Luxama v. State, No. 14-04-00674-CR (TX 2/14/2006)
| Decision Date | 14 February 2006 |
| Docket Number | No. 14-04-00674-CR.,14-04-00674-CR. |
| Parties | KENOL LUXAMA, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 344th District Court, Chambers County, Texas, Trial Court Cause No. 11937.
Affirmed.
Panel consists of Justices HUDSON, FROST, and SEYMORE.
Challenging his conviction for possession of a controlled substance (cocaine) with intent to deliver, appellant, Kenol Luxama, asserts that the trial court abused its discretion by denying his motion to suppress evidence he claims was illegally obtained. Appellant also challenges the legal and factual sufficiency of the evidence supporting his conviction and various evidentiary rulings by the trial court. We affirm.
In the early morning hours of September 11, 2001, Trooper Lawrence Lilly of the Department of Public Safety was sitting stationary in his patrol car on Interstate 10 in Chambers County. Trooper Lilly observed a U-Haul rental truck with a license plate that was dirty and unreadable, a violation of state traffic laws, and so Trooper Lilly conducted a traffic stop. Appellant was driving the vehicle and Bertin Loubeau was in the passenger seat. After the stop, both individuals got out of the U-Haul. Trooper Lilly examined the license plate and still was unable to read it until he was right on top of it. He informed appellant and Loubeau that he had stopped them because they had violated a state traffic law by operating a vehicle with an unreadable license plate.
Trooper Lilly noticed that appellant's and Loubeau's demeanor was inconsistent with individuals stopped for a minor traffic violation in that they were fidgety, very nervous, and made no eye contact. Trooper Lilly then asked routine questions, such as where they were headed. Appellant stated they were headed to Florida; Loubeau stated they were going to Beaumont, Texas. Trooper Lilly then asked them who owned or had rented the U-Haul. The men again were inconsistent in their responses. Appellant stated Loubeau was the renter of the truck; Loubeau stated a woman named "Sarah" had rented the truck. At this point, Trooper Lilly decided to get closer to the license plate to discern what was covering it. He concluded, after attempting to remove the substance, that it was spray paint. Trooper Lilly called for verification of the license plate number. While he was waiting, Trooper Lilly again spoke to appellant, who stated the items in the U-Haul belonged to Loubeau, although appellant previously had stated they belonged to a female friend.
At this point, Trooper Lilly became suspicious and requested appellant's consent to search the U-Haul. Although Trooper Lilly had seen appellant in the driver's seat, appellant claimed he had not been driving and stated the contents of the truck belonged to Loubeau, not him. Trooper Lilly then asked and received Loubeau's consent to search. Loubeau gave Trooper Lilly the key to the U-Haul. Upon opening the rear of the truck, Trooper Lilly discovered it was filled with furniture and appliances, including, among other things, mattresses, a couch, an old television, a washer, a dryer, and a stove. The furniture and other items, however, were very old and dirty and it appeared to him that the contents of the truck could be a "cover load." Trooper Lilly then requested a drug detection canine and back-up. Trooper Lilly also noticed the U-Haul smelled like Pinesol, a cleaning product, which, based on his extensive training and experience in narcotics, was frequently used to mask the smell of narcotics. While waiting for the canine unit and back-up, Trooper Lilly began to investigate the contents of the U-Haul. The television was an older model and Trooper Lilly noticed there was fresh glue on the back of it. He took a knife out of his pocket and made a small hole in the back of the cardboard covering the back of the television. Inside the television, Trooper Lilly noticed large amounts of a substance that resembled cocaine. He immediately placed appellant and Loubeau into custody. Corporal Smith and the drug detection canine arrived approximately five minutes later and assisted with the rest of the search.
The U-Haul was then impounded and taken to the Baytown Highway Patrol office for safety reasons and to check the contents more thoroughly for contraband. Additional cocaine was discovered in the washer and dryer, between the drum and oil well. Each bundle of cocaine appeared to have toothpaste on its exterior. The amount of cocaine found inside the U-Haul totaled 75 kilograms. Appellant was arrested and charged with the offense of possession of a controlled substance, in an amount of four hundred grams or more, with the intent to deliver. Appellant pleaded not guilty.
At the time of his arrest appellant had two receipts in his wallet. The first showed the purchase of an electric stove, air conditioner, and dryer on September 6, 2001; the second showed the purchase a sofa, mattress, box spring, bed frame, and television from the Salvation Army on September 10, 2001. At trial, the State used these receipts to tie appellant to the contraband. Captain Richard Miller of the Freeport Police Department testified he had been investigating a ship, MV Salome, suspected for narcotics trafficking, and believed that ship was going to come into Freeport, Texas. On September 10, 2001, the date on the second receipt, Captain Miller, investigating suspicious activity, went to a storage facility (Brazos Self Storage) owned by Ms. Cameron. At trial, Ms. Cameron testified the U-Haul and appellant's vehicle had been at that location. Captain Miller testified he had stopped appellant's vehicle in his jurisdiction earlier on September 10, 2001. Additionally, Ms. Cameron stated appellant told her that he owned the MV Salome. Captain Miller received a search warrant for the storage unit in question, and found empty packaging consistent with packing controlled substances. Captain Miller also found masking tape, empty toothpaste boxes, empty toothpaste tubes, engine grease, and Pinesol. A narcotics canine was summoned to the location and alerted within the storage unit.
The woman who actually rented the U-Haul, Sarah Wright, also testified for the State. Wright knew appellant and referred to him as "Kenny." She rented the U-Haul at the request of another individual, Antoine Joseph. At the time, Wright believed the U-Haul was to be used to pick up some appliances at Mr. Mo's appliance store. Wright went to the appliance store for the pick-up to make sure this was true. Wright further testified that when they arrived at the appliance shop, the proprietor (Mr. Mo) mentioned they were to pick up some appliances that "Kenny" had purchased. Wright also saw a receipt at the appliance shop with appellant's name on it.
A jury found appellant guilty of the charged offense, and the trial court, in a separate punishment hearing, assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice, Institutional Division.
Appellant presents the following points for appellate review:
(1) The trial court abused its discretion by denying appellant's oral motion to suppress evidence obtained as the result of an allegedly illegal search and seizure.
(2-3) The evidence is legally and factually insufficient to support conviction of possession of a controlled substance (cocaine) with the intent to deliver.
(4) The trial court abused its discretion in overruling appellant's hearsay and notice objections as to the receipts found in appellant's wallet.
(5) The trial court abused its discretion in overruling appellant's objections to the introduction of alleged extraneous-offense evidence.
In his first issue, appellant argues the trial court erred in overruling his oral motion to suppress evidence seized during a warrantless search. We review the trial court's ruling on a motion to suppress under an abuse-of-discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). A trial court's ruling on a motion to suppress, if supported by the record, will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.-Houston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor, but we review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
When, as in this case, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume that the trial court implicitly made findings of fact that support its ruling as long as those implied findings of fact are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Because the trial judge was free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of the witnesses at the hearing, we give the trial court's decision deference. See Guzman, 955 S.W.2d at 89. Appellant argues Trooper Lilly did not have probable cause to stop the U-Haul and conduct the search and seizure. We disagree with appellant's arguments. We conclude that not only did Trooper Lilly have probable cause to...
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