Kent DeWayne Gober v. State of Texas--Appeal from 35th District Court of Brown County

Opinion filed November 1, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-05-00374-CR

__________

 KENT DEWAYNE GOBER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR16944

O P I N I O N

The jury convicted Kent DeWayne Gober of possession with intent to deliver four grams or more but less than 200 grams of a controlled substance (methamphetamine) and assessed his punishment at twenty-five years confinement and a $5,000 fine. We affirm.

Police officers received information from a confidential informant concerning Gober. Based upon this information, they obtained a search and arrest warrant authorizing them to arrest Gober and search his residence and a 1991 red Ford pickup. They began looking for Gober and saw him driving a 1990 maroon Oldsmobile. The officers stopped Gober, placed him under arrest, and searched the vehicle. They found a small blue zip-lock bag containing over ten grams of a substance they suspected was methamphetamine.

Gober filed a motion to suppress, arguing that the vehicle search was illegal because the search warrant only authorized a search of his residence and a 1991 red Ford pickup. The trial court conducted an evidentiary hearing and denied his motion. Gober challenges that ruling on appeal.

When reviewing the trial court=s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving Aalmost total deference to a trial court=s determination of historic facts@ and reviewing de novo the trial court=s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). If the issue is one of application of law to facts and the ultimate resolution of that issue does not turn on an evaluation of credibility and demeanor of a witness, then we may review that issue de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Furthermore, we will sustain the trial court=s ruling admitting the evidence if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003).

The warrant did not provide independent authorization to search Gober=s vehicle, but because it was searched incident to his arrest, no search warrant was necessary. See Thornton v. United States, 541 U.S. 615, 617 (2004); see also New York v. Belton, 453 U.S. 454, 460 (1981) (police may search the passenger compartment of a vehicle and containers within it when the search is a contemporaneous incident to a lawful arrest). Gober does not challenge the police=s authority to arrest him. Because Gober was properly taken into custody, the police were authorized to search his vehicle. Issue one is overruled.

Gober next argues that the trial court erred by admitting a statement he made when the zip-lock bag found in his car was opened, contending that this violated Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). Officer Billy Bloom, with the West Central Texas Interlocal Crime Task Force, testified that, when Gober was stopped, the officers showed him the warrant and advised him of his Miranda[1] rights. Officer Bloom testified that Gober then told them that he did not wish to say anything. Gober objected to any further testimony, contending that it violated his right to remain silent. The trial court excused the jury and conducted a hearing. During the hearing, Officer Bloom testified that, after Gober elected to remain silent, he asked Gober who owned the vehicle and that Gober responded that it belonged to his passenger. Officer Bloom then held up the bag and said, ASo this is hers, too?@ Gober replied, ANo.@ Officer Bloom unzipped the bag, saw its contents, held it open, and heard Gober say, AThat=s mine, too.@

The State conceded that Gober=s response to Officer Bloom=s question about the car was inadmissible and, without conceding to Gober=s argument, indicated that it would not attempt to admit Gober=s response to Officer Bloom=s question about the bag. The trial court ruled that Officer Bloom=s questions were a custodial interrogation and that Gober=s responses were inadmissible under Article 38.22. The trial court, however, held that Gober=s last statement AThat=s mine, too@ did not stem from the custodial interrogation, was res gestae of the arrest, and was admissible.[2] Gober does not contend that Officer Bloom verbally asked him who owned the methamphetamine, but he argues that the trial court erred because under the circumstances his statement AThat=s mine, too@ was still the product of a custodial interrogation. The United States Supreme Court held in Rhode Island v. Innis, 446 U.S. 291, 301 (1980), that Ainterrogation@ means more than express questioning and includes Aany words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.@ Gober contends that Officer Bloom=s act of holding the bag open immediately after asking about the ownership of the car and bag was part of a custodial interrogation because it was intended to elicit a response. We disagree because Innis requires more than subtle compulsion.

Gober may have felt some compulsion to speak when Officer Bloom held open the bag, but the facts of Innis demonstrate that more is necessary to constitute a custodial interrogation. Innis was arrested for the suspected robbery of a taxicab driver with a shotgun. He was unarmed when arrested. Innis was repeatedly given Miranda warnings and, after indicating his desire to speak with a lawyer, was placed in the back of a police car for transport. While en route, two police officers mentioned the fact that a school for handicapped children was nearby and discussed their concern that one of the children might find a weapon with shells and hurt themselves. Id. at 294-95. One officer said that it would be too bad if a little handicapped girl picked up the gun and killed herself. Innis told the officers to turn the car around so that he could show them where the gun was located. They did, and he took them to a nearby field where they found a hidden shotgun. Id. at 295.

The Court, over a vigorous dissent from Justice Marshall, held that, even though Innis was subjected to subtle compulsion which struck a responsive chord, he was not interrogated because the record did not establish that his statement was the product of words or actions that the officers should have known were likely to elicit an incriminating response. Id. at 303. Justice Marshall wrote that he was Autterly at a loss@ to understand how a direct appeal to Innis=s conscience B the assertion that if the weapon was not found a helpless, handicapped little girl on her way to school would be hurt or killed B could not constitute an interrogation. Id. at 305-06. If the pressure placed upon Innis is not interrogation, Officer Bloom=s simple act of holding the zip-lock bag up B even though he did so immediately after asking Gober who owned the bag B is not a custodial interrogation. Issue two is overruled.

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

November 1, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Miranda v. Arizona, 384 U.S. 436 (1966).

[2]Article 38.22, section 5 provides:

Nothing in this article precludes the admission of a statement made by the accused . . . that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.