Leland Tyrone Harris v. The State of Texas--Appeal from 185th District Court of Harris County

Opinion issued October 19, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-01002-CR

LEELAND TYRONE HARRIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1023554

MEMORANDUM OPINION A jury found appellant, Leeland Tyrone Harris, guilty of possession of a controlled substance, namely cocaine, weighing less than one gram by aggregate weight. // The trial court sentenced appellant to two years in state jail, suspended the sentence, placed appellant on community supervision for five years, and assessed a $500 fine. In two issues, appellant contends that (1) the evidence was factually insufficient to support his conviction and (2) the trial court erred by denying appellant s motion to suppress custodial statements.

We affirm.

Background

The following is a summary of the evidence presented by the State at trial through the testimony of Houston police officers M. Sinegal and S.L. Eames.

Officer Sinegal was working undercover narcotics at a gas station when he saw appellant give an unidentified man paper money and the man give appellant something that Officer Sinegal could not identify. The man then stepped through a hole in a fence behind the gas station and disappeared from Officer Sinegal s sight. Appellant got into a parked car but did not leave the gas station. Officer Sinegal radioed a marked police patrol unit, which was working with Officer Sinegal and waiting nearby, to investigate what he had perceived to be an illegal drug transaction between appellant and the unidentified man.

Houston police officer S.L. Eames and her partner, Officer McGivern, responded to Officer Sinegal s call. As she approached, Officer Eames noticed that appellant s car was filled with smoke. Officer Eames ordered appellant out of the car. As appellant got out of the vehicle, Officer Eames heard the sound of metal hitting the pavement. Officer Eames then saw that a socket wrench had fallen out of the car. Officer Eames discovered that the socket wrench was hot because, when she picked it up, the socket wrench burned her fingers. The socket wrench had a piece of Brillo pad at its end and burn marks on it, indicating to the officers that the wrench had been used to smoke crack cocaine.

Appellant was placed in the back of the officers patrol car. With appellant in the back seat, the officers drove to a nearby location and parked in a darkened area between some commercial buildings to await a call from Officer Sinegal. Officer Sinegal was hopeful that the suspected drug dealer would return to the gas station and anticipated that the patrol officers would be needed to assist in that apprehension as well.

As the officers and appellant sat in the patrol car, Officer Sinegal s voice was heard over the radio. When he heard Officer Sinegal s voice, appellant insisted on speaking with him. The patrol officers contacted Officer Sinegal and told him that appellant requested to speak with him. Officer Sinegal came to speak with appellant, who was still in the back of the patrol car. Appellant told Officer Sinegal that he was experiencing a family separation and had been living in his car. Appellant offered to help Officer Sinegal catch a drug dealer if Officer Sinegal would release him that night. Appellant also admitted that he had been smoking crack cocaine. Officer Sinegal declined appellant s offer.

The police crime lab later tested the substance in the socket wrench. A crime lab employee testified that the substance was cocaine residue.

Factual Sufficiency

In his first issue, appellant challenges the factual sufficiency of the evidence to support his conviction. In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We consider all of the evidence weighed by the jury, comparing the evidence that tends to prove the existence of the elemental fact in dispute with the evidence that tends to disprove it, but avoiding substitution of our judgment for that of the fact finder. Id. In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

To convict a defendant for possession of a controlled substance, the State must show that the defendant knowingly or intentionally possessed the controlled substance. Seals v. State, 187 S.W.3d 417, 419 (Tex. Crim. App. 2005); see Tex. Health & Safety Code Ann. 481.115(a) (Vernon 2003). Appellant contends that the State did not meet its burden to show that he knowingly possessed the cocaine found in the socket wrench. To support this contention, appellant relies on his own trial testimony.

