JOSE GABRIEL CORRO, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued July 6, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00640-CR
 
No. 05-08-00641-CR
No. 05-08-00642-CR
No. 05-08-00643-CR
 
............................
JOSE GABRIEL CORRO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause Nos. 2-06-670, 2-06-671, 2-06-672 & 2-06-673
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OPINION
Before Justices Morris, Wright, and Moseley
Opinion By Justice Wright
        Jose Gabriel Corro appeals his convictions for possession of four grams or more but less than 200 grams of methamphetamine with the intent to deliver, possession of four grams or more but less than 200 grams of cocaine with the intent to deliver, possession of four grams or more but less than 200 grams of heroin with the intent to deliver, and the unlawful possession of a firearm by a felon. After the jury found appellant guilty, the trial court assessed punishment, enhanced by prior felony convictions, at 35 years' confinement in each case. In five issues, appellant contends (1) the trial court erred by denying his motion to suppress, (2) the State withheld exculpatory evidence, (3) he was denied his right to a speedy trial, (4) the jury charge was erroneous, and (5) the evidence is legally and factually insufficient to support his possession of controlled substance convictions.   See Footnote 1  We overrule appellant's issues and affirm the trial court's judgments.
Background
        Deputy Sheriff Chad Young testified he was working night shift and was patrolling on I-30 looking for possible intoxicated drivers. He parked in a grassy section so that he could watch the eastbound traffic. As he was watching the traffic, a car passed him and the passenger turned his whole body to look at Young and “gave a surprised look” that was “suspicious.” Because that was uncommon, Young followed the car. As the driver changed from the merging lane into the center lane, the driver swerved “over each line on each side of it.” Young also testified that it was early in the morning and the car was coming from an area with bars and places to drink “relatively close.” Young believed all of these things indicated the driver might be intoxicated so he stopped the car for failing to maintain a single lane.
        When Young asked the driver, Sarrah Debusk, for her driver's license, she told Young she did not have one. The passenger, appellant, gave his driver's license to Young and told him the car was appellant's and he had insurance on the car. Young then ran a routine warrant check and discovered appellant had outstanding arrest warrants. Young arrested appellant and placed him in the patrol car. According to Young, both appellant and Debusk then gave him permission to search the car. When he did so, Young found, among other things, a purple bag with a “small caliber, black semiautomatic weapon,” 9.27 grams of heroin, 36.03 grams of methamphetamine, and 14.32 grams of cocaine in the dash behind the glove box. Young also found a red duffel bag on the passenger side of the car in the back seat. The duffel bag contained “a large number of rubber gloves, male clothing, and a digital scale with white powder residue.” There was also a blue backpack with male clothing, a scanner, and a second set of scales with white residue in the trunk of the car. Appellant told Young the clothing in the blue backpack belonged to him, but neither of the bags belonged to him. Debusk told Young the drugs and the gun were hers.
        Officer Jimmie Rico testified he works in the Special Crimes Unit for the Rockwall County Sheriff's Department and his duties include performing narcotics investigations. Although he spoke with both appellant and Debusk the night they were arrested, he did not gather any information from them. Rico explained to the jury that the narcotics Young found were packaged for resale. He also testified that, in his experience, possession of digital scales indicates that the person buys large quantities of a narcotic and then uses the scales to individually package it for distribution. Finally, Rico testified that considering the criminal history of Debusk and appellant, the location where the narcotics were found, and the male clothing found in the car, he would conclude the narcotics found in the car belonged to appellant. According to Rico, he had past experiences where a girlfriend would claim ownership of drugs in an effort to protect their boyfriend.
        Debusk testified that although she told Young the drugs were hers, the drugs belonged to appellant. According to Debusk, appellant supplied her with drugs on a daily basis. She was using heroin and speed the night she was stopped and did not realize the amount of drugs that were in the car. She told Young the gun and the drugs belonged to her because she loved appellant, knew he had just been released from prison, and did not want him to have to go back. Debusk explained that certain letters between her and appellant claiming the drugs belonged to Andrew   See Footnote 2  were not the truth.
