Servando Cesar Castaneda v. State ( 2002 )

                                   NUMBER 13-01-144-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

___________________________________________________________________

SERVANDO CASTANEDA,                                                     Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

___________________________________________________________________

                        On appeal from the 389th District Court

                                  of Hidalgo County, Texas.

__________________________________________________________________

                                   O P I N I O N

                  Before Justices Dorsey, Hinojosa, and Rodriguez

                                Opinion by Justice Rodriguez

Appellant, Servando Castaneda, brings this appeal following his conviction for possession of marihuana. By seven issues, Castaneda contends he was denied effective assistance of counsel, the evidence was not factually sufficient, and the trial court erred by: (1) denying a request for a jury shuffle; (2) commenting on his failure to testify and on other alleged acts, crimes, or wrongs; (3) denying his motion to suppress; and (4) denying his motion for new trial.  We affirm.

I.  Background

Deputy Sheriff Miguel Olaguez received a tip that crack was being sold from Castaneda=s residence.  En route to Castaneda=s residence, Deputy Olaguez stopped a vehicle because the driver was not wearing a seatbelt.  The driver identified himself as Castaneda.  Deputy Olaguez gave Castaneda a verbal warning concerning the seatbelt violation and informed him that he received a tip about drug activity at Castaneda=s residence.  Castaneda drove back to his residence and Deputy Olaguez followed him. Deputy Olaguez and another deputy then obtained both verbal and written consent to search Castaneda=s residence.  Castaneda followed the two officers as they searched his home.  In Castaneda=s bedroom closet, there was a strong smell of marihuana, but the officers did not find any drugs in there.  The officers then went into Castaneda=s living room and asked for consent to search two duffel bags and two hard-shell suitcases.  Castaneda claimed ownership of the two duffel bags and denied ownership of the two hard-shell suitcases, but he gave consent for the officers to search all four containers.  The duffel bags were empty, but the two hard-shell suitcases contained marihuana. Castaneda was placed under arrest, given his Miranda warnings, and placed in the back of a patrol car. Deputy Olaguez then asked Castaneda if there was anymore marihuana in his property.  Castaneda stated there was more marihuana and he led the officers to a one room building in Castaneda=s back yard, where approximately five hundred pounds of marihuana was recovered.

Following a trial to a jury, Castaneda was found guilty of possession of marihuana in an amount of 2,000 pounds or less, but more than fifty pounds.  The trial court sentenced Castaneda to twenty years in the Institutional Division of the Texas Department of Criminal Justice and assessed a $10,000.00 fine.  This appeal ensued.

II. Jury Shuffle

By his first issue, Castaneda contends the trial court erred by denying his request for a jury shuffle. Article 35.11 of the code of criminal procedure requires the seating order of the venire be randomly shuffled at the timely request by either party.  See Tex. Code Crim. Proc. Ann. art. 35.11 (Vernon 1989 & Supp. 2002); Williams v. State, 719 S.W.2d 573, 574-75 (Tex. Crim. App. 1986).  A timely motion to shuffle must be presented or urged prior to the commencement of the voir dire examination of the jury panel assigned to the case.  Williams, 719 S.W.2d at 575.

In this case, Castaneda filed a pre-trial motion asking for a jury shuffle.  The trial court denied the motion on the same day the jury panel was seated in court.  Thus, the trial court erred by denying Castaneda=s timely motion for a jury shuffle.  See id.; Smith  v. State, 648 S.W.2d 695, 696 (Tex. Crim. App.1983).  However, because the right to a jury shuffle is statutory in nature, the error must be evaluated for harm under the standard for non-constitutional errors.  Ford v. State, 73 S.W.3d 923, 924 (Tex. Crim. App. 2002).  That standard provides, A[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.@  Tex. R. App. P. 44.2(b).  To assess non-constitutional errors, we examine whether the purpose of the statute or rule violated was thwarted by the error. See Ford, 73 S.W.3d at 926; Roethel v. State, No. 03-01-00268-CR, 2002 Tex. App. LEXIS 4437, at *10 (Austin June 21, 2002, no pet.).

