Opinion
NO. 01-16-00881-CR
02-01-2018
MARK ANTHONY INESTROZA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1528301
MEMORANDUM OPINION
A jury convicted appellant, Mark Anthony Inestroza, of compelling prostitution of a minor, found one enhancement paragraph true, and the trial court assessed punishment at 35 years' confinement. In three issues on appeal, appellant contends that the trial court erred in admitting (1) business records containing unredacted hearsay and (2) evidence recovered from appellant's wallet that appellant claims was obtained as a result of an unlawful inventory search under both Texas and federal law. We affirm.
BACKGROUND
Because she was having problems at home, the 16-year-old complainant, Samantha, ran away from home with a friend from school. Through her friend's boyfriend, she met appellant's 15-year-old brother, James. James took Samantha to get drugs and asked her whether she knew what escorting was. James then drove Samantha to a hotel where they met appellant, who Samantha later identified as "Rico." Appellant came out to the car and asked James if Samantha knew what escorting was. Appellant told Samantha that she would be making lots of money.
The Court will use fictitious names to refer to the minors involved in this case. See TEX. R. APP. P. 9.8
Appellant then drove James and Samantha to another hotel. He went inside, and Samantha assumed that he rented a room, although she did not see him do so. Appellant gave James a key and told him to take Samantha to their room. James told Samantha that she was not permitted to talk to anyone else or look them in the eye, including appellant.
The room was rented in the name of "Royce Jackson." No person named "Royce Jackson" was ever identified during the investigation.
Once at the hotel, Samantha took a shower, while James, at appellant's instruction, went to a nearby Target to buy her some clothes. While James was at Target, appellant took nude photographs of Samantha and explained that they would be placed in an advertisement for escort services. When James returned, appellant took more photographs of Samantha in underwear.
Appellant gave James a Nokia cell phone to give to Samantha and told her to answer it when calls came in from the advertisement. Although appellant knew that Samantha was only 16, he told her to tell potential clients that she was 19. At first, James replied to the calls by text. After teaching her how to answer the phone calls and texts, Samantha eventually began to respond on her own. Samantha would have sex with the clients, and when they left, James, who was often nearby, would come to the room to collect the money and then leave with appellant. Samantha later testified that James "answered to" appellant. For the next few days, Samantha had sex with between four to six clients a day.
A few days later, Samantha used the cell phone to contact her mother to help remove her from the situation that she no longer wanted to be a part of. Samantha's mother googled the phone number from Samantha's incoming call and saw that the number appeared in connection with an advertisement for escort services on the Backpage.com website. Samantha's mother recognized Samantha in the partially nude photos on the advertisement by a birthmark on her leg.
Samantha's mother also said that her internet search turned up the name "Inestroza."
Samantha's mother took the Backpage.com advertisement to the police. The advertisement had been posted three days earlier; it offered the escort services of a 19-year-old girl in the area of 1960 and I45, gave a contact email of ricopimpin@gmail.com, and listed the telephone number of the cell phone that Samantha had used to call her mother.
Deputy Burks, of the Harris County Sheriff's Department, had an undercover officer call the number in the advertisement and set up a "date." Upon learning that Samantha was at a Motel 6 at 19606 Cypresswood, Burks set up surveillance at that location. When he saw a juvenile, he approached her, and she identified herself as Samantha. Burks took Samantha in custody and transported her to the Sheriff's Office.
Burks obtained consent from Samantha's mother to interview her. He also took possession, with her consent, of the Nokia cell phone in Samantha's possession. A search of the phone revealed the earlier text messages from the undercover officer to the phone number listed in the Backpage.com advertisement. Burks also saw phone calls and text messages from a contact identified as "Rico P." Burks had Samantha text "Rico P" to meet her at Greenspoint Mall. Appellant and James arrived in response to the text, and appellant was arrested based on outstanding traffic warrants. After he was arrested, appellant's wallet was taken and searched. Inside was a handwritten list of escort websites.
ADMISSION OF EVIDENCE
In three issues on appeal, appellant contends that the trial court erred in admitting (1) business records containing unredacted hearsay and (2) evidence recovered from appellant's wallet that appellant claims was obtained as a result of an unlawful search under both Texas and federal law.
