Delbosque v. State, No. 05-04-01500-CR (TX 4/27/2006)

• Court: Texas Supreme Court
• Writing for the Court: Mazzant
• Decision Date: 27 April 2006
• Docket Number: No. 05-04-01501-CR.,No. 05-04-01503-CR.,No. 05-04-01500-CR.,No. 05-04-01502-CR.,No. 05-04-01504-CR.,05-04-01500-CR.,05-04-01501-CR.,05-04-01502-CR.,05-04-01503-CR.,05-04-01504-CR.
• Citation: Delbosque v. State, No. 05-04-01500-CR (TX 4/27/2006), No. 05-04-01500-CR., No. 05-04-01501-CR., No. 05-04-01502-CR. (Tex. Apr 27, 2006)
• Parties: JUAN MANUEL DELBOSQUE, Appellant, v. THE STATE OF TEXAS, Appellee.

Page 1

Unpublished Opinion

JUAN MANUEL DELBOSQUE, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 05-04-01500-CR.

No. 05-04-01501-CR.

No. 05-04-01502-CR.

No. 05-04-01503-CR.

No. 05-04-01504-CR.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion issued April 27, 2006.

Do Not Publish. Tex.R.App.P. 47

On Appeal from the 195^th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F97-46196-KN, F01-56561-PN, F01-56638-PN, F01-56639-MN, F01-75372-PN.

Affirmed as modified.

Before Justices WHITTINGTON, WRIGHT, and MAZZANT.

OPINION

Opinion By Justice MAZZANT.

Juan Manuel Delbosque appeals his convictions for possession of marijuana, possession of cocaine, possession of metal or body armor by a felon, and the revocation of his probation. In eight issues, he claims (1) this court has jurisdiction over these appeals;¹ (2) the trial court erred in denying his motion to suppress; (3) the search warrant affidavit was insufficient to establish probable cause; (4) the evidence is legally insufficient; (5) the evidence is factually insufficient; (6) the trial court erred in admitting punishment phase testimony that he was a member of a street gang; (7) the trial court erred in denying his motion to quash the indictment; and (8) his trial counsel was ineffective. We affirm the trial court's judgments.

Background

In late 2000 or early 2001, Dallas Police Detective Paul Ellzey received a complaint from a concerned citizen about possible narcotics-related activity occurring inside a Dallas apartment complex at 5811 Birchbrook in Dallas, Texas. The citizen, who claimed to be a resident of the complex, reported seeing people arriving late at night and early in the morning carrying bags of various sizes from different types of vehicles into apartment 204, staying there a short time, and then leaving. Over several hours, the resident saw several cars drive up and their occupants go inside the apartment, where they would remain for a few moments before leaving.

Ellzey testified that, after receiving the citizen complaint, he began conducting surveillance on the apartment, which he later determined was leased to appellant and appellant's wife, Cristina Delbosque. During the surveillance, he observed the same kinds of activities reported by the citizen-informant. Ellzey saw people arriving at night and carrying boxes or nylon gym bags into the apartment. Ellzey recalled that they usually drove leased vehicles, would remain inside the apartment anywhere from forty-five minutes to an hour and one-half before leaving, and did not take these boxes or bags with them when they left the apartment. After they left, a stream of cars would begin arriving at the apartment. People would get out of their cars, go inside the apartment for a few minutes, and then leave. Additional investigation revealed that some of the vehicles seen coming and going from apartment 204 were registered to individuals with criminal records for narcotics violations. The prevalence of leased vehicles at the apartment made Ellzey very suspicious because narcotics distributors often use leased vehicles to avoid civil forfeiture statutes. Ellzey's surveillance and investigation of apartment 204 continued for a period of approximately eight or nine months, until approximately 9:15 p.m. on the evening of September 5, 2001, when he received a telephone call from a person who claimed he lived at the apartment complex. The caller told Ellzey that he had seen several individuals carrying large garbage bags over their shoulders from a Suburban to apartment 204. The informant gave Ellzey the Suburban's license plate number. Ellzey looked up the registration and discovered that the vehicle, a 2001 Chevrolet Suburban, belonged to an automobile leasing company and was rented to Veronica Gamboa.

Ellzey went immediately to the apartment complex, arriving there somewhere between 9:15 and 9:30 p.m. He saw the Suburban parked in the same location described by the caller. Ellzey walked over to the vehicle and looked into one of the windows. He saw a garbage bag lying on the rear floorboard between the front and center passenger seats. The bag was open, and Ellzey could see there was something inside but could not tell what it was. He asked for assistance from other officers and set up a perimeter around the apartment complex.

