Christopher Montes Nelson v. The State of Texas--Appeal from 23rd District Court of Brazoria County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

CHRISTOPHER MONTES NELSON, )

) No. 08-04-00274-CR

Appellant, )

) Appeal from the

v. )

) 23rd District Court

THE STATE OF TEXAS, )

) of Brazoria County, Texas

Appellee. )

) (TC# 44,945)

)

O P I N I O N

Appellant Christopher Montes Nelson was indicted for possession of cocaine, weighing at least four grams but less than two hundred grams with intent to deliver. In this indictment, the offense was enhanced by three prior felony convictions. Appellant pled not guilty to the charged offense. The jury found Appellant guilty of the offense as charged, found the enhancement paragraphs to be true, and assessed punishment at 80 years= imprisonment and $10,000 fine.[1]

On appeal, Appellant raises four issues, in which he argues that the trial court abused its discretion: (1) by denying his motion to suppress evidence obtained from the search of his home; (2) by admitting his oral statement which was obtained during a custodial interrogation; (3) by refusing to grant a mistrial following the State=s improper jury argument; and (4) by allowing officer testimony as to the psychological and physiological effects of ecstasy, cocaine, and marijuana. We affirm.

On March 27, 2003, Captain Richard Miller, supervisor of the criminal investigation and narcotic divisions of the Freeport Police Department, obtained a search warrant for Appellant=s residence in Brazoria County. The following day, Captain Miller and several other police officers went to Appellant=s residence to execute the search warrant, specifically looking for controlled substances. When they arrived that morning, the officers observed that Appellant=s vehicle was not at the residence so they began a Arolling surveillance@ operation to locate the vehicle. When the vehicle was located they followed it back to the residence.

Captain Miller made contact with the vehicle occupants, Natasha Hernandez and a young child, and identified himself and the other officers. He informed Ms. Hernandez that they had a search warrant for the residence and asked her where Appellant was located. Captain Miller entered the residence and encountered Appellant in the bedroom. Appellant was advised of the search warrant and was removed from the residence. Police officers found marijuana, cocaine, and ecstasy in the residence. The amount of controlled substances and the way they were packaged indicated to Captain Miller that they were possessed with intent to deliver. The officers found an Ohaus digital scale in the kitchen, which according to Captain Miller is the type of scale used to weigh increments of controlled substances. The officers also found a scanner on the kitchen counter that was tuned to the radio frequency used by the Freeport Police Department. At the police station, Appellant told Captain Miller that all the controlled substances found inside the house belonged to him and that his wife had Anothing to do with it.@

Paul Van Dorn, a forensic chemist for the Brazoria County Crime Lab performed tests on samples of the substances recovered by the police. Mr. Van Dorn determined that: State=s Exhibit No. 33 contained 3, 4-methylenedioxy-methamphetamine, commonly known as ecstacy, weighing 3.7631 grams; State=s Exhibit No. 32 contained cocaine, weighing 14.68 grams; and State=s Exhibit No. 36 contained marijuana, weighing 389.2 grams. State=s Exhibits Nos. 32, 33, and 36 were identified as the substances seized from Appellant=s house.

MOTIONS TO SUPPRESS

Standard of Review

We review the trial court=s ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88 9 (Tex.Crim.App. 1997). Under this standard, we 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. Id. We afford the same amount of deference to a trial court=s ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We may review de novo mixed questions of law and fact not falling within this category. Id. When the trial court makes no explicit findings of historical facts, the evidence must be reviewed in a light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 88-9. The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

Motion to Suppress Evidence Seized in Search

In Issue One, Appellant contends that the trial court erred in denying his motion to suppress the controlled substances seized from his home because the police officers= knock and announce procedure in executing the search warrant was tantamount to a Ano-knock entry@ in violation of the Fourth Amendment.

