Musick v. State

• Decision Date: 15 September 1993
• Docket Number: No. 08-92-00055-CR,08-92-00055-CR
• Parties: Jesse Ray MUSICK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 794

862 S.W.2d 794

Jesse Ray MUSICK, Appellant, v. The STATE of Texas, Appellee.

No. 08-92-00055-CR.

Court of Appeals of Texas El Paso.

Sept. 15, 1993.

Thomas S. Morgan, Midland, for appellant.

John W. Smith, Dist. Atty., Odessa, for appellee.

Before KOEHLER, BARAJAS and LARSEN, JJ.

OPINION

KOEHLER, Justice.

Jesse Ray Musick appeals from a conviction for the offense of possession of cocaine in an amount less than 28 grams. Upon a finding of guilt, the jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of four years and a fine of $10,000, both of which were probated. We reverse the trial court judgment.

FACTS

At Musick's trial, Officer Jesse Duarte of the Odessa Police Department testified that on the afternoon of October 6, 1990, he and several other police officers executed a search warrant at apartment 45 of the La Casa Bonita Apartments in Odessa, Texas. Defense counsel established at trial that Toni Standefer was the lessee of this apartment; however, Musick and Standefer were both present in the living room of the apartment at the time of the search. Musick was wearing only underwear at the time the police entered Standefer's apartment.

Duarte testified that he searched the apartment's master bedroom and in a gray tote bag inside the closet, found a men's perfume bottle containing cocaine. According to Duarte, he took the tote bag into the living room of the apartment and after reading the Miranda warnings to Musick and Standefer, asked who owned the bag. In response to this question, Musick allegedly claimed the bag as his. Duarte next stated that the bag contained cocaine, to which Musick allegedly replied that he was unaware that the bag contained cocaine, but if it did, the cocaine belonged to him. Duarte testified that Musick further volunteered that he had a bad cocaine habit. The Odessa police arrested Musick for possession of cocaine.

Fourth Requested Jury Instruction Refused

In his first point of error, Musick contends that the trial court erred in refusing to include his fourth requested jury instruction in the court's charge. Musick maintains that he was entitled to a jury instruction on the voluntariness of his oral statement regarding the cocaine found in Standefer's apartment since he timely requested the jury instruction and raised the lack of warnings as a factual issue during trial.

When properly requested, a defendant is entitled to a charge on every defensive theory raised by the evidence. Smith v. State, 676 S.W.2d 584, 586 (Tex.Crim.App.1984); Johnson v. State, 715 S.W.2d 402, 405 (Tex.App.--Houston [1st Dist.] 1986), pet. ref'd in 738 S.W.2d 287 (Tex.Crim.App.1987). In determining whether the evidence raises the issue of a defensive charge, this Court must consider all of the evidence raised at trial, regardless of the strength of the evidence or whether it is controverted. See Booth v. State, 679 S.W.2d 498, 500 (Tex.Crim.App.1984); Lerma v. State, 807 S.W.2d 599, 601 (Tex.App.--Houston [14th Dist.] 1991, no pet.); see also Smith, 676 S.W.2d at 586-87. The defendant's testimony alone is sufficient to raise a defensive issue. Johnson, 715 S.W.2d at 405.

This point of error concerns Musick's alleged oral statement to Officer Duarte that Musick was the owner of the gray tote bag and that he did not know the bag contained cocaine, but if it did, the cocaine belonged to him. Duarte testified that he read Musick and Standefer their Miranda warnings before asking to whom the bag belonged. Musick claimed he was not read any warnings until he arrived at the police station. Musick requested a jury instruction to the effect that the jury could not consider his oral statement unless they believed from the evidence that the statement was freely and voluntarily given without compulsion or persuasion after the defendant was warned by the person to whom the statement was made.

At trial, Musick absolutely denied making the statements attributed to him regarding the ownership of the tote bag and any possible ownership of the cocaine found within the bag. He now argues on appeal that if he gave any type of incriminating statement, it was not done freely and voluntarily under the totality of the circumstances. A defendant may obtain a jury instruction on inconsistent defenses. See Johnson, 715 S.W.2d at 406-07. But a defendant may not consistently repudiate a matter during trial and then rely upon that defense in the jury charge. Id. We hold that Musick's complete denial that he made inculpatory oral statements to Duarte claiming ownership of the tote bag and cocaine in question removed any requirement of a charge on that issue. See id at 406. We overrule Point of Error No. One.

