Cadoree v. State

Decision Date11 January 2011
Docket NumberNo. 14–09–00293–CR.,14–09–00293–CR.
Citation331 S.W.3d 514
PartiesAries CADOREE, Jr., Appellant,v.The STATE of Texas, Appellee.
CourtTexas Court of Appeals

OPINION TEXT STARTS HERE

Steven Hershkowitz, Houston, for Appellant.Michelle R. Townsend, Houston, for the State.Panel consists of Justices ANDERSON, SEYMORE and SULLIVAN.*

OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Aries Cadoree, Jr., was convicted of possession with intent to deliver cocaine, the aggregate weight of which was at least four grams but less than 200 grams,1 and sentenced to thirty years' imprisonment. In nine issues, he contends:

1. The trial court erred by (a) denying his motion to suppress, (b) including the incorrect burden of proof in a jury instruction, (c) allowing a witness to refuse to testify, (d) denying his motion for mistrial based on jury misconduct, and (e) failing to conduct a hearing on his motion for new trial;

2. The evidence is factually insufficient to support jury findings that he voluntarily consented to a search of his bedroom and possessed cocaine;

3. He received ineffective assistance of counsel; and

4. The cumulative effect of the foregoing alleged errors deprived him of a fair trial.

We affirm.

I. Background

In June 2008, Officer Ashraf was dispatched to a residence in response to a domestic disturbance call. When Officer Ashraf arrived, he noticed a female who “appeared real scared ... [and] was crying.” Although Officer Ashraf never testified regarding the female's name, other evidence identified her as Linda Swinney. She was at her neighbor's house when Officer Ashraf arrived. Swinney was too “scared” to speak with Officer Ashraf, so he “gave her a hug” and asked her to step outside. At this point, Swinney appeared [r]eal shaky ... [and] [v]ery nervous.” Swinney told Officer Ashraf that “there is a guy in my house that I want out of my house. I'm very scared of him. He's scaring me and he's selling drugs out of my house. I want him out.”

Officer Ashraf suggested that he and Swinney walk to her house, which was nearby. However, Swinney “was really scared and kept telling me, never mind, I don't want to do this, ... I'm scared.” Officer Ashraf eventually convinced Swinney that he would help, and they proceeded to her house. When they arrived at her house, Swinney told Officer Ashraf that “there is a male in there. I want him out of my house. I'm scared of him. That's why I called the police.” She also repeatedly stated appellant's name, “Cadoree.”

According to Officer Ashraf, Swinney opened the door and invited him inside her house. However, Swinney testified that she did not give verbal consent for Officer Ashraf to search her house. Once inside, Officer Ashraf saw appellant and another man exit a bedroom and walk down a hall. To insure officer safety, Officer Ashraf instructed the men to exit the house. After they exited the house, Officer Ashraf noticed a “big wad” in appellant's front pocket. Officer Ashraf performed a pat-down search of appellant and discovered a large amount of cash in his pocket. Officer Ashraf asked appellant where he acquired the cash and whether he was employed. Appellant did not respond. Officer Ashraf then returned the cash to appellant and placed him in the back of the patrol car. The other man was patted-down and released. Officer Ashraf testified that appellant was not handcuffed or placed under arrest at that time but was placed in the patrol car [b]ecause the disturbance call was regarding [appellant.] However, Swinney testified that appellant was in handcuffs when he was brought out of the house.

According to Officer Ashraf, both appellant and Swinney informed him that appellant lived in the house. Officer Ashraf asked appellant, [I]s there anything on [your] possession or anything in the house in [your] room I should know about[?] According to Officer Ashraf, appellant responded, [N]o, you can check it.” Before entering the house, Officer Ashraf asked, [Y]ou sure there is nothing on you or in your room that I need to know about[?],” and appellant again stated, [N]o, you can go ahead and search it.” It is undisputed that appellant did not sign a written-consent form. Officer Ashraf testified that, before he conducted his search, appellant “became real irate and scream[ed] at [Swinney,] [W]hat are you doing, what are you doing.’

