Sanchez v. State

• Decision Date: 14 August 1990
• Docket Number: No. 05-89-00691-CR,05-89-00691-CR
• Citation: 797 S.W.2d 951
• Parties: Margarita SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 951

797 S.W.2d 951

Margarita SANCHEZ, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-00691-CR.

Court of Appeals of Texas Dallas.

Aug. 14, 1990.

Noel Portnoy, Dallas, for appellant.

Yolanda M. Joosten, Dallas, for appellee.

Before WHITHAM, OVARD and WHITTINGTON, JJ.

OPINION

OVARD, Justice.

Margarita Sanchez was convicted by a jury of unlawful possession with intent to deliver a controlled substance, to wit: cocaine. The trial court assessed punishment at twenty years' confinement. In two points of error, Sanchez contends that the trial court erred in failing to grant her motion to suppress certain seized evidence and in denying her a racially neutral jury. We affirm the trial court's judgment.

Detective W.D. Stout, working undercover, arranged to purchase fourteen ounces of cocaine from Sanchez. On November 30, 1988, Stout entered Sanchez's residence to consummate the deal. Stout was monitored visually and with a body microphone by a tactical squad led by Sergeant C.D. McCoy. While inside the residence, Sanchez handed Stout a sample of cocaine; Sanchez then opened her refrigerator to display the remainder of the agreed purchase amount. Stout left the residence under the auspices of obtaining the purchase money from his car. While outside, he visually signalled to the tactical squad that the narcotics were inside the residence. Based on the pre-arranged "bust" signals from Stout, the tactical squad entered Sanchez's residence, without Stout, and arrested her without a warrant. As McCoy passed Stout outside the residence, Stout told McCoy that the cocaine was in Sanchez's refrigerator. McCoy entered the residence, went directly to Sanchez's refrigerator, and seized the cocaine Stout had observed.

In her first point of error, Sanchez complains that the "refrigerator cocaine" was illegally seized without a search warrant. She argues that the trial court erred in overruling her motion to suppress the evidence and her trial objection to admitting the "refrigerator cocaine" into evidence. We disagree.

An officer may make a warrantless arrest when a felony is committed in his presence or within his view. Gonzales v. State, 638 S.W.2d 41, 44-45 (Tex.App.--Houston [1st Dist.] 1982, pet. ref'd); TEX.CODE CRIM.PROC.ANN. art. 14.01 (Vernon 1977). The record reflects that, after making a phone call to Sanchez, Stout, while in his undercover garb, went to Sanchez's house to complete the drug transaction. While inside the house, Sanchez showed Stout one gram of cocaine and then opened a refrigerator to reveal thirteen more grams of cocaine. At all times during this transaction, Stout wore a body microphone for the dual purpose of his protection as well as to convey verbal signals to the tactical squad, headed by McCoy, that a drug transaction was in progress. After observing the cocaine, Stout left Sanchez's house to get the purchase money and gave two more physical signals to the tactical squad that Sanchez possessed the cocaine which was the subject of the pre-arranged purchase. We determine that, based upon this evidence, the record sufficiently indicates that the offense of possession of cocaine with the intent to distribute was committed in Stout's presence. Therefore, pursuant to the statutory exceptions providing for warrantless arrests, no search or arrest warrant was necessary to arrest Sanchez. TEX.CODE CRIM.PROC.ANN. art. 14.01.

Our inquiry is not at an end, however, because Sanchez was not arrested by Stout, the officer in whose presence the offense was committed. Instead, a tactical squad, led by McCoy, conducted the actual arrest after listening to the entire drug transaction via Stout's body microphone as well as observing various physical signals from Stout. Additionally, before McCoy entered Sanchez's house, Stout told him that the majority of the cocaine was in the refrigerator. Case law is abundantly clear that when one officer, participating among a team of officers, observes the incriminating conduct of a defendant, the observing officer's knowledge, together with any information possessed by the team, can be collectively considered in determining whether probable cause to arrest exists. See, e.g., Pyles v. State, 755 S.W.2d 98, 109 (Tex.Crim.App.1988); Willis v. State, 669 S.W.2d 728, 730-31 (Tex.Crim.App.1984); Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App.1982) (op. on reh'g). Considering the aforementioned facts, we determine that the warrantless arrest of Sanchez was proper as based upon Stout's knowledge and observations, which were imputed to the tactical squad and McCoy. Consequently, we hold that Sanchez's motion to suppress was properly denied. Point of error number one is overruled.