In Ford, the court of criminal appeals reversed the Fort Worth Court of Appeals decision based on how it applied a harm analysis after determining the trial court erred in refusing to grant a jury shuffle.  See Ford, 73 S.W.3d at 924; see also Roberts v. State, No. 476-99, 2002 Tex. Crim. App. LEXIS 130, at *2 (June 19, 2002) (explaining Ford, 73 S.W.3d 923).  The Ford court explained that the purpose of the jury shuffle is to ensure venire members are listed in a random order.  Roberts, 2002 Tex. Crim. App. LEXIS 130, at *2 (citing Ford, 73 S.W.3d at 926).  Because applicable rules and statutes already require that jury panels be listed randomly from the outset, the Ford court held that a trial court=s failure to order a shuffle does not, by itself, indicate a nonrandom listing of the venire.  See id. (citing Ford, 73 S.W.3d at 926).  The Ford court concluded that because A[n]othing in the record . . . indicates that the procedures outlined in the applicable statutes and rules [by which individual panels are drawn] were disregarded, that the panel was reordered after being assembled, or that the process of assembling a jury panel was subverted in some fashion to achieve a nonrandom listing of the venire,@ the trial court=s error in refusing to allow a jury shuffle was harmless. Ford, 73 S.W.3d at 926.

Following this same analysis, because there is nothing in the record to indicate that the procedures outlined in the applicable statutes and rules were disregarded or that the process of assembling a jury panel was subverted to achieve a nonrandom listing of the venire, we conclude the trial court=s refusal to grant Castaneda=s jury shuffle motion was harmless error.  See Roberts, 2002 Tex. Crim. App. LEXIS 130, at *2; Ford, 73 S.W.3d at 926.  Castaneda=s first issue is overruled.

III.  Impermissible Comment

By his second and third issues, Castaneda contends the trial court, during the punishment phase of the trial, impermissibly commented on his failure to testify and, based on the same comment, considered an alleged speculative prior bad act in assessing punishment.

However, appellant failed to object to the trial court=s comment.  Thus, Castaneda has waived any error.  See Tex. R. App. P. 33.1; see also Sanders v. State, 963 S.W.2d 184, 190-91 (Tex. App.BCorpus Christi 1998, pet. ref=d) (must object to alleged error or it is waived). Castaneda=s second and third issues are overruled.

IV.  Motion To Suppress

By his fourth point of error, Castaneda contends the trial court erred by denying his motion to suppress evidence seized after the search of his residence.  Specifically, Castaneda argues the trial court erred in its denial of the motion in three key respects: (1) the propriety of the alleged arrest; (2) waiver of Castaneda=s Miranda rights; and (3) reasonableness of the search.^[1]

A.  Standard of Review

The typical motion to suppress case will be reviewed with a bifurcated standard of review giving almost total deference to a trial court=s express or implied determinations of fact, and review de novo the court=s application of the law of search and seizure to those facts.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).  Mixed questions of law and fact that turn on the credibility and demeanor of a witness are reviewed under a total deference standard.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  Mixed questions of law and fact which do not turn on the credibility and demeanor of a witness are reviewed de novo.  Id.  When, as here, the trial court does not make findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume the trial court made implicit findings of fact that support its ruling so long as those findings are supported by the record.  See Maxwell, 73 S.W.3d at 281; Ross, 32 S.W.3d at 855.  If the decision is correct under any theory of law applicable to the case, the ruling will be sustained.  Roquemore v. State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001).

B.  Propriety of Original Arrest

Castaneda argues that after he was stopped for a seatbelt violation, Deputy Olaguez=s subsequent conduct resulted in Castaneda=s unreasonable arrest.

