State v. Jaquez

Appellant, The State of Texas//Cross-Appellant, Saul Jaquez v. Appellee, Saul Jaquez//Cross-Appellee, The State of Texas

NO. 03-19-00087-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

February 10, 2021

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY

NO. CR2016-812, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted Saul Jaquez of the third-degree felony offense of tampering with physical evidence based on his attempt to eat marijuana after his arrest for driving with an invalid license. See Tex. Penal Code §§ 37.09(a)(1) (defining evidence-tampering offense), (c) (making evidence-tampering offense third-degree felony). After conducting a punishment hearing and finding the indictment's enhancement paragraphs not true, the district court assessed a ten-year imprisonment sentence. See id. §§ 12.34 (establishing punishment range of two to ten years imprisonment for third-degree felony), 12.42(d) (addressing punishment enhancement available under habitual-offender statute). The State appeals the finding during the punishment hearing that the enhancement paragraphs were not true. Jaquez cross-appeals the denial of his requested instruction under the exclusionary rule. See Tex. Code Crim. Proc. art. 38.23(a). We will affirm the district court's judgment of conviction.

BACKGROUND

While on patrol, Officer Joshua Esquivel of the Bulverde Police Department saw a vehicle that appeared to be speeding. Officer Esquivel testified that he stopped the vehicle after he "activated [his] radar [and] determined the vehicle was traveling 85 miles per hour in a 65 mile-per-hour zone." However, patrol-car video admitted into evidence shows that the radar equipment was not activated before the traffic stop.

Officer Esquivel testified that he contacted the driver, later determined to be Jaquez, and "told him why he was stopped." Jaquez stated that he did not know the posted speed limit or how fast he was going. Officer Esquivel noticed that Jaquez avoided eye contact with him. He asked to search the vehicle, and Jaquez consented. Officer Esquivel also ran a driver's license check, which showed that Jaquez's license was suspended. Officer Esquivel issued Jaquez a citation for speeding and arrested him for driving with an invalid license.

After the arrest, Sergeant Nolan Byrd arrived to conduct an inventory of the vehicle before it was towed. Meanwhile, Officer Esquivel sat in the front seat of his patrol car, starting jail-booking paperwork, and Jaquez was handcuffed in the back seat. Officer Esquivel smelled an odor of marijuana inside his vehicle and asked Jaquez if he had any marijuana, which Jaquez denied. Through the rearview mirror, Officer Esquivel noticed that Jaquez rearranged his handcuffs from behind his body to the front of his body. He then saw Jaquez place something into his mouth and begin chewing. He told Jaquez to stop chewing, ran to the rear of the patrol car, and turned his camera to face Jaquez. Officer Esquivel saw what appeared to be marijuana residue on the floorboard and told Jaquez to open his mouth. Inside, Officer Esquivel saw a green leafy substance. Officer Esquivel photographed Jaquez's mouth and collected the substance from the floorboard, which he recognized as marijuana. After Officer Esquivelremoved Jaquez from the patrol car and read his Miranda rights, Jaquez said that he had eaten a marijuana cigarette, or "joint." See Miranda v. Arizona, 384 U.S. 486, 479 (1966) (summarizing warnings). Although the audio on Officer Esquivel's video was malfunctioning, Sergeant Byrd's video recorded Jaquez's admission and it was admitted into evidence.

Jaquez was indicted for the third-degree felony offense of tampering with physical evidence. During the charge conference, Jaquez requested an article 38.23 instruction addressing the inadmissibility of evidence obtained in violation of the law. See Tex. Code Crim. Proc. art. 38.23. Jaquez noted that contrary to Officer Esquivel's testimony that he "activated [his] radar [and] determined the vehicle was traveling 85 miles per hour in a 65 mile-per-hour zone," the patrol-car video shows that the radar was not activated. The State acknowledged that the video shows the radar "never registers any reading. It just says flat zeros." Jaquez contended that the jury should have the opportunity to consider Officer Esquivel's testimony in relation to the video evidence and decide "that if they do not find that he had reasonable suspicion at the time, they are allowed to disregard any of the evidence derived from that stop and . . . render a verdict of not guilty."