At a pretrial hearing on Appellant=s motion to suppress evidence, Captain Miller testified that on March 28, 2003, he executed the search warrant on Appellant=s residence located at 1708 West 5th Street in Freeport, Texas. In the officer=s affidavit for the warrant, a confidential informant stated that he observed Appellant in the residence with a usable amount of cocaine which was kept in a black bag with a red stripe on it, a bag which looked similar to a shaving kit bag. According to Captain Miller, he knocked on the door and announced, APolice search warrant.@ He waited a very short period of time, probably less than three seconds, before entering the home. Captain Miller stated that he was the first officer through the door. Captain Miller believed that there would have been time for someone to respond if that person was very close to the door. Captain Miller admitted that his affidavit contained no mention of weapons being in the house and that when he encountered Appellant, Appellant had no weapons on him and did not attempt to destroy any of the controlled substances. Captain Miller had previously arrested Appellant for possession of a controlled substance. He recalled that Appellant was not cooperative with regard to showing him where the controlled substances were located, but admitted that Appellant did not have a weapon at that time.

Natasha Hernandez testified that she resided at 1708 West 5th Street with Appellant. On the morning of March 28, Ms. Hernandez noticed that the police were watching her at the Kroger=s parking lot. The police followed her to her residence and when she stepped out of her car, Captain Miller approached her and told her, A[t]his is a search warrant to search the residence@ and flashed it to her. When Captain Miller made that statement, Ms. Hernandez was standing by her car in the driveway, which was right outside the door of her residence. Ms. Hernandez admitted Captain Miller told her that he was going into the property on a search warrant. According to Ms. Hernandez, Captain Miller then told the other police officers to AGo, go, go@ and they started kicking down the door. Ms. Hernandez stated that there was no knock or announcement by police prior to the entry. In her testimony, Ms. Hernandez indicated that it was a twenty second period between the time the police officers ran toward the house to the time they kicked down the door.

After the hearing, the trial court took Appellant=s motion under advisement, but denied the motion prior to trial.

Knock and Announce Requirement

Officers must knock and announce their presence and purpose before entering a residence to conduct a search. See Richards v. Wisconsin, 520 U.S. 385, 394, 117 S. Ct. 1416, 1421, 137 L. Ed. 2d 615 (1997). This common law Aknock and announce@ rule forms a part of the reasonableness inquiry of a search and seizure under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 930-31, 115 S. Ct. 1914, 1916, 131 L. Ed. 2d 976 (1995). The purpose of the Aknock and announce@ rule is to: (1) protect officers and residents from potential violence; (2) prevent the unnecessary destruction of private property; and (3) protect residents from unnecessary intrusion into their private lives. See United States v. Cantu, 230 F.3d 148, 151 (5th Cir. 2000).

Nevertheless, there are exceptions to this common law rule. Officers are not required to knock and announce where they have a reasonable suspicion that knocking and announcing, under the particular circumstances of the case, would be dangerous or futile, or would inhibit investigation of the crime, such as allowing the destruction of evidence. Richards, 520 U.S. at 394, 117 S. Ct. at 1421.

In determining reasonableness in a knock and announce situation, each situation should be decided on a case by case basis by examining the totality of the circumstances. United States v. Banks, 540 U.S. 31, 36, 124 S. Ct. 521, 525, 157 L. Ed. 2d 343 (2003). The reasonable suspicion showing is not high, but the police are required to make it whenever the reasonableness of a Ano knock@ entry is challenged. Richards, 520 U.S. at 394 95, 117 S. Ct. at 1422. In determining whether reasonable suspicion exists, we look at the facts known to the officers in the events leading up to the entry into the residence and view those events from the standpoint of an objectively reasonable police officer. Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661 62, 134 L. Ed. 2d 911 (1996). Reasonableness is evaluated at the time of the entry. Richards, 520 U.S. at 395, 117 S. Ct. at 1422.

In his brief, Appellant contends that the police violated the knock and announce rule by waiting less than three seconds between the announcement and forced entry into his home. Appellant asserts that this was tantamount to a Ano-knock@ entry and that because there were no exigent circumstances to justify a Ano-knock@ entry, the search was unreasonable. In essence, Appellant=s complaint challenges the reasonableness of the search based on insufficient notice or no notice of the police officers= entry and thus, we will address his complaint in light of any exigency circumstances that would permit police officers to legitimately dispense with the knock and announce requirement.

