King Soloman Malone v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00130-CR
___________________________
KING SOLOMAN MALONE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 372nd District Court
Tarrant County, Texas
Trial Court No. 1469054D
Before Gabriel, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant King Soloman Malone appeals from his conviction for possession of
between 4 and 200 grams of cocaine with the intent to deliver. In seven issues, he
challenges the denial of his motion to suppress the evidence found after a warrantless
search of his car, the trial court’s refusal to charge the jury on the circumstances under
which they could disregard the seized evidence, the sufficiency of the evidence to
prove his intent to deliver, and the trial court’s admission at punishment of his prior
convictions. Finding no reversible error, we affirm the trial court’s judgment.
I. BACKGROUND
In the early morning hours of September 5, 2016, Officer Anthony Arroyo was
patrolling in an area of Fort Worth that has “several neighborhoods . . . that are high-
drug, high-crime areas.” He saw a car going over fifty miles per hour in “a residential
area.” Because the area “usually [had] people that might be intoxicated leaving bars,
leaving clubs,” Arroyo decided to conduct a traffic stop.
Arroyo turned on the lights of his patrol car and began to chase the speeding
car, which went as fast as sixty miles per hour. The car finally slowed and turned into
a residential driveway. Malone, the driver, began to get out of the car, which Arroyo
found to be “suspicious,” and Arroyo yelled for him to stay in the car. Arroyo
approached the driver’s side of the car and asked for Malone’s driver’s license and
insurance, which he did not have. When Arroyo asked for his name, Malone
identified himself and gave his birthdate. While he was talking to Malone, Arroyo
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noticed a bottle in a brown paper sack in the passenger seat, leading him to suspect
Malone was intoxicated.
Arroyo returned to his patrol car and “ran” Malone’s name through a database
to “find out if he ha[d] a valid driver’s license, if he ha[d] any outstanding warrants or
anything to that effect.” While doing the computer check, Arroyo noticed Malone’s
“head moving around [back and forth and across to the passenger seat], . . .
something [was] kind of weird, and [Malone] already told [Arroyo] that he [did not]
have a license or insurance, but he[] [was] moving around a lot, looking for something
or hiding something,” such as alcohol, weapons, or drugs. The computer check
revealed three “possible” outstanding warrants for Malone’s arrest in Fort Worth.
Arroyo called for back-up officers. After the other officers arrived, a woman
from inside the house came out to see what was going on, leading Arroyo to discover
that Malone did not live at the house, which Arroyo thought was “fishy” and “weird.”
Arroyo approached the car and saw that Malone was talking on the phone and
smoking a cigarette. Arroyo told Malone to get out of the car so Arroyo could
determine if there were weapons in the car, determine what was “going on,” and
“conduct [the] investigation without having him moving around where [the officers
could not] see him.” Arroyo patted Malone down for weapons, handcuffed him “for
safety reasons,” and told him he was detained. Arroyo also asked Malone for consent
to search his car, which Malone gave.
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In searching Malone’s car, officers found baggies of marijuana, a large “rocklike
substance” that appeared to be cocaine, baggies of the same type of substance,
numerous empty baggies, and a razor with cocaine residue. Malone was arrested and
indicted with possession of cocaine with the intent to deliver. See Tex. Health &
Safety Code Ann. § 481.112(a), (d).
The day before trial, Malone filed a motion to suppress the drugs and
paraphernalia found in his car; the videos taken by Arroyo’s dashboard and body
cameras of the stop, detention, and arrest; and the statements Malone made as a result
of the warrantless search and seizure through an invalid consent. Malone did not
request a hearing on the motion prior to trial and did not object to the State’s
assertion that the defense wished “to run [the motion] concurrently with the trial.”
Malone did object at trial to the State’s proffer of the videos and relied on his
arguments in his motion to suppress. The trial court overruled the objection and
admitted the videos.1 The trial court did, however, sustain Malone’s objection to the
admission of his statements regarding “who own[ed] the drugs.” After the evidence
at the guilt-innocence phase of the trial was closed, Malone “re-urge[d]” his motion to
1
Although we commend the State’s attempts to piece together an outside-the-
record explanation of the parties’ understanding of Malone’s motion and how it
would be raised or preserved during the trial, we decline the State’s invitation to look
to evidence that is not contained in the record. We will address this issue as it is
briefed and under the facts presented by the record.
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suppress, which the trial court denied. A jury found Malone guilty of the charged
offense and assessed his sentence at forty years’ confinement.
II. DISCUSSION
A. SUPPRESSION ARGUMENTS
In his first four points, Malone argues that the trial court erred by denying his
suppression motion and by failing to charge the jury on consent, reasonable suspicion,
and the circumstances barring its consideration of his statements to the officers. We
overrule these points for the following reasons.
