Olga Lidia Santacruz v. The State of Texas--Appeal from 81st Judicial District Court of La Salle County

MEMORANDUM OPINION

No. 04-05-00281-CR

Olga Lidia SANTACRUZ a/k/a Olga Lidia Santa Cruz ,

Appellant

v.

The STATE of Texas ,

Appellee

From the 81st Judicial District Court, LaSalle County, Texas

Trial Court No. 04-09-00055-CRL

Honorable Stella Saxon , Judge Presiding (1)

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan , Justice

Karen Angelini , Justice

Phylis Speedlin , Justice

Delivered and Filed: August 9, 2006

AFFIRMED

Olga Lidia Santacruz a/k/a Olga Lidia Santa Cruz appeals the judgment convicting her of possession of 400 grams or more of cocaine with intent to deliver and sentencing her to fifteen years in prison. We affirm.

1. Santacruz first argues the trial court erred in denying her motion to suppress because the officer who stopped the vehicle in which she was a passenger did not have probable cause or reasonable suspicion to do so. We disagree.

At the hearing on the motion to suppress, Officer Douglas Phillips testified he stopped the vehicle in part because the driver, Santacruz's mother, failed to signal while changing lanes. At the conclusion of the hearing, the trial court found "that the stop was a result of probable cause; that the officer observed a traffic violation and had probable cause to pull the vehicle over ...." On appeal, Santacruz argues Phillips could not have legally stopped her mother for failing to signal because that is not a traffic violation. Santacruz is mistaken. A driver is required to "use the signal authorized by Section 545.106 to indicate an intention to ... change lanes," Tex. Transp. Code Ann. 545.104 (Vernon 1999); and the failure to do so is a misdemeanor offense. Id. 542.301. Officer Phillips thus had probable cause to stop the vehicle.

2. In the statement of her second issue, Santacruz contends the trial court erred in denying the motion to suppress her oral statements because the statements were obtained in violation of Miranda. We do not address this issue because Santacruz inadequately briefed it by failing to provide any argument or authority with respect to how her Miranda rights were violated. See Tex. R. App. P. 38.1(h); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005), cert. denied, 74 USLW 3732 (June 30, 2006).

3. Santacruz next argues her statements should have been suppressed because her attorney did not receive a timely copy of the statements. See Tex. Code Crim. Proc. Ann. art. 38.22 3(a)(5) (Vernon 2005). However, Santacruz did not object on this ground in the trial court and therefore failed to preserve the issue for review. See Tex. R. App. P. 33.1; State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (holding points not raised during hearing on a motion to suppress are waived).

4. Santacruz also argues her oral statements should have been suppressed because Phillips did not advise her, before taking the statement, that she had the right to terminate the interview at any time. See Tex. Code Crim. Proc. Ann. art. 38.22 3(a)(2) (providing that oral statements are not admissible unless the warnings required by subsection 2(a) are given); id. 2(a)(5) (requiring that accused be warned, before making statement, that he has the right to terminate the interview at any time).

Phillips conceded that he did not inform Santacruz that she could terminate the interview at any time. However, the State argues that Phillips "effectively communicated" Santacruz's rights to her by telling her several times that she did not have to speak with him and that she had the right to an attorney. We disagree. "Strict compliance with all portions of Section 3(a) is required." Woods v. State, 152 S.W.3d 105, 116 (Tex. Crim. App. 2004). Section 3(a) requires that the subsection 2(a) warnings be given, including warning of the right to terminate the interview at any time, the right not to make a statement at all, and the right to counsel. See Tex. Code Crim. Proc. Ann. art. 38.22 2(a)(5), 3(a)(2). Because Phillips did not give Santacruz each of the required warnings, the trial court erred in admitting the oral statements. However, the trial court's admission of Santacruz's statements in violation of article 38.22 is non-constitutional error that must be disregarded unless a substantial right has been affected. Tex. R. App. P. 44.2(b); Woods, 152 S.W.3d at 118. "A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict." Id. at 118-19. "In assessing the likelihood that the jury's decision was adversely affected by the error, [we] should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The reviewing court may also consider the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire and whether the State emphasized the error." Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005).

At trial, Santacruz conceded that she possessed the five kilos of cocaine Phillips found strapped to her body but argued that she neither delivered nor intended to deliver the cocaine. Because intent to deliver was the focal issue, Santacruz contends that admission of her statement to Phillips that she was delivering the cocaine to a man at a San Antonio gas station in exchange for $500 was harmful. We disagree. Santacruz's statement to Phillips was only one piece of the State's evidence. Phillips testified the highway between Laredo and San Antonio where he stopped Santa Cruz is a major corridor for drug trafficking. He discovered five bundles of cocaine strapped around Santacruz's abdomen under her shirt and testified it is common for drug smugglers to carry drugs on their person. Texas Department of Public Safety lieutenant John Salazar testified that the cocaine Santacruz was carrying could yield 50,000 individual doses or "twenty bags" and had a street value of at least one million dollars. The State urged the jury to use its "common sense" when considering Santacruz's defense that she merely possessed the cocaine, asking whether "somebody [is] going to strap five kilos of cocaine to their body and drive up from Laredo on their way to San Antonio just because they want to carry their cocaine with them." The State argued that the only reasonable inference to be drawn from all the facts and circumstances was that she intended to deliver the cocaine. Without considering Santacruz's statements, the jury could have rationally concluded beyond a reasonable doubt that Santacruz possessed the cocaine with intent to deliver it. See e.g.,Robinson v. State, 174 S.W.3d 320, 329, 331 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (holding the circumstances sufficient to infer that passenger in a truck with two kilos of cocaine worth more than one million dollars intended to deliver the cocaine). And the State argued all of its evidence to the jury without any undue emphasis on Santacruz's statements. We therefore conclude the erroneous admission of the statements did not have a substantial and injurious influence on the jury's verdict and the error was harmless. See Woods, 152 S.W.3d at 118-19; Tex. R. App. P. 44.2 (b).

The trial court's judgment is affirmed.

Sarah B. Duncan, Justice

Do not publish

1. The Honorable Stella Saxon, presiding judge of the 218th Judicial District Court, LaSalle County, Texas, conducted the pretrial hearing on the motion to suppress and signed the final judgment. However, the trial was conducted in the 81st Judicial District Court, La Salle County, Texas, and presided over by the judge of that court, the Honorable Donna S. Rayes.