Appellant testified about the events of the night in question. According to appellant, he was stranded at the gas station because his car had broken down. Appellant explained that he was attempting to reach his brother on the pay telephone when a man approached him asking to borrow a socket wrench to repair some lawn equipment. Appellant testified that he loaned the man his wrench and gave him some change. He told the jury that the man later returned and gave back the socket wrench and the change. Appellant claimed that he had not looked closely at the wrench after the man had returned it and thus had not noticed its condition. Appellant stated that, before Officer Eames and her partner approached, he had been smoking a cigar in his car. Appellant testified that he had gotten into his car to count the change when the police came. Appellant explained that he had placed the socket wrench in his lap and that, when the police removed him from his car, the wrench and change had fallen on the pavement.

Appellant denied that the socket wrench had been hot as Officer Eames testified. Appellant also denied that he had requested to speak to Officer Sinegal about entering into a deal whereby appellant would assist the officer in catching a drug dealer. Rather, appellant testified that the officers had approached him about entering into such an arrangement, but that he had declined. Appellant denied that he told Officer Sinegal that he had been living out of his car. Rather, appellant testified that he was temporarily staying with an acquaintance. Appellant further denied that he told the officers that he had been smoking crack cocaine.

On appeal, appellant argues that the evidence was factually insufficient to support his conviction because his testimony showed that he did not know that the socket wrench contained cocaine residue. Appellant characterizes his possession as unwitting, arguing that it occurred much in the same way one might have momentary hold of another s purse, but unless one knew that the third party s purse contained some contraband, one cannot argue that this constitutes knowing care, custody, or control. Appellant also asserts that, [i]f, given his circumstances of essentially having to move to a new place temporarily, there was an item, either borrowed or loaned or used by someone else for an illicit purpose, in a rather over-stuffed vehicle with numerous personal belongings hastily packed, that does not establish knowing care and custody of any contraband.

Appellant s contentions challenging the factual sufficiency of the evidence depend on appellant s version of the events. To the extent that appellant s account of the events preceding the officers taking him into custody contradicted the account offered by the officers, it was for the jury to resolve these factual discrepancies. See Johnson, 23 S.W.3d at 7. As the factfinder, the jury was free to believe the officers and disbelieve appellant.

In support of his factual sufficiency challenge, appellant also contends that he made the custodial statements regarding his offer to enter into a deal with Officer Sinegal and his confession that he had been smoking crack cocaine as a product of his fear of being arrested and imprisoned. // Though the jury could have reached such conclusion, it also could have reasonably concluded that appellant made the statements because he believed that, if he told the truth about smoking crack cocaine, it would result in his release.

Lastly, appellant asserts that the custodial statements did not contain a specific admission that he possessed the cocaine residue. The evidence showed that appellant admitted to having smoked crack cocaine. From this and the officers other testimony, the jury could have inferred that appellant possessed the cocaine residue found in the socket wrench.

Viewing all of the evidence in a neutral light, we conclude that the proof of appellant s guilt is [not] so obviously weak as to undermine confidence in the jury s determination, nor is it greatly outweighed by contrary proof. Id. at 11; see Vodochodsky, 158 S.W.3d at 510. We hold that the evidence was factually sufficient to support appellant s conviction.

We overrule appellant s first issue.

Admissibility of Custodial Statements

In his second issue, appellant contends that the trial court erred in denying his motion to suppress his custodial statements regarding his offer to assist Officer Sinegal in catching a drug dealer and his confession that he had been smoking crack cocaine. At the conclusion of the suppression hearing, the trial court orally found that appellant was in custody at the time he made the statements that he sought to suppress, but also found that the statements were not made as a result of interrogation. In addition, the trial court orally found that no evidence had been presented to indicate that the statements were made involuntarily. Citing the Fifth and Fourteenth Amendments to the United States Constitution, appellant contends that the statements should have been suppressed because (1) the police elicited the statements during a custodial interrogation without first advising appellant of his Miranda rights and (2) the statements were not made voluntarily. See U.S. Const. amends. V, XIV.

