of the evidence supporting Appellant's conviction, we conclude the trial court did not abuse its discretion in denying Appellant's motion for mistrial. Issue Two is overruled.
CONCLUSION
We affirm the trial court's judgment.
STEVEN L. HUGHES, Justice November 2, 2016 Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)