A  person is arrested when he has been actually placed under restraint or taken into custody by an officer.  Tex. Code Crim. Proc. Ann. art 15.22 (Vernon 1979).  An arrest is complete when a person=s liberty of movement is restricted or restrained.  Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App. 1993).  AWhere the circumstances show that the person voluntarily accompanied the police in the investigation of a crime, and he knew or should have known that the police might suspect that he is implicated in the offense, whether he is acting upon the invitation, urging, or request of police officers, and not being forced, coerced or threatened, the act is voluntary and the person is not then in custody.@  Id.

In this case, Deputy Olaguez was justified in his initial stop of Castaneda=s vehicle for a seatbelt violation.  See Tex. Transp. Code Ann. ' 545.413 (Vernon 1999 & Supp. 2002); Morrison v. State, 71 S.W.3d 821, 829 (Tex. App.BCorpus Christi 2002, no pet.).  Deputy Olaguez gave Castaneda a verbal warning about the seatbelt violation.  During this brief detention, Deputy Olaguez learned Castaneda was the owner of the residence Deputy Olaguez was going to search.  After learning that Castaneda=s brother was at his residence, Deputy Olaguez told Castaneda he had a tip that drugs were being sold from Castaneda=s  home and he wanted consent to search the residence.  Castaneda then told Deputy Olaguez there were no drugs at his home and he did not have a problem with Deputy Olaguez searching there.  Castaneda then drove to his residence, met Deputy Olaguez there, and signed a consent to search form.

Although Castaneda testified that he felt he did not have a choice but to return to his home and consent to the search, we do not find Castaneda was ever arrested, seized, or taken into custody before he gave consent to search.  See Chambers, 866 S.W.2d at 19.

C.  Miranda Rights

Castaneda next argues the trial court should have suppressed the evidence obtained from the building located behind Castaneda=s home because he never waived his Miranda rights.^[2]

In Miranda, the United States Supreme Court delineated specific procedures to safeguard the Fifth Amendment privilege against self-incrimination during custodial interrogation.  Miranda v. Arizona, 384 U.S. 436, 476-79 (1966).  Miranda held that unless law enforcement officers give certain warnings prior to questioning a person in custody, and follow certain procedures during the course of any subsequent interrogation, the prosecutor may not use in its case-in-chief any statement by the defendant over his objection. Watson v. State, 762 S.W.2d 591, 596 (Tex. Crim. App. 1988) (citing Miranda, 384 U.S. at 476-79).

The right to remain silent, once invoked, requires the police to immediately cease interrogating a suspect. See Michigan v. Mosley, 423 U.S. 96, 103-04 (1975); Watson, 762 S.W.2d at 596.  However, before we may address Castaneda=s contention that he never waived his Miranda rights, it must first be determined whether or not Castaneda first invoked these rights.  See Ramirez v. State, 44 S.W.3d 107, 110 (Tex. App.BAustin 2001, no pet.) (analysis of Miranda violation depends on resolution of threshold question of whether suspect invoked his right to silence); Edwards v. State, 956 S.W.2d 687, 689 (Tex. App.BTexarkana 1997, no pet.) (threshold issue is whether or not suspect invoked his right to remain silent).

In this case, Castaneda was read his Miranda rights before he was asked whether there was any additional marihuana on his property.  There is no evidence that Castaneda ever indicated, in any manner, that he wished to remain silent after he was given his Miranda warnings. See Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999).  Thus, because Castaneda did not initially invoke his right to remain silent, we do not need to address whether or not his Miranda right to remain silent was violated.  See Ramirez, 44 S.W.3d at 110; Edwards, 956 S.W.2d at 689; see also Watson, 762 S.W.2d at 597 (A[I]mportant question is whether the appellant invoked his constitutional right to remain silent.@).

Viewing the evidence in the light most favorable to the ruling, see Maxwell, 73 S.W.3d at 281, we find the trial court did not err in denying Castaneda=s motion to suppress.  Castaneda=s fourth issue is overruled.

