Opinion
No. 14-07-00616-CR
Memorandum Opinion filed December 2, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 180th District Court, Harris County, Texas, Trial Court Cause No. 1062675.
Panel consists of Chief Justice HEDGES and Justices GUZMAN, and BROWN.
MEMORANDUM OPINION
Roger Donnell Davis, III was convicted of possession of a controlled substance on school premises and sentenced to 2 years' confinement in state jail. The trial court suspended the sentence, placed appellant on community supervision for 2 years, and assessed a $5,000 fine. Davis now appeals his conviction, asserting that the trial court erred by (1) failing to grant a mistrial because of improper jury argument, and (2) denying appellant's motion to suppress evidence seized during a warrantless search of appellant's car. We affirm.
BACKGROUND
On March 24, 2006, while appellant was a student at Mayde Creek High School in Katy, Sandra K. Wilson, an assistant principal, received an anonymous tip concerning him. A school security guard, Andrew L. McGarthy, searched appellant in Wilson's office and found nine alprazolam tablets in his jacket. Mr. McGarthy then detained appellant and awaited the arrival of Katy ISD police officer Julio Reyes, III. In Wilson's and McGarthy's presence, Officer Reyes asked appellant for permission to search his vehicle, which was parked on campus. Appellant consented to the search and gave Officer Reyes his keys. Officer Reyes also asked appellant if he had any further "contraband" in his vehicle and appellant responded that he did not. Officer Reyes testified that he and a school security guard then searched appellant's car. The security guard immediately discovered an ASP baton lying in the backseat. Officer Reyes further testified that he noticed a small closed compartment on the center console, between the front seats. Because he was looking for pills such as those found in appellant's jacket, Officer Reyes decided to open the compartment. Using a pocket knife, he was able to pry it open. Inside, Officer Reyes discovered a small, cloth bag. Officer Reyes said he could feel small rounded objects in the bag which he suspected to be pills. When he opened the bag, he found several .38-caliber rounds. Officer Reyes looked deeper into the compartment where he discovered a loaded .38-caliber Ruger revolver. Appellant later confirmed that the weapon was his. Officer Reyes arrested appellant for possession of a controlled substance on school premises. A jury convicted appellant of the charge. Before beginning the trial's punishment phase, the court heard appellant's motion to suppress the items found in his vehicle. The court heard testimony, denied appellant's motion, and then admitted the items into evidence during the punishment phase. The jury assessed punishment at 2 years' confinement in state jail. But because appellant had no prior offenses, the jury recommended that the trial court suspend appellant's sentence in lieu of 2 years' community supervision and payment of a $5,000 fine. The trial court agreed and sentenced appellant accordingly. This timely appeal followed.ANALYSIS
I. Improper Jury Argument Appellant argues in his first issue that the trial court erred in denying his motion for a mistrial after sustaining his objection to statements the prosecutor made during her closing argument. During the argument in question, the following exchange took place:PROSECUTOR: I want you, ladies and gentlemen, to be very cognizant of something. Just because we say that this is a case where you should find — you should find him guilty and you should — doesn't mean you shouldn't give serious attention to this case.
From the testimony of Miss Wilson, as well as the other officers that testified, it is clear that Xanax, possession of drugs such as Xanax is a common problem that is found in the school system today. And Roger Davis is an example of a student who refuses —
DEFENSE COUNSEL: Excuse me, your honor, I object. That is an improper plea for law enforcement.
THE COURT: Sustained.
DEFENSE COUNSEL: Ask that the jury be instructed to disregard that comment.
THE COURT: Jury disregard the last remark of [the prosecutor].
DEFENSE COUNSEL: And respectfully move for a mistrial.
THE COURT: That's denied.Here, appellant again argues that the prosecutor's statement constitutes an improper plea for law enforcement. A mistrial is the trial court's remedy for improper conduct that is "`so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004) (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). Only extreme circumstances, where the prejudice is incurable, require a mistrial. Id. When the trial court sustains an objection and instructs the jury to disregard, but denies a motion for mistrial, the issue is whether the trial court abused its discretion by denying the mistrial. Id. at 76-77; Dixon v. State, No. 14-03-01259-CR, 2008 WL 1795063, at * 3 (Tex.App.-Houston [14th Dist.] Apr. 22, 2008, no pet.) (mem. op., not designated for publication). A trial court abuses its discretion only when its decision falls outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App. 2007). Proper jury argument by the State falls within one of four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000); Ayala v. State, No. 14-07-00428-CR, 2008 WL 3931431, at *5 (Tex.App.-Houston [14th Dist.] Aug. 21, 2008, no pet. h.). However, even when an argument exceeds these permissible bounds, an error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, or injects new facts harmful to the accused into the trial proceeding. Wesbrook, 29 S.W.3d at 115; Ayala, 2008 WL 3931431, at *5. This court considers the argument in the context in which it appears. Denison v. State, 651 S.W.2d 754, 761 (Tex.Crim.App. 1983). The prosecutor argued that the evidence showed appellant was guilty of an offense amounting to a serious threat to both schools and society at large. The prosecutor did not ask the jury to abandon its objectivity, but rather to convict appellant on the facts and evidence presented at trial. This is a valid plea for law enforcement and a proper topic for jury argument. See Wesbrook, 29 S.W.3d at 115; Ayala, 2008 WL 3931431, at *7 (prosecutor's jury argument based on demonstration of evidence was a proper plea for law enforcement). Even if an argument is improper, generally an instruction to disregard will cure it. See Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App. 1995); Dixon, 2008 WL 1795063, at *3. The reviewing court puts its faith in the jury's ability, upon instruction, to consciously recognize the potential for prejudice and to discount the prejudice, if any, in its deliberations. Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987); Dixon, 2008 WL 1795063, at *3. In this case, the trial court sustained appellant's objection and instructed the jury to disregard the prosecutor's statement. We presume the jury obeyed the trial court's instruction to disregard. Dixon, 2008 WL 1795063, at *3; see also Gardner, 730 S.W.2d at 696 (appellate courts presume that an instruction to disregard evidence will be obeyed by the jury). Because the trial court had already given an instruction to disregard in this case and because we conclude the argument was not improper, the court did not abuse its discretion in refusing to grant a mistrial. See Wesbrook, 29 S.W.3d at 175; Hawkins, 135 S.W.3d at 77. We overrule appellant's first issue. II. Warrantless Search and Seizure In his second issue, appellant argues that the trial court erred in denying his motion to suppress the evidence seized in the warrantless search of his vehicle. At issue in the suppression hearing was the trial court's admission of the baton, the loaded .38 revolver, and the ammunition rounds. Appellant argues that the weapon and ammunition were discovered only after Officer Reyes opened a locked compartment in appellant's car — beyond the scope of appellant's verbal consent to search the vehicle. Appellant further asserts that because this search was beyond the scope of his consent, without a warrant, and without probable cause, the evidence was improperly seized — in violation of his rights under the Fourth and Fourteenth Amendments — and the trial court should have suppressed it. We review a trial court's ruling on a motion to suppress under an abuse-of-discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App. 2005). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all the evidence presented. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). If the record is silent regarding the reasons for the trial court's ruling, or the trial court makes no explicit findings of fact and neither party has timely requested findings from the trial court, we imply the necessary findings that would support the ruling when the evidence supports these implied fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006). We give almost total deference to the trial court's determination of historical facts, but review de novo the trial court's application of the law to these facts. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). If the trial court's ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court must sustain it upon review. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Flores v. State, 172 S.W.3d 742, 748 (Tex.App.-Houston [14th Dist.] 2005, no pet.). It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted with consent. Id.; see also Reasor v. State, 12 S.W.3d 813, 817 (Tex.Crim.App. 2000). At the suppression hearing, appellant testified that he gave Officer Reyes verbal consent to search his vehicle. It is significant that then, as now, that appellant did not challenge the voluntary nature of this consent. Rather, his argument has always been that the act of opening the console container exceeded the scope of his consent. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness, i.e., what a reasonable person would have understood by the exchange between the officer and the suspect. Florida v. Jimeno, 500 U.S. 248, 251 (1991); Crooks v. State, No. 14-00-00665-CR, 2001 WL 128328, at *3 (Tex.App.-Houston [14th Dist.] Feb. 15, 2001, no pet.) (not designated for publication). The expressed object of the search also defines the search's scope, and a suspect is free to limit the scope of the search to which he consents. Jimeno, 500 U.S. at 251-52; Crooks, 2001 WL 128328, at *3. Unless an officer's request, or a suspect's consent, limits a search to a particular area of a vehicle, such as the passenger compartment, trunk, or the like, the request for a search "of the car" reasonably includes all areas of the vehicle in which the object of the search might reasonably be placed. Crooks, 2001 WL 128328, at *3. Officer Reyes testified that when he asked for appellant's consent to search his vehicle, he explained that he would be searching for "other contraband." This testimony was not disputed. A reasonable person would interpret such a request as including areas of appellant's vehicle where "other contraband" might be located. Further, as Officer Reyes testified, since he was initially searching for pills similar to the Xanax tablets discovered in appellant's jacket, it was reasonable to suspect that such pills might be hidden in the closed console compartment. Finally, there was no testimony to suggest that appellant voiced any reservations or placed any limits on the consent he gave to Officer Reyes. As Officer Reyes's search was conducted with appellant's consent, and involved only areas where relevant contraband might reasonably be found, the search was properly within the scope of appellant's voiced consent. See Crooks, 2001 WL 128328, at *3. On appeal, appellant complains that he was never given Miranda warnings or similar statutory warnings before being asked to consent to the search. However, we know of no authority that requires a suspect be informed of his Miranda rights before obtaining a consent to search. See Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App. 2003); see also Smith v. State, No. 01-07-00590-CR, 2008 WL 340485, at *6 n. 7 (Tex.App.-Houston [1st Dist.] Feb. 7, 2008, pet. ref'd) (mem. op., not designated for publication). Further, appellant argues that he was not properly informed of his right to decline consent to the search. But "a warning that an individual does not have to consent to a search and has the right to refuse is not required nor essential." Flores, 172 S.W.3d at 750 (quoting Meeks v. State, 692 S.W.2d 504, 510 (Tex.Crim.App. 1985)). As the evidence at issue was obtained by a proper and reasonable consensual search, the trial court did not abuse its discretion in denying appellant's motion to suppress. See Villarreal, 935 S.W.2d at 138. We overrule appellant's second issue.