Gregory McGill v. The State of Texas--Appeal from 5th District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00162-CR
______________________________
GREGORY McGILL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 01-F-245-005
Before Morriss, C.J., Ross and Cornelius,* JJ.
Opinion by Justice Cornelius

*William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N

Appellant, Gregory McGill, was convicted, in a trial to the court, of possession of cocaine, a controlled substance. His punishment was assessed by the trial court at one year's confinement in a state jail.

On appeal, appellant contends (1) the trial court erred in overruling his motion to suppress evidence, particularly an inculpatory oral statement he allegedly made while in custody; and (2) there is legally and factually insufficient evidence to support his conviction. We overrule these contentions and affirm the judgment.

On June 16, 2000, appellant and his teenaged son were traveling in appellant's automobile from Dallas to Texarkana. Appellant was driving, and his son was in the front passenger's seat. Near Nash, Texas, appellant ran his car off the service road, went through a ditch, hit a concrete culvert, went over a concrete drive, and came to a stop in a ditch. Officer Troy Ballard was dispatched to investigate the accident. When he arrived, he discovered appellant's car in the ditch. Appellant was standing outside the car, and his son was still in the car. Ballard checked appellant and his son for injuries and found no serious injuries. He did find appellant to be very disoriented, to have a slight odor of alcohol on his breath, and to appear to be under the influence of some intoxicant. Ballard asked for and received appellant's driver's license, insurance, and registration information, and then checked with the dispatcher to see if appellant had any outstanding warrants. He was advised that there was an outstanding warrant on appellant from Dallas for a community supervision violation from a conviction for possession of a controlled substance. Ballard placed appellant under arrest on the outstanding warrant. Two other officers came to the scene to assist Ballard. Appellant was under arrest, and the car could not be impounded because it was damaged and inoperable, so the officers conducted an inventory search of the vehicle at the scene. Drug dogs alerted on the vehicle, and the officers found cocaine and drug paraphernalia under the driver's seat. The officers informed appellant then that he was also being arrested on a charge of possessing cocaine. Appellant told the officers that the cocaine was not his. Because appellant's son was also riding in the car, the officers arrested him as a codefendant on the drug charge. Officers testified that, at that time, appellant told them the drugs were his and he was solely responsible for them. Appellant denied saying the drugs were his.

It is undisputed that the officers did not give appellant his Miranda (1) warnings before he allegedly admitted that the drugs and drug paraphernalia were his. Appellant thus contends that, because he was under arrest when he allegedly made the statement and had not been warned as required by Miranda, the admission should have been suppressed. The State argues that, because appellant's inculpatory statement was spontaneous and was not the result of custodial interrogation, it was admissible in evidence. We agree.

Oral statements by a person who is under arrest are admissible, even if the accused was not given Miranda warnings, if the statements are voluntary and do not stem from custodial interrogation. Rhode Island v. Innis, 446 U.S. 291, 300 (1980); Morris v. State, 897 S.W.2d 528, 531 (Tex. App.-El Paso 1995, no pet.). The undisputed evidence here is that the only conversation the officers had with appellant was when Ballard asked him how the accident happened and asked him to provide his driver's license, registration, and insurance information. These were routine and appropriate questions, and Miranda warnings were not required. The officers testified they never had any conversation with appellant about the cocaine and never questioned him at all after he was arrested. Moreover, appellant himself confirmed this when he testified on direct examination that no one asked him anything and no officer conversed with him about the controlled substance or drug paraphernalia found in his vehicle.

However, interrogation in the Miranda context includes not only explicit questioning, but any words or actions by law enforcement officers, other than those normally attendant to arrest and custody, that the officers should know are reasonably likely to elicit an incriminating response from a suspect. Rhode Island v. Innis, 446 U.S. at 301; Murray v. State, 864 S.W.2d 111, 114 (Tex. App.-Texarkana 1993, pet. ref'd). Appellant contends the officers arrested his son only after he, appellant, denied that he owned the cocaine, and that the action of the officers in arresting his son after he denied that the cocaine was his, was an act that was reasonably likely to elicit his subsequent admission that the cocaine was his. The evidence, however, does not support appellant's contention in this regard. The officers testified that it was routine practice to arrest those, other than the driver, who are in a car containing drugs and have some measure of control over the vehicle's contents. They testified that appellant's son was simply arrested as a codefendant. Moreover, even appellant confirmed that his actions were unaffected by his son's arrest. He testified on direct examination as follows:

Q. [Defense Counsel]: And Mr. McGill, at some point did the other officers come up and engage in conversation with you about the controlled substance they found in your vehicle?

A. [Appellant]: No.

Q. Was your son threatened to be placed under arrest?

A. No.

Q. And did you overhear or see any of the officers take action to arrest your son?

A. No, I did not.

Q. Okay. Was he handcuffed?

A. No. Never.

Q. Did any of the three officers inform you that they were going to arrest your son?

A. No.

Q. Was your son ever placed in one of the cruisers?

A. No, he was not.

Q. During the time that they had run this search, and found this alleged substance in your car, where was your son?

A. He was standing out in front of the car that I was sitting in the back seat of, on the phone calling my uncle in Texarkana to come and pick him up.

 

Q. And you're quite sure, Mr. McGill, that your son was never threatened to be, or it was never communicated to you that he would ever be placed under arrest?

A. No.

We find legally and factually sufficient evidence to support the trial court's finding that the admission appellant made that the cocaine was his and that he was solely responsible for it was not the result of custodial interrogation, and therefore was admissible in evidence.

Appellant also contends there is legally and factually insufficient evidence to support his conviction. In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and determine whether the evidence, both for and against the verdict, is so weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if considered alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Because appellant was not in personal, exclusive possession of the cocaine, he contends there are insufficient facts to affirmatively link him to the contraband. See Brown v. State, 911 S.W.2d 744 (Tex. Crim. App. 1995). The courts have identified twelve to fourteen factors that may affirmatively link a person to contraband. Several of these factors are present in this case, as shown by the evidence: (1) appellant was present at the place where the contraband was found when the search was conducted; (2) he was the owner of, and was in control of, the vehicle where the contraband was found; (3) as the contraband was found under the driver's seat of the vehicle, appellant was in close proximity to and had access to, the contraband; (4) he was under the influence of an intoxicant when arrested; and (5) other contraband than the drug was present in close proximity to appellant (drug paraphernalia). This evidence is more than ample to affirmatively link appellant to the contraband. Moreover, appellant spontaneously and voluntarily admitted that the drugs were his. We find the evidence legally and factually sufficient to support the conviction.

 

For the reasons stated, we affirm the trial court's judgment.

 

William J. Cornelius*

Justice

 

*Chief Justice, Retired, Sitting by Assignment

Date Submitted: September 8, 2003

Date Decided: September 9, 2003

Do Not Publish

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