ARTHUR FRED GONZALEZ GARZA v. THE STATE OF TEXAS--Appeal from 139th District Court of Hidalgo County

NUMBER 13-05-374-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ARTHUR FRED GONZALEZ GARZA, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

 
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Garza

Appellant, Arthur Fred Gonzalez Garza, was charged by indictment with the offense of unlawfully carrying a weapon on licensed premises. See Tex. Pen. Code Ann. 46.02 (Vernon 2003). (1) Appellant proceeded pro se at trial and pleaded not guilty to the offense. A jury found appellant guilty and the trial court assessed punishment at two years' imprisonment, suspended and probated for two years.

By eight issues, appellant challenges his conviction contending that (1) the guilty verdict is erroneous because it is based on inadmissible evidence, (2) the evidence was factually insufficient to support his conviction, (3) he was denied his right to self-representation, (4) the trial court erred in denying his pre-trial motion to dismiss without conducting a hearing, (5) the trial court erred in denying his pre-trial motion to suppress without conducting a hearing, (6) the trial court erred in denying his pre-trial motion to suppress, (7) the trial court erred in denying his pre-trial motion to dismiss, and (8) the trial court abused its discretion in denying his motion for new trial because the evidence was factually insufficient to sustain his conviction. We affirm.

Factual Background

On February 14, 2004, while allegedly in the process of moving to a new residence, appellant was stopped by Pharr Police Officer Chris Olivarez. Olivarez testified that on February 14 while on patrol near El Centro Mall in Pharr, Texas, he was approached by Keith Brandon Sims. Sims reportedly told Olivarez that appellant pulled a gun on him while he was at the Aziz convenience store near El Centro Mall. Olivarez stated that Sims directed him to the convenience store and identified appellant as being in a white four-door Subaru. Olivarez testified he then proceeded to stop appellant as he pulled out of the store parking lot. After a search of appellant's vehicle, officers found a .22 caliber hand gun.

I.

In his first issue, appellant challenges the admissibility of Officer Olivarez's testimony and the admissibility of a videotape of the stop. Appellant essentially contends that the evidence was factually insufficient to support the jury's implied finding, submitted under article 38.23(a) of the code of criminal procedure, that he consented to the search of his vehicle. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). An instruction pursuant to article 38.23 (a) should be included in the charge only "if there is a factual dispute as to how the evidence was obtained." Hanks v. State, 137 S.W.3d 668, 671 (Tex. Crim. App. 2004) (quoting Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986). The record reflects that appellant filed a pre-trial motion to suppress the complained-of evidence contending the evidence was obtained in violation of the Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution. See U.S. Const. amend. IV; Tex. Const. art I, 9. Specifically, appellant contended the evidence was inadmissible because it was obtained as a result of a search of his vehicle without his consent. The State contended appellant consented to the search of his vehicle. The trial court stated that it would not suppress the evidence. Appellant then requested that the trial court submit a special instruction on the issue of consent to the jury. See Tex. Code Crim. Proc. Ann. art. 38.23(a). Because a factual dispute existed as to how the evidence was obtained, the trial court granted appellant's request and instructed the jury as follows:

You are instructed that under our law as applicable to this case any search of the vehicle of the accused without a search warrant, or voluntary consent of the Defendant to search, written or oral, would not be lawful. Therefore in this case, should you fail to find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereto, that consent to search the vehicle of the Defendant was voluntarily and understandingly given either orally or in writing, or any combination thereof, than [sic] such search would be unlawful and you would wholly disregard the same and any evidence obtained as a result thereof.

 

See Hanks v. State, 137 S.W.3d at 671. However, we may only conduct a factual-sufficiency review regarding the sufficiency of the State's proof of elements of the offense. See Hanks v. State, 137 S.W.3d 668, 672 (Tex. Crim. App. 2004). We may not conduct a factual-sufficiency review of the admissibility of evidence when a question is submitted to the jury pursuant to article 38.23(a). See id.at 671; Caddell v. State, 123 S.W.3d 722, 726 (Tex. App.-Houston [14th Dist.] 2003, pet ref'd); Johnson v. State, 95 S.W.3d 568, 572-73 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (en banc). Accordingly, we overrule appellant's first issue on appeal.

II.

By his second issue, appellant asserts the evidence is factually insufficient to support his conviction. Appellant does not deny he carried the gun. Instead, he contends the State failed to disprove the defense of "traveling" which allowed him to carry his handgun from his old residence to a new residence. See Tex. Pen. Code Ann. 46.15(b)(3) (Vernon Supp. 2006); see also Johnson v. State, 571 S.W.2d 170, 172 (Tex. Crim. App. 1978) (holding that carrying a handgun from an old residence to a new one will constitute a defense to prosecution, but that one will not be entitled to carry a weapon idly, for the sake of carrying it, habitually, or for an unlawful purpose). The "traveling exception" or traveling defense to an unlawful carrying of a handgun charge is a question for the trier of fact. Birch v. State, 948 S.W.2d 880, 883 (Tex. App.-San Antonio 1997, no pet.). After a request by appellant, the trial court included the defensive theory in its charge to the jury. (2)

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether "the 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." See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury's finding "shocks the conscience," or "clearly demonstrates bias." Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder's verdict even if probative evidence exists that supports the verdict. Id. at 164; see also Johnson, 23 S.W.3d at 7.