V.  Ineffective Assistance of Counsel

By his fifth issue, Castaneda contends his trial counsel was ineffective.  The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant=s sixth amendment right to counsel.  See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.BCorpus Christi 2000, no pet.).  To establish ineffective assistance of counsel, appellant must show: (1) his attorney=s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney=s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Dorsey v. State, 55 S.W.3d 227, 237 (Tex. App.BCorpus Christi 2001, no pet.).  Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence.  See Munoz, 24 S.W.3d at 434; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.BCorpus Christi 2000, pet. ref=d).  An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel=s alleged ineffectiveness.  Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.BCorpus Christi 1996, no pet.).  In assessing a claim of ineffective assistance of counsel, there is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance.  Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).  Also, in the absence of evidence of counsel=s reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it.  See id.; Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

A.  Analysis

Castaneda argues his counsel was ineffective for failing to: (1) challenge the manner in which the search of the suitcases was conducted; (2) call witnesses to testify regarding the legality of the traffic stop; and (3) object to the trial court=s impermissible comment on his failure to testify and object when it considered an alleged speculative prior bad act in assessing punishment.

1.  Manner of the Search

Castaneda argues his trial counsel was ineffective during the motion to suppress for not challenging the manner in which the two suitcases were searched.  Upon review of the record, however, it is apparent Castaneda=s trial counsel did challenge the  manner in which the suitcases were searched.  The mere fact Castaneda disagrees with the way his attorney challenged the search does not overcome the strong presumption that his attorney=s conduct fell within the wide range of reasonable professional assistance.  See Garcia, 57 S.W.3d at 440. Furthermore, Castaneda has failed to satisfy either burden of Strickland because he has not shown, by a preponderance of the evidence, see Munoz, 24 S.W.3d at 434, his attorney=s representation fell below an objective standard of reasonableness, or the outcome of the trial would have been different but for his attorney=s errors.  Strickland, 466 U.S. at 687.  Thus, this argument is without merit.

2.  Failure to Call Witnesses

Castaneda next argues his trial counsel was ineffective because he failed to call two witnesses who would have raised a factual dispute regarding the legality of the traffic stop.

An attorney=s failure to call witnesses is irrelevant unless the appellant can show that the witnesses were available and he would have benefitted from their testimony.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Rangel v. State, 972 S.W.2d 827, 838 (Tex. App.BCorpus Christi 1998, pet. ref=d).  A decision not to call a witness should be reviewed only if there is no plausible basis for the omission.  Velasquez v. State, 941 S.W.2d 303, 310 (Tex. App.BCorpus Christi 1997, pet. ref=d).

In this instance, Castaneda=s attorney did not call as witnesses the two passengers who were in Castaneda=s vehicle when it was stopped by Deputy Olaguez. Castaneda claims that, if they had been called, the witnesses would have testified they all were wearing seatbelts at the time of the stop and, therefore, there was no justifiable reason for Deputy Olaguez to stop Castaneda=s vehicle.  Based on the evidence raised at the motion for new trial, the two witnesses were in jail and were available to testify.  See Rangel, 972 S.W.2d at 838.   Also, if the witnesses would have testified they all were wearing seatbelts when Deputy Olaguez stopped Castaneda=s vehicle, this information probably would have benefitted Castaneda during the motion to suppress hearing.  See id.

Even though the testimony by the two witnesses may have assisted Castaneda=s case in the motion to suppress hearing, there is evidence that Castaneda=s attorney spoke with one of the witness=s attorneys concerning Castaneda=s case.  Thus, Castaneda=s attorney may have decided not to have them testify for any number of strategic reasons.  See  Garcia, 57 S.W.3d at 440.  We conclude, based on the record, Castaneda has failed to show by a preponderance of the evidence that his attorney=s representation fell below an objective standard of reasonableness, and the result of the proceeding would have been different if the two witnesses were called to testify.  See Strickland, 466 U.S. at 687.

