Rodriguez v. State

GINO RODRIGUEZ, Appellant v. THE STATE OF TEXAS

No. 02-18-00436-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

October 3, 2019

On Appeal from the 372nd District Court Tarrant County, Texas

Trial Court No. 1515440D

Before Kerr, Birdwell, and Bassel, JJ.

Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

I. Introduction

A jury convicted Appellant of the second-degree felony of possession of a controlled substance, cocaine, in an amount of more than four but less than 200 grams. Appellant pleaded true to a repeat-offender notice, and the trial court sentenced him to ten years in the Institutional Division of the Texas Department of Criminal Justice.

Appellant raises three issues on appeal, which we overrule for the following reasons:

• In his first issue, Appellant argues that the trial court should have suppressed the results of a warrantless search of a plastic Whataburger bag that contained drugs. We hold that two rationales permitted the officer to search the bag without a warrant and justified the trial court's decision to overrule Appellant's motion to suppress.

• In his second issue, Appellant argues that the evidence is insufficient to support a finding that he knowingly possessed controlled substances. We hold that the record establishes a number of links that support the reasonable inference that Appellant knowingly possessed the controlled substances.

• In his third issue, Appellant argues that the trial court erred by failing to give the jury a spoliation instruction because the arresting officer failed to preserve the plastic Whataburger bag, as well as the paper Whataburger sack and a ketchup container in which cocaine was found. We hold that Appellant did not preserve any right to relief because he failed to request a spoliation instruction. Further, no instruction was warranted because the record does not support a conclusion that the officer acted in bad faith by not preserving the complained-of items.

Accordingly, we affirm the trial court's judgment.

II. Factual and procedural background

The central player in this appeal is a plastic Whataburger bag, which contained a paper sack with french fries and a container of ketchup.¹

At 2:00 in the morning, an officer drove past a "game room" known for frequent narcotics activity.² As the officer drove past, a car was exiting the parking lot of the game room but reversed course and pulled back into a parking spot.

This behavior piqued the officer's suspicion. The officer drove a short distance down the street, parked, and turned off his headlights. A short time later, the samevehicle that he had seen at the game room drove past his hiding place. The officer followed.

The car's driver committed three traffic violations, which gave the officer probable cause to stop the vehicle. The officer did so.

The officer described the driver as extremely nervous. Appellant, sitting in the front passenger seat, also acted strangely. Throughout most of the officer's interaction with the driver, Appellant ate french fries from a Whataburger bag. According to the officer, most passengers make eye contact with the officer and do not continue eating. The bag containing the fries was on the passenger-side floorboard between Appellant's feet.

The officer had the driver get out of the car. The driver consented to a search of the vehicle. Appellant was also removed.

The officer began his search on the passenger side of the vehicle because Appellant's behavior made him think that he was attempting to conceal something. In the space between the passenger seat where Appellant had been sitting and the car's console, the officer found a green "deal baggie."³

The officer then turned his attention to the glove compartment and the Whataburger bag. He described the Whataburger bag as a large plastic bag used to hold multiple orders and stated that the bag contained a paper sack. The paper sackcontained french fries, though he could not remember if it also contained a hamburger. The officer vividly recalled that the inside of the paper sack was coated in ketchup.

Digging through the paper sack produced a plastic Whataburger ketchup container. The officer could not remember whether the foil lid of the container was totally or partially removed. But pushed into the container was a non-Ziplock sandwich bag that contained what the officer believed was cocaine. In the officer's opinion, the cocaine was placed in the ketchup container in an effort to hide it.

Loose in the paper sack were two other baggies containing what the officer believed was methamphetamine. These baggies were free of ketchup.

The paper sack also contained loose french fries. The officer could not remember how many french fries were loose in the paper sack nor how much the paper sack weighed.

Neither the arresting officer nor a backup officer who arrived shortly after the stop saw ketchup on Appellant's hands after he was removed from the car. But before Appellant had been asked to step from the car, the backup officer had observed Appellant using a wad of napkins to wipe his hands.

The driver had a suspended license, and the officer could not remember if the driver had produced proof of insurance. The driver denied knowledge of the drugs and was released. Appellant, however, was arrested.

During the trial, Appellant emphasized that the arresting officer had not collected and preserved various items from the search and that he had cleaned ketchup off the baggie found in the ketchup container. The officer testified that this was his "first instance with something like that"—a drug baggie covered with ketchup. He did not consider calling the crime scene unit to the scene to preserve evidence. He decided that the plastic Whataburger bag, the paper sack with the french fries, and the ketchup container did not have any evidentiary value. In the officer's words, the Whataburger bag was "gross," and he did not see the need to preserve it. He also did not collect and preserve the deal baggie that he found between the console and the passenger seat.

A forensic scientist employed by the Texas Department of Public Safety testified that the substance contained in the baggie that had been pushed into the ketchup container was cocaine. The recovered cocaine weighed 6.20 grams. The recovered substance believed to be methamphetamine was not tested because the lab's policy is to test only "the highest penalty substance that's submitted to the laboratory."

Based on this evidence, Appellant was found guilty of possession of a controlled substance and was sentenced to ten years' incarceration. He appeals.

III. The arresting officer did not have to obtain a warrant before he examined

the contents of the Whataburger bag.

Appellant challenges the search of the Whataburger bag that contained controlled substances and analogizes his expectation of privacy in the bag to that of a cell phone found in a car. But he does not challenge the two steps in the process that brought the officer to the search of the Whataburger bag: the initial stop of the car and the driver's consent, which permitted the officer to enter the car's passenger cabin. The record supports two rationales that permitted the officer to search the Whataburger bag. First, the driver's consent permitted a search of the bag. Second, the officer's initial discovery of contraband in the vehicle permitted him to search further in other containers found in the passenger compartment, such as the Whataburger bag.

A. Standard of review

We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the witnesses' credibility and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). Therefore, we defer almost totally to thetrial court's rulings on (1) questions of historical fact, even if the trial court determined those facts on a basis other than evaluating credibility and demeanor, and (2) application-of-law-to-fact questions that turn on evaluating credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the witnesses' credibility and demeanor, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53.

When the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214 S.W.3d at 25. We then review the trial court's legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006).

B. When a warrantless search is permissible

The Fourth Amendment protects against unreasonable searches and seizures by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. Adefendant seeking to suppress evidence on Fourth Amendment grounds bears the initial burden to produce some evidence that the government conducted a warrantless search or seizure that he has standing to contest.⁴ State v. Martinez...