The only evidence provided by appellant to establish his defense is the testimony of his girlfriend, Sylvia Garcia, who testified that, on the evening of February 14, she and appellant were traveling from appellant's home to her home in McAllen. She testified that appellant had agreed that he would live with her at her house and that "during the day" on February 14 appellant had taken some of his belongings to her house. She testified that on their way to her home on the evening of the fourteenth, appellant stopped at the Aziz convenience store to purchase something and that appellant was pulled over by the Pharr Police Department as they were leaving the convenience store.

On cross-examination, Garcia testified that, on the evening in question, she and appellant went to his old residence so that appellant could get something personal that he needed to take to her house for protection. She further testified that, at the time appellant was pulled over, he did not have any personal belongings in the vehicle other than the gun. The State responds that it was not required to introduce positive controverting evidence to rebut appellant's defense. We agree. See Johnson, 571 S.W.2d at 173; Mooney v. State, 636 S.W.2d 780, 781 (Tex. App.-Corpus Christi 1982, no pet.) (stating "appellant's explanation did not require the State to rebut his statement with positive controverting evidence"). The State further asserts that although the evidence shows that appellant had been moving earlier in the day, the evidence did not support his contention that he was in the process of moving when he was detained and that the jury was within its province to disbelieve the witness's testimony. (3)

We cannot conclude that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony and could accept or reject any part or all of the testimony of any witness. Johnson, 571 S.W.2d at 173; Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994) (per curiam). The jury was authorized to disbelieve Garcia's testimony which, apparently, it did. See Johnson, 571 S.W.2d at 173; Mooney, 636 S.W.2d at 781. Accordingly, appellant's second issue is overruled.

III.

In his third issue, appellant contends that the trial court violated his Sixth Amendment right to self-representation when it appointed stand-by counsel during pre-trial proceedings.

The Sixth Amendment guarantees criminal defendants the right to assistance of counsel in criminal cases. See U.S. Const. amend. VI; Faretta v. California, 422 U.S. 806, 807(1975). Implied in the right to counsel, and in other protections of the Sixth Amendment, is a right to self-representation. Faretta, 422 U.S. at 820. The right to self-representation, however, does not attach until it has been clearly and unequivocally asserted. Birdwell v. State, 10 S.W.3d 74, 77 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). Once the right has been asserted, the trial court must advise the defendant of the dangers and consequences of self-representation. Id. Thereafter, if the defendant maintains his desire to proceed pro se, he should be allowed to do so as long as the assertion of his right to self-representation is unconditional and not asserted to disrupt or to delay the proceedings. Id. When a defendant invokes the right to self-representation, the trial court may, in its discretion, permit hybrid representation. McKaskle v. Wiggins, 465 U.S. 168, 183-84 (1984). Representation amounts to hybrid representation when, in response to the defendant's request for self-representation, the trial court allows the defendant's attorney to remain as counsel and to be available to advise the defendant. See Walker v. State, 962 S.W.2d 124, 126 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). In such a case, if the defendant invokes the participation of stand-by counsel, the representation becomes hybrid. Id.

A defendant's Sixth Amendment rights are not violated when a trial court appoints stand-by counsel, even over the defendant's objection, to relieve the court of the need to explain and to enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals. McKaskle, 465 U.S. at 184. As long as the appointment of counsel to assist the defendant does not interfere with the defendant's actual control over his own defense or undermine his appearance before the jury in the status of a pro se defendant, participation of stand-by counsel does not infringe upon the right to self-representation. Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989).

Appellant requested to proceed pro se at a pre-trial hearing on November 11, 2004. On this occasion, after appellant had expressed his wish to proceed pro se, Judge Ernest Aliseda, presiding, admonished appellant of the dangers and consequences inherent in self-representation. After conducting a Faretta hearing, the trial court admonished appellant about the dangers of representing himself. Appellant again expressed that he desired to proceed pro se and was allowed to do so.