3.  Impermissible Comment

Finally, Castaneda argues his counsel was ineffective for failing to timely object when the trial court made an impermissible comment, and then, based on the same comment, considered an alleged speculative prior bad act in assessing punishment.

To successfully argue that trial counsel=s failure to object amounted to ineffective assistance, an appellant must show that if trial counsel had objected, the trial judge would have committed error in refusing to sustain the objection.  Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); Brown v. State, 6 S.W.3d 571, 575 (Tex. App.BTyler 1999, pet. ref=d).

The trial court made the following statement during the pronouncement of appellant=s sentence:

I considered the testimony of the probation officer. Apparently, there=s still a case pending in Oklahoma that we don=t even know about. . . .  The amount of marijuana that was found in this case certainly does not talk about personal use.  We have no way of knowing how much marijuana had been shipped prior to this time, and I don=t think your son=s going to tell us, if that=s the case. [emphasis added.]  I feel that your son has violated a confidence of the State.  He violated your confidence, sir, and if the defendant will please stand. . . . 

The comment was made after both parties had closed.  Castaneda had elected for the trial court to assess his punishment instead of the jury. Thus, because there was no jury present when the comment was made, no harm could have resulted from said comment. See, e.g., Rosillo v. State, 953 S.W.2d 808, 817-18 (Tex. App.BCorpus Christi 1997, pet. ref=d) (state=s comments were not of such a nature as to direct jury=s attention to appellant=s failure to testify).  Thus, Castaneda has failed to show that if his attorney had objected, the trial judge would have committed error in refusing to sustain the objection. See Vaughn, 931 S.W.2d at 566. We find Castaneda has failed to show by a preponderance of the evidence that his attorney=s representation fell below an objective standard of reasonableness, and that the result of the proceeding would have been different if his attorney had objected after the trial court made the complained of comment.  See Strickland, 466 U.S. at 687.  Castaneda=s fifth issue is overruled.

VI.  Factual Sufficiency

By his sixth issue, Castaneda contends the evidence is factually insufficient to show he possessed at least fifty pounds of marihuana.

A.  Standard of Review

In evaluating the factual sufficiency of the evidence, this Court must complete a neutral review of all the evidence.  King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Weighing all of the evidence, we must then determine whether the proof of guilt is so weak either as to undermine confidence in the fact finder=s determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Id.  However, we are not free to reweigh the evidence and set aside a jury verdict merely because we feel a different result is more reasonable.  See id.  Only when this Court determines that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust can we set aside a verdict for factual insufficiency.  Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App. 1997).  A clearly wrong and unjust verdict is Amanifestly unjust,@ Ashocks the conscience,@ or Aclearly demonstrates bias.@  Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998); Santellan, 939 S.W.2d at 165.

B.  Analysis

Castaneda argues there is factually insufficient evidence that the State=s technician tested fifty pounds worth of marihuana from the packages found in Castaneda=s residence.  However, there is no requirement for the State to weigh and test every piece of alleged narcotic to prove that a defendant possessed the total weight of the drugs seized.  See, e.g., Gabriel v. State, 900 S.W.2d 721, 721-22 (Tex. Crim. App. 1995) (rational for factfinder to conclude that identically packaged substances, which appear to be same substance, are in fact same substance); Henson v. State, 915 S.W.2d 186, 192 (Tex. App.BCorpus Christi 1996, no pet.) (rational for jury to conclude pills which had same markings, color, and size were in fact same substance).

In this case, the State=s technician, Robert Gutierrez, testified that he collected nineteen bundles of marihuana; each bundle had a different weight and was similarly wrapped.  See Gabriel, 900 S.W.2d at 722.  Gutierrez testified that he randomly picked a couple of packages to test for analysis.  See Henson, 915 S.W.2d at 192.  The analysis revealed the substance in the packages to be marihuana.  Id.  He further testified that the substances in the other packages looked and smelled like the samples from the packages which were tested and the total weight of all nineteen bundles was 588 pounds and two ounces.  See Gabriel, 900 S.W.2d at 722; Henson, 915 S.W.2d at 192. Furthermore, Castaneda could have refuted this evidence by conducting independent chemical tests on all nineteen packages to show they did not contain the same substance.  See Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon 1979 & Supp. 2002); Gabriel, 900 S.W.2d at 722.  Thus, this argument is without merit.