In this case, the records shows that at the time of entry, police officers knew the following facts: (1) there was probable cause to believe Appellant possessed a usable amount of cocaine with the intent to deliver the same in his residence; (2) the confidential informant stated that Appellant kept the cocaine in a bag that looked similar to a shaving kit bag; (3) Officer Miller knew Appellant from previous arrests, and in one particular instance, Appellant was uncooperative in the search; (4) the search warrant was executed in the morning, after the police followed the Appellant=s vehicle from a local grocery store; and (5) police officers were outside Appellant=s residence with Ms. Hernandez for about twenty seconds before they knocked on the door and announced their presence. From the known facts, the police could have reasonably concluded that: Appellant possessed a quantity of cocaine that could easily have been destroyed and that it was located in a bag normally kept in a bathroom; that Appellant may have been alerted to the officers= presence; and at the very least, Appellant was awake because it was daytime and his vehicle was being used by another person. Further, Appellant had a previous history of arrests for possession of controlled substances and had been uncooperative on at least one occasion. While there was no evidence that the police had information that weapons were at the residence, they had reasonable suspicion that waiting for a response beyond the time needed for someone close to the door to answer would have led to the destruction of evidence in this particular case. Under these circumstances, we cannot conclude that the police waited an unreasonable amount of time before making their entry for Fourth Amendment purposes.

Because there were exigent circumstances that justified the short wait between the knock and announce and the entry in this case, we conclude that the search did not violate the knock and announce rule, and thus, was not unreasonable. Therefore, the trial court did not abuse its discretion in denying Appellant=s motion to suppress the evidence seized in the search on Fourth Amendment grounds. Issue One is overruled.

Motion to Suppress Oral Statement

In Issue Two, Appellant argues the trial court abused its discretion by admitting his unrecorded oral statement obtained by police pursuant to custodial interrogation. Prior to trial, the trial court conducted a hearing on Appellant=s motion to suppress his statement to police on grounds that the statement was obtained as a result of a custodial interrogation and did not meet the requirements of Article 38.22 of the Texas Code of Criminal Procedure. In response, the State contends that Appellant=s oral statement was properly admitted because it was not the result of custodial interrogation, and thus, Article 38.22 and its Miranda warnings do not apply.

Appellant=s Oral Statement

The State called two witnesses at the suppression hearing, Justice of the Peace Milan Miller and Captain Richard Miller. Judge Miller testified that on March 28, 2003, he informed Appellant of the charges against him and his statutory rights at the Freeport Jail, which is located at the Freeport Police Department. After Judge Miller gave Appellant the warnings, Appellant asked to speak to Captain Miller. Judge Miller stated that the request was in response to Appellant=s wife being charged with the same charges as he was, not in response to anything Judge Miller had told him. Judge Miller informed the jailer that Appellant wanted to see Captain Miller.

Captain Miller testified that Appellant was transported to Freeport Jail after the search warrant was executed. Captain Miller, however, returned to his office at the police department and was not involved in the booking-in process at the jail. Captain Miller was later contacted by the jailer and told that Appellant wanted to speak to him. Appellant was seated on a bench when Captain Miller entered the booking room. Judge Miller and Jim Zannell, the jailer, were also present. Captain Miller walked in, sat on the bench next to Appellant, and asked him Awhat=s up?@ According to Captain Miller, Appellant began to explain that Ms. Hernandez had nothing to do with any of the controlled substances found inside the residence, that he wanted to claim responsibility for all of it, and go to prison. Captain Miller did not ask Appellant anything in response to the statements. Captain Miller explained to Appellant that Ms. Hernandez had been charged and at that point it would be up to a grand jury.

On cross-examination, Captain Miller testified that the purpose of his question, Awhat=s up,@ was not made to elicit information from Appellant. Appellant appeared coherent at the time he made the statement. Captain Miller conceded that Appellant was in custody at the time and that their conversation was not being recorded.

Appellant testified at the suppression hearing. Appellant admitted that he received the statutory warnings from Judge Miller. He also admitted that he asked to speak to Captain Miller. Appellant interpreted Awhat=s up@ to mean what went on in the house. He acknowledged that he had made the statement to Captain Miller in response to the question.