1. Denial of Motion
a. Review standards
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v.
State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to a trial
court’s rulings on questions of historical fact and application-of-law-to-fact questions
that turn on evaluating credibility and demeanor, but we review de novo application-
of-law-to-fact questions that do not turn on credibility and demeanor. Amador,
221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). The prevailing party is
entitled to “the strongest legitimate view of the evidence and all reasonable inferences
that may be drawn from that evidence.” State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008). We may uphold the trial court’s ruling if it is supported by
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the record and is correct under any theory of law applicable to the case. See State v.
Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).
b. Failure to hold pretrial hearing
Malone asserts that the trial court “should have” heard his motion “separately.”
The trial court had the sole discretion to hold or not hold a hearing on the motion.
See Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6); Calloway v. State, 743 S.W.2d 645,
649–50 (Tex. Crim. App. 1988). In light of the fact that Malone agreed to not address
the issue pretrial but to address it during the trial as the issue arose, we cannot
conclude that the failure to hold a hearing before trial was an abuse of that statutory
discretion. See Calloway, 743 S.W.2d at 649–50.
c. Reasonable suspicion for detention
Malone posits that the temporary detention was not supported by reasonable
suspicion because Arroyo did not have specific, articulable facts upon which to
rationally infer that Malone was or would be engaged in criminal activity. The
lawfulness of a brief investigative detention or seizure is determined based on the
totality of the circumstances known to the officer at the time. See State v. Cortez,
543 S.W.3d 198, 203–04 (Tex. Crim. App. 2018); Manyvorn v. State, No. 02-18-00451-
CR, 2019 WL 3244494, at *5 (Tex. App.—Fort Worth July 18, 2019, no pet. h.)
(mem. op., not designated for publication). Generally, an officer may stop and detain
someone if the officer has reasonable suspicion to believe a traffic violation occurred.
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See Whren v. United States, 517 U.S. 806, 810 (1996); Cortez, 543 S.W.3d at 204; Powell v.
State, 5 S.W.3d 369, 376–79 (Tex. App.—Texarkana 1999, pet. ref’d).
Arroyo testified that Malone was speeding in the early morning hours through
a high-crime, residential area that was prone to drunk drivers. At the beginning of the
traffic stop, Arroyo noticed that Malone was acting suspiciously and that a bottle in a
brown paper bag was on the passenger seat. Arroyo discovered that Malone had
three possible warrants during the extended stop and saw Malone acting as if he knew
he would be going to jail. These facts, viewed objectively, were sufficiently specific to
provide Arroyo with the reasonable suspicion that Malone was engaging in criminal
activity, justifying the traffic stop, the further investigation, and the temporary
detention. See, e.g., Lerma v. State, 543 S.W.3d 184, 190–95 (Tex. Crim. App. 2018);
Jones v. State, No. 14-15-00612-CR, 2016 WL 6886832, at *5–6 (Tex. App.—Houston
[14th Dist.] Nov. 22, 2016, no pet.) (mem. op., not designated for publication); Reed v.
State, 308 S.W.3d 417, 420–21 (Tex. App.—Fort Worth 2010, no pet.); Hicks v. State,
255 S.W.3d 351, 354 (Tex. App.—Texarkana 2008, no pet.).
d. Voluntary consent
Malone argues that his consent to search the car, which led to the discovery of
the controlled substances and paraphernalia, was involuntary; thus, he concludes that
the evidence should have been suppressed. To support his argument, Malone points
to the fact that he was handcuffed when he consented to the search, which he claims
renders his consent involuntary because he had not been informed of his rights as is
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required after an arrest. It was the State’s burden to prove the voluntariness of
Malone’s consent by clear and convincing evidence based on the totality of the
circumstances. See Meekins v. State, 340 S.W.3d 454, 459–60 (Tex. Crim. App. 2011).
We defer to the trial court’s fact-intensive determination unless it was clearly
erroneous. See id. at 460.
Malone’s involuntariness contention assumes that his handcuffing resulted in
the transformation of the temporary detention into an arrest. This is not correct. See
State v. Sheppard, 271 S.W.3d 281, 289 (Tex. Crim. App. 2008). Arroyo testified that he
handcuffed Malone for officer safety and in response to Malone’s behavior:
Usually if somebody lights up a cigarette, it means, in my experience in
making arrests for this exact same thing, they believe they’re going to jail.
Making a phone call, calling mom, girlfriend, wife, daughter, Hey, come
get my car; Hey, come bring me money, I’m going to jail; Please put
money on my books, And that’s what I believed.
....
We don’t want other family members showing up, because usually
somebody going to jail, putting handcuffs on, basically gets people
heated and we don’t want . . . to get hurt by someone else’s family
member getting mad because their family member is going to jail, but I
also don’t want to hurt somebody because of somebody else’s bad
decision.