        Appellant testified the drugs did not belong to him. According to appellant, Debusk was having an affair with a man named Andrew and the drugs belonged to him. Appellant believed the police coerced Debusk into testifying the drugs belonged to him, by frightening her with the threat of a long prison sentence. He also testified that Young lied about the traffic stop.
        After hearing this and other evidence, the jury found appellant guilty of all four charges against him. This appeal followed.
Sufficiency of the Evidence
        In his fifth issue, appellant contends the evidence is legally and factually insufficient to support his possession of controlled substance convictions. According to appellant, the State failed to sufficiently link him to the heroin, methamphetamine, and cocaine found in the car. After reviewing the record, we disagree.
        When reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the jury's verdicts to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). We must give deference to “the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214 S.W.3d at 14 (citing Jackson, 443 U.S. at 318-19). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
        When reviewing a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdicts seem clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdicts, though legally sufficient, are nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's findings are manifestly unjust, shock the conscience, or clearly demonstrate bias. Id. The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury on these questions but only “to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007) (explaining that factual sufficiency jurisprudence still requires appellate court to afford “due deference” to jury's determination). A factual sufficiency review is “barely distinguishable” from a Jackson legal sufficiency review. Id.
        A person possesses a controlled substance if he exercises care, custody, control, or management over it and knows it is contraband. Frierson v. State, 839 S.W.2d 841, 848 (Tex. App.-Dallas 1992, pet. ref'd) (citing Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). Appellant's mere presence in a location where contraband was found is insufficient to support a conviction when others also have access to the location and the drugs. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006). The State's evidence must show appellant's connection to the contraband was more than fortuitous and may do so with either direct or circumstantial evidence. Id. However, presence or proximity, when combined with other evidence may be sufficient to establish possession. Id. at 162.
        After reviewing the evidence under the appropriate standards, we conclude the evidence presented sufficiently links appellant to the methamphetamine, cocaine, and heroin. Appellant was in close proximity to a large quantity of contraband that was easily accessible to him. The drugs were found in a car that belonged to and was insured by him. The car was an enclosed space that also contained baggage containing drug paraphernalia and male clothing. Under these circumstances, we conclude the evidence is legally and factually sufficient to support appellant's convictions for possession of controlled substances with the intent to deliver. See Evans, 202 S.W.3d at 162 n.12 (compiling non-exclusive list of links used by Texas courts to establish possession of contraband). We overrule appellant's fifth issue.
Motion to Suppress
        In his first issue, appellant first contends the trial court erred by overruling his motion to suppress because the State failed to show Debusk's failure to maintain a single lane was unsafe, and therefore she did not commit a traffic offense. On appeal, the State argues the stop is justified not only because of the traffic violation but also because Young had a reasonable suspicion to believe Debusk may have been driving while intoxicated. After reviewing the record, we agree with the State.
        We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). We do not engage in our own factual review; rather, the trial court is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give trial courts “almost complete deference in determining historical facts.” St. George, 237 S.W.3d at 725; see Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We review the record to determine whether the trial judge's ruling is supported by the record and correct under some theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
        Although a police officer must have probable cause for a full custodial arrest, a mere stop of an individual for the purposes of investigation does not require such substantial justification. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). An investigative detention occurs when the police stop and briefly detain an individual to ascertain his identity, the reason for being in the area, or other similar inquiry. Amores v. State, 816 S.W.2d 407, 412 (Tex. Crim. App. 1991). Before a detention is justified, the officer must possess reasonable suspicion to detain the suspect, that is, the officer must have specific, articulable facts, which, in light of his experience and general knowledge, together with rational inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for investigation. Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). The articulable facts “must create some reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to crime.” Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).
