Chia-Ochoa, Luis Alberto v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Memorandum Opinion filed July 24, 2003

Affirmed and Memorandum Opinion filed July 24, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-00857-CR

_______________

LUIS ALBERTO CHIA-OCHOA, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________________

On Appeal from 232nd District Court

Harris County, Texas

Trial Court Cause No. 893,254

___________________________________________________________

M E M O R A N D U M O P I N I O N

Appellant, Luis Chia-Ochoa, pleaded guilty to possession of cocaine after the trial court denied his motion to suppress. The trial court sentenced appellant to 17 years imprisonment. In two issues, appellant contends that the trial court erred by (1) overruling his motion to suppress and (2) admitting into evidence a written consent-to-search form without translation from Spanish to English. We affirm.

 

Facts

During surveillance of a townhouse, police saw a car driven by Jefferson Urivano[1] exit from the townhouse garage. The police stopped Urivano for a traffic violation and questioned him. Although initially untruthful, Urivano ultimately told the officers that he left the townhouse and that there were drugs on the premises. Police requested and Urivano granted permission to search his car and the townhouse. Urivano signed a consent form typed in Spanish.

Urivano told officers that he lived in the townhouse and paid $1,200.00 a month for rent. Although he could not produce a key, Urivano explained that he used a garage door opener to enter the home. Officers used the garage door opener to enter the townhouse. As the garage door opened, they observed appellant and another man inside. Appellant reached in his pocket and threw a plastic bag containing cocaine on the floor. Police arrested him and searched the townhouse. Officers found two kilos of cocaine in a boiler pan under the stove. At trial, appellant moved to suppress the cocaine, claiming that Urivano did not have authority to give consent for police to search the townhouse. The trial court denied his motion. Counsel for appellant also objected to admission of the consent-to-search form and asked that it first be translated from Spanish to English. The trial court overruled his objection and admitted the form without translation.

  Standard Of Review

We review a trial court s ruling on a motion to suppress using a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We afford almost total deference to a trial court s determination of historical facts supported by the record, especially when the trial court s fact findings are based upon an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85, 88 89 (Tex. Crim. App. 1997)). We afford the same amount of deference to the trial court s ruling on mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. However, we review the trial court s application of the law to the facts de novo. Id.

Consent to Search

In appellant s first issue, he contends the trial court erred by denying his motion to suppress. Appellant incorporated scope of the search in his argument; however, he did not raise that issue or argue scope of search during the suppression hearing. A motion to suppress evidence is nothing more than a specialized objection to the admissibility of evidence. Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981); State v. Reed, 888 S.W.2d 117, 119 (Tex. App. San Antonio 1994, no pet.). Thus, a motion to suppress must conform to the requirements for an objection. Tex. R. App. P. 33.1; Bradley v. State, 960 S.W.2d 791, 800 (Tex. App. El Paso 1997, pet. ref d). An objection to the admission of evidence must be specific and grounds for the objection must be clearly expressed in order to preserve error. Villareal v. State, 811 S.W.2d 212, 217 (Tex. App. Houston [14th Dist.] 1991, no pet.). Because his complaint on appeal differs from what he presented at the motion to suppress hearing, we conclude appellant failed to preserve this issue for our review. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (point of error on appeal must comport with objection made at trial); Taylor v. State, 55 S.W.3d 584, 585 (Tex. Crim. App. 2001), cert. denied, 112 S. Ct. 1123 (2002).

Appellant further argues that even if appellant did give consent to search the kitchen oven, he did not have authority to grant consent. A warrantless entry and search is not an unreasonable search and seizure if the officers have obtained the consent of a third party who possesses common authority over the premises. United States v. Matlock, 415 U.S. 164, 171 (1974). Common authority rests on the mutual use of property by persons generally having joint access or control for most purposes. Id. A third party may properly consent to a search when the party had equal control over and equal use of the premises being searched. Becknell v. State, 720 S.W.2d 526, 528 (Tex. Crim. App. 1986). In this case, the officers watched Urivano drive away from the townhouse. He later told the officers that he lived there and paid rent. He further explained that he entered the townhouse with a garage door opener and gave the opener to the officers. Based on these facts, the trial court reasonably concluded that Urivano was one of the persons who had joint access to the townhouse. Accordingly, the trial court correctly denied appellant s motion to suppress because Urivano had authority to consent to the search. Appellant s first point of error is overruled.