Given the totality of the circumstances presented to the trial court through Arroyo’s
testimony and the videos, we cannot conclude that the trial court clearly erred by
implicitly concluding that Malone’s consent to search was voluntary based on clear
and convincing evidence. See, e.g., id. at 290–92; Nunez-Hernandez v. State, No. 10-17-
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00039-CR, 2019 WL 2557455, at *2–4 (Tex. App.—Waco June 19, 2019, no pet.)
(mem. op., not designated for publication); Lightfoot v. State, No. 07-17-00226-CR,
2018 WL 5020650, at *1–2 (Tex. App.—Amarillo Oct. 16, 2018, pet. ref’d) (mem. op.,
not designated for publication); Reed v. State, No. 2-03-157-CR, 2004 WL 1354068, at
*3–5 (Tex. App.—Fort Worth June 17, 2004, no pet.) (not designated for
publication).
2. Requested Jury Instructions
Malone requested three instructions be included in the jury charge, each
relating to the jury’s consideration of evidence possibly subject to the exclusionary
rule. See Tex. Code Crim. Proc. Ann. art. 38.23(a). The trial court denied each
request. Malone contends that because his motion to suppress had been denied and
because the jury had heard the evidence that was the subject of that motion, “jurors
should be allowed to decide these issues.”
The code of criminal procedure provides that a trial court must instruct a jury
to resolve factual disputes involving the exclusionary rule:
In any case where the legal evidence raises an issue [regarding the
exclusionary rule], the jury shall be instructed that if it believes, or has a
reasonable doubt, that the evidence was obtained in violation of the
provisions of [the exclusionary rule], then and in such event, the jury
shall disregard any such evidence so obtained.
Id. The trial court’s mandatory duty to so charge a jury is triggered only if there is a
factual dispute as to how the evidence was obtained. See Thomas v. State, 723 S.W.2d
696, 707 (Tex. Crim. App. 1986); Garza v. State, 18 S.W.3d 813, 827 (Tex. App.—Fort
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Worth 2000, pet. ref’d). Here, Malone called no witness to controvert the testimony
of the officer, and the evidence did not raise a fact issue concerning consent,
reasonable suspicion, or voluntariness. Thus, there was no factual dispute of how the
evidence was obtained; therefore, the trial court was not required to include the
requested instructions under article 38.23(a). See Thomas, 723 S.W.2d at 707; Garza,
18 S.W.3d at 827.
B. SUFFICIENCY
In his fifth point, Malone argues that the evidence was insufficient to show that
he possessed the cocaine with the intent to deliver it. We view all the evidence in the
light most favorable to the jury’s verdict and determine whether any rational fact-
finder could have found Malone’s intent beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim.
App. 2017).
Malone recognizes that intent may be proven circumstantially but contends that
“[t]he State could have done much more to prove intent to deliver.” Our question is
not whether the State should have offered more evidence than it did; our question is
whether the evidence the State did offer was sufficient to satisfy due process. See
Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012) (concluding intermediate
appellate court “did not consider all of the evidence, and in conducting its review of
the evidence, . . . improperly used a ‘divide-and-conquer’ approach, separating each
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piece of evidence offered to support Appellant’s conviction, followed by speculation
on the evidence [the] State did not present”).
The evidence of Malone’s intent was sufficient. Malone was arrested in a high-
crime area at a time of day when it could reasonably be expected that he was driving
drunk. Malone was the lone occupant of a car in which a substantial amount of
cocaine was found. Some of the cocaine was in a large lump; the rest had been split
into smaller portions and bagged. A razor with cocaine residue was also found. One
of the responding officers testified that the amount of cocaine found and the way it
was packaged were more consistent with delivery than with personal use. This
evidence allowed a rational jury to reasonably find that Malone possessed the cocaine
with the intent to deliver. See, e.g., Harris v. State, No. 07-17-00292-CR, 2019 WL
1908124, at *3 (Tex. App.—Amarillo Apr. 29, 2019, no pet.) (mem. op., not
designated for publication); Hicks, 255 S.W.3d at 355. We overrule point five.
C. ADMISSION OF PRIOR OFFENSES AT PUNISHMENT
In his final two points, Malone argues that the trial court abused its discretion
by overruling his objections to and admitting his prior felony convictions from Iowa
because they were not properly authenticated and because the State failed to
sufficiently link him to the convictions. We review the admission of prior-conviction
evidence at the punishment phase of trial for an abuse of discretion. See Hicks v. State,
No. 06-02-00064-CR, 2003 WL 21823420, at *5 (Tex. App.—Texarkana Aug. 8, 2003,
pet. dism’d, untimely filed) (not designated for publication).
