ARMANDO LOPEZ, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 12, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01129-CR
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ARMANDO LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court #2
Dallas County, Texas
Trial Court Cause No. F88-80724-RI
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Lagarde
        Armando Lopez appeals his conviction for possession of a controlled substance (ten kilograms of cocaine) which resulted in a life sentence and a $250,000 fine. In his first three points of error, appellant complains of the trial court's overruling his motion to suppress evidence. Points of error four through seven complain of perceived errors occurring during the trial itself. We overrule all of appellant's points of error and affirm his conviction.
        Appellant states that his motion to suppress evidence should have been granted because the police seized the evidence pursuant to a defective search warrant. Appellant alleges that the search warrant affidavit lacked probable cause, was based upon conclusory statements, and showed a reckless disregard for the truth. These same three points of error regarding the search warrant were also raised by Marta Rodriquez, a codefendant of appellant, who was arrested in the same drug raid. This Court overruled these points in Rodriquez v. State, No. 05-88-01233-CR, Dallas, Nov. 27, 1989 (not yet reported). Because appellant's points of error and fact circumstances are identical to those in Rodriquez, we follow this Court's decision in Rodriquez and overrule appellant's first three points of error.
        Appellant next complains that the trial court erred in failing to grant a mistrial after the State introduced hearsay testimony as to the origin of the cocaine. The record reveals that the State questioned investigating Officer Bruce McDonald about the cocaine shipment. Officer McDonald stated that the cocaine was, "[s]upposedly from Miami, Florida." The court sustained appellant's hearsay objection and also instructed the jury to disregard the quoted testimony. The record shows that the State did not return to the objectionable subject. A jury is presumed to obey a motion to disregard and such instruction normally cures any error. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.) cert. denied, 108 S. Ct. 248 (1987). This presumption fails when the inadmissible evidence is so inflammatory that it undermines the efficacy of the instruction to disregard. Id. We hold that the hearsay in this case was not inflammatory and, therefore, the instruction cured the error. Appellant's fourth point is overruled.
        Next, appellant complains that the trial court erred in admitting scientific evidence without a proper predicate. The record reveals that a trained, drug-sniffing canine, Josh, was involved in the investigation of the case. Officer McDonald testified that the police used Josh to locate the cocaine during the drug raid. Officer Lloyd Smith, Josh's handler, testified about Josh's training and ability to alert to the presence of several controlled substances, including cocaine. Appellant charges that this evidence was improper because the State did not establish the scientific reliability of drug sniffing dogs such as Josh.
        The search warrant authorized a search of the entire apartment where the officers ultimately found the cocaine. Officer McDonald was not qualified as an expert on canine drug detection, but did establish that he had seen trained dogs alert positively and recognized Josh's alert inside the apartment. Thus, under rules 701 and 702 of the Texas Rules of Criminal Evidence, FN:1 Officer McDonald's opinion was admissible. Further, the record reveals that Officer McDonald's testimony about Josh's alert explained why the police searched some parts of the apartment and not others. The State did not offer the evidence to establish probable cause, or to establish that the substance found was, in fact, cocaine. We hold that the court properly admitted Officer McDonald's testimony.
        As to the testimony of Officer Smith, Josh's handler, the record shows that he testified about Josh's extensive training and experience in drug detection. Appellant objected, stating that the State made no showing of Josh's reliability, in particular, and dog detection reliability, in general. While the United States Supreme Court has not addressed this specific issue, the Court has stated that:
        [a]"canine sniff" by a well-trained narcotics detection dog . . . does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage . . . . Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item.
United States v. Place, 462 U.S. 696, 707 (1983). Trained dogs, such as Josh, are not fool-proof in their detection, but at least one Texas appellate court, citing Place, has held, that probable cause for arrest or search can be based on a canine alert. See Walsh v. State, 743 S.W.2d 687, 689 (Tex. App.--Houston [1st Dist.] 1987, no pet.), and the other cases cited therein.
        Appellant has cited no cases from a Texas court, or from any court, holding that drug detection by dogs is inherently unreliable. FN:2 The State, through Officer Smith's testimony, established Josh's training. We hold that the State gave ample predicate for evidence concerning Josh's ability to detect controlled substances. Because the predicate existed for this particular dog's ability to detect, we need not address whether the method in general is reliable.
        In the alternative, we note that appellant's objections to lack of predicate were made well after Officer Smith testified as to Josh's training and Josh's alerts during the investigation. An objection must be made as soon as the basis for the objection becomes clear. Martin v. State, 630 S.W.2d 952, 956 (Tex. Crim. App. 1982). The record shows that appellant did not timely object to Officer Smith's testimony. Appellant's point is overruled.
        Appellant argues that the trial court erred in allowing testimony as to appellant's Cuban nationality. Appellant states that this revelation was inflammatory, prejudicial, and irrelevant. This complained-of evidence was introduced when Officer McDonald explained why he was accompanied on the raid by a Spanish-speaking officer. This bilingual officer was to act as an interpreter because the occupants of the apartment were believed to be Cubans. In support of his position, appellant cites Howard v. State, 453 S.W.2d 153 (Tex. Crim. App. 1970); Joyner v. State, 436 S.W.2d 141 (Tex. Crim. App. 1969); Yanez v. State, 403 S.W.2d 412 (Tex. Crim. App. 1966); Cammon v. State, 672 S.W.2d 845 (Tex. App.--Corpus Christi 1984, no pet.); Johnson v. State, 651 S.W.2d 303 (Tex. App.--San Antonio 1983, no pet.). Assuming, arguendo, that the court erroneously admitted the testimony, we hold that the testimony was not inflammatory and does not merit reversal. Without discussing appellant's cases in detail, we note that the testimony in this case as to nationality does not rise to the level of prejudicial comment and evidence in the cited cases. We overrule point six.
        Appellant's seventh and final point of error complains that the trial court should have granted a mistrial after the State presented evidence that one of appellant's codefendants had made a civil claim as to cash seized in the apartment. Appellant admits that he found no case law that speaks directly to this point, but states, without explanation, that the testimony was harmful and prejudicial. The record reveals that the court sustained appellant's objection and instructed the jury to disregard. We hold that this instruction cured any error; the jury is presumed to obey a motion to disregard. Gardner, 730 S.W.2d at 696. Appellant's seventh point of error is overruled.        
        We affirm appellant's conviction.
 
 
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
881129F.U05
 
FN:1 Tex. R. Crim. Evid. 701,702.
FN:2 Appellant does quote Place concerning narcotic detection dogs: "[W]e are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Place, 461 U.S. at 708. A reading of the full text of this decision reveals that this quote refers to the limited intrusion on a party's privacy and not to any perceived limits on trained dogs in investigations. See id.
File Date[12-12-89]
File Name[881129F]