Garcia v. State, 05-91-00213-CR

• Decision Date: 04 March 1992
• Docket Number: No. 05-91-00213-CR,05-91-00213-CR
• Citation: 829 S.W.2d 830
• Parties: Juan GARCIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 830

829 S.W.2d 830

Juan GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 05-91-00213-CR.

Court of Appeals of Texas Dallas.

March 4, 1992.

Rehearing Denied April 1, 1992.

Discretionary Review Refused Sept. 23, 1992.

Larry Finstrom, Dallas, for appellant.

Suzanne Kirby Perkins, Dallas, for appellee.

Before STEWART, CHAPMAN and KAPLAN, JJ.

OPINION

STEWART Justice.

Juan Garcia appeals the trial court's denial of his motion to suppress oral confession and evidence. After the trial court denied his motion, appellant pleaded guilty to the offense of unlawful possession of a controlled substance. Pursuant to a plea-bargain agreement, the trial court assessed punishment at fifteen years' confinement and a $1000 fine. In compliance with the plea bargain agreement, the trial court granted appellant permission to appeal the ruling on the motion to suppress. Appellant complains in his sole point of error that the trial court abused its discretion in denying his motion to suppress oral confession and evidence and in overruling his motion for a new trial that urged the trial court had erred in its ruling on the motions. We overrule his point of error and affirm the judgment of the trial court.

BACKGROUND FACTS

The trial court held a hearing on the search warrant, the affidavit, and the oral confession on July 6, 1990. Dallas Police Officer Ted Shinn testified that he prepared an affidavit based on information a confidential informant provided that certain persons at a particular apartment possessed cocaine. The informant told Shinn that appellant was a large distributor of cocaine, which he usually sold in half-kilogram quantities. Shinn obtained a search warrant for the premises. During the execution of the search warrant on January 10, 1990, the officers discovered cocaine and arrested appellant. Shinn testified that a tactical unit made a forcible entry into the apartment with a stun grenade. He explained that the tactical team used a stun grenade in this case because the informant indicated that appellant had a weapon. The only people known to be in the apartment when Shinn obtained the warrant were appellant and his common-law wife, Kristi Valencia.

After the tactical team made the entry, they brought appellant, Kristi, and two children whom appellant was babysitting outside the apartment. Because the apartment had too much smoke to conduct a search, Shinn approached appellant. Shinn testified that he advised appellant of his Miranda ¹ rights in English and that appellant said he understood English. Once appellant indicated that he understood his rights, Shinn questioned him and told him that the police could either search the apartment after the smoke cleared or appellant could tell them where the cocaine was located. Shinn testified that appellant did not ask for a lawyer. Shinn stated that appellant gave an oral statement telling Shinn that there was cocaine in the cabinet under the bathroom sink and on the dining room table. Because Shinn could not find the cocaine in the bathroom, he asked appellant to show him the cocaine. According to Shinn's testimony, they went into the bathroom and appellant told Shinn that the tampon box in the cabinet contained the cocaine. Inside the tampon box, Shinn found a plastic bag containing approximately ninety grams of cocaine. In the dining room, four papers of cocaine contained 2.6 grams of cocaine. Further, an independent search of the apartment uncovered sixty-six grams of marijuana in the bread basket, cocaine residue in Kristi's purse, weighing scales, a semi-automatic pistol, and $1028 in cash on appellant.

On cross-examination, Shinn testified that the tactical team decided to use a stun grenade because of the information that appellant had a weapon. After the stun grenade was deployed, Shinn entered the apartment and discovered that the stun grenade had landed on a baby walker. He testified that appellant was angry because the baby had been in the walker just minutes before the stun grenade came through the window. Shinn also testified that appellant did not appear shaken or disoriented from the stun grenade. Shinn explained that he began questioning appellant five to ten minutes after the grenade went off. Further, Shinn indicated that appellant did not voice his concerns about Kristi until after he led police to the cocaine. Shinn also testified that Kristi did not tell him about problems with her pregnancy or her later miscarriage, despite several conversations with her after appellant's arrest.

