Swarb v. State

• Decision Date: 04 December 2003
• Docket Number: No. 01-02-01080-CR.,01-02-01080-CR.
• Citation: 125 S.W.3d 672
• Parties: Barry Brent SWARB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

125 S.W.3d 672

Barry Brent SWARB, Appellant, v. The STATE of Texas, Appellee.

No. 01-02-01080-CR.

Court of Appeals of Texas, Houston (1st Dist.).

December 4, 2003.

David S. Barron, Bryan, TX, Rique D. Bobbitt, Cameron, TX, for Appellant.

Bill R. Turner, District Attorney, Douglas Howell, III, Assistant District Attorney, Bryan, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.

OPINION

EVELYN V. KEYES, Justice.

Appellant, Barry Brent Swarb, pleaded not guilty to felony possession of methamphetamine under one gram. The jury found appellant guilty, and the trial court assessed punishment at 20 months' confinement in the state jail. In six points of error, appellant challenges (1) the denial of his motion to suppress, (2) the admission of extraneous offense evidence, (3) the legal sufficiency of the evidence, and (4) the overruling of his objections to the State's jury arguments. We affirm.

Facts

While on work release from the Brazos County Jail, appellant went to the Burleson County Jail, where he attempted to deliver methamphetamine to his incarcerated wife. Appellant was not immediately arrested and returned to the Brazos County work release program. Later the same day, after obtaining an arrest warrant for appellant for the delivery of methamphetamine in a correctional facility,¹ Investigator Glidewell and Lieutenant Norsworthy went to the Brazos County Jail, where appellant was located, to execute the arrest warrant.²

When Glidewell and Norsworthy arrived at the jail premises, Glidewell recognized appellant's vehicle in the public parking lot. Looking inside the vehicle with the aid of a flashlight, the officers noticed suspected methamphetamine on the floorboard of the vehicle.

After arresting appellant pursuant to the arrest warrant, Glidewell obtained appellant's consent to search the vehicle. Appellant filled out the consent form noting the year, make, body style and license number of the truck. Appellant also provided Glidewell with the keys to his vehicle.

During the search, Glidewell, Norsworthy, and another officer located several pieces of aluminum foil and some pens with the ink cartridges removed, both containing possible methamphetamine residue, a bottle of nail polish, and empty packages of pseudoephedrine, a common precursor used in creating methamphetamine. All evidence was submitted to the laboratory for analysis. Glidewell and Norsworthy testified that they did not attempt to lift fingerprints from the evidence primarily because it would not be possible to obtain a fingerprint from crumpled aluminum foil. Analysis nevertheless revealed that some of the aluminum foil evidence contained methamphetamine. Appellant was then charged by indictment in Brazos County with possession of a controlled substance under one gram.³

Trial

In his pretrial motion in limine, appellant requested that the State not mention or allude to any previous criminal record and/or arrest of appellant. The trial court granted appellant's motion, but noted that the State could introduce evidence that it had a warrant for appellant's arrest, that the officers were serving the warrant, and that his vehicle was located where the warrant was served. The court, however, prohibited the mention of the words "Brazos County Minimum Security Jail." The court also prohibited mention that appellant had possessed or delivered an illegal substance in a correctional facility, although the State was permitted to elicit testimony that the officers had a warrant for appellant's arrest. Finally, the court overruled appellant's motion in limine request and allowed testimony of the service of an arrest warrant on the defendant.

During its case-in-chief, while examining Investigator Glidewell, the State elicited testimony that Glidewell had obtained an arrest warrant for appellant. After Glidewell's testimony, the court immediately provided a limiting instruction to the jury noting that they could not consider the fact that an arrest warrant had been issued for appellant in their determination of guilt, but could consider it only for "informational purposes." The State then admitted Exhibit No. 2 (a copy of the arrest warrant that Glidewell obtained on July 8, 2001) for the appellate record. Exhibit No. 2 was not shown to the jury. The court also admitted Exhibit No. 2A (a copy of the arrest warrant which redacted the description of the offense in Burleson County).⁴ Exhibit No. 2A was shown to the jury and admitted for all purposes.

