Gonzalez-Martinez v. State
| Decision Date | 19 March 2014 |
| Docket Number | No. 07–12–00447–CR.,07–12–00447–CR. |
| Citation | 414 S.W.3d 906 |
| Parties | Francisco GONZALEZ–MARTINEZ, Appellant v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Brooks Barfield Jr., Amarillo, for Appellant.
Katherine L. Levy, for the State of Texas.
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Francisco Gonzalez–Martinez (appellant) appeals his conviction for possessing a controlled substance, namely cocaine. Through a single issue, he contends the trial court erred by failing to submit to the jury an instruction pursuant to article 38.23(a) of the Texas Code of Criminal Procedure. We agree.
Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994); see also Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.Crim.App.2009). Initially, we determine whether error occurred, and if it did, we then evaluate whether it was harmful. Abdnor, 871 S.W.2d at 732.
In determining whether error occurred at bar, we first consider article 38.23(a) of the Texas Code of Criminal Procedure. It provides that “[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex.Code Crim. Proc. Ann. art. 38.23(a) (West 2005). The statute also provides that when the testimony presented at trial raises an issue regarding whether evidence was so obtained, then “... the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.” Id.
Next, the requirements of art. 38.23 are triggered when (1) the evidence heard by the jury raises an issue of fact; (2) the evidence on that fact is affirmatively contested; and (3) the contested factual issue is material to the lawfulness of the conduct utilized to obtain the evidence being challenged. Hamal v. State, 390 S.W.3d 302, 306 (Tex.Crim.App.2012). Finally, a fact issue may be raised from any source, and the evidence raising it may be strong, weak, contradicted, unimpeached, or unbelievable. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App.2004).
Here, the police discovered the cocaine for which appellant was convicted on the floor of a local tavern. He was present in the establishment when three officers entered it to investigate potential drug trafficking. According to two officers who testified at trial (Bullard and Vigil), such activity frequently occurred at the bar. They further opined that it usually transpired in or near the men's bathroom. So too did the officers talk about entering the bar around 1:30 a.m., seeing a group of men gathered near the men's room, and witnessing several members of the group gesturing as if they were exchanging items with their hands. In particular, Vigil described how he saw money changing hands.
Knowing the reputation of the tavern, seeing the group of individuals by the men's room, and watching money being exchanged led Vigil to suspect that drug activity was occurring, or so he testified. Consequently, he approached the two individuals purportedly making the exchange. Appellant happened to be one of them, while the other was someone described as a “white” man.
As the officer approached, the “white” man moved away into the crowd, according to Vigil. Appellant remained put. And, upon arriving in the presence of appellant, Vigil physically escorted him to where Bullard stood. The search for the “white” man then began. It involved Vigil leaving appellant with Bullard and walking around the bar. Vigil expressed his belief that appellant was detained at that point.
Unable to find appellant's alleged cohort, Vigil said that he returned to Bullard. As he did, he saw appellant throw something on the ground. At that point, Vigil forcefully subdued and arrested appellant. He also recovered the allegedly discarded item which consisted of cocaine.
As previously mentioned, Officer Bullard also testified at trial. He described 1) entering the bar, 2) noticing the group of men by the bathroom, 3) seeing one person in the group holding out his hand in a “cupped” manner while another extended his hand in a grasping manner, 4) approaching one of the men who had his hand extended, 5) either asking the person to disclose what was contained therein or grasping the person's arm or hand, 6) seeing the person drop his hand to his side, and 7) ultimately noticing a packet or the like on the floor next to the person. The latter happened to be appellant. Also of import is a particular exchange between the prosecuting attorney and this witness. The former asked Bullard: “[a]nd what was it about these individuals that caught your attention or made you pay attention to them in the first place?” The officer responded with:
Like I said before, they're just gathered up and just drew our attention because that's just one of the clues that we focus on whenever we see something like that. If—if they were just standing there, say for instance, just laughing and drinking, it would have been—it wouldn't have drawn our attention. We would have moved on to the next group or something.
A third witness also testified at trial. She worked at the tavern as a waitress and bartender. Present when the officers entered that night, she described the incident as follows:
They [the police] walked into the back door, they went into the men's rest room, and they came out and straight to [appellant]. They attacked him, threw him on the floor, and it was about three or four cops. One of them had his foot on his face and they just started—they just attacked him. They just started man handling him.
When asked if she was “watching the event the whole time,” she said: When asked if she “could see clearly what was going on,” she said: “Yes.” When asked if appellant, a person whom she knew, “[w]as just standing there talking to this person,” she replied: “Yes.” And when queried about whether she saw appellant “exchange anything with anybody,” she answered: “No, sir.”
The testimony of these three witnesses does not paint a clear picture of the actual events. For instance, one officer stated that he first made contact with appellant, while the other indicated that he did. One officer said he saw people exchanging money, while another did not. One says he grabbed appellant's arm while it was outstretched in the direction of other bar patrons, while the other said he detained appellant, walked him to where his fellow officer stood (which effectively terminated any contact appellant had with the group with whom he was initially seen) and left him there. 1 Admittedly, both officers alleged that appellant was interacting with a group of people with arms outstretched and that such conduct was indicia suggesting their engagement in drug activity. Yet, the bartender/waitress testified that she had a clear view, watched the entirety of the event, saw no exchanges from appellant to others, and recalled appellant simply talking to another patron before being “attacked” by the police. Finally, her testimony about appellant merely standing around and conversing with another...
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