A. Standard of Review

We review the trial court s ruling on a motion to suppress for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002) Guzman v. State, 955 S.W.2d 85, 88 89 (Tex. Crim. App. 1997). The trial court is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Thus, we give almost total deference to the trial court s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89.

In contrast, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.; Balentine, 71 S.W.3d at 768. We must view the record and all reasonable inferences therefrom in the light most favorable to the ruling on the suppression motion, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

B. Custodial Statements Without Miranda Warning

In Miranda v. Arizona, the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). Here, the State acknowledges that appellant was not Mirandized before the statements were made and that appellant was in custody at the time; however, it contends that the statements did not arise from an interrogation.

1. Actual Interrogation

Appellant contends that he was subject to interrogation when he made the statements because the statements were made in response to the officers inquiries, particularly the officers request that appellant assist them in catching a drug dealer. In contrast to appellant s testimony, the officers testified that they did not question appellant before he made the statements. Officer Eames stated that, when appellant heard Officer Sinegal s voice on the police radio, appellant insisted on speaking with Officer Sinegal. Officer Eames testified that she radioed Officer Sinegal and told him that appellant insisted on speaking with him. Officer Sinegal stated that he went to the patrol car where appellant was seated. According to Officer Sinegal, it was appellant who proposed that he assist in capturing a drug dealer in exchange for his release. Officer Sinegal testified that he never enters into such agreements with suspects and did not accept appellant s offer.

Appellant argues that the officers testimony was not credible because, given the circumstances, [i]t makes far more sense that the officers were trying to recruit appellant to assist them. He contends that it would have been more rational for the officers to have taken appellant directly to jail rather than to park and await Officer Sinegal s call. Appellant also contends that it would have been logical to utilize him because Officer Sinegal indicated that he was eager to arrest the drug dealer operating at the gas station.

The officers testified that the patrol unit was working in tandem with Officer Sinegal who was working undercover. The evidence showed that the purpose of the patrol unit was to wait nearby until they heard from Officer Sinegal. Once Officer Sinegal radioed, the patrol unit would respond and take the suspect identified by Officer Sinegal into custody. This allowed Officer Sinegal to remain undercover. The chain of events in this case is consistent with the officers explanation of how the operations worked that night.

Importantly, as the fact finder, the trial court was free to believe the officers testimony and disbelieve that of appellant. The officers testimony supports the finding that no actual interrogation occurred. We conclude that appellant s claim that the officers solicited the statements by asking appellant to assist them in arresting a drug dealer does not establish that the trial court abused its discretion when it denied appellant s motion to suppress.

2. Functional Equivalent of Interrogation

Appellant also contends that, even if the statements were not made as a result of actual interrogation, the statements were a product of coercive interrogation procedures. The crux of appellant s argument is that the environment in which he made the statements amounted to the functional equivalent of an interrogation.

The United States Supreme Court discussed the concept of the functional equivalent of interrogation in Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682 (1980). In this regard, the Court opined,

Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term interrogation under Miranda refers not only to express questioning, but also to any 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. . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Id. at 300 02, 100 S. Ct. at 1689 90 (citations omitted).

In this case, it is undisputed that, with appellant in the back of the patrol car, Officer Eames and her partner drove to a nearby dark alley and parked with appellant handcuffed in the back seat. Appellant contends that the statements that he sought to suppress were the subject of interrogation because he was placed in an uncomfortable and fearsome state such that he would have blurted out something in an attempt to avoid a more fearful result. The relevant inquiry here is whether appellant s being handcuffed in the back of the patrol car while he and the uniformed officers sat in a dark alley amounted to the functional equivalent of interrogation. We conclude that it does not.

In Innis, the Supreme Court held that two officers conversation in the presence of the defendant regarding the possibility that a handicapped child would find the gun that the defendant had used to commit a murder and a robbery did not constitute interrogation in violation of Miranda. Innis, 446 U.S. at 302 03, 100 S. Ct. at 1689 90. The Innis court excluded from the definition of interrogation words or actions normally attendant to arrest and custody. Id. at 301, 100 S. Ct. at 1689 90.