On cross-examination, Appellant claimed that Captain Miller questioned him about the drugs found in the house and asked him to become an informant, but he refused. Appellant admitted that he has been arrested several times, that he knew he could hire an attorney or have a court appointed attorney, and knew that he did not have to talk with police. Appellant stated that the reason he wanted to talk to Captain Miller was that he did not want Ms. Hernandez to be charged since she was pregnant and because the search and arrest warrant was only for him. However, Appellant later stated that he did not know why Ms. Hernandez or he had been arrested and asked to talk with Captain Miller in order to ask him why she was being arrested.

Custodial Interrogation

Article 38.22 of the Texas Code of Criminal Procedure, which governs when statements by the defendant may be used at trial, applies only to statements made as a result of custodial interrogation. See Tex.Code Crim.Proc. Ann. art. 38.22, '' 2, 5 (Vernon 2005); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.- El Paso 1995, no pet.). If the appellant=s statements do not stem from custodial interrogation, neither Miranda nor Article 38.22 requires their suppression. Morris, 897 S.W.2d at 531. Custodial interrogation requires: (1) that the suspect must have been Ain custody;@ and (2) the police must have Ainterrogated@ the suspect either by express questioning or its functional equivalent. Morris, 897 S.W.2d at 531; see also Rhode Island v. Innis, 446 U.S. 291, 300 02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980). Not all police questioning is Ainterrogation.@ Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990). Interrogation refers to words, actions, or questions by police which police should know are reasonably likely to elicit an incriminating response. Innis, 446 U.S. at 300 02, 100 S.Ct. 1689-90; see also Jones, 795 S.W.2d at 174 & n.3. The term Aincriminating response@ refers to any response that the prosecution may seek to introduce at trial. Innis, 446 U.S. at 301 n.5, 100 S. Ct. at 1690 n.5.

Here, the State does not dispute that Appellant was in custody at the time of his statement. Rather, it argues that the statement was not the result of an interrogation. Appellant contends that under the circumstances, the police knew that he Awould likely try to take the heat off his pregnant wife . . . .@ The record shows that Appellant requested to talk to Captain Miller. Appellant was in the booking room at the time. There is no evidence that Captain Miller knew why or what Appellant intended to speak to him about. Moreover, there is no evidence that Captain Miller knew Ms. Hernandez was pregnant or had any other knowledge of possible motivations for Appellant=s desire to speak with him.

Appellant testified that he interpreted Captain Miller=s question to be an inquiry as to what happened in the house. However, such a broad understanding of the question is an unreasonable interpretation of the inquiry. Based on the facts presented, the trial court could have reasonably concluded that Captain Miller=s question, Awhat=s up,@ made upon entering the booking room at Appellant=s request was a benign and common greeting, that was not reasonably likely to elicit an incriminating response. Consequently, Appellant=s statement was not the result of an interrogation and was thus, admissible at trial. Therefore, we conclude the trial court did not abuse its discretion in allowing the statement into evidence. Issue Two is overruled.

IMPROPER JURY ARGUMENT

In his third issue, Appellant argues that the trial court abused its discretion by refusing to grant a mistrial following improper jury argument by the State.

When the trial court sustains an objection and instructs the jury to disregard but denies a defendant=s motion for mistrial, the issue is whether the trial court abused its discretion in denying the mistrial. Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004). A mistrial is only required in extreme circumstances in which the prejudice is incurable. See id.

Such a circumstance exists when the improper conduct is Aso prejudicial that expenditure of further time and expense would be wasteful and futile.@ Hawkins, 135 S.W.3d at 77, citing Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1070, 120 S. Ct. 1680, 146 L. Ed. 2d 487 (2000). Generally, an instruction to disregard impermissible argument cures any prejudicial effect. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000).

During closing argument, the prosecutor stated:

You don=t accidently possess this amount of narcotics, and the only reason he possessed that amount of narcotics is to sell them to somebody else, to somebody else=s children, to somebody else=s husband and wife --

Defense counsel objected, arguing that the State was arguing outside the record. The trial court sustained the objection. Upon request, the trial court instructed the jury to disregard the prosecutor=s statement. The trial court, however, denied Appellant=s request for a mistrial.