        The burden is on the State to demonstrate the reasonableness of the traffic stop. Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Whether an officer had reasonable suspicion is determined by considering the totality of the circumstances. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Here, Young based the traffic stop on Debusk's failure to maintain a single lane in violation of section 545.060 of the Texas Transportation Code.   See Footnote 3 
        Appellant claims the State has failed to demonstrate that Young had reasonable suspicion to make the stop because weaving between lanes, by itself, is insufficient justification for a traffic stop. Appellant relies on several cases in which courts of appeals determined that failure to maintain a single lane of traffic alone, did not justify an investigative stop. See, e.g., Eichler v. State, 117 S.W.3d 897 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (driver swerved over center line one time, but record did not show it was unsafe to do so); Bass v. State, 64 S.W.3d 646 (Tex. App.-Texarkana 2001, pet. ref'd) (officer saw driver swerving more than once, officer did not testify that based on his experience he believed driver was intoxicated nor about objective facts such as time, location, or other circumstances that would have led a reasonable officer to suspect driver was intoxicated); Aviles v. State, 23 S.W.3d 74 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (multiple lane change did not justify stop where there was no evidence that it was not performed safely); Hernandez v. State, 983 S.W.2d 867 (Tex. App.-Austin 1998, pet. ref'd) (driver swerved left into center lane, officer did not testify about subjective or objective reasons for believing appellant was intoxictated). After reviewing the record in this case, we conclude appellant's reliance on these cases is misplaced.
        Here, unlike the cases cited by appellant, Young did testify to a subjective belief the driver may have been intoxicated and to objective facts regarding the passenger's unusual behavior, and the time and location of the stop, all of which indicated to Young that the driver may have been intoxicated. Specifically, Young testified he initially followed the car because appellant turned all the way around and looked at him and appeared surprised. As Young followed the car, he saw Debusk swerve over each line of the lane. Young also testified that it was early in the morning and the car was coming from an area with bars and places to drink that were “relatively close.” Because Young believed all of these things indicated the driver might be intoxicated, he stopped the car for failing to maintain a single lane. Under these circumstances, we cannot conclude the trial court erred by determining the stop was valid.
        Appellant next contends the trial court erred by overruling his motion to suppress because it was not reasonable to continue his detention once Young determined Debusk was not intoxicated. Again, we disagree.
        For Fourth Amendment purposes, a traffic stop is a seizure and must be reasonable to be lawful. Brendlin v. California, 127 S. Ct. 2400, 2403 (2007); Davis v. State, 947 S.W.2d 240, 243, 245 (Tex. Crim. App. 1997); Spight v. State, 76 S.W.3d 761, 766 (Tex. App.-Houston [1st Dist.] 2002, no pet.). A traffic stop is reasonable if the police officer was justified in making the stop and his actions during the stop were confined in length and scope to that necessary to fulfill the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004); Davis, 947 S.W.2d at 242, 243 (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)). Actions an officer may take within the scope of investigation attendant to a traffic stop include requesting identification, proof of insurance, and vehicle registration; checking for outstanding warrants; verifying the vehicle is not stolen; and asking about the purpose of the trip and intended destination. Kothe, 152 S.W.3d at 63; Spight, 76 S.W.3d at 766. The officer may approach not just the driver for this information but also any passengers. Kothe, 152 S.W.3d at 64 n.36; Duff v. State, 546 S.W.2d 283, 286 (Tex. Crim. App. 1977); Freeman v. State, 62 S.W.3d 883, 888 (Tex. App.-Texarkana 2001, pet. ref'd). Additionally, the officer may ask the driver and passengers to step out of the car. Maryland v. Wilson, 519 U.S. 408, 410 (1997). A stop may last no longer than is necessary to effectuate its purpose, although no rigid time limitation exists on its length. Kothe, 152 S.W.3d at 63, 64, 65 n.43 (noting one legal scholar who suggests time limit of thirty minutes as matter of state law because it is “unrealistic to expect courts effectively to review officers' decisions to prolong detention for periods of fifteen to thirty minutes”).