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During the punishment phase of trial, the State or the defendant may introduce
evidence that the trial court deems relevant to sentencing, including the defendant’s
prior criminal record. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3. A state’s
records of a defendant’s prior convictions are admissible if they are properly
authenticated and if the convictions are sufficiently connected to the defendant. See
Reed v. State, 811 S.W.2d 582, 586–87 (Tex. Crim. App. 1991) (op. on reh’g); Phariss v.
State, 194 S.W.2d 1007, 1007 (Tex. Crim. App. 1946); Hicks, 2003 WL 21823420, at
*5–6.
Malone asserts that the Iowa records were not authenticated, and therefore
were inadmissible, because they did not have seals showing they were official copies
of the original records. See Tex. R. Evid. 902(1). But the Iowa records were certified
and signed (1) by an officer of the Iowa Medical and Classification Center, attesting
that the criminal records pertained to Malone, and (2) by the presiding judge of the
Iowa District Court, attesting that the officer’s signature was genuine. See Tex. R.
Evid. 902(2). These records were sufficiently authenticated to justify their admission.
See Billington v. State, No. 08-12-00144-CR, 2014 WL 669555, at *2 (Tex. App.—El
Paso Feb. 19, 2014, no pet.) (not designated for publication).
Malone also contends that the State did not sufficiently show that the Iowa
records were linked to him. When an authenticated copy of a defendant’s criminal
record is admitted into evidence, the State must show by independent evidence that
the defendant is the person shown in those records. See Beck v. State, 719 S.W.2d 205,
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210 (Tex. Crim. App. 1986); Woods v. State, No. 02-17-00367-CR, 2018 WL 5289461,
at *6 (Tex. App.—Fort Worth Oct. 25, 2018, pet. ref’d) (mem. op., not designated for
publication). The State has many options by which to link a conviction to the
defendant. Flowers v. State, 220 S.W.3d 919, 921–22 (Tex. Crim. App. 2007). One
such way is through documentary proof, such as a judgment, that contains sufficient
information to establish both the existence of a prior conviction and the defendant’s
identity as the person convicted. Id. at 922. In any event, the trier of fact has the
responsibility to fit the pieces of the identity puzzle together to determine if they
sufficiently form a picture of the defendant as the person in the records. Id. at 923.
During punishment, the State called as a witness a records manager for the
Tarrant County Sheriff’s Office, Stacy Turner. Turner testified to and the trial court
admitted Malone’s jail records from the Tarrant County Jail, which included Malone’s
birthdate, social-security number, county-identification number, picture, fingerprints,
and general physical characteristics. Malone did not object to Turner’s testimony
about the records or to the admission of those records. Turner stated that she
occasionally testifies in order to match Tarrant County’s jail records to “records from
other areas.” The State offered and the trial court admitted several exhibits regarding
the Iowa convictions:
• the Iowa officials’ attestations as to the authenticity of the records;
• a fingerprint card;
• a mug shot;
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• a 2009 judgment and sentence for two counts of possession of a controlled
substance with the intent to deliver, for “carrying weapons,” and for theft; and
• a 1981 sentencing order finding Malone guilty of “Voluntary Absence.”
Turner matched the identifying information in the Iowa records to Malone’s
information in the Tarrant County records. She also explained that Tarrant County
would not put an identification number on a document unless the person’s
fingerprints had been analyzed and found to match the fingerprints associated with
that number. The evidence offered by the State was sufficient to allow the fact-finder
to compare the information in the Tarrant County records to the information in the
Iowa records and to reasonably determine that Malone was the person referred to in
the authenticated Iowa documents. See, e.g., Posada v. State, No. 06-16-00184-CR, 2017
WL 3205580, at *3–4 (Tex. App.—Texarkana May 19, 2017, pet. ref’d) (mem. op., not
designated for publication); Billington, 2014 WL 669555, at *3–4; Yeager v. State,
737 S.W.2d 948, 951–52 (Tex. App.—Fort Worth 1987, no pet.).
The trial court did not abuse its discretion by admitting the Iowa records over
Malone’s authentication objection. And the State sufficiently linked Malone to those
records through matching identifying information in Tarrant County’s records and
through the testimony of a Tarrant County records custodian. This evidence raised a
fact issue regarding Malone’s identity, which was for the fact-finder to resolve. We
overrule points six and seven.
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III. CONCLUSION
The trial court did not err by denying Malone’s motion to suppress or by
denying his requested jury instructions on the issue. The evidence was sufficient to
support the jury’s verdict that Malone possessed the cocaine with the intent to deliver.
Finally, the trial court did not abuse its discretion by admitting the properly
authenticated documents regarding Malone’s prior convictions from Iowa, which the
State thereafter sufficiently linked to him. We have overruled Malone’s issues on
these bases and now affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 22, 2019
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