Castaneda also argues the evidence was factually insufficient to show he possessed the marihuana recovered.  To prove intentional or knowing possession of a controlled substance, the State must show that a defendant exercised actual care, control, and management over the contraband, and that he had knowledge that the substance in his possession was contraband.  See King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). When an accused is not in exclusive possession and control of the place where the contraband is found, it cannot be concluded she had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link her to the contraband.  Lassaint v. State, No. 13-01-587-CR, 2002 Tex. App. LEXIS 4292, at *4 (Corpus Christi June 13, 2002, no pet.) (citing Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995)).  Similarly, when contraband is not found on the accused=s person or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband.  Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.BEl Paso 1995, pet. ref=d).  Ultimately, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis.  Lassaint, 2002 Tex. App. LEXIS 4292, at *8.

This Court has listed numerous factors to consider in determining whether evidence is sufficient to affirmatively link a defendant to contraband. See id. at *5-*7; Jenkins v. State, 76 S.W.3d 709, 712-13 (Tex. App.BCorpus Christi 2002, no pet.).^[3]  Factors pertinent to this case include the facts that: Castaneda owned and resided at the house where the marihuana was seized; officers detected the odor of marihuana in Castaneda=s closet; officers found two suitcases of marihuana in Castaneda=s living room; and Castaneda led officers to the building behind his house that contained packages of marihuana, packing materials, and a scale.  See Lassaint, 2002 Tex. App. LEXIS 4292, at *6-*7.

After impartially reviewing all of the evidence and giving proper deference to the verdict, we conclude that the verdict is not so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred.  See King, 29 S.W.3d at 563; Rojas, 986 S.W.2d at 247.  Castaneda=s sixth issue is overruled.

VII.  Motion For New Trial

By his seventh issue, Castaneda contends the trial court erred by not ruling on his motion for new trial.  However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities.  Tex. R. App. P. 38.1(h). We find this issue to be inadequately briefed.  Castaneda=s seventh issue is overruled.  See Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000).

Accordingly, we affirm the trial court=s judgment.                                                                 

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 29th day of August, 2002.

---

^[1]In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider the assertions that are supported by clear and concise arguments with appropriate citations to authorities. Tex. R. App. P. 38.1(h).  Thus, we will not address Castaneda=s argument contesting the reasonableness of the search.

^[2]See Miranda v. Arizona, 384 U.S. 436, 476-79 (1966).

^[3]The nonexclusive list of factors is as follows:

1) if contraband is in plain view or recovered from enclosed place; 2) accused was owner of premises or had a right to possess the place where contraband found, was owner or driver of automobile where contraband found; 3) accused found with large amount of cash; 4) contraband was conveniently accessible to accused; 5) contraband found in close proximity to accused; 6) odor of contraband present; 7) accused possessed contraband when arrested; 8) drug paraphernalia in plain view or on accused; 9) physical condition of accused indicated under influence of contraband; 10) conduct by accused indicated a consciousness of guilt; 11) accused attempted to escape or flee; 12) accused made furtive gestures; 13) accused had special connection to contraband; 14) occupants of premises gave conflicting statements about relevant matters; 15) accused made incriminating statements to connect himself to contraband; 16) quantity of contraband; and 17) accused observed in suspicious area under suspicious circumstances.

E.g., Lassaint v. State, No. 13-01-587-CR, 2002 Tex. App. LEXIS 4292, at *5-*7 (Corpus Christi June 13, 2002, no pet.); Jenkins v. State, 76 S.W.3d 709, 712-13 (Tex. App.BCorpus Christi 2002, no pet.)