In this case, a forensic chemist testified that the controlled substances recovered from Appellant=s house consisted of: 14 and one-half pills of ecstasy, weighing 3.7631 grams; cocaine, weighing 14.68 grams; and marijuana, weighing 389.2 grams. The cocaine was found in six individually packaged baggies. These baggies were located in Appellant=s bedroom in a pair of pants. A larger quantity of cocaine was found in a film canister in a bedroom closet. The ecstasy pills were also found in the pair of pants. Captain Miller testified that ecstasy is normally sold in tablet form and in simple possession cases it is possessed in quantities of one to two tablets. Captain Miller believed that the amount of drugs and the way they were packaged indicated an intent to deliver. The police also found an Ohaus digital scale in Appellant=s house, an instrument which Captain Miller testified is the type of scale used to weigh out increments of controlled substances.

Proper jury argument consists of: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. See Felder v. State, 848 S.W.2d 85, 94-5 (Tex.Crim.App. 1992)(en banc); Calderon v. State, 950 S.W.2d 121, 133 (Tex.App.--El Paso 1997, no pet.). Wide latitude is given to counsel in drawing inferences from the evidence provided the inferences are reasonable, fair, legitimate, and offered in good faith. Denison v. State, 651 S.W.2d 754, 761-62 (Tex.Crim.App. 1983)(en banc).

Based upon the evidence admitted during the trial, we conclude the prosecutor drew a fair and reasonable inference that Appellant possessed the controlled substances for the purpose of selling them to people or their family members. To the extent the State=s argument was improper, we consider the following factors to determine whether the trial court abused its discretion by denying a mistrial for improper argument: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor=s remarks); (2) the measures adopted to cure the misconduct (the effect of any cautionary instruction given by the court); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). See Threadgill v. State, 146 S.W.3d 654, 666-67 (Tex.Crim.App. 2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998); see also Hawkins, 135 S.W.3d at 77 (Mosley factors should be used to evaluate whether the trial court abused its discretion in denying a mistrial from improper argument that does not implicate constitutional rights).

In balancing these factors, we find that the misconduct, if any, was not particularly severe and was an isolated occurrence. Contrary to Appellant=s assertions, the prosecutor=s statement would not have necessarily led the jury to think that Appellant was selling drugs to their own spouses and children. The trial court took sufficient curative action to cure any resulting prejudicial effect from the prosecutor=s statement. Finally, after reviewing the entire record, we find conviction was certain, particularly given the physical evidence recovered from Appellant=s residence and witnesses= testimony, including Captain Miller=s testimony concerning Appellant=s oral statements. Considering the mildness of the prosecutor=s statement, the adequate curative action of the trial court, and the strength of the State=s case, we conclude the trial court did not abuse its discretion in denying the mistrial. Issue Three is overruled.

OFFICER TESTIMONY DURING PUNISHMENT PHASE

In his fourth issue, Appellant contends the trial court abused its discretion in allowing Captain Miller to testify as to the psychological and physiological effects of ecstasy, cocaine, and marijuana because Captain Miller=s testimony was not admissible under Rule 701 as a lay witness and he was not qualified to testify as an expert on these subjects.

Preservation of Error

At trial, Appellant objected to Captain Miller=s testimony on confrontation grounds, not on the basis that the State failed to establish the admissibility of the complained-of testimony pursuant to Texas Rules of Evidence 701, 702, or 703. To preserve an issue for appeal, there must be a timely objection that specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990); Maldonado v. State, 902 S.W.2d 708, 711 (Tex.App.--El Paso 1995, no pet.). Appellant=s complaint on appeal fails to comport with his trial objections, therefore we find he has waived this issue for review. See Tex.R.App.P. 33.1(a). Issue Four is overruled.

We affirm the trial court=s judgment.

August 18, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant was also indicted on a charge of possession of 3, 4-methylenedioxy-methamphetamine (Aecstasy@) with intent to deliver in cause number 44,946 and on a charge of possession of marijuana in cause number 44,947. These charges were tried together with the instant case. Appellant has also appealed the judgments rendered in those cases, which are affirmed by opinions issued this same day in cause numbers 08-04-00275-CR and 08-04-00276-CR, respectively.