Joshua Salinas v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00263-CR
Joshua Salinas § From the 367th District Court
§ of Denton County (F-2009-1256-E)
v. § December 13, 2012
§ Opinion by Justice Meier
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court‘s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Bill Meier
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00262-CR
NO. 02-11-00263-CR
JOSHUA SALINAS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Joshua Salinas appeals his two convictions for aggravated
robbery. In four points, Salinas argues that the trial court erred by denying his
motion to suppress, motion for new trial, and motions for mistrial. We will affirm.
1
See Tex. R. App. P. 47.4.
2
II. BACKGROUND
On March 7, 2009, at around 8:00 p.m., a Hispanic male wearing a black
hoodie, black tennis shoes, black gloves, and a camouflage mask approached
the Zoom Zoom‘s convenience store in Denton and attempted to open the
magnetically locked door. When the door failed to open, he shot at it with a silver
semi-automatic handgun, shattering the glass; he entered the store, demanded
money from and threatened to shoot the clerk, and ran off with $70—a $50 bill
and a $20 bill. A police officer patrolling nearby responded to the robbery and
noticed someone in his vehicle‘s mirror wearing a black jacket and running from
Zoom Zoom‘s. Authorities set up a perimeter and began searching for the
suspect.
During the ensuing search, police discovered a loaded magazine from a
pistol in a nearby yard and a truck parked in a business parking lot across and ―a
little ways down‖ from Zoom Zoom‘s. The truck seemed out of place because it
was Saturday night and the businesses appeared to be closed. The truck‘s hood
was warm to the touch, the doors were unlocked, and officers could see keys
and a cell phone inside. When police ran the license plate number, they learned
that Salinas owned the truck and that his address was located between .9 and
1.3 miles from Zoom Zoom‘s. Several officers consequently set up surveillance
at Salinas‘s residence in order to either intercept him or to follow someone who
might leave to go meet him.
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The officers stationed at Salinas‘s residence soon observed a male and a
female exit the home, get in a truck, and drive away. One of the officers, Officer
Murphy, believed that the male was Hector Cavazos, Salinas‘s brother. As
police trailed the truck, the driver drove by the scene of the robbery and slowed
while passing by. The police performed an ―increased risk stop‖ after the driver
pulled off the road and parked at Vitty‘s Bar. Salinas, not Hector, exited the
passenger side of the vehicle; his sister exited the driver‘s side. Salinas agreed
to speak with investigators at the police station.
Meanwhile, several other officers had set up surveillance at Salinas‘s
residence (after the previous officers) because they were unsure if Salinas was
either inside of the house or headed back that way. When someone exited the
residence, saw one of the officers, and quickly returned inside, the officers
entered the residence, performed a protective sweep, and secured the residence
until additional officers arrived later to execute a search warrant. During the
subsequent search, police collected a pair of black and red tennis shoes and a
box of ammunition for a .380 semi-automatic handgun from Salinas‘s room.
Investigators conducted another search of the area near Zoom Zoom‘s the next
morning. During that search, they discovered a black hoodie, black gloves, and
a camouflage mask in a trash bin. Police arrested Salinas the same morning.
He had a $50 bill and a $20 bill in his wallet.
The State called numerous witnesses at trial. Bishnu Bhetwal testified that
he was working at Zoom Zoom‘s on February 18, 2009, when a person matching
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Salinas‘s description and wearing a black jacket, gloves, and a mask robbed him
at gunpoint. Bhetwal recalled that the suspect had told him, ―I‘ll be back.‖
Salinas‘s former girlfriend reviewed photographs taken from Zoom Zoom‘s
surveillance videos and identified Salinas as the person responsible for
committing both the February 18, 2009 and March 7, 2009 robberies. She also
visited Salinas in jail. While there, she asked him, ―Why are you here? You are
here because of all of these robberies,‖ and Salinas responded, ―Yeah, I‘m sorry;
I got greedy.‖
A citizen who lived near Zoom Zoom‘s testified that she found a silver
handgun in her yard in September 2009. Authorities matched the gun to the
magazine that was found after the March 7, 2009 robbery and determined that
the gun was used in the second robbery.