A. STANDARD OF REVIEW
We review a trial court's ruling on the admission or exclusion of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism'd). We will uphold the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Tillman, 354 S.W.3d at 435, 442; accord Walker, 321 S.W.3d at 22. If the trial court's evidentiary ruling is reasonably supported by the record and correct on any theory of applicable law, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
B. HEARSAY IN BUSINESS RECORDS
In his first issue, appellant contends that:
[t]he trial court erred in admitting documentary evidence collected from Backpage.com when the evidence contained hearsay in violation of rule 802, Texas Rules of Evidence.
Appellant argues that State's Exhibit 2—business records of advertisements posted on the Backpage.com website that included a name, email address, and other identifying information associated with appellant—contained hearsay because the information necessarily came from someone other than a person inside the business of Backpage.com, and as hearsay within a business record, it should have been excluded.
It is true that not everything found within a "business record" automatically becomes admissible. As the Texas Court of Criminal Appeals
When a business receives information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception. Those statements must independently qualify for admission under their own hearsay exception—such as statements made for medical diagnosis or treatment, statements concerning a present sense impression, an excited utterance, or an admission by a party opponent.Garcia v. State, 126 S.W.3d 921, 926-27 (Tex. Crim. App. 2004) (footnotes omitted); see also Sanchez v. State, 354 S.W.3d 476, 485-86 (Tex. Crim. App. 2011) ("When hearsay contains hearsay, the Rules of Evidence require that each part of the combined statements be within an exception to the hearsay rule.").
Even if we assume that the biographical information supplied to Backpage.com to set up the account is a "statement" within the meaning of Texas Rule of Evidence 801, it was nonetheless admissible as a statement by a party opponent under rule 801(e)(2). See TEX. R. EVID. 801(e)(2). Rule 801(e)(2) provides that a statement is not hearsay if it (1) is offered against a party and (2) is the party's own statement. Id. 801(e)(2)(A). Here, the first element is uncontested; State's Exhibit 2 was offered against appellant.
"'Statement' means a person's oral or written verbal expression, or nonverbal conduct that a person intended as a substitute for verbal expression." TEX. R. EVID. 801(a).
And, the State presented evidence by which the jury could have concluded that the information used to set up the Backpage.com account and the advertisements was attributable to appellant, i.e., was appellant's own statement. Naomi Jordan testified that appellant went by the name "Rico P" and that he had posted on the Backpage.com website in the escort section. The account name with Backpage.com was "Rico p" and the email used was ricopimpin@gmail.com. The advertisements were in the category "adult entertainment: escorts" and included photos of a partially nude female. Samantha's mother identified the girl in the photos as her daughter, the complainant. When she googled the phone number in the advertisement, Samantha's mother saw the name "Inestroza." Samantha herself identified appellant in court as "Rico" and testified that "Rico" took pictures of her that he was going to use to set up an advertisement on a website, and that she used a phone given to her by "Rico," through his younger brother, James, to set up "tricks." James would take the money from the "tricks" and leave with appellant. The phone number listed on the Backpage.com advertisement was the same as the phone that Rico gave to Samantha. While both James and appellant used the phone identified in the Nokia phone's contacts as "Rico P," Samantha testified that James "answered to" appellant and that "Rico told [James] what to do." Thus, the second element of a statement by party opponent is met. See Jones v. State, 466 S.W.3d, 252, 265 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (holding that because "the State presented some evidence indicating that [defendant] was responsible for the contents of the phone," text messages on phone were admissions by party opponent).
An admission by a party opponent includes both a party's statements and those by a co-conspirator. Jones v. State, 466 S.W.3d 252, 266 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
Because the statements in State's Exhibit 2 were offered as appellant's own and were offered against him, they were not hearsay. See Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) ("Rule 801(e)(2)(A) plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay.").
We overrule issue one.
C. SEARCH OF APPELLANT'S WALLET
In issues two and three, appellant contends:
[t]he trial court erred in admitting evidence recovered in appellant's wallet during his arrest when the State of Texas failed to prove that the arrest was lawful in violating of Texas Code of Criminal Procedure Art. 38.23; Tex. Const. art. 1 §9; and U.S.C.A. Const. Amend IV[,]
and,
[the] trial court erred in admitting evidence recovered in appellant's wallet during his arrest when the State of Texas failed to prove that the purported inventory search subsequent to appellant's arrest was lawful in violation of Texas Code of Criminal Procedure art. 38.23; Tex. Const. Art. 1, §9; and U.S.C.A. Const. Amend IV.
