Jason Calderon v. The State of Texas--Appeal from 63rd Judicial District Court of Val Verde County

MEMORANDUM OPINION

No. 04-05-00657-CR

Jason CALDERON,

Appellant

v.

The STATE of Texas ,

Appellee

From the 63rd Judicial District Court, Val Verde County, Texas

Trial Court No. 9885

Honorable Thomas F. Lee , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: October 25, 2006

AFFIRMED

A jury convicted Jason Calderon of possession of marihuana. On appeal, Calderon argues that (1) the trial court erred in denying his motion to suppress his written and oral statements; and (2) the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.

Background

On September 11, 2003, Antonio Gonzales, a narcotics investigator and undercover officer, received information from a confidential informant indicating that a man named Mario Beto Torres was planning to use a pick-up truck and a Suburban the next day to smuggle marihuana into the United States from Mexico. Gonzales later drove past Torres's house and observed the license plate number and color of the truck. Gonzales notified the U.S. Border Patrol. The following day, the Border Patrol noticed a truck matching the investigator's description driving approximately 100 yards in front of a Suburban. The vehicles were driving on a road that is commonly used for smuggling narcotics because it circumvents the Border Patrol checkpoint. Two Border Patrol agents pulled the Suburban over for an immigration inspection. As they did so, they lost sight of the pick-up truck. After the driver of the Suburban consented to a search, the agents searched the vehicle and found approximately 366 pounds of marihuana wrapped in 25 bundles. The agents then contacted a Border Patrol checkpoint a few miles away and gave a description of the truck. Soon after, agents at the checkpoint pulled over a truck matching the description. Calderon was the driver of the truck. (1)

Richard Fernandez, a narcotics investigator, was assigned to interview Calderon at a Border Patrol station where Calderon was detained in a holding cell. At the end of the interview, Calderon provided a written statement indicating that a man offered Calderon $500 to lead the man to a certain location, that Calderon drove in front of the man and then at some point did not see the man following him anymore, that Calderon was pulled over and brought to the station, and that "Mario" gave him a number to call to get his money. On the day of the interview, Fernandez obtained from Calderon an HEB receipt with a phone number on the back. Fernandez gave the receipt to Gonzales, who identified the phone number as that of Mario Beto Torres. Gonzales testified that as part of a large-scale undercover investigation, he called Torres at that number about a month prior to Calderon's arrest and spoke to Torres about marihuana.

Three days after Calderon gave Fernandez a written statement, Calderon and his mother arrived at the station unexpectedly and asked to speak with Fernandez. Calderon told Fernandez that everything he had said three days earlier was untrue and that he had only told Fernandez what Fernandez told him to say. Fernandez thought Calderon appeared scared and asked him whether he had been threatened. Calderon said that he received a threatening phone call and that he did not know what to do. Calderon then went on to give Fernandez more information than what he had provided in his written statement three days earlier. Calderon indicated that Carlos Cervantes told Calderon to pick up a truck from a certain location, that Cervantes then picked Calderon up and took him to "Mario's" house the night before the arrests, and that Cervantes told Calderon to return early the next morning. Calderon returned the next morning, picked up Cervantes, and took Cervantes to pick up a Suburban. Cervantes told Calderon to lead him to a "T" in the highway and then Calderon should turn left and Cervantes would turn right.

Admissibility of Statements

A. Mental Impairment and Coercion

Calderon contends that the trial court erred in denying his motion to suppress his written confession because his mental impairment prevented him from understanding the warnings given to him and from making a knowing, voluntary, and intelligent waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and Article 38.22 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). While not alone determinative, evidence of mental impairment is a factor to be considered by the court in determining from the totality of the circumstances whether the confession is voluntary. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). The question is whether the accused's mental impairment is so severe that he is incapable of understanding the meaning and effect of his confession. Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970). A confession will not be considered involuntary absent police coercion causally related to the confession. Colorado v. Connelly, 479 U.S. 157, 164 (1986); Walker v. State, 842 S.W.2d 301, 303 (Tex. App.-Tyler 1992, no writ). The test is whether the defendant's will was "overborne" by police coercion. Nenno v. State, 970 S.W.2d 549, 557 (Tex. Crim. App. 1998) (citing relevant factors of "length of detention, incommunicado or prolonged detention, denying a family access to a defendant, refusing a defendant's request to telephone a lawyer or family, and physical brutality"), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). The trial court is the sole judge of the weight and credibility of the evidence, and the court's finding on voluntariness will not be disturbed absent an abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (reviewing court affords almost total deference to court's findings of fact that the record supports, but reviews application of the law to facts de novo); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).

