Moreno v. The State Of Tex.
| Decision Date | 08 July 2010 |
| Docket Number | NO. 03-07-00713-CR,NO. 07-469-K368,03-07-00713-CR,07-469-K368 |
| Parties | Dionisio Balderas Moreno, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
HONORABLE BURT CARNES, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Dionisio Balderas Moreno appeals his conviction for possession with intent to deliver cocaine in the amount of four grams or more but less than 200 grams. The jury found appellant guilty and assessed his punishment at sixty years' imprisonment.
Appellant advances four points of error, all related to issues at the punishment phase of the bifurcated trial. In his first two points of error, appellant contends that the trial court erred in overruling his "motion to suppress evidence" because his digital video disc (DVD) interview in which he confessed to two extraneous sexual assault cases was illegally obtained in violation of his right to counsel. In the first point, he relies upon article I, section ten of the Texas Constitution and article 38.23 of the Texas Code of Criminal Procedure.1 In the second point, appellant reliesupon the guarantee in the Sixth Amendment to the United States Constitution. In his third and fourth points of error, appellant contends that he was denied the effective assistance of counsel at the punishment phase of his trial. Here, appellant relies upon the same constitutional authorities cited above.
On March 27, 2007, M.K., a fifteen year-old-girl, who was babysitting, came out of the apartment where she lived onto an upstairs porch at the Georgetown Place Apartments. A oneyear-old child was with her. M.K. was waiting for the child's mother to arrive. Appellant came out on the porch from another apartment. He began speaking to M.K. in Spanish and English and with gestures. Appellant offered to give drugs to M.K. and made snorting motions with his nose. When M.K. asked "Cocaine?" appellant replied, "Si, Si." He grabbed her by the arm pulling her in the direction of his apartment. M.K. broke away and ran down the stairs with the child as the child's mother drove up in her automobile.
M.K. reported the occurrence. The apartment complex manager was contacted, and Georgetown police Officer George Bermudez went to investigate. Bermudez lived at the apartment complex and was a "courtesy officer" there. At appellant's apartment, Bermudez talked to him about M.K.'s accusations. Appellant went to a bedroom and brought to the officer an Oklahoma ID card identifying him as Dionisio Balderas Moreno. Appellant denied using drugs and invited Bermudez to come into the apartment to "look" for drugs. Bermudez entered, and while waiting for back-up officers to arrive, saw a straw, commonly used in consuming drugs or narcotics. When an officer arrived with the proper equipment the straw was field tested and found to be positive for cocaine.
With appellant's consent, an officer searched the bedroom from which appellant obtained his identification card. There the officer found several baggies of powdered cocaine. Another baggie of cocaine was found under the couch where appellant had been seated during the search. Cash in the amount of $703 was found on appellant's person. In the bedroom where the cocaine was found, the officer also discovered appellant's Mexican passport, a Mexican voter registration card, a Missouri ID card, and a social security card in his name.
Appellant was taken into custody. The next morning, on March 28, 2007, at 9:56 a.m., appellant was interviewed by police officers. In the DVD, appellant admitted that he packaged cocaine for his roommate, but generally denied consuming or distributing cocaine. This DVD was admitted into evidence at appellant's trial. The chain of custody of the cocaine found in appellant's apartment was established. Joel Budge, a chemist for the Texas Department of Public Safety, testified that he chemically analyzed the 21.3 grams of substance submitted to him and that it was cocaine. M.K. and another resident of the complex, (who testified for the defense), related that groups of people with suitcases frequently came to appellant's apartment at night and then left the next morning. They were suspected of being illegal aliens. The witnesses said that other individuals would come to appellant's apartment at odd hours of the morning knocking or pounding on the door, apparently in search of drugs.
The jury found appellant guilty as charged in the indictment of possession with intent to deliver cocaine in the amount of more than four grams but less than 200 grams, a first degree felony.