However, at a pre-trial hearing on November 17, 2004, Judge Homer Salinas, presiding, appointed counsel to assist appellant. At the hearing, Judge Salinas expressed his concern with appellant's decision to proceed pro se and stated to appellant "you understand if you persist in representing yourself you've got a fool for a client." Judge Salinas then remarked that he had been practicing law since 1963 and had yet to see a lawyer represent himself, much less a lay person. Judge Salinas warned appellant that if he proceeded pro se, he would be held to the same standard as attorneys. Appellant then informed the court that he was ready to proceed on his motion to suppress. Judge Salinas asked appellant to state the basis of his motion. However, as appellant attempted to explain the basis for his motion, Judge Salinas interrupted appellant and explained that he was going to end up talking himself into a confession. (4)

Judge Salinas then made the decision to appoint Daniel Reyes as counsel to assist appellant with his motions.

The record indicates that at the November 17 hearing, Judge Salinas denied appellant's motion to suppress. In response to appellant's motion to dismiss, Judge Salinas ruled "[r]ight now denied there is no evidence." Appellant then urged a motion for discovery and motion to produce exculpatory mitigating evidence. Judge Salinas denied the motions and stated "any and all motions filed pro se by this Defendant are hereby ordered denied." He further clarified that he was "reopening these matters up" and provided appellant and Mr. Reyes additional time to prepare the motions.

The record further indicates that on February 18, 2005, Mr. Reyes filed a motion to withdraw in which he stated that appellant wanted to have another attorney appointed, or, in the alternative, wanted to proceed pro se. At a hearing before Judge Bobby Flores, presiding, appellant informed Judge Flores that he knew what he was doing and wanted to proceed pro se. After a discussion, Judge Flores decided to keep Mr. Reyes "on the sidelines." Appellant responded " I do appreciate that he's standby in case I have any questions."

The record demonstrates that appellant was not deprived of his right to self-representation. In fact, it demonstrates that appellant did represent himself. Appellant himself re-urged the previously urged motion to suppress, conducted voir dire, and had full control over the presentation of his defense. The record also shows that appellant repeatedly accepted Mr. Reyes's assistance. (5) Under these circumstances, we find no denial of appellant's Sixth Amendment rights. Appellant's third issue is overruled.

IV.

In his fourth and fifth issues, appellant contends the trial court erred in denying his motion to dismiss and his motion to suppress without holding a hearing. Appellant's argument is without merit. The record reflects that Judge Salinas did not deny appellant's motions without holding a hearing. The record demonstrates that at the November 17, 2004 hearing, Judge Salinas rescheduled the hearing on the complained-of motions for November 19, 2004, so that Mr. Reyes could have time to assist appellant with the motions. Then, on November 19, Mr. Reyes requested additional time to prepare the motions. At this hearing, appellant urged his motion to suppress and motion to dismiss to which Judge Salinas responded "denied" and "[r]ight now denied there is no evidence." Judge Salinas ruled that "any and all motions filed pro se by this Defendant are hereby ordered denied" but then went on to state that he was "reopening these matters up." Judge Salinas then rescheduled appellant's pretrial hearing on the motions for December 6, 2004. We conclude the trial court did not deny appellant a hearing on the motions. Instead, the trial court provided appellant with an opportunity to have Mr. Reyes assist him in preparing the deficient motions and then provided appellant an opportunity to re-urge the motions at a later hearing. In fact, the record demonstrates that appellant re-urged his motion to suppress at trial. However, the record is devoid of any evidence that appellant ever re-urged his motion to dismiss. Nonetheless, we conclude that appellant's motion to dismiss was never properly before the court because the motion is unsigned and unsworn. Accordingly, we overrule appellant's fourth and fifth issues. (6)

V.

By his sixth issue, appellant contends the trial court erred in denying his motion to suppress because the State failed to prove probable cause and consent. (7)

The appropriate standard for reviewing a trial court's ruling on a motion to suppress is a bifurcated standard of review, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court is the sole fact finder at a hearing on a motion to suppress evidence and may choose to believe or disbelieve any or all of the witnesses' testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex. Crim. App. 1990). Because the trial court did not make explicit findings of fact, we will review the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling, as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

In determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); see, e.g., Hardesty v. State, 667 S.W.2d 130, 134 n.6 (Tex. Crim. App. 1984). However, this general rule is inapplicable where, as in this case, the suppression issue has been consensually re-litigated by the parties during the trial on the merits. Rachal, 917 S.W.2d at 809. Accordingly, we may properly consider Officer Olivarez's trial testimony in our review of the trial court's suppression determination. See id. The initial burden of proof on a motion to suppress evidence on the basis of a fourth amendment violation rests with the defendant. (8)

Russell v. State, 717 S.W.2d 7, 9 (Tex. Crim. App. 1986). The defendant meets this burden by demonstrating that the search occurred without a warrant. Id. Thereafter, the burden shifts to the State to prove the reasonableness of the warrantless search. Id. The burden may be met by showing that one of the statutory exceptions to the warrant requirement is met.