At the suppression hearing, Calderon and his mental-health caseworker testified as to his mental impairment. Calderon testified that he was in special education, had a learning disability, had difficulty reading and writing, and did not understand that signing his written statement meant that he was giving up certain legal rights. Caseworker Raquel Frausto testified that Calderon was diagnosed with dysthymia, which is very similar to major depression, that he was taking Prozac, and that her charts did not indicate that he had a learning disability but that she knew he had difficulty with reading and writing. At trial, Calderon's mother and brother testified that Calderon had difficulty with reading, writing, and comprehension, and that he needed help writing letters. Calderon's brother also testified that Calderon had difficulty understanding job applications and needed help completing them.

Calderon's evidence does not establish a mental impairment so severe that he was incapable of understanding the meaning and effect of his confession. The court of criminal appeals has routinely upheld the voluntariness of confessions given by defendants with mental deficiencies more severe than those of Calderon. See Penry, 903 S.W.2d at 746 (admitting confession of mentally retarded defendant who could not read or write and had IQ ranging from forties to seventies); Casias, 452 S.W.2d at 488 (admitting confession of mentally retarded defendant who could not read or write and had IQ of 68 and mental age of eight to ten years). Here, Frausto testified that Calderon had very good verbal comprehension, and Fernandez testified that he read each of the rights to Calderon before asking Calderon to sign the document. Fernandez testified that Calderon did not appear drowsy and did not slur his speech or otherwise appear abnormal. In addition, after Calderon handwrote his statement, Fernandez asked him to review it and told him he could make additions, alterations, or deletions if needed. Calderon reviewed it and did not make any corrections, but upon being instructed to do so, he put his initials next to places where he had previously crossed out words. When Calderon signed the statement, another Border Patrol officer was present in the room as a witness. Aside from his own testimony, Calderon provides no evidence that he did not understand the meaning and effect of his confession. In addition, he presented conflicting testimony at the hearing when he also testified that he did not remember signing the written statement because he was high on drugs at the time, that the signatures on the written statement were not his, and that the written statement was not in his handwriting.

Furthermore, there is no evidence that Calderon's statement was the result of coercion. Calderon did not introduce evidence that he was threatened, intimidated, or denied food, drink, or use of a restroom. Fernandez testified that Calderon never asked for an attorney and never asked to stop the interview. Fernandez also testified that he did not offer Calderon leniency or any other promises in exchange for Calderon's written statement. As evidence of coercion, Calderon points to Fernandez's testimony that Calderon told him several versions of his statement before he eventually reduced the final version to writing. However, Calderon offers no evidence to support that his changing story was the result of coercion. At the hearing, Calderon testified that he did not remember anything about the interview because he was high on drugs at the time. He did not testify that Fernandez said or did anything to him to coerce him into changing his story. Absent any evidence of coercive actions on the part of Fernandez or any other law enforcement officer, we cannot say that Calderon's will was overborne by police coercion. Accordingly, we hold that the trial court did not abuse its discretion in finding that Calderon's written statement was voluntary.

B. Waiver of Rights - Written Statement

Calderon also argues that the trial court erred in denying his motion to suppress his written confession because the waiver of rights was not in writing and on the face of the confession as required by Section 2 of Article 38.22 of the Texas Code of Criminal Procedure. (2)

However, Calderon's written statement complies with every requirement set forth in Article 38.22. Each of the warnings listed in Section 2(a) is listed on the face of Calderon's written confession. Fernandez testified that he read Calderon each of the warnings, placing a check-mark in a box next to each warning as he went. He then asked Calderon to sign the document if he understood the warnings. Calderon signed his name at the bottom of the warnings. The next paragraph, still on the face of the statement, uses almost the exact language of Section 2(b) and is then followed by Calderon's written statement and his signature. We conclude that Calderon's written statement complies fully with Article 38.22.

C. Bearing on Credibility - Oral Statement

Calderon also contends that the trial court erred in denying his motion to suppress his oral statement made when he and his mother returned to the station to speak to Fernandez because the statement did not have any bearing on Calderon's credibility under Section 5 of Article 38.22 of the Texas Code of Criminal Procedure and because the State offered the statement in violation of the trial court's discovery order. With respect to the statement's bearing on Calderon's credibility, we disagree with Calderon that Section 5 sets forth such a requirement. Section 5 lists several types of statements whose admission is not precluded under Article 38.22. (3) Of the types of statements listed, only a "voluntary statement, whether or not the result of custodial interrogation," is modified by the phrase "that has a bearing upon the credibility of the accused as a witness." Although Calderon's oral statement could be considered a voluntary statement, it also fits under one of the other categories as a statement that did not stem from custodial interrogation. The U.S. Supreme Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). A person is in custody only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). At least four general situations may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement is significantly restricted; and (4) when there is probable cause to arrest, and law enforcement officers do not tell the suspect that he is free to leave. Id. at 255. Here, Calderon and his mother arrived unexpectedly at Fernandez's office and requested to speak to Fernandez. Fernandez did not ask Calderon to come to his office and had no plans to further interrogate Calderon when Calderon arrived. The two spoke in a conference room. There is no evidence that Calderon was placed under arrest or otherwise prohibited from leaving. Under these circumstances, we cannot say that a reasonable person would believe that his freedom of movement was restrained in any way. Thus, we conclude that Calderon's oral statement was not the result of custodial interrogation.