Approximately fifteen minutes after Ellzey arrived at the apartment complex, appellant and another man, later identified as Eduardo Gamboa, were seen leaving apartment 204. The two men entered the Suburban and drove away. Ellzey notified uniformed patrol officers, who were participating in the surveillance, and told them to make an investigative stop of the Suburban. Dallas Police Officers Paul Lapiano, David Durica, and a third officer followed the vehicle in a marked patrol car as it headed south on Central Expressway. After they saw the vehicle cross three lanes of traffic without signaling, they initiated a traffic stop. As the officers approached the Suburban, they noticed a strong odor of marijuana coming from the interior of the vehicle after the driver, Gamboa, rolled down the window. Lapiano used his flashlight to perform a visual sweep of the interior of the vehicle and saw an open trash bag on the floorboard behind the passenger's seat. He could see that the bag contained a green, leafy substance that he believed to be marijuana. Appellant, who was the passenger, and Gamboa were then taken out of the vehicle and placed under arrest. The garbage bag recovered from the vehicle was later found to contain approximately six and one-half pounds of marijuana.

After learning of the discovery of the marijuana in the Suburban, Ellzey prepared a search warrant affidavit for a search of the apartment. The warrant was signed by a magistrate and executed sometime during the early morning hours of September 6, 2001. When the team of narcotics officers entered the two bedroom apartment, they found it empty. Inside the apartment, officers found a variety of weapons and ammunition, including military-style assault rifles, shotguns, large caliber semi-automatic handguns, and "hollow point" ammunition. The officers also found a high-impact bulletproof vest, thirty-one pounds of marijuana, over four thousand grams of cocaine, a large-capacity money counting machine of the kind used by banks, and approximately $ 11,000 cash.

The officers also found a variety of documents, including personal papers, bill collection notices, and utility bills. Among the personal papers recovered by police were court documents with appellant's name on them and birth certificates of appellant, his wife, and their son. Police officers found bill collection notices and utility bills addressed to appellant's wife, Cristina Delbosque. The officers also found a copy of a lease agreement for apartment 204 bearing the signatures of appellant and his wife and a statement from the City of Dallas municipal court system regarding overdue traffic fines incurred by appellant. The legal document was addressed to appellant at the home of his mother. When asked about this apparent discrepancy, Ellzey explained that, based on his surveillance, he believed appellant had been living at apartment 204 with his wife and child, not at his mother's house, and that the municipal court document was only sent to his mother's house because appellant failed to update his driver's license information.

Appellant was indicted for possessing the marijuana found in the apartment² and in the Suburban.³ See Tex. Health & Safety Code Ann. § 481.121(a), (b)(4) (Vernon 2003). Appellant was also indicted for possession with intent to deliver the cocaine found in the apartment.⁴ See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (f) (Vernon 2003). Because he had a previous felony conviction for possession of a controlled substance, appellant also was indicted for possessing the body armor found in the apartment.⁵ See Tex. Penal Code Ann. § 46.041 (Vernon 2003). The three drug offenses and the body armor offense were consolidated for trial. A jury was selected on March 17, 2003, and appellant entered pleas of not guilty in all cases. Appellant also entered a plea of not true to the allegations in the State's motion to revoke his probation for a prior 1997 drug offense involving the possession with the intent to deliver between one and four grams of cocaine.⁶ The trial court told the parties it would hear evidence on the motion to revoke at the same time evidence was presented on the four new charges.

On March 19, 2003, appellant failed to appear for court. The trial court denied defense counsel's oral motion for continuance, concluding appellant had absconded from the proceedings. The trial court ruled the trial would continue.

Diomantia Delbosque, appellant's mother, testified that her son lived with her and had never lived at the apartment. She also said that appellant came home every night and that the signature on the apartment lease agreement was not her son's. Appellant's mother claimed that her son and his wife with whom he had a child had never lived together. Cristela Robles, appellant's girlfriend for three years, also testified that appellant did not live at the apartment.

Linda James, a forensic document examiner, also testified as a defense witness. She testified that she had been hired by defense counsel to examine the lease agreement to determine whether the signature purporting to be appellant's was genuine. James stated that in her opinion, appellant's wife signed appellant's name to the lease.

The jury convicted appellant on the charges of possessing a useable quantity of marijuana in an amount of fifty pounds or less but more than five pounds, possession with intent to deliver cocaine, and possession of metal or body armor by a felon. The jury also found appellant used or exhibited a deadly weapon during commission of one of the marijuana-possession offenses and...