The automobile exception permits officers to conduct a warrantless search of a motor vehicle if the officer has probable cause to believe that the vehicle contains evidence of a crime. Chambers v. Maroney, 399 U.S. 42, 48-49 (1970); Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App.1994). A warrantless search of an automobile based on probable cause is justified under the United States and Texas Constitutions because an automobile can be quickly moved out of the jurisdiction making obtaining a warrant impractical. See Scott v. State, 531 S.W.2d 825, 827 (Tex. Crim. App.1976). Where there is probable cause to search a vehicle, exigent circumstances to justify a warrantless search are not required. State v. Guzman, 959 S.W.2d 631, 634 (Tex. Crim. App.1998).

Probable cause for a search exists when reasonably trustworthy facts and circumstances within the knowledge of the officer would lead a person of reasonable caution and prudence to believe that the instrumentality of a crime or evidence pertaining to a crime will be found. McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App.1991). If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. United States v. Ross, 456 U.S. 798, 825 (1982). We apply the "totality of the circumstances" test for determining probable cause for a warrantless search. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004) (citing Florida v. Royer, 460 U.S. 491, 500 (1983)); see Terry v. Ohio, 392 U.S. 1, 19-21 (1868) (articulating Fourth Amendment "reasonableness" analysis for traffic stop investigation).

We have examined the information that the trial court considered in upholding the presence of probable cause under the "totality of the circumstances" approach. See Kothe, 152 S.W.3d at 63. We find that the testimony provided by Officer Olivarez that he stopped appellant after being informed by Sims that appellant had pulled a gun on him on licensed premises constitutes sufficient probable cause to search appellant. McNairy, 835 S.W.2d at 106 ; Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972). By upholding the trial court's denial of appellant's motion to suppress on this basis, we need not reach appellant's contentions regarding consent. See Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). Appellant's sixth issue is overruled.

VI.

 

By his eighth issue, appellant contends the trial court abused its discretion in denying his motion for new trial which was based on the contention that the evidence was factually insufficient to reject his "traveling" defense. Appellant is essentially re-urging his first issue on appeal. Given our disposition of appellant's first issue, we conclude the trial court did not abuse its discretion in denying appellant's motion for new trial. Appellant's eighth issue is overruled.

The judgment of the trial court is affirmed.

 

_________________________

DORI CONTRERAS GARZA,

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 22nd day of November, 2006.

1. A person commits the offense of unlawfully carrying a weapon if he intentionally, knowingly, or recklessly carries on or about his person a handgun. See Tex. Pen. Code. Ann. 46.02(a) (Vernon 2003).

2. If evidence is introduced from any source which raises an issue on a defensive theory, the theory must, upon proper request, be included in the court's charge. Birch v. State, 948 S.W.2d 880, 884 (Tex. App.-San Antonio 1997, no pet.). A defendant is entitled to a charge on every issue raised by the evidence, whether it be strong, weak, unimpeached, or contradicted. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993); Lugo v. State, 667 S.W.2d 144, 146 (Tex. Crim. App. 1984); Birch, 948 S.W.2d at 884.

3. Specifically, the State notes that at the time he was stopped, appellant's vehicle did not contain any personal items besides the handgun.

4. We note that the motions filed by appellant were not signed or sworn to and failed to include evidence. See McKaskle v. Wiggins, 465 U.S. 168, 181-84 (1984)(stating that Faretta rights are not infringed when standby counsel assists the defendant in overcoming routine procedural or evidentiary obstacles to the completion of a specific task, such as introducing evidence, objecting to testimony, or merely helping to ensure the defendant's compliance with the basic rules of protocol and procedure).

5. A defendant may waive his right to represent himself once it has been asserted. See Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986). Waiver of the request for self-representation may be found if it reasonably appears to the court that a defendant has abandoned his initial request to represent himself. See id.

6. Given our disposition of appellant's fourth issue as it relates to the motion to dismiss, we also overrule appellant's seventh issue in which he contends the trial court erred in denying his motion to dismiss. In any event, we note that appellant's motion lacks merit because appellant filed his motion to dismiss pursuant to article 32.01 after the indictment had been returned. A motion based upon article 32.01 has no effect if it is presented after indictment. See State v. McCoy, 94 S.W.3d 296, 300-01 (Tex. App.-Corpus Christi 2002, no pet.); State v. Williams, 90 S.W.3d 913, 917-18 (Tex. App.-Corpus Christi 2002, no pet.).

7. Appellant claims that the trial court denied his motion at the November 19, 2004 pre-trial hearing. However, as noted in discussion of issues four and five, the trial court did not deny appellant's motion to suppress at the November 19 hearing. Instead, the trial court heard and denied appellant's motion to suppress during trial.

8. Appellant does not assert that article I, section 9 of the Texas Constitution provides greater protection than the fourth amendment of the United States Constitution, or provide any basis for so construing it. See U.S. Const. amend. IV; Tex. Const. art. I, 9.