After appellant was arrested and taken into custody, his wallet was taken and searched and police recovered a handwritten list of escort websites, which was admitted at trial as State's Exhibit 29.
In issue two, appellant contends "the State of Texas failed to prove that the arrest was lawful." This argument improperly shifts the burden of proof to the State.
A defendant who alleges a violation of the Fourth Amendment has the burden of producing evidence that rebuts the presumption of proper police conduct. He may carry this burden by establishing that the seizure occurred without a warrant. The burden then shifts to the State to prove the reasonableness of the seizure.State v. Robinson, 334 S.W.3d 776, 778-79 (Tex. Crim. App. 2011).
Likewise, a defendant who moves for suppression under Article 38.23 due to the violation of a statute has the burden of producing evidence of a statutory violation. Only when this burden is met does the State bear a burden to prove compliance.
Appellant argues that his initial detention was the result of an unlawful traffic stop, giving rise to the discovery of outstanding warrants for which he was arrested. There is no evidence in the record to suggest that police discovered the warrants for appellant's arrest after he was illegally stopped. The only evidence in the record about the arrest is that appellant arrived at Greenpoint Mall in response to a text to "Rico" from the phone appellant had given to Samantha, and that police then arrested him based on outstanding traffic warrants; there is nothing to suggest that a traffic stop was made, much less that it was illegal. The initial contact with appellant was to investigate why he was responding to a text to "Rico" from the phone that Samantha had been using, after which he was arrested based on outstanding traffic warrants.
Because the only evidence in the record shows that appellant was lawfully arrested pursuant to a warrant, the burden never shifted to the State to show the reasonableness of a warrantless seizure.
We overrule issue two.
In issue three, appellant contends the trial court erred in admitting State's Exhibit 29 because "the State did not prove that the inventory search [of his wallet] was lawful." Specifically, appellant points out that the State did not present evidence of its inventory policy, and that another person was available to take possession of appellant's car.
Citing Gauldin v. State, 683 S.W.2d 411, 415 (Tex. Crim. App. 1984) and Moskey v. State, 333 S.W.3d 696, 700 (Tex. App—Houston [1st Dist.] 2010, no pet.), appellant contends that it was the State's burden to show that (1) an inventory policy existed and (2) the policy was followed. However, Gauldin and Moskey involve inventory searches of cars that had been impounded. Appellant's wallet was seized as a result of a search of his person after he was arrested.
Both under the Fourth Amendment to the United States Constitution and under Art. 1, Section 9 of the Texas Constitution, searches of a person and the area within his immediate control are excepted from the requirement of a warrant when incident to the lawful arrest of such person and otherwise proper in scope.Rogers v. State, 774 S.W.2d 247, 264 (Tex. Crim. App. 1989), (overruled in part on other grounds), Peek v. State, 774 S.W.2d 247, 264 (Tex. Crim. App. 1989). Searches incident to arrest are not limited as a matter of law to those made at the instant a suspect is taken into police custody. Abel v. United States, 362 U.S. 217, 239, 80 S. Ct. 683, 697 (1960); Rogers, 774 S.W.2d at 264. The legal basis for concluding that these searches are reasonable within the meaning of the state and federal constitutions is ordinarily applicable during the entire interval following arrest and leading ultimately either to detention of the suspect or to his release on bail pending formal accusation and trial. United States v. Edwards, 415 U.S. 800, 802-03, 94 S. Ct. 1234, 1236-37; Rogers, 774 S.W.2d at 264. See also Illinois v. Lafayette, 462 U.S. 640, 646, 103 S. Ct. 2605, 2609 (1983) (holding it lawful for police to search personal effects of person under lawful arrest as part of normal booking procedure).
Because the search of appellant's wallet was a lawful search incident to arrest, not an automobile inventory search of an impounded car, the trial court did not err in admitting State's Exhibit 29.
We overrule issue three.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Higley and Bland. Do not publish. TEX. R. APP. P. 47.2(b).