Second Requested Jury Instruction Refused

In his second point of error, Musick contends that the trial court erred in refusing to include his second requested jury instruction in the court's charge. This requested instruction provided in pertinent part:

To prove possession of cocaine in a quantity of less than 28 grams the State of Texas must affirmatively link the Defendant to cocaine, in such a manner and to such an extent that a reasonable inference may arise that the Defendant knew of the existence of the cocaine and that he exercised control over such cocaine.

Musick argues that in failing to instruct the jury that the State must affirmatively link Musick to the cocaine, the trial court violated its duty to distinctly set forth the applicable case law in its jury charge. See TEX.CODE CRIM.PROC.ANN. art. 36.14 (Vernon Supp.1993). The State responds that the submitted charge is sufficient since it sets forth the appropriate law and instructs the jury fully. When the court's charge taken as a whole sufficiently presents the applicable law and protects the defendant's rights, the resulting judgment will not be reversed on appeal. Parker v. State, 594 S.W.2d 419, 424 (Tex.Crim.App.1980). The charge submitted to the jury addressed affirmative link requirement in the following manner:

Unlawful possession of a controlled substance such as Cocaine, requires the demonstration of two elements: (1) that the Defendant exercised care, custody, control, or management over the substance and (2) that the defendant knew the substance possessed was contraband. Possession of a controlled substance need not be exclusive. Evidence showing that the accused jointly possessed the controlled substance with another can sustain a conviction. However, the mere presence of an accused at the scene of an offense, or the fact that one has knowledge of an offense, does not make the accused a party to joint possession, nor is mere presence alone sufficient to convict of sole possession.

This language tracks Martin v. State, 753 S.W.2d 384, 387 (Tex.Crim.App.1988), in which the Court of Criminal Appeals describes that which the State must establish to sustain a conviction for unlawful possession of a controlled substance. Examining the court's charge, we believe it adequately presented the applicable law and protected Musick's rights. We overrule Point of Error No. Two.

Motion to Suppress

In his third point of error, Musick contends that the trial court erred in denying his motion to suppress the evidence seized in the search of Standefer's apartment.

The trial judge is the sole and exclusive trier of facts at a hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539 (Tex.Crim.App.1990); Cannon v. State, 691 S.W.2d 664 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); Hawkins v. State, 628 S.W.2d 71 (Tex.Crim.App.1982); Green v. State, 615 S.W.2d 700 (Tex.Crim.App.), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981). On appeal, a reviewing court does not engage in its own factual review but decides whether the trial judge's fact findings are supported by the record. If so, this Court is not at liberty to disturb the trial court's findings and, on review, we address only the question of whether the trial court improperly applied the law to the facts. Romero, 800 S.W.2d at 543; Self v. State, 709 S.W.2d 662 (Tex.Crim.App.1986); Johnson v. State, 698 S.W.2d 154, 159 (Tex.Crim.App.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 239, 93 L.Ed.2d 164 (1986). If the trial judge's decision is correct on any theory of law applicable to the case, it will be sustained. Romero, 800 S.W.2d at 543; Spann v. State, 448 S.W.2d 128 (Tex.Crim.App.1969); Moreno v. State, 170 Tex.Crim. 410, 341 S.W.2d 455 (1960); Calloway v. State, 743 S.W.2d 645 (Tex.Crim.App.1988). This principle holds true even though the trial judge gives the wrong reason for his decision, Salas v. State, 629 S.W.2d 796 (Tex.App.--Houston [14th Dist.] 1981, no pet.), and is especially true with regard to the admission of evidence. Romero, 800 S.W.2d at 543; Dugard v. State, 688 S.W.2d 524 (Tex.Crim.App.1985). Furthermore, we must consider the totality of the circumstances in determining whether the trial court's findings are supported by the record, and the findings will not be disturbed absent a clear abuse of discretion. Dancy v. State, 728 S.W.2d 772, 777 (Tex.Crim.App.), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L.Ed.2d 484 (1987).

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, the burden of proof is initially on the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986); Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Crim.App.1970); see also State v. Wood, 828 S.W.2d 471, 474 (Tex.App.--El Paso 1992, no pet.). As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. Russell, 717 S.W.2d at 9; Mattei, 455 S.W.2d at 765-66, relying upon United States v. Thompson, 421 F.2d 373, 377 (5th Cir.1970) and Rogers v. United States, 330 F.2d 535 (5th Cir.), cert....