Carter v. State
| Decision Date | 23 September 2009 |
| Docket Number | No. 07–07–0157–CR.,07–07–0157–CR. |
| Parties | Carl Allen CARTER, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
James C. Fling, Adkins & Fling, Shamrock, for appellant.
Lynn Switzer, Dist. Atty., Pampa, for appellee.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Carl Allen Carter, was convicted by a jury of possession of a controlled substance with intent to deliver in violation of section 481.112 of the Texas Health and Safety Code. He was sentenced to twenty-five years confinement and fined $25,000. Appellant contends the trial court erred when it: (1) denied his motion to dismiss the indictment due to racial profiling; (2) denied his motion to suppress evidence derived from an illegal arrest prompted by racial profiling; (3) denied his motion to suppress evidence derived from an illegal search prompted by racial profiling; (4) denied his request to present at trial a videotape of the arresting officer's entire shift as evidence of racial profiling; (5) denied his motion to suppress statements made after his arrest but prior to being read his Miranda warnings; (6) denied his motion for mistrial because statements made by him after being Mirandized were “fruit of the poisonous tree”; and (7) the evidence in support of the verdict is factually insufficient. We reverse the judgment of the trial court and remand for further proceedings in conformance with this opinion.
On October 9, 2003, a Wheeler County Grand Jury returned an indictment charging Appellant with possession of 400 grams, or more, of cocaine with intent to deliver. On January 1, 2004, Appellant filed three motions to suppress evidence alleging that his car was illegally searched, his arrest was without probable cause, his admission/confession was taken when he was without counsel, and he had not intelligently and knowingly waived his rights.
Jason Henderson, a trooper for the Texas Department of Public Safety, was the sole witness at the hearing. He testified that, on March 31, 2003, he was patrolling Interstate 40 when he observed a silver Pontiac traveling eastbound in the left hand lane next to the median. Trooper Henderson was traveling westbound on the opposite side of the median. As the two vehicles passed, Trooper Henderson made eye contact with the driver who then crossed over to the right lane and exited I–40 without a signal. Having observed two traffic violations, Trooper Henderson immediately cut across the median and activated his overhead lights.
Trooper Henderson next observed the driver run a stop sign as he made a left hand turn on Farm–to–Market Road 1443. Approximately one-half mile down the road, the driver pulled over onto the shoulder. Trooper Henderson called the Shamrock Police Department for assistance and pulled behind the vehicle. He approached and asked the driver, Craig Willis, for his license and registration. Willis did not have a driver's license. Appellant, a passenger, produced a rental contract showing he had leased the vehicle.
Trooper Henderson first spoke with Willis who told him they were coming from Tucson, Arizona, where his little brother played basketball. Subsequently, Appellant indicated they were coming from Phoenix, Arizona, where they had stayed at the Flamingo Hotel and a friend's house. Appellant indicated they had been there on vacation. Trooper Henderson asked if there were any weapons or narcotics in the car. Appellant responded, “Not that I know of, but it is a rental car, you never know.” Appellant then agreed to permit Trooper Henderson to search the car.
Willis opened the trunk and Trooper Henderson observed laundry detergent was strewn over the trunk's floor. The trooper testified that laundry detergent is commonly used to mask the odor of narcotics. He also observed a high concentration of laundry detergent in the crease where the back seat met the floor of the trunk. He lifted the back seat and found two packages of cocaine concealed beneath the seat. He then placed Willis and Appellant under arrest.
Trooper Henderson testified that, after placing Appellant in his patrol car,1 he advised him of his Miranda rights.2 He further testified that, at that point, Appellant waived his rights and, in answer to the trooper's questions, stated the cocaine belonged to both him and Willis; they paid $8,000 for the drugs and they were trying to make some money off the drugs. Following Trooper Henderson's testimony, the trial court denied Appellant's motions to suppress.
On July 5, 2003, Appellant filed a motion to dismiss the indictment wherein he alleged the traffic stop was racially motivated. Appellant argued the following evidence established that Trooper Henderson engaged in “racial profiling”: (1) videotape segments depicting Trooper Henderson's other traffic stops the same day he stopped Appellant; (2) Trooper Henderson's testimony at the suppression hearing indicating he was traveling at a high rate of speed in the opposite direction on I–40 when he had “eye contact” with Willis from across the median; and (3) Trooper Henderson's initial observation that the two occupants of the suspect vehicle were black.
On the day of trial, March 26, 2007, the trial court again denied Appellant's motions to suppress evidence due to illegal arrest, illegal search, and involuntary confession. The trial court also denied Appellant's motion to dismiss and ordered the videotape of Trooper Henderson's entire shift, Defendant's Exhibit No. 1, sealed.3
At trial, the State introduced a second videotape into evidence containing only Appellant's traffic stop. Appellant objected because the videotape did not contain the other traffic stops, contained hearsay statements, and incriminating statements by Appellant prior to receiving a Miranda warning. Appellant also re-urged the objections raised in his pre-trial motions. The trial court again overruled Appellant's objections.
At trial, Trooper Henderson was qualified as an expert in criminal interdiction. In addition to reiterating his testimony during the suppression hearing, he testified Interstate 40 was a well-known drug trafficking corridor with drugs running from west to east. He testified that, when someone immediately exits the interstate after spotting him, it is generally because they are being evasive or attempting to throw something out of the vehicle. The State then played the videotape of Appellant's traffic stop and he commented on the footage. He testified that, while he was speaking with Willis and Appellant during the stop, they became increasingly nervous and looked away. When Willis went to the trunk to look for his driver's license, the trooper observed and smelled laundry detergent spread throughout the car's trunk. He testified laundry detergent is often used to mask the odor of narcotics from drug-detecting dogs. All this, plus their inconsistent stories regarding their trip caused him to ask if he could search the car, and Appellant agreed. Trooper Henderson then located two packages of cocaine in a storage compartment underneath the back seat where additional laundry detergent was spread. The cocaine was wrapped with black electric tape and plastic.
After the cocaine was discovered, Appellant was arrested, handcuffed behind his back, and placed in the backseat of the trooper's patrol car where he could observe several deputies searching the vehicle. Shortly thereafter, Trooper Henderson entered the patrol car and started driving. From the patrol car's onboard video, the jury learned that, without giving Appellant any Miranda warnings, as Trooper Henderson turned his vehicle around in the roadway to proceed to the Shamrock Police Department, he questioned Appellant as follows:
At this point, Appellant's attorney objected:
Shortly thereafter, at the request of a juror who was feeling ill, the court took a short recess. When the trial court returned from its recess, the following exchange occurred:
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