        Here, Young stopped the car about 3:15 a.m. He asked both Debusk and appellant for identification and then ran a routine warrant check. Within six minutes, the computer check showed appellant had outstanding warrants. Young then handcuffed appellant and placed him into the patrol car. Two minutes later, appellant gave Young permission to search the car. Appellant does not contend his consent was involuntary. After reviewing the record, we cannot conclude the length of appellant's detention was unreasonable, and appellant's argument to the contrary lacks merit. We overrule appellant's first issue.
Exculpatory Evidence
        In his second issue, appellant contends we must reverse his convictions because the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). In particular, appellant maintains the State failed to produce a videotape of Rico's interview with Debusk the night she was arrested. To prevail on his claim, appellant must establish three key elements: (1) suppression of evidence by the prosecution after a request by the defense; (2) the evidence's favorable character for the defense; and (3) the materiality of the evidence. See Brady, 373 U.S. at 87; Cruz v. State, 838 S.W.2d 682, 685 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd).
        Initially, we note it is not clear whether a videotape was made of Debusk's interview. However, even assuming it exists, both Rico and Debusk testified that the interview was short, and Rico did not obtain any information from Debusk because she asked for an attorney and the interview was then terminated. Under these circumstances, appellant has failed to show the favorable character of the evidence or that it was material. We overrule appellant's second issue.
 
Speedy Trial
        In his third issue, appellant contends his Sixth Amendment right to a speedy trial was violated. After reviewing the record, we conclude appellant failed to preserve this issue for appeal.
        The record shows appellant was arrested and placed in jail on October 3, 2006. On December 21, 2007, appellant filed a pro se motion complaining he had been denied the right to a speedy trial. The motion was not ruled on by the trial court. Moreover, the record does not indicate that appellant presented the motion to the trial court, sought a ruling on the motion, or complained about the trial court's failure to rule. A month later, he was initially tried for these offenses. After the jury could not agree on a verdict, appellant was retried beginning on April 21, 2008.
        To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Because appellant failed to present his motion to the trial court or obtain a ruling, he has failed to preserve his speedy trial complaint for our review. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (although defendant is not required to assert his right to a speedy trial at any particular time, he cannot wait until he appeals his conviction and then present it for the first time on appeal). We overrule appellant's third issue.
 
38.23 Instruction
        In his fourth issue, appellant contends the trial court improperly instructed the jury regarding the evidence seized by Young after he searched the car. In particular, appellant complains the trial court's instruction was only “partially compliant” with article 38.23 of the Texas Code of Criminal Procedure because it did not instruct the jury that the offense of failure to maintain a single lane requires a finding that the movement was not made safely.
        The trial court instructed the jury to disregard the evidence obtained from the search of the car if it determined Young did not have reasonable suspicion to believe Debusk “may have been operating a vehicle while intoxicated, or that [she] failed to maintain a single lane immediately preceding the stop and detention” (emphasis added). Appellant did not object to the charges, thus, we will reverse only if the error is so egregious that he was deprived of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We determine the actual degree of harm in light of the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
        Appellant has not cited, nor can we find, law requiring a 38.23 instruction to track the statutory language of a traffic offense. The issue is not whether the jury determined Debusk actually committed the traffic offense, but whether it believed Young had a reasonable suspicion that she had done so. Further, in addition to the complained-of instruction, the jury was also instructed that the stop was legal if it concluded Young could have reasonably suspected Debusk was driving while intoxicated. Appellant makes no complaint about that portion of the charge. We have previously concluded the stop was valid because Young articulated specific facts supporting his suspicion that Debusk may have been driving while intoxicated. Based on the entire charge, the evidence, and the arguments of counsel, we cannot conclude appellant was egregiously harmed. We overrule appellant's fourth issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080640F.U05
 
Footnote 1 Appellant filed separate briefs for each case. The briefs are identical except that he does not challenge the sufficiency of the evidence to support his conviction for possession of a firearm by a felon.
Footnote 2 The record does not show Andrew's surname.
Footnote 3 Section 545.060 provides: “(a) an operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless the movement can be made safely.” Tex. Transp. Code Ann. § 545.060 (Vernon 1999).