Officer Ashraf entered the house and proceeded to the bedroom from which he had earlier witnessed appellant exit. Once in the room, he smelled “a strong odor of marijuana” and found a marijuana cigarette. He also found razor blades and plastic bags in plain view, as well as a broken electronic scale. He opened a jewelry box and found four bags containing a substance he believed to be narcotics. Laboratory tests established that the bags contained over forty-two ounces of cocaine. Officer Ashraf found male clothes in the room which, in his opinion, would fit appellant. He also testified that Swinney asked him to search her room because she had a scale that belonged to [appellant.] This scale was found and seized. Officer Ashraf also testified that Swinney told him a glass pipe was in her room.

II. Motion to Suppress Regarding Consent to Search

In his first issue, appellant contends the trial court erred by denying his motion to suppress the fruits of Officer Ashraf's search. We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court's finding of historical facts and reviewing de novo the trial court's application of the law. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).2 The deference is particularly high if the trial court's findings are based upon an evaluation of credibility and demeanor. Id. When the trial court has not made findings of fact, we imply findings that support the court's ruling if the findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855–56 (Tex.Crim.App.2000).

Appellant first contends that alleged inconsistencies in Officer Ashraf's testimony tainted his credibility, rendering his testimony regarding Swinney's and appellant's consent unbelievable. We conclude these “inconsistencies” do not affect the great deference we must afford the trial court's factual findings. See Guzman, 955 S.W.2d at 89.

Appellant argues that Officer Ashraf was not credible because he (1) initially testified he contacted his supervisor before he entered the house but later testified he called his supervisor after entering the house, (2) repeatedly referred to the broken scale recovered in appellant's bedroom despite the fact that he found a functioning scale in Swinney's bedroom, (2) never testified that Linda Swinney was the woman he assisted, (3) did not “remember” until re-direct-examination that he also recovered a glass pipe in Swinney's bedroom, and (4) initially testified appellant possessed $2,500 in cash but later clarified the narcotics found were worth $2,500 and appellant possessed $1,245. However, these aspects of Officer Ashraf's testimony were not relevant to whether he received voluntary consent to search the house, and it was the trial court's bailiwick to determine whether these aspects affected Officer Ashraf's credibility. Accordingly, we defer to the trial court's implied finding that Officer Ashraf was credible. See Martinez v. State, 17 S.W.3d 677, 683 (Tex.Crim.App.2000) (expressing trial court free to disbelieve testimony from defendant's family that they did not consent to search).

Next, appellant argues that Officer Ashraf's search was merely a protective sweep during which he could recover only contraband in plain view. We disagree. Nothing in Officer Ashraf's testimony supports an inference that Swinney or appellant limited the scope of their consent to search. Thus, the consent extended to concealed areas, such as the jewelry box in which the cocaine was discovered. See, e.g., State v. Garrett, 177 S.W.3d 652, 657–58 (Tex.App.-Houston [1st Dist.] 2005, no pet.) (holding defendant's failure to limit the scope of his consent to search vehicle allowed officer to search concealed areas); James v. State, 72 S.W.3d 35, 42–43 (Tex.App.-Texarkana 2001, pet. ref'd) (holding reasonable person would have understood defendant's general consent to search extended to concealed areas because defendant knew police were looking for narcotics).

Additionally, appellant contends that Swinney revoked her consent when she told Officer Ashraf, [N]ever mind, I don't want to do this, ... I'm scared.” See Valtierra v. State, 310 S.W.3d 442, 450 (Tex.Crim.App.2010) ([P]erson who consents to the entry may specifically limit or revoke his consent.”). However, even assuming that this statement was a revocation of her initial consent (and assuming appellant had a right to complain regarding Swinney's consent or lack thereof), Swinney subsequently consented because she (1) told Officer Ashraf she wanted the “male” out of her house, (2) opened her door and invited Officer Ashraf inside, and (3) accompanied him inside during the search and led him to her room where he recovered a scale and pipe.

Finally, appellant argues the trial court erred by implicitly finding he voluntarily consented to the search. Whether consent was voluntary involves a question of fact that is determined from the totality of the circumstances. Gutierrez v. State, 221 S.W.3d 680, 686–87 (Tex.Crim.App.2007). In the context of a motion to suppress, the State must prove voluntary consent by clear and convincing evidence. See Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App.2000); Lalande v. State, 676 S.W.2d 115, 117 n. 4 (Tex.Crim.App.1984). In order to be voluntary, consent must “not be coerced, by explicit or implicit means, by implied threat or covert force.” Carmouche, 10 S.W.3d at 331 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Consent must be shown to be positive and unequivocal. Allridge v....

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