Section 5 does not require that a non-custodial statement have a bearing on credibility. See Shiflet v. State, 732 S.W.2d 622, 623, 631 (Tex. Crim. App. 1985) (admitting oral statement under non-custodial statement provision of Article 38.22(5) without requiring that it bear on credibility);Espinoza v. State, 185 S.W.3d 1, 3-5 (Tex. App.-San Antonio 2005, no pet.) (same). Because Calderon's oral statement did not stem from custodial interrogation, the trial court did not err in denying Calderon's motion to suppress the statement.

D. Discovery Order - Oral Statement

With respect to Calderon's argument that the State offered his oral statement in violation of the trial court's discovery order, we find that Calderon did not preserve error on this point. The State offered Calderon's oral statement at trial, and Calderon objected on the ground that the State's late introduction of the evidence caused surprise and violated the trial court's discovery order by not informing Calderon at least 30 days before trial that it planned to use the statement. The trial court overruled the objection, and the statement was admitted. Calderon did not request a postponement or a continuance. The failure to request a continuance waives error on the basis of surprise or violation of a discovery order. Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. [Panel Op.] 1982); Williams v. State, 995 S.W.2d 754, 762 (Tex. App.-San Antonio 1999, no pet.). Because Calderon failed to seek a postponement or continuance, he failed to preserve his complaint for our review.

Sufficiency Of The Evidence

Calderon contends that the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). The only question to be answered is whether, considering the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. We will set the verdict aside only if the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust, or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. at 484-85. In a factual sufficiency review, we give deference to the trier of fact's determinations, including determinations involving the credibility and demeanor of the witnesses. Id. at 481. We may not substitute our judgment for that of the trier of fact. Id. at 482.

The trial court authorized the jury to find Calderon guilty of possession of marihuana either as a principal actor or as a party under Texas Penal Code sections 7.01(a) and 7.02(a)(2). Tex. Pen. Code Ann. 7.01(a), 7.02(a)(2) (Vernon 2003). Under the law of parties, a person may be convicted as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible, or both. Tex. Pen. Code Ann. 7.01(a). A person is criminally responsible for the conduct of another if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Pen. Code Ann. 7.02(a)(2). To convict someone under the law of parties, the evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of their common purpose. Williams v. State, 82 S.W.3d 557, 566 (Tex. App.-San Antonio 2002, pet. ref'd). The court may examine the events that occurred before, during, and after the commission of the offense and may rely on actions of the accused that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). Direct evidence of complicity is not necessary; the State may use circumstantial evidence to prove the defendant's responsibility as a party to the offense. Rivera v. State, 12 S.W.3d 572, 575 (Tex. App.-San Antonio 2000, no pet.).

After hearing the evidence, the jury returned a general verdict of guilty. When the jury returns a general verdict, we will uphold the verdict if the evidence is sufficient to support a guilty finding under any of the allegations submitted to the jury. Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). Viewing the evidence in the light most favorable to the verdict, including evidence that Calderon was to be paid $500 for his role, that he and Cervantes visited the home of a known drug dealer twice beforehand, that he had the drug dealer's phone number written on a receipt, and that Cervantes had 366 pounds of marihuana in his car, we hold that the evidence is legally sufficient to establish that Calderon acted with the intent to aid Cervantes in possessing marihuana and thus was guilty of the offense under the law of parties. We also hold that the evidence is factually sufficient to support a conviction under the law of parties. While there is no direct evidence showing that Calderon knew his role was to assist in smuggling marihuana, the circumstantial evidence showing that he did know, including his ties to a known drug dealer and his admission that he was to be paid $500, could lead a rational jury to find Calderon guilty beyond a reasonable doubt. Accordingly, we affirm the trial court's judgment.

Conclusion

The judgment of the trial court is affirmed.

Phylis J. Speedlin , Justice

Do Not Publish

1. Calderon was arrested and later charged with possession of the marihuana found in the Suburban.

2. Section 2 of Article 38.22 states that "[n]o written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that: (a) the accused, prior to making the statement, . . . [received certain specifically listed warnings] and (b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning[s]" set forth in subsection (a). Tex. Code Crim. Proc. Ann. art. 38.22(2).

3. Section 5 states that "[n]othing in this article precludes the admission of a statement made by the accused in open court at his trial, before a grand jury, or at an examining trial . . . or of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law." Tex. Code Crim. Proc. Ann. art. 38.22(5) (emphasis added).