A forensic scientist testified that Salinas‘s DNA matched genetic material
found on the black hoodie and on one of the black gloves. And one of the
officers who responded to Vitty‘s Bar when the police first made contact with
Salinas noticed that his shoes then looked similar to the shoes worn by the
suspect in the February 18, 2009 Zoom Zoom‘s robbery.
The trial court denied Salinas‘s motion to suppress.2 A jury subsequently
convicted Salinas for the February 18, 2009 aggravated robbery at Zoom Zoom‘s
and assessed his punishment at forty-five years‘ confinement and a $1,000 fine.
2
The trial court announced its ruling on the record but did not make
express findings of fact and conclusions of law.
5
The jury also convicted Salinas for the March 7, 2009 aggravated robbery at
Zoom Zoom‘s and assessed his punishment at sixty-five years‘ confinement and
a $1,200 fine. The trial court sentenced Salinas accordingly.
III. MOTION TO SUPPRESS
In his first point, Salinas argues that the trial court erred by denying his
motion to suppress. We review a trial court‘s ruling on a motion to suppress
evidence under a bifurcated standard of review. 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 give almost total deference to a trial court‘s rulings on
questions of historical fact and application-of-law-to-fact questions that turn on an
evaluation of 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).
A. Reasonable Suspicion
Salinas argues that police lacked reasonable suspicion to stop the vehicle
that he was riding in and to detain him. A detention may be justified on less than
probable cause if a person is reasonably suspected of criminal activity based on
specific, articulable facts. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880
(1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). An
officer conducts a lawful temporary detention when he has reasonable suspicion
to believe that an individual is violating the law. Ford v. State, 158 S.W.3d 488,
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492 (Tex. Crim. App. 2005). Reasonable suspicion exists when, based on the
totality of the circumstances, the officer has specific, articulable facts that when
combined with rational inferences from those facts, would lead him to reasonably
conclude that a particular person is, has been, or soon will be engaged in
criminal activity. Id. This is an objective standard that disregards any subjective
intent of the officer making the stop and looks solely to whether an objective
basis for the stop exists. Id.
Police had knowledge of the following facts when they stopped the vehicle
that Salinas was riding in and detained him:
 Zoom Zoom‘s had been robbed by an armed gunman for the second time
in two months;
 the suspect in both robberies was described as a Hispanic male;
 a police officer responding to the robbery saw a person running away from
Zoom Zoom‘s;
 officers discovered a truck parked in a business parking lot nearby Zoom
Zoom‘s;
 the truck was out of place, its hood was warm, and keys and a cell phone
were inside;
 the truck was registered to Salinas, who lived between .9 and 1.3 miles
from Zoom Zoom‘s and matched the description of the suspect in both
robberies;
 Officer Murphy thought he observed Salinas‘s brother, Hector, get in a
truck with a female and drive away from Salinas‘s residence; and
 the truck slowed when it drove past the crime scene.
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These facts—and the rational inferences that the officers could have made
based upon the facts—could have led officers to reasonably conclude that the
individuals who departed Salinas‘s residence in the truck were attempting to
collect Salinas, who was on foot after the robbery because he was unable to
return to his truck parked nearby Zoom Zoom‘s. Indeed, two officers confirmed
that they followed the truck because they thought the persons inside were driving
somewhere to pick up Salinas. As it turns out, Salinas was in the truck. We hold
that officers had, at a minimum, reasonable suspicion to detain Salinas. The trial
court did not err by denying Salinas‘s motion to suppress on this ground. We
overrule this part of Salinas‘s first point.
