Miguelito Macias v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION
Nos. 04-02-00622-CR & 04-02-00623-CR
Miguelito MACIAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st and 218th Judicial District Courts, Atascosa County, Texas
Trial Court Nos. 01-05-0081-CRA & 01-05-0082-CRA
Honorable Stella Saxon, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED

Miguelito Macias appeals the judgments convicting him of possession of marijuana and cocaine and sentencing him, on the marijuana charge, to one year in a state jail facility with a $2500 fine and, on the cocaine charge, to twenty-five years in the Texas Department of Criminal Justice - Institutional Division with a $10,000 fine. We affirm the trial court's judgment.

1. Macias contends the trial court abused its discretion in permitting the State to consolidate the marijuana and cocaine cases without providing the written notice of intent to consolidate that was required for offenses committed before September 1, 2001. See Tex. Health & Safety Code Ann. 481.132(b) (Vernon 2003) (repealed effective September 1, 2001). However, if "a defendant is faced with multiple pending indictments, those indictments may be consolidated into a single proceeding with the express or implied (by failure to object) consent of the defendant." Milligan v. State, 764 S.W.2d 802, 803 (Tex. Crim. App. 1989). By failing to object to consolidation at trial, Macias waived his right to notice and consented to consolidation. See id. We therefore hold that, even if the State failed to provide the notice required by section 481.132, the trial court did not abuse its discretion in permitting consolidation.

2. Macias next argues the trial court erred in denying his motion for an instructed verdict because the evidence is legally insufficient to establish that Macias "was in either joint or exclusive possession of the narcotics: the drugs were not in an area of the residence to which he had exclusive possession." (1) However, whether Macias had exclusive possession of the area of his home where the drugs were found is irrelevant in light of Macias' signed, written statement that "[t]he cops found the marijuana and cocaine where I keep it in the light brown toolbox. I think I had about six or seven ounce bags [of marijuana] and about seven or eight grams of cocaine wrapped in plastic and foil." By admitting ownership of the drugs, Macias admitted possession of them. See Tex. Health & Safety Code Ann. 481.002(38) (Vernon 2003) (defining possession as "actual care, custody, control, or management"); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (holding that evidence affirmatively linking the defendant to contraband "suffices for proof that he possessed it knowingly"). We therefore hold that the trial court did not err in denying Macias' motion for an instructed verdict.

3. Macias next argues that the trial court erred in denying his motion to suppress evidence of his arrest because his consent to search his home was obtained as a result of coercion and therefore in violation of his state and federal constitutional rights. However, the consent to search form that was signed by Macias and witnessed by his sister states: "I HAVE NOT BEEN ... THREATENED NOR FORCED TO CONSENT IN ANY WAY; I FREELY, KNOWINGLY and VOLUNTARILY CONSENT TO THIS SEARCH." This is some evidence from which the trial court could have concluded that the State met its burden to prove that Macias' consent to search was not the result of coercion but freely and voluntarily given. See Cardenas v. State, 115 S.W.3d 54, 60 (Tex. App.-San Antonio 2003, no pet.) (recognizing that, in reviewing trial court's denial of motion to suppress, court will "afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor"). We therefore hold the trial court did not err in denying Macias' motion to suppress evidence of his arrest. (2)

4. Finally, Macias argues the trial court erred in admitting evidence of a prior conviction for purposes of enhancing punishment because it was admitted pursuant to Texas Rule of Evidence 803(8), the business records exception to the hearsay rule, rather than Rule 803(22), the public document exception. However, "[i]f the trial judge's decision is correct on any theory of law applicable to the case, ... it will be sustained." Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). We therefore hold the trial court did not err in admitting evidence of Macias' prior conviction.

We also reject Macias' argument that "the Court was under an obligation to properly charge the jury on all aspects of the law and should have provided the jury with a proper limiting instruction regarding this prior conviction." If Macias wanted a limiting instruction included in the jury charge, he was required to present his objection to the court's charge "distinctly specifying each ground of objection." Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2004); See Navarro v. State, 863 S.W.2d 191, 199 (Tex. App.-Austin 1993, pet ref'd). Because Macias did not object to the jury charge, this issue was not preserved for review. See Ricondo v. State, 657 S.W.2d 439, 446 (Tex. App.-San Antonio 1983, no pet.).

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

Do not publish

1. Although Macias argues the trial court erred in denying his motion for a directed verdict because the evidence is factually insufficient to support a finding of guilt, "[w]e treat a point of error complaining about a trial court's failure to grant a motion for directed verdict as a challenge to the legal sufficiency of the evidence." Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).

2. Macias also argues that "the detention was too long." However, the record establishes that Macias' detention during the initial traffic stop was no longer than necessary to frisk the driver and, after finding a bag of marijuana in his pocket, arrest him and then frisk and, finding nothing, release Macias. We therefore hold that the detention was not "too long." See Balentine v. State, 71 S.W.3d 763, 770 (Tex. Crim. App. 2002) ("An investigative detention must be temporary and the questioning must last no longer than is necessary to effectuate the purpose of the stop.")