At the punishment phase of the trial, the State called C.R.J. who was thirteen years old at the time of the trial. C.R.J. testified that she was twelve years old when she met appellant atthe swimming pool of the Georgetown Place Apartments. This was prior to the time of the offense for which appellant was convicted. Appellant told C.R.J. that he was twenty-two years old. C.R.J. stated that appellant usually was with his seventeen-year-old nephew, whom she thought was "cute." After several meetings, C.R.J. and some of her friends accepted appellant's invitation to come to his apartment to watch movies. On one occasion, C.R.J. went alone to watch movies with appellant and his nephew. After the nephew left, C.R.J. reported that appellant took her to a bedroom, locked the door, turned off the light, and sexually assaulted her. She did not tell anyone for fear of getting into trouble. Thereafter, appellant began to follow her around the apartment complex. Later, appellant caught C.R.J. in the laundry room and sexually assaulted her. This time C.R.J.'s mother learned of the incident.
Appellant was indicted for the cocaine offense on May 10, 2007. While he was represented by appointed counsel on that charge and still confined in the Williamson County jail, he was interviewed by Deputy Sheriff Carlos Paniagua of Williamson County. Paniagua had been requested by the prosecutor to interview appellant about the extraneous sexual assaults on C.R.J., which were unfiled, and unadjudicated offenses.2 Paniagua was warned not to mention or interrogate appellant about the offense charged in his pending indictment. On September 13, 2007, Paniagua went to the Williamson County jail and interviewed appellant after giving him his statutory warnings. A DVD was made of the interview in which appellant admitted the sexual assaults on C.R.J., whom he called "Rose." The DVD was admitted into evidence over objection. The DVDsupported C.R.J.'s account of the extraneous offenses also offered by the State at the punishment phase under article 37.07. See Tex. Code Crim. Proc. Ann. art. 37.07 (West 2009).
Appellant called a "Detective Murray," who testified that the offenses against C.R.J. had occurred in October 2006, and that at the time of trial, November 8, 2007, no charges had been filed as a result of the accusations against appellant by C.R.J. Mrs. Morgan, C.R.J.'s mother, was called by the defense. She declined, for one reason or another, to answer questions about the appropriate punishment to be assessed appellant for the possession of cocaine. At the conclusion of the punishment phase of the trial, the jury returned a verdict assessing appellant's punishment at sixty years' imprisonment.
In his first point of error, appellant urges that the trial court erred in overruling his "motion to suppress" and admitting into evidence appellant's incriminating statements about two extraneous sexual assaults of a child from a DVD interview taken in violation of his right to counsel under article I, section ten of the Texas Constitution and article 38.23 of the Texas Code of Criminal Procedure. We will not address this point. Appellant made no effort to preserve error in the trial court on this issue. See Tex. R. App. P. 33.1(a)(1). Further, to adequately brief a state constitutional issue, appellant must separately brief and proffer specific arguments and authorities supporting his contentions under the state constitution. See Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995). Where a defendant on appeal cites both federal and state constitutional claims, and does not brief his state constitutional claim separately, the point of error provides for no independent analysis under the Texas Constitution. Matthew v. State, 918 S.W.2d 666, 667 n.2 (Tex. App. Beaumont 1996, pet. refd); see generally Heitman v. State, 815 S.W.2d 881, 890 n.23 (Tex. Crim. App. 1991); Cambridge v. State, 712 S.W.2d 499, 501 n.9 (Tex. Crim. App. 1986); Hughes v. State, 969 S.W.2d 689, 692-93 (Tex. App. Houston [1st Dist.] 1998, pet. refd). Appellant has made no effort to show that the state constitution afforded him greater protection than its federal counterpart. In fact, appellant does not brief the issues at all but expressly stated that he was combining it with the argument under the second point of error, but does not. The point of error is waived. Ethridge v. State, 903 S.W.2d 1, 21 n.1 (Tex. Crim. App. 1994).
The question presented by the second point of error is whether the trial court erred in overruling the "motion to suppress" and admitting into evidence at the punishment phase of the trial appellant's DVD interview with Deputy Paniagua in violation of appellant's Sixth Amendment right to counsel. In the DVD, appellant confessed to two extraneous offenses of sexual assault of a child which offenses had not been filed or formally charged against appellant at the time of the making of the DVD, or the instant trial, and at a time when appellant was in custody, charged with the possession of cocaine with intent to deliver and represented by counsel in that case. His counsel was not notified of Deputy Paniagua's efforts to interview appellant about extraneous offenses.
Notice was timely given that the...
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