B. Protective Sweep
Salinas argues that the protective sweep performed by the officers who
secured Salinas‘s residence was ―unreasonable and unnecessary with the use of
firearms.‖ A valid protective sweep must meet each of the following five
requirements: (1) police must have entered or remained in the home legally;
(2) police presence in the home must be for valid law enforcement purposes;
(3) the sweep must be supported by a reasonable, articulable suspicion that the
area harbors an individual who poses a danger to those on the scene; (4) the
sweep may be no more than a cursory inspection of that area where such an
individual may be found; and (5) the sweep may last only long enough to dispel
the reasonable suspicion of danger and may not last longer than the police are
justified in remaining on the premises. Reasor v. State, 12 S.W.3d 813, 816–17
8
(Tex. Crim. App. 2000); see United States v. Gould, 364 F.3d 578, 587 (5th Cir.),
cert. denied, 543 U.S. 955 (2004); Cooksey v. State, 350 S.W.3d 177, 185–87
(Tex. App.—San Antonio 2011, no pet.). Probable cause coupled with exigent
circumstances may justify a warrantless entry into a residence. Estrada v. State,
154 S.W.3d 604, 608 (Tex. Crim. App. 2005); see Parker v. State, 206 S.W.3d
593, 596–601 (Tex. Crim. App. 2006) (explaining probable cause to cross
threshold of private residence); McNairy v. State, 835 S.W.2d 101, 107 (Tex.
Crim. App. 1991) (listing preventing destruction of evidence or contraband as an
exigent circumstance).
Officer Acrey testified that he went to Salinas‘s residence because ―[a]t the
time there was a robbery where shots were fired at a local business, and the
suspect in the robbery may or may not have been in that house. They weren‘t
exactly sure at the time, so I was sent there to keep an eye on the house.‖ After
he arrived, someone exited the residence, saw him, and quickly returned inside.
Both Officer Acrey and Officer Lane, the other officer there, explained that they
entered the residence because of their concern that someone inside could
potentially destroy evidence relevant to the armed robbery. Officer Acrey
testified that they also entered the house out of a concern for their own safety: ―It
might be either, A, the suspect going back in because they saw us or, B, going
back in to tell the suspect that we‘re out there or, hey, look out. It‘s a many
number of reasons, but those to me are the main two: Might be tipping
somebody off, or it might be our suspect.‖ Once inside, with knowledge that an
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armed robbery had occurred, Officer Acrey took a few minutes to perform a
protective sweep of the residence, only looking in areas where a person could be
found. Officer Lane explained, ―I don‘t want somebody coming down the stairs
while I‘m watching people in the living room and catch me off guard.‖ Officer
Lane agreed with the State‘s observation that ―dangerous people tend to
associate with other dangerous people.‖
Viewing these and all of the other relevant facts in the light most favorable
to the trial court‘s ruling, we hold that officers had probable cause supported by
exigent circumstances to enter Salinas‘s residence and that they were justified in
performing a protective sweep. We overrule this part of Salinas‘s first point.
C. Search Warrant
Salinas argues that the search warrant affidavit was defective because
although Officer Murphy testified at trial that he thought he had observed Hector
leaving Salinas‘s house, the affidavit stated that Officer Murphy thought that
Salinas had left the residence. When reviewing an affidavit‘s sufficiency and a
magistrate‘s determination of probable cause, we limit our review to the totality of
the circumstances within the four corners of the affidavit and defer to the
magistrate‘s probable cause determination ―so long as the magistrate had a
‗substantial basis for . . . conclud[ing]‘ that a search would uncover evidence of
wrongdoing.‖ Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)
(citing Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736 (1960),
overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S. Ct.
10
2547 (1980)); Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004);
Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, 507
U.S. 921 (1993)); see also Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App.
2010).
The misstatement in the affidavit that Officer Murphy observed Salinas
instead of Hector leaving Salinas‘s residence was likely inadvertent but also
harmless. In light of all of the other information contained in the affidavit, the
magistrate had a substantial basis to conclude that probable cause existed.
Salinas does not assert any argument under Franks v. Delaware, 438 U.S. 154,
155–56, 98 S. Ct. 2674, 2676 (1978) (addressing false statement in affidavit
made either knowingly, intentionally, or with reckless disregard for the truth). We
overrule the remainder of Salinas‘s first point.
IV. MOTION FOR NEW TRIAL
In his second point, Salinas argues that the trial court committed reversible
error by denying his motion for new trial complaining of a purported Brady
violation.
We review the denial of a motion for new trial for an abuse of discretion.
Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). ―We do not substitute
our judgment for that of the trial court; rather, we decide whether the trial court‘s
decision was arbitrary or unreasonable.‖ Holden v. State, 201 S.W.3d 761, 763
(Tex. Crim. App. 2006). A trial court abuses its discretion in denying a motion for
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new trial when no reasonable view of the record could support the trial court‘s
ruling. Id.
