Figueroa v. State

• Decision Date: 21 March 2008
• Docket Number: No. 03-06-00656-CR.,03-06-00656-CR.
• Citation: 250 S.W.3d 490
• Parties: Juan Andino FIGUEROA a/k/a Juan Andino, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

250 S.W.3d 490

Juan Andino FIGUEROA a/k/a Juan Andino, Appellant, v. The STATE of Texas, Appellee.

No. 03-06-00656-CR.

Court of Appeals of Texas, Austin.

March 21, 2008.

Rehearing Overruled April 14, 2008.

Jeffrey D. Parker, The Jeffrey D. Parker Law Firm, Belton, for Appellant.

Bob Odom, Asst. Dist. Atty., Belton, for State.

Before Justices PATTERSON, PEMBERTON and WALDROP.

OPINION

BOB PEMBERTON, Justice.

A jury convicted appellant Juan Andino Figueroa of the offense of possession of cocaine with intent to deliver an amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. §§ 481.002(38), 481.112(a), (d) (West 2003). After the jury found true an enhancement paragraph alleging a prior felony conviction for aggravated robbery, punishment was assessed at 99 years' imprisonment and a $10,000 fine. In thirteen issues on appeal, appellant (1) challenges the sufficiency of the evidence; (2) contends that the district court erred in refusing to require the State to elect the transaction on which it would rely for conviction; (3) asserts that the district court abused its discretion in overruling his motion to suppress; (4) claims ineffective assistance of counsel; (5) asserts that the district court abused its discretion in denying him the right to represent himself during the presentation of his pretrial motion to quash the indictment; and (6) argues that the district court erred in ordering him to pay court costs, attorney's fees, fines, and restitution as a condition of parole. We modify the judgment and, as modified, affirm.

BACKGROUND

The jury heard evidence that in May 2004, the Central Texas Narcotics Task Force was investigating two suspected drug dealers in the city of Killeen, Alberto Figueroa and Juan Figueroa.¹ The officers involved in the investigation who testified at trial were Detectives Anthony Lawrence, John Moseley, Alex Gearhart, and Joe Wadley, all with the Killeen Police Department Organized Crime Section. Detective Lawrence testified that Alberto and appellant first became suspects based on information obtained from two confidential informants. Lawrence testified that Alberto was the initial target of the investigation and that appellant "had kind of been a part of [the investigation] and was going to be a target later." Lawrence had received information from one of his informants that Alberto usually went out of town with appellant "to pick up the dope and bring it back to Killeen." Based on this information, Lawrence planned what is known as a "buy-bust" operation in order to apprehend Alberto.

In the late morning and early afternoon hours of May 7, 2004, beginning at approximately 11:30 a.m., Detective Lawrence and Detective Moseley conducted surveillance on an apartment located at 2807 Cantabrian Street where appellant allegedly resided. According to Lawrence, at some point during the approximately two hours that the detectives were observing the apartment, they saw Alberto arrive at the location in a gold or tan Toyota Camry while appellant was out in the front of the residence washing a white Lincoln. Lawrence testified that he observed appellant get into Alberto's vehicle and drive away. Based on information that he had obtained during his investigation, Lawrence believed that the suspects were headed to the Dallas area to obtain narcotics.² Lawrence and other officers attempted to follow the suspects out of Killeen, but lost them at some point during the pursuit. The suspects were not seen again until that night.

Alberto testified as an accomplice witness for the State.³ Alberto testified that he met appellant about four to six months prior to May 2004, and that they had made plans to "sell coke." Alberto testified that on the morning of May 7, appellant called Alberto and told him that he "was about to go into Dallas, pick up some dope." Alberto agreed to go with him. When asked to explain their plan, Alberto testified, "We were just going to Dallas, get the coke and come back and sell it." Alberto testified that he and appellant drove together to a location in Dallas to purchase the cocaine. Once they arrived at the location, Alberto recounted, appellant purchased the cocaine while Alberto waited in the car. They then drove back to Killeen. Alberto further testified that he already had a buyer for the cocaine (who turned out to be an informant) and that he and appellant called the buyer on their way back to Killeen to set up a meeting time. The plan, according to Alberto, was for Alberto to sell the cocaine to the buyer for $1100, and Alberto would give appellant $1000 when he saw him later that night and keep $100 for himself. Alberto explained further, "[a]fter we got back [to] Killeen, we went to my apartment. We made some phone calls, and then we just cut [the cocaine] up and went our separate ways."