In her second point of error, Sanchez contends that the trial court erred by denying her a racially neutral jury. Sanchez argues that the State peremptorily challenged jurors solely on the basis of race in contravention of the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In her brief, Sanchez raises her challenge based upon the Sixth and Fourteenth Amendments to the United States Constitution as well as article 35.261 of the Texas Code of Criminal Procedure. However, at trial Sanchez raised her objection solely on the basis of article 35.261. Therefore, under Texas Rule of Appellate Procedure 52(a) and interpretive case law, Sanchez has waived her challenge based upon the Sixth and Fourteenth Amendments for failure to present those arguments to the trial court before raising them in this Court. See, e.g., Willis v. State, 785 S.W.2d 378, 385 (Tex.Crim.App.1989); Washington v. State, 771 S.W.2d 537, 543 (Tex.Crim.App.1989); Cook v. State, 741 S.W.2d 928, 939 (Tex.Crim.App.1987); TEX.R.APP.P. 52(a).

Sanchez asserts that the State eliminated two Mexican-American and seven black veniremembers solely on the basis of their race. To invoke the protection of Batson, a defendant must establish a prima facie case of purposeful discrimination by showing that:

1. he was a member of a cognizable racial group;

2. the prosecutor had exercised peremptory challenges to remove from the venire members of the defendant's race (peremptory challenges constitute a jury selection practice which permits those to discriminate who are of a mind to discriminate); and

3. the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of their race.

Batson, 476 U.S. at 96, 106 S.Ct. at 1723; Keeton v. State, 724 S.W.2d 58, 65 (Tex.Crim.App.1987) (en banc). Once the trial judge determines that a prima facie case has been established, the burden then shifts to the State to justify the use of its peremptory strikes with race-neutral justifications. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Keeton v. State, 749 S.W.2d 861, 862 (Tex.Crim.App.1988). In response to Batson, the Texas legislature enacted article 35.261 of the Texas Code of Criminal Procedure. ¹ Article 35.261 is virtually identical to the requirements of Batson except that the article does not explicitly require racial identity, as does Batson, between the accused and the stricken veniremembers. Our research has revealed one case that intimates that perhaps article 35.261 may allow for a defendant to successfully challenge the striking of veniremembers of a different identifiable racial group than the defendant. See Oliver v. State, 787 S.W.2d 170, 173 (Tex.App.--Beaumont 1990, pet. granted). However, due to the state of the record before us, as discussed below, a harmonization of any subtle differences between the establishment of a prima facie case of discrimination under article 35.261 and Batson is not necessary.

We will first analyze the striking of the black veniremembers by the State. The record reflects that the State used seven out of its ten peremptory strikes to remove black veniremembers from the panel. In order to establish a prima facie case of racial discrimination under article 35.261, a defendant must prove that he is a member of an identifiable racial group. TEX.CODE CRIM.PROC.ANN. art. 35.261(a) (Vernon 1989). The trial court stated, before making its ruling on the Batson article 35.261 motion: "[A]ctually, there is no evidence in the record, by way of proof as such, of the Mexican-American race of the Defendant." Additionally, the trial court announced, in reference to the black veniremembers who were struck:

THE COURT: The Court will first rule that I'm not certain how a Batson will go. The Court--I am not aware of the Batson matter being both for members of other minorities. There may be a question of their rights under another theory to serve in juries. I'm talking about in regard--but as it affects the Defendant in this case, the Court feels that only those persons that are of Mexican American descent will be available to detest [sic] that. I'm talking about under the Batson rule. So the Court will grant that, that the Court will not entertain a motion based on the exclusion of those persons who are black in this cause. Overrule the motion as to those strikes.

From the trial court's comments on this matter, it is arguable that Sanchez failed to establish that she was a member of an identifiable racial group, based solely upon her surname. Even if she did establish this first prong of article 35.261, Sanchez failed to establish, in reference to the black veniremembers who were struck, that the attorney representing the State exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that Sanchez offered evidence of relevant facts that tend to show that challenges made by the attorney representing the State were made for reasons based on race. Because we hold that Sanchez failed to establish a prima facie case of racial discrimination by failing to satisfy the second and third prongs of article 35.261, we hold that the trial court properly denied...