Consent Form

class=Section3>

In appellant s second issue, he contends the trial court erred in admitting the written consent form signed by Urivano without translation from Spanish to English.[2] We review a trial court s ruling on the admissibility of evidence in a suppression hearing for an abuse of discretion. Guzman, 955 S.W.2d 89; see also Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998) (bail hearing).

At the hearing on appellant s motion to suppress, the State called Officer Fernando Villasana, who speaks Spanish and who was present after police stopped Urivano for a traffic violation. Officer Villasana testified that he gave Urivano a copy of the consent form in Spanish and read it aloud to him. Urivano told him that he understood. According to Officer Villasana, Urivano then signed the consent for the vehicle and also for the location over at Holly Hall. Officer Villasana explained that he clearly showed him that I was asking for consent to search the car and the townhouse. After this testimony, Officer Villasana identified the consent to search form signed by Urivano, and the State offered a copy of it in evidence. Appellant s counsel objected, I will object because the form we have seen is in Spanish. I don t read Spanish. If he could explain this in English or have the interpreter review that with us, but I am going to object to offering anything executed in Spanish. . . . The court overruled the objection.

Appellant relies on Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989), for the proposition that the trial court must swear a qualified interpreter to translate an exhibit from Spanish to English if requested in a motion or objection. Leal is not dispositive for several reasons. First, Leal involved exhibits presented to the jury during trial, not a hearing before the trial court on a motion to suppress. See id. at 847. Second, in Leal, the exhibits were a tape recording of a murder-for-hire defendant s conversation in Spanish with a co-conspirator, who was wearing a wire, and an unsworn English transcription of the recording. Id. In that instance, the court stated that the recording was analogous to a non-English speaking witness s testimony. Id. at 849. Thus, the court held that a sworn interpreter pursuant to article 38.30 of the Code of Criminal Procedure was necessary. Id.; see Tex. Code Crim. Proc. Ann. art. 38.30 (Vernon Supp. 2003). Conversely, in this case, an official interpreter was present and available to interpret the document. Finally, the fact that an exhibit is in a foreign language does not, in and of itself, render the exhibit inadmissible. Leal, 782 S.W.2d at 849. We thus find appellant s reliance on Leal unavailing.

Further, it is apparent that the defense counsel in this case is not complaining about his client s inability to read and understand Spanish, but his own inability. Thus, we find this case closely akin to Nguyen v. State, 774 S.W.2d 348 (Tex. App. Houston [14th Dist.] 1989, pet. ref d). In Nguyen, we held that article 38.30 does not provide for appointment of an interpreter to assist defense counsel. Id. at 350. Article 38.30 provides an interpreter only for a person charged or a witness that does not speak the English language. Tex. Code Crim. Proc. Ann. art. 38.30. Thus, the trial court was under no duty to appoint an interpreter for defense counsel.

Lastly, error regarding improperly admitted evidence is waived if that same evidence is brought in later by the defendant without objection, not in an effort to meet, rebut, destroy, deny or explain the improperly admitted evidence. Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993). Appellant s counsel objected to the consent form because he could not understand Spanish. However, on cross-examination of a subsequent witness, appellant s counsel did in fact question the witness using both the form and content of the form. If it was error to admit the form because counsel did not understand its content without translation, such error was waived when counsel later used the content without objection. See id. Therefore, we overrule appellant s second issue.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed July 24, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Also known as Eddie Caicedo.

[2] The short consent form, entitled Consentimiento a Registro/Inspectar/Examinar, was a combination of check-the-box and fill-in-the-blank. The following boxes were checked and these words appeared in the blanks:

Yo, Eddie Caicedo Por este medio doy mi consentimiento a R. Reeves y F. Villasana, Officiales del Departamento de la Polic a de Houston, a registrar lo seguente [sic]:

: Veh culo descrito come [sic]: Color: Black A o: 99 Marca: Dodge

Estilo del carroceria: 4 door Numero de licencia: M15-2FS Estado: TX. . . .

: Apartamento/Casa localizada en: 3080 Holly Hall.