At approximately 8:00 p.m., the "buy-bust" operation commenced in the parking lot of a Target store in Killeen. Using a wired informant, Detective Lawrence was able to listen to conversations between the informant and Alberto that led Lawrence to believe that a drug transaction was taking place. Officers subsequently arrested Alberto at the scene. Appellant was not with Alberto at the time of Alberto's arrest. Detective Moseley, who was present during the arrest, testified that Alberto was in possession of more than 100 grams of cocaine. However, this amount was less than what the detectives were expecting to find based on the information they had received, so Lawrence directed Moseley and other officers to continue the investigation while Lawrence processed the evidence obtained during Alberto's arrest.

Following Alberto's arrest, Detective Wadley resumed surveillance at the apartment in an attempt to locate appellant. At approximately 9:45 p.m., Wadley observed a white Lincoln that he believed belonged to appellant leave the residence. In an unmarked vehicle, Wadley followed the Lincoln at a distance to avoid detection, and Detective Moseley and another officer soon joined pursuit, also traveling in unmarked vehicles. The Lincoln eventually pulled into a parking lot at a location Wadley believed to be Alberto's residence, and the officers parked behind the Lincoln. When Wadley exited his car, appellant "put his vehicle in gear," "jumped the curb," and "headed back out" to the road. The officers resumed pursuit, this time joined by a marked patrol vehicle, and stopped appellant shortly thereafter. Both appellant and the passenger in his vehicle, Marilyn Muriel,⁴ were arrested on outstanding warrants.⁵ In searches incident to the arrests, no cocaine was found on appellant's person or inside the vehicle. However, on the ground outside the vehicle in an area where Muriel had been standing when she first exited the vehicle, the officers found a package containing what appeared to be cocaine residue, and they also found approximately $2900 in cash and less than one gram of cocaine in Muriel's purse after she and appellant were transported to the police station.⁶

While appellant was in custody, surveillance continued at his residence. At approximately 10:40 p.m., Detective Gearhart observed a maroon Ford Contour pull into the parking lot. Gearhart testified that two women exited the vehicle and entered the apartment. Over his police radio, Gearhart informed Detective Moseley of this development, and, approximately five minutes later, Moseley returned to the apartment. The two detectives approached the apartment, knocked on the door, and were greeted by Luz Cruz, who identified herself as appellant's girlfriend.⁷ Moseley advised Cruz of appellant's arrest and asked her if he could come inside and speak with her about the circumstances of the arrest. Moseley testified that Cruz gave him permission to enter the apartment and, shortly thereafter, consent to search the apartment.⁸

Detective Moseley testified that during the search of the apartment, the detectives found a small plastic packet that contained what appeared to be cocaine near the walkway outside the front door and a "small amount" of a white powder substance on the kitchen counter. Also found inside the residence were digital scales, which Moseley testified could be used to weigh quantities of cocaine for distribution purposes, and a yellow Ziploc packet containing cocaine found underneath a couch cushion. In one of the bedrooms, the detectives found "[m]ore than 90 grams" of cocaine underneath the bed and, in the closet, a small plastic packet that contained a residual amount of cocaine. Moseley testified that the cocaine found underneath the bed "was packaged inside a gallon Ziploc bag with three individual separate plastic containers inside that bag." Near the bed, the detectives found a pair of men's tennis shoes and, on the bed, men's clothing. The detectives also found in the bedroom a "Western Union money gram ticket" with appellant's signature written on it. Moseley explained that this was significant to the investigation because it indicated to him that appellant "kept his documents and personal papers in that bedroom." Other items found in the bedroom included a prescription medicine bottle with appellant's name on it, a credit card with appellant's name on it, and "some type of work order [ ] made out to the name of appellant. When asked about the significance of these items, Moseley testified that they "establish that that's where the suspect resides, that's where he keeps his personal records and valuables and medications, things that he needs on a daily basis." Detective Moseley testified that, largely because of the quantity of cocaine that was seized at the residence, he believed the cocaine was "[p]ossessed to be distributed." Detective Gearhart also testified that the cocaine found in the apartment was "definitely a distribution amount of cocaine."

An issue raised by appellant during trial was whether another man, Luis Urbano, also lived at the apartment....