The trial court reopened the hearing on the motion to suppress on August 31, 1990, to determine the voluntariness of the confession. Appellant testified that he was three feet away from the stun grenade when it went off. He stated that the stun grenade caused a flash of light and smoke and that the stun grenade broke dishes in the china cabinet, put a hole in the sofa, and pulled nails out of the walls. Appellant also testified that the police entered the apartment and held him to the floor with guns to his head. He explained that, at the time of his arrest, he and Kristi were babysitting a two-year-old child and a nine-month-old baby. Further, appellant testified that he believed that the stun grenade caused Kristi to have a miscarriage.

According to appellant, Shinn did not read him his rights until just before leaving for the police department, an hour after the discharge of the stun grenade. Appellant testified that he did not regain the use of his faculties for forty-five to fifty minutes following the discharge of the grenade and that he does not recall assisting the police search for the cocaine. He remembered the police taking him into the bathroom and asking him if that was all the cocaine he had. Appellant maintained that he did not show the officers where to find the cocaine.

On cross-examination, appellant admitted that he, Kristi, and the children were not injured or knocked unconscious by the stun grenade. He stated that the stun grenade caused Kristi's miscarriage and that he asked the police to take her to the hospital. Appellant admitted, however, that he did not tell Shinn that he was hurt or not feeling well. Further, he testified that the officers did not threaten him, Kristi, or the children.

Kristi Valencia testified that the grenade scared her and that the police immediately removed her and the children from the apartment after the grenade went off. She explained that she started bleeding the night of the arrest and that she suffered a miscarriage four days later.

Dallas Police Officer Curtis Fortner, assigned to the tactical division, testified that the stun grenade is a diversionary device. He explained that a stun grenade is a three-inch-long cylinder that, when discharged, emits a loud noise and bright flash of light, but does not contain shrapnel. Fortner stated that the purpose of the stun grenade is to temporarily stun people so officers may enter a location without gunfire. Fortner testified that the bright flash of light from a discharged stun grenade is similar to a flash bulb going off near one's face and that the loud noise causes a ringing in the ears. He explained, however, that the effects from a stun grenade are temporary and disappear within fifteen to thirty seconds.

Fortner testified that the tactical team decided to use the stun grenade because of the report that two men at this address had handguns and because the apartment was a stash-house for drug dealers. According to Fortner, the report indicated that the men would store the drugs at this location and sell the cocaine at a different location. Thus, based on this information, the officers determined that a stun grenade was in their best interest for protection. Fortner testified that he delivered the grenade through the window and that the police forcibly entered through the door. Fortner stated that, when he entered the apartment, appellant was standing in the living room and Kristi was on the sofa with one of the children. He testified that appellant acted normal and did not hesitate in cooperating with police commands. Fortner noted that the stun grenade had burned and shattered the baby walker where it landed. On cross-examination, Fortner testified that the presence of a pregnant woman in the apartment with the stun grenade might have concerned him, but he knew of no evidence that a stun grenade could cause a miscarriage.

The State recalled Shinn to testify. Shinn explained that the tactical unit took about three minutes to secure the apartment and that he waited for the smoke to begin to clear before taking a quick look inside. Shinn testified that he identified himself to appellant and read appellant his rights before questioning him. He stated that appellant did not have trouble standing and appeared coherent. Although appellant expressed concern for Kristi and the children, Shinn testified that no one in the apartment sustained physical injuries from the stun grenade. He explained that the grenade is only a safety measure used to temporarily disable persons so officers can enter an area without gunfire.

Shinn also described how he found the drugs with appellant's assistance in the bathroom cabinet. Shinn maintained that no threats or promises were made in exchange for appellant's cooperation and that appellant never indicated he did not want to talk to the officer. Further, Shinn testified that appellant contacted him five days after the arrest to see if he could work his case off by acting as an informant in other drug cases. Shinn stated that appellant never mentioned Kristi's miscarriage or that he felt the stun grenade caused the miscarriage.

VOLUNTARINESS OF CONFESSION

In appellant's sole point of error, he argues that the trial court erred in denying his motion to suppress the oral confession because the confession was involuntary. Appellant contends that he did not make the statement freely and voluntarily because he made it...