Delagarza v. State
| Decision Date | 14 October 2021 |
| Docket Number | NUMBER 13-19-00617-CR |
| Parties | Benino DELAGARZA a/k/a Benino De La Garza, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Travis W. Berry, Attorney at Law, Corpus Christi, for Appellant.
Constance Filley Johnson, Victoria County Criminal District Attorney, Tammy L. Deyton, Assistant Criminal District Attorney, Victoria, for Appellee.
Before Chief Justice Contreras and Justices Benavides and Silva
Opinion by Justice Silva
Appellant Benino Delagarza a/k/a Benino De La Garza appeals his third-degree felony tampering with evidence conviction enhanced to a first-degree felony, for which he was sentenced to ninety-nine years’ imprisonment. See TEX. PENAL CODE ANN. §§ 12.42(d), 37.09. By three issues, Delagarza argues (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient to support Delagarza's conviction; and (3) the trial court assessed a disproportionally unconstitutional sentence. See U.S. CONST. amends. IV, VIII, XIV ; TEX. PENAL CODE ANN. § 37.09. We affirm.
Delagarza was indicted for the offense of tampering with evidence, alleged to have occurred on or about March 12, 2019. The indictment alleged Delagarza, "knowing that an investigation was pending, namely a traffic stop, intentionally and knowingly conceal[ed] contraband, namely marijuana and methamphetamine, with intent to impair its availability as evidence in the investigation." See TEX. PENAL CODE ANN. § 37.09(a)(1). Delagarza subsequently filed a motion to suppress, challenging the search of his juvenile daughter, B.D., who was a passenger in his vehicle.
Three Victoria Police Department (VPD) officers testified at the suppression hearing. VPD officer Ryan Kelly testified that, on the evening of March 12, 2019, he was on patrol when he observed "what [he] believed to be a drug transaction" at a gas station. Kelly saw two vehicles parked "kind of close together" and witnessed a Hispanic male, later identified as Delagarza, "leaning into the vehicle that was at the gas pump." Kelly thereafter followed Delagarza's vehicle and initiated a traffic stop after observing a transportation code violation. Kelly testified that he detected marijuana residue on Delagarza's shirt and an odor of marijuana emanating from the vehicle upon initial contact. Kelly's in-car and body camera recordings were admitted into evidence at the hearing. Kelly can be seen instructing Delagarza to exit the vehicle, and a pat down of Delagarza revealed Delagarza had over $1,5001 in cash in his possession. Delagarza was then detained while the officers searched the vehicle and its occupants: Delagarza's two daughters, ages thirteen and fourteen, and Amy Magana, Delagarza's then-girlfriend.
Kelly and VPD officer Jonathan De La Rosa2 testified that the females were not searched for officer safety but, rather, because officers suspected that a drug transaction had occurred and that they were hiding evidence. De La Rosa testified that one of Delagarza's daughters, B.D., behaved suspiciously; B.D. refused to step out of the vehicle, kept "wanting to cover up with her jacket," and complained about needing to use the restroom.
VPD officer Leticia Guajardo testified that Magana "seemed upset," but she was forthcoming and told Guajardo that "she had some contraband in her shorts, in her underwear, [and] private area." Guajardo testified that, unlike Magana, B.D. was not cooperative. B.D. declined to stand to be searched and asked to speak with her father first. After Guajardo instructed B.D. to remove the oversized jacket she was wearing, marijuana could be seen "hanging out from the top of her waistband on her pants ... in plain view."
Delagarza asserted that B.D. had been unlawfully searched by law enforcement, and therefore, "[t]he marijuana found on [B.D.] is inadmissible and should not be admitted at trial." The State countered that Delagarza lacked standing to contest the search of his juvenile daughter. The trial court denied Delagarza's motion to suppress, and the case proceeded to trial.
