Jorge Zelaya v. The State of Texas--Appeal from 278th District Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-94-040-CR

JORGE ZELAYA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Leon County, Texas

Trial Court # 7762-B

O P I N I O N

Appellant Jorge Zelaya waived trial by jury and pleaded not guilty to the offense of Possession of Over 400 Grams of Cocaine with Intent to Deliver. See Tex. Health & Safety Code Ann. 481.112 (Vernon 1993). After presentation of the evidence, the trial court found Zelaya guilty and assessed punishment at forty-five years in prison.

In two points of error, Zelaya argues that (1) the trial court erred in denying his motion to suppress evidence and later admitting such evidence at trial; and (2) the admissible evidence adduced at trial was legally insufficient to sustain his conviction for possession of a controlled substance with intent to deliver.

When reviewing a ruling on a motion to suppress, we will follow the well-established rule of viewing the evidence in the light most favorable to the trial court's ruling. Garcia v. State, 894 S.W.2d 865 (Tex. App. Corpus Christi 1995, no pet.). Absent a clear abuse of discretion, we will presume that the trial court made all the necessary findings to support its judgment. See Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991). Any finding that is supported by the record will not be disturbed on appeal. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

The record reflects that on October 1, 1993, at approximately 11:30 A.M., Trooper Louis Weaver and Trooper Monty Posey observed two vehicles, a grey four door Chevrolet and a red pickup truck, speeding northbound on Interstate 45 in Leon County. Weaver clocked the vehicles on his radar and determined that they were traveling 72 miles-per-hour in a 65 mile-per-hour zone. The troopers, who were traveling southbound, turned on their red lights, crossed the median and pulled up beside the Chevrolet. Posey motioned for the driver to pull over, and Zelaya began to move his car to the side of the road. Weaver then got behind the pickup and began to pull it over. At this point Zelaya pulled his vehicle back around the patrol car and began driving off. Trooper Posey motioned for the truck to follow, and the officers again pulled over Zelaya.

While Posey was giving the driver of the truck a verbal warning for speeding, Weaver approached the Chevrolet and asked Zelaya to step out of the car. At this time Weaver noticed that Zelaya's vehicle was also missing a front license plate. Weaver then asked Zelaya for his license and proof of liability insurance. During this exchange, Weaver determined that Zelaya did not speak English well, so he began to converse with him in Spanish. At this point the trooper noticed that Zelaya appeared to be nervous. Weaver told him that he was only going to give him a written warning for his speeding and license-plate violations. As Weaver filled out the warning citation, he inquired about Zelaya's place of employment, destination, and residence, which was standard procedure. Zelaya said that he lived in Houston, and was going to Dallas to pick up some immigration papers for his brother. He further stated that he worked at a pipe yard in Houston and had to be back by 6:00 P.M. Weaver found this statement strange because, according to his own calculations, it was impossible for Zelaya to travel to Dallas, conduct business, and return to Houston by 6:00. Moreover, Weaver found it unusual that his brother was not accompanying him to Dallas to pick up his immigration papers. As Weaver spoke with Zelaya, he noticed that he became more apprehensive. His body and hands began to noticeably shake.

At this point, Weaver became suspicious that Zelaya might be involved in some illegal activity. Weaver then asked Zelaya if he minded if the troopers searched his car. Zelaya verbally consented and attempted to walk to the car to get Weaver the keys. Weaver stopped him, and to insure that he had consent, again asked if he could search his car. Again, Zelaya gave Weaver permission to look in his vehicle. By this time, Trooper Posey had returned to assist Weaver in the search of the vehicle.

During the search of the car, the troopers noticed that the back seat was pulled up some from the floorboard. When Weaver pulled up on the seat, he discovered two rectangular packages wrapped in paper. Based on the troopers' past experience and training, they believed the packages to contain illegal narcotics. Zelaya was placed under arrest, given his statutory warnings, and taken with his vehicle to the Leon County Jail, where the troopers confirmed that the packages contained over two kilograms of cocaine. He was given a Miranda warning by Judge Robert Grisham with the warning being translated into Spanish. Thereafter, Zelaya gave a written statement in Spanish, stating that he had met a man in Houston named Miguel, who had instructed him to deliver the cocaine to a man in Dallas and to pick up approximately $60,000 in return.

In his first point of error, Zelaya contests the admissibility of evidence obtained as a result of a warrantless search of his vehicle. He contends that the packages of cocaine seized, as well as his subsequent confession, are inadmissible because the officers lacked probable cause to arrest him and probable cause to search his vehicle under both the Fourth Amendment to the United States Constitution and Article I, Section 9, of the Texas Constitution.

Zelaya appears to contend under point one that the Texas Court of Criminal Appeals' holding in Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1994), requires us to find in the present case that the Texas Constitution provides greater protection than the Fourth Amendment. Zelaya, however, fails to raise this point in a separate and distinct point of error. A point of error based on the Heitman holding must be raised independently or it will be deemed waived. Barley v. State, No. 71486, slip op. at 13 (Tex. Crim. App. June 21, 1995). Because Zelaya failed to do so, this complaint is waived.