During the State's presentation of its case, and on cross-examination of the State's witnesses, appellant introduced his defensive theory that the methamphetamine could have been left or placed in his vehicle by someone else. On cross-examination, appellant tried to elicit testimony that the driver's side door of the truck could have been opened without a key, that the arresting officers did not take fingerprints from the evidence found in appellant's truck, and that a nail polish bottle was found inside the truck.⁵ Based on appellant's cross-examination of the State's witnesses and the questions about the keys, the fingernail polish bottle, and the failure to take fingerprints—implying that someone else possessed the methamphetamine found in appellant's truck—the State urged the court for permission to elicit testimony under Rule 404(b) about the Burleson County delivery of methamphetamine to the jail to show appellant's intent, plan, knowledge, and absence of mistake or accident that methamphetamine was in his vehicle. Appellant objected, noting that admitting such evidence would be "character assassination." The court overruled appellant's objection and permitted testimony of the reason for the Burleson County arrest, and the judgment in the Burleson County offense case. In response to appellant's objection, the court noted: "Well, counsel, I would agree with you had there not been the implication to the jury via the questioning regarding the bad door, the nail polish, the implication being that there have been other people in the car. Therefore, it must have been somebody else's controlled substance. I believe the door has been opened."

The court also overruled appellant's Rule 403 objection, finding that the probative value outweighed the potential prejudicial effect. The court also provided a limiting instruction to the jury that they were to consider the extraneous offense only for "purposes of proving intent or knowledge in this particular case and for no other purposes." The court explained to the State that it could recall Officer Glidewell to testify in more detail about the Burleson County offense itself and that it could "indicate to the jury that the defendant pled no contest.... What [appellant] did or did not get in punishment is not relevant." The State then recalled Glidewell and offered Exhibit No. 2 (the non-redacted arrest warrant) for all purposes. Glidewell testified that the arrest warrant was based on information that appellant had tried to bring methamphetamine to his wife in jail on the same day that the methamphetamine was located in appellant's car.

The State also introduced Exhibit No. 27, the Burleson County judgment for prohibited substance in a correctional facility, for appellate record purposes only and Exhibit No. 27A, a redacted Burleson County judgment, to be shown and exhibited to the jury. The only information the redacted judgment contained was that appellant pleaded nolo contendere to the offense of prohibited substance in a correctional facility committed on July 8, 2001, the same day as the instant offense. It contained no punishment or sentencing information. The redacted judgment also noted that appellant pleaded nolo contendere to the indictment and to each and every element alleged in the indictment and that the court heard evidence substantiating appellant's guilt. The State also admitted into evidence Exhibit No. 28, the indictment for the offense, which alleged that appellant took methamphetamine into the Burleson County jail.

Discussion

Motion to Suppress

In his first point of error, appellant contends the trial court erred in denying his motion to suppress and in admitting the methamphetamine evidence obtained during the search of his truck because it was obtained illegally and in disregard for the Fourth Amendment of the United States' Constitution. In particular, appellant asserts that the search was not proper under the "plain view" warrantless search exception doctrine and that the initial intrusion with a flashlight was not lawful because the officer deviated from his route in order to look into the vehicle.

In reviewing the trial courts ruling on the motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We give almost total deference to the trial courts determination of historical facts, while we conduct a de novo review of the trial courts application of the law to those facts. Id. We review de novo the trial court's application of the law of search and seizure. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).

We conclude that the search in the present case satisfied the "plain view" doctrine, which requires that "(1) law enforcement officials have a right to be where they are, and (2) it be immediately apparent that the item seized constitutes evidence." Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App.2000). If an article is in plain view, neither its observation nor its seizure involves any invasion of privacy. Id. at 543. Here, the officers, on their way to execute the arrest warrant, approached appellant's vehicle in a parking lot open to the public and shone a flashlight into appellant's vehicle, thereby observing the methamphetamine in plain view on the floorboard of the vehicle. Looking inside a vehicle, even with the use of a flashlight, does not implicate Fourth Amendment protections; nor does it prevent the...