Beyond the environment in which the statements were made and his own alleged fears, appellant points to no circumstances that were likely to elicit an incriminating response. Officer Eames testified that neither she nor Officer Sinegal ever threatened appellant nor does appellant claim that he was expressly threatened. Officer Sinegal testified that his objective that night was to arrest a known drug dealer. The gas station was a known drug venue. The officers testified that Officer Eames and her partner were working with Officer Sinegal on the undercover narcotics operation. Officer Sinegal called the patrol units to come to investigate appellant because Officer Sinegal did not want to reveal that he was an undercover officer.

Officer Eames explained that, after taking appellant into custody, she and her partner parked in a nearby, dark location with appellant handcuffed in the back seat to await Officer Sinegal s call to assist in the arrest of the drug dealer at the gas station. Officer Eames also testified that they were detaining appellant until such time that Officer Sinegal could decide whether to formally arrest him.

Though the circumstances presented an opportunity for appellant to make the statements, nothing in the record indicates that the officers should have known that the circumstances under which appellant made the statements were reasonably likely to elicit an incriminating statement. See id. at 302 03, 100 S. Ct. at 1690 91. The officers testified that the patrol officers were working with Officer Sinegal as part of an undercover operation to catch a drug dealer. As the fact finder, the trial court was entitled to believe the officers testimony. Under these facts, the officers holding of appellant in the back of the patrol car in a secluded location, so as not to be seen by potential suspects, until Officer Sinegal needed them to apprehend the drug dealer, could also be viewed as normally attendant to arrest and custody.

In sum, the officers holding of appellant handcuffed in the back of the patrol car in a dark location was not the functional equivalent of interrogation. The record supports the trial court s determination that no interrogation occurred. Thus, appellant s argument that the environment in which he made the statements was the functional equivalent of interrogation does not demonstrate that the trial court abused its discretion in denying his motion to suppress. //

3. Voluntariness of Statements

Appellant also contends that the trial court abused its discretion by denying his motion to suppress because his statements were not voluntarily given. Appellant again cites the circumstances under which he gave his statements. Appellant avers, When a person is taken, handcuffed and helpless, to a dark alley outside of public view by two armed police officers and other undercover officers show up and begin to badger one into making some form of admission, one could hardly say the atmosphere was voluntary.

We determine the voluntariness of a statement based on an examination of the totality of the circumstances under which it was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A statement is involuntary only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. State v. Terrazas, 4 S.W.3d 720, 723 24 (Tex. Crim. App. 1999).

As discussed, it is undisputed that the patrol officers drove to a nearby dark location with appellant handcuffed in the back seat. It is also undisputed that Officer Sinegal came to the parked patrol car to speak with appellant. The officers denied that appellant was threatened or badgered into making the statements. Rather, the State presented testimony that appellant heard Officer Sinegal s voice on the police radio and then insisted on speaking with him. Once Officer Sinegal arrived at the patrol car, it was appellant who proposed that he assist the officers in catching a drug dealer in exchange for being released. As part of this discussion, appellant volunteered that he had been smoking crack cocaine.

Here, the trial court was entitled to believe the officers testimony and disbelieve that of appellant, regarding the factual dispute. See Alvarado, 912 S.W.2d at 211. Under these facts, it was appellant s hearing Officer Sinegal s voice on the radio that was the catalyst for his statements, not the environment in which they were made. Moreover, given the context of the undercover narcotics operation, appellant s being held handcuffed in the back of the patrol car in a dark location was not alone coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. Terrazas, 4 S.W.3d at 723 24. Thus, appellant s contention that his statements were involuntary does not demonstrate that the trial court abused its discretion in denying his motion to suppress.

We hold that the trial court did not abuse its discretion by denying appellant s motion to suppress. Appellant s second issue is overruled.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Jennings, and Higley

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