Initially the district court stated, "We've got something affirmatively showing that something did not occur that the officer is testifying did occur. . . . It's going to get him an instruction today. . . . I mean, we've got something that shows what was testified to did not occur." But the State argued that the article 38.23 instruction was not warranted because the case law on tampering shows that

tampering is different, that it is a new criminal act. So if you have a bad stop, just—if we assume for the purpose of this that it was a bad stop, when he was in the back of the squad car and he committed that act of putting the marijuana in his mouth and chewing it, that was a new criminal episode. You do not get a 38.23instruction when you tamper with evidence after a bad stop. There's case law directly on that.

The district court requested "a copy of that" case law and then denied Jaquez's requested instruction. The jury convicted Jaquez of tampering with physical evidence as charged.

At the subsequent punishment hearing, Jaquez pleaded true to three enhancement paragraphs in his indictment. The State recommended that "the sentence here should begin somewhere at 35 [years' imprisonment] and climb from there." The district court stated,

Okay. Well, I believe I do have a choice. I'm supposed to see that justice is done. I basically have a Class C misdemeanor that was a fine only that climbed to a POM [possession of marijuana], six months in jail, and we've already served seven-hundred-and-some-odd days in jail. To even obviate the issue regarding whether something is grossly disproportion—a sentence being grossly disproportionate, I find that the enhancements are not true and sentence the defendant to ten years in the penitentiary. That's the sentence of the Court.

There was no objection to this ruling. The district court's judgment of conviction accurately reflects its oral ruling during the punishment hearing that the enhancement paragraphs were not true. This appeal and cross-appeal followed.

DISCUSSION

Error preservation

Preservation of an issue for appellate review ordinarily requires an appellant to have first raised the issue in the trial court. Tex. R. App. P. 33.1(a); Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); see State v. Rhinehart, 333 S.W.3d 154, 160 (Tex. Crim. App. 2011) (noting that court of appeals erred by not sustaining defendant's argument that State failed to preserve claims presented for first time on appeal). The general requirement of errorpreservation by timely objection in the trial court applies to the State as appellant. See Tex. R. App. P. 33.1(a); State v. Esparza, 413 S.W.3d 81, 88 (Tex. Crim. App. 2013) ("We have explained that the rules of procedural default, such as the contemporaneous objection rule codified in Rule 33.1(a) of the Texas Rules of Appellate Procedure should apply equally to all appellants, whether defendants or the State."); Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) ("This 'raise it or waive it' forfeiture rule applies equally to goose and gander, State and defendant.").

Here, the State appeals "the trial court's finding the enhancements 'not true'" during the punishment hearing and notes that Jaquez pleaded true to the enhancements. See Tex. R. App. P. 34.6(c)(1) (limiting appellant's issues to those included in statement of issues to be presented on appeal in appellant's request for partial reporter's record); but see State v. Aguilar, 260 S.W.3d 169, 171-72 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (dismissing for want of jurisdiction State's appeal of trial court's finding that enhancement paragraph was not true because that appeal was not authorized by article 44.01 of Code of Criminal Procedure). "A sentencing issue may be preserved by objecting at the punishment hearing, or when the sentence is pronounced." Burt, 396 S.W.3d at 577 (citing Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim. App. 2002)). However, as Jaquez points out, the State made no objection at the punishment hearing when the district court pronounced his sentence.

Given its failure to raise any objection during the punishment hearing, the State contends on appeal that because Jaquez pleaded true to the enhancement paragraphs, the district court's finding that the enhancements were not true was an abuse of its discretion and resulted in a void, "illegal sentence." See Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2003) (noting that "[u]nlike most trial errors which are forfeited if not timely asserted, a party is notrequired to make a contemporaneous objection to the imposition of an illegal sentence"); see also Tex. Code Crim. Proc. art. 44.01(b) ("The state is entitled to appeal a sentence in a case on the ground that the sentence is illegal."). The State posits that Jaquez's ten-year sentence for tampering with physical evidence was illegal because the habitual-offender provision of the Penal Code required a sentence of between twenty-five and ninety-nine years or life if two prior felony enhancements were found true. See Tex. Penal Code § 12.42(d). "Once the two prior felony convictions are found to be true, the mandatory operation of Section 12.42(d) restricts the discretion of the sentencing authority." State v. Allen, 865 S.W.2d 472, 474 (Tex. Crim. App. 1993); see State v. Kersh, 127 S.W.3d 775, 776, 778 (Tex. Crim....