Magana testified she had known Delagarza for eight or nine years and had been in a relationship with him for "not even a month" at the time of the stop on March 12, 2019. Magana testified that, prior to the stop, Delagarza had driven to the gas station to buy "dro," a potent strain of marijuana, for his daughters who were also in the vehicle. Magana stated that Delagarza handed her a baggie of methamphetamine and marijuana "to hide," and she put the baggies of marijuana "inside" her vagina after officers initiated a traffic stop but before Delagarza stopped the vehicle. Magana did not specify where she hid the methamphetamine. According to Magana, Delagarza also gave a bag of marijuana to B.D., and "[s]he put it down her pants." Magana consented to the officer's search, and after initially taking responsibility, Magana stated that she had hid the drugs at Delagarza's direction. Several body camera recordings were admitted into evidence. Magana can be heard initially telling officers, "You can put everything on me."
During cross-examination, Magana was confronted with an affidavit she had written prior to trial, wherein she took full responsibility for the drugs found in her possession and swore she had previously lied to police. Jail phone call recordings were also admitted at trial,4 wherein Magana can be heard telling Delagarza that she never told officers that he had given her the drugs to hide:
On re-direct examination, Magana testified that she lied in the affidavit, and she had been pressured by Delagarza into making those phone call statements, knowing they would be recorded. Magana testified that she lied "[b]ecause [she] was in love,"5 and at the time she executed the affidavit, she was living with Delagarza's mother and dependent on Delagarza.
Kelly and De La Rosa provided substantially the same testimony as they did at the suppression hearing. Kelly testified that the stop occurred at approximately 10:50 p.m., and he found it unusual that Delagarza did not immediately pull over. According to Kelly, the only marijuana located inside the vehicle was found in the driver's side door panel, inside a DVD case wrapped in a vehicle inspection receipt dated February 15, 2019. Kelly stated that Delagarza denied responsibility for the marijuana found.
In Kelly's body camera recording, Delagarza can be heard stating that he had "barely just got that car back running" because it had been sitting idle for "four years," so any drugs in the vehicle "could be some old shit." Delagarza also stated that Magana and his mother drove the vehicle on occasion. In response to the marijuana residue found all over his shirt, Delagarza stated he had been "rolling a joint for one of his friends." When asked whether he had any marijuana on him, Delagarza stated, "I had a little bit a while ago that I was going to roll but I lost it."
Kelly testified, that based on his "training and experience," males "give female counterparts narcotics ... to hide on their person just because they know that male officers can't touch their breasts or their genital area when we search them," and "they kind of roll the dice hoping that a female officer won't be involved to conduct a more thorough search."
B.D. testified that her father never told her to hide any drugs, and she never saw Delagarza hand Magana drugs to hide. B.D. testified she had been smoking marijuana earlier in the evening and maintained that Delagarza stopped at the gas station to "use the restroom and buy cigarettes"—not to purchase marijuana. B.D. said Magana gave her the bag of marijuana to hold while they were parked at the gas station, and B.D. "put it in [her] pants before [Delagarza] came back into the car."
On cross-examination, B.D. was questioned as to why she felt she had to hide the marijuana given to her by Magana "considering [she had] just smoked an entire blunt in front of [her] father." B.D. responded, B.D. was also asked about jail phone calls made before trial, wherein Delagarza told B.D. what Magana would be testifying to, B.D. expressed wanting to move in with Delagarza once he was no longer in custody, and Delagarza promised to let B.D. live with him.
A jury found Delagarza guilty of tampering with evidence, and Delagarza elected to have the trial court determine punishment. Delagarza pleaded true to enhancement paragraphs alleging two prior convictions: unlawful delivery of a controlled substance, a first-degree felony from 2009 and felony assault involving family violence, a third-degree felony from 2015.
During punishment, the State introduced evidence of Delagarza's other prior arrests and fourteen judgments involving unrelated female complainants, which included: (1) an indictment on charges of aggravated robbery, aggravated kidnapping, aggravated assault, and retaliation; the related-judgment of conviction, wherein Delagarza pleaded guilty to one count of retaliation, the State dismissed the remaining counts, and Delagarza was sentenced to ten years’ imprisonment in 2009; (2) a complaint on charges of terroristic threat, which resulted in a six-month jail sentence in 2001, and an agreement that the State would not indict Delagarza on a related state-jail felony charge of "tampering with a witness"; and (3) several misdemeanor drug, harassment, terroristic threat, and criminal trespass convictions.
Sara Hobbs, Delagarza's ex-girlfriend, also testified to facts concerning a prior conviction wherein she...
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