The United States Constitution and the Texas Constitution both provide that all persons will be free from unreasonable searches and seizures. U. S. Const. amend. IV; Tex. Const. art. I, 9. Generally, a search is considered unreasonable unless it is executed by a warrant supported by probable cause. Dubose v. State, 864 S.W.2d 656, 660 (Tex. App. Houston [1st Dist] 1993, no pet.). However, warrantless searches of automobiles are valid when supported by probable cause alone, and in the absence of probable cause, when the individual gives the officer consent to search the vehicle. Reyes v. State, 741 S.W.2d 414, 430 (Tex. Crim. App. 1987).

In the present case, Zelaya's main argument centers around the fact that Troopers Weaver and Posey did not have probable cause to search his automobile. While it may be true that the troopers did not have probable cause to conduct a search, Zelaya's argument is entirely irrelevant, because he waived his right to be free from unreasonable searches when he freely gave permission to the officers to search his automobile. There is uncontroverted evidence in the record which shows that Zelaya freely and voluntarily consented to a search of his automobile. When Weaver asked if he would mind if they searched his vehicle, Zelaya replied that he did not. In addition, Zelaya attempted to retrieve the keys from the ignition in order for the troopers to search his automobile. To insure the validity of the search, Weaver asked Zelaya a second time for permission before the vehicle was actually searched.

Zelaya also claims that the evidence should have been suppressed because it was discovered as a result of an illegal arrest. Although it is not clear from his brief, Zelaya is apparently arguing that he was in custody for Miranda purposes when he was first pulled over. Therefore, he appears to contend that because he had not been read his Miranda warnings before Weaver began questioning him, any evidence procured as a result of Weaver's interrogation was unlawfully obtained. However, Zelaya has failed to distinguish between a seizure and an arrest for Fourth Amendment purposes.

It is well settled that law enforcement officers have the right to detain an individual after observing a traffic violation. Armitage v. State, 637 S.W.2d 936 (Tex. Crim. App. 1982). Although a traffic stop significantly curtails the freedom of the driver and constitutes a seizure within the meaning of the Fourth Amendment, it does not by itself render the individual in custody for Miranda purposes. Smith v. State, 789 S.W.2d 350, 353 (Tex. App. Amarillo 1990, pet. ref'd) (citing Berkemer v. McCarty, 468 U.S. 420, 436-37, 440, 104 S. Ct. 3138, 3148-3149 (1984)).

Although Zelaya was not free to leave the scene during this temporary detention, an ordinary traffic stop is not significantly coercive as to require Miranda warnings. See id. Zelaya was under no obligation to consent to a search of his automobile, and in the absence of probable cause, would have been free to leave after the trooper had issued the written warning. Weaver's questioning of Zelaya during the traffic stop did not amount to custodial interrogation and, therefore, a reading of Miranda warnings was not constitutionally required. Viewed in the light most favorable to the trial court's ruling, we find that the trial court did not abuse its discretion in denying Zelaya's motion to suppress. The first point of error is overruled.

In his second point of error, Zelaya claims that the evidence produced at trial was legally insufficient to sustain his conviction for possession of over 400 grams of cocaine with intent to deliver.

In addressing a sufficiency of evidence claim, we construe the facts adduced at trial in the light most favorable to the prosecution. See Geesa v. State, 820 S.W.2d 154, 156-157 (Tex. Crim. App. 1991) (citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789 (1979)). Once examined, a conviction will be reversed only if a rational trier of fact could not have found all the essential elements of the crime beyond a reasonable doubt. Id. at 156-157.

The elements of unlawful possession of a controlled substance with the intention to deliver are: (1) the accused exercised care, custody, control and management over the contraband; (2) the accused knew the substance possessed was contraband; and (3) the accused intended to transfer the contraband. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Daniels v. State, 853 S.W.2d 749, 750 (Tex. App. Houston [1st Dist.], 1993, no pet.).

A confession may be used to establish the "corpus delicti" of a crime if it can be corroborated by additional evidence. Gibbs v. State, 819 S.W.2d 821 (Tex. Crim. App. 1991), cert. denied, 112 S. Ct. 1205 (1992). This evidence need not be conclusive in nature. Thomas v. State, 807 S.W.2d 803 (Tex. App. Houston [1st Dist.] 1991, pet. ref'd).

There is significant corroborative evidence in this case, in addition to Zelaya's confession, that he possessed the cocaine, with the intent to deliver it to a man in Dallas. Zelaya was the registered owner of the car in which the cocaine was found. In addition, he was extremely nervous and physically shaking when the troopers questioned him. Moreover, his story was highly implausible. Zelaya's confession is also corroborated by the large amount of cocaine found in his car. The troopers found over two kilograms of cocaine under Zelaya's seat. Some courts have held that possession of one kilogram of cocaine is sufficient for a jury to infer an intent to deliver. Hurtado v. State, 722 S.W.2d 184, 188 (Tex. App. Houston [14th Dist.], 1986, pet. ref'd); Fewell v. State, 687 S.W.2d 807, 810 (Tex. App. Houston [14th Dist.], 1985, no pet.); see Alba v. State, 492 S.W.2d 555, 561 (Tex. Crim. App. 1973). Clearly, if possession of a large quantity is sufficient by itself to support a conviction for intent to deliver, then such evidence is more than sufficient to corroborate Zelaya's confession that he intended to deliver the cocaine. Zelaya's second point of error is overruled.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 31, 1995

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