The State has an affirmative duty to disclose exculpatory evidence that is
material either to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87–88, 83
S. Ct. 1194, 1197 (1963). The State‘s duty to reveal Brady material attaches
when the information comes into its possession, not when it is requested.
Thomas v. State, 841 S.W.2d 399, 407 (Tex. Crim. App. 1992). To establish a
due process violation under Brady, a defendant must show the following:
(1) evidence was suppressed; (2) the suppressed evidence was favorable to the
defendant; and (3) the suppressed evidence was material to either guilt or
punishment. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).
Here, when defense counsel questioned one of the investigators about a
sequence of events relevant to the March 7, 2009 robbery, the investigator
explained that he could not give a precise answer because he did not have the
police‘s ―radio log‖ in front of him. At some point during the investigator‘s
testimony, the State provided defense counsel with a copy of the radio log, which
showed that police had Salinas in custody approximately twenty minutes before
the protective sweep of his house occurred. Defense counsel later moved for a
mistrial, arguing that had the State turned over the radio log earlier, he could
have used the information detailed therein to help demonstrate during the
hearing on his motion to suppress that the protective sweep was unnecessary
because police already had Salinas in custody. The trial court denied the motion,
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pointing out that there was evidence of a second suspect that had not been
apprehended when police entered Salinas‘s residence. Salinas filed a motion for
new trial raising the same argument.
The trial court‘s recollection about evidence of a second suspect was
accurate. Officer Lane testified that he had information about a second, Hispanic
suspect who ―may already‖ have been at Salinas‘s residence. Although he could
not recall a name, the record demonstrates that the second suspect could only
have been Hector, Salinas‘s brother. Indeed, Officer Murphy testified that he
was familiar with both Salinas and Hector because of previous encounters with
both and that they lived together. When Officer Behrens explained what he
believed to be the reasonable suspicion to stop the vehicle that Salinas was
riding in and detain him, he mentioned that police had two suspects in mind:
A. We had this vehicle leaving the address that we knew
that both Hector Cavazos and Joshua Salinas were related to. . . .
So with the information from the suspicious vehicle that was still
warm and suspicious location, unlocked with the cell phone inside
and the keys, that comes back to an address that we have two
people that potentially meet -- you know, that do meet the
description of the suspect, and then we have one of them leaving
with another one of them in this vehicle --
Q. Okay.
A. -- and go -- and drive right through the area where this
robbery occurred.
Q. Okay. Possibly to pick up Joshua Salinas; is that
correct?
A. Or vice versa. That could have been Joshua Salinas
going to pick up Hector. [Emphasis added.]
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Excerpts from the radio log support the officers‘ testimony. Just after police
detained Salinas, one of the officers radioed, ―We still looking for other guy who
is not accounted for, he is the brother, that‘s why we need eyes on Collins
address.‖ Shortly thereafter, another officer radioed, ―Right now we don‘t know
which one is the main susp. We have Josh at Teasley//Londonderry, U go to
Collins.‖
Thus, although police eventually determined that Salinas was responsible
for committing the aggravated robberies, in the immediate aftermath of the
March 7, 2009 robbery and with the limited information available at the time,
police were concerned with two suspects, not just one. Because there was more
than one suspect when Salinas was stopped, evidence that he was stopped
approximately twenty minutes before police conducted the protective sweep was
insignificant as to whether the protective sweep was legally justified. Because
the trial court could have reasonably concluded that the alleged Brady evidence
was neither favorable nor material to Salinas‘s defense, we hold that the trial
court did not abuse its discretion by denying Salinas‘s motion for new trial. We
overrule Salinas‘s second point.
V. MOTIONS FOR MISTRIAL
A. Extraneous Offenses and Marijuana/Drug Paraphernalia
In part of his third point, Salinas argues that the trial court erred by denying
his motion for mistrial complaining of extraneous offense evidence unintentionally
elicited by the State. Specifically, Officer Keith Smith testified that police took
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photographs of various items of clothing during the search of Salinas‘s residence
because ―we were investigating four separate robberies that we thought might be
related, so we‘re looking for -- we had documentation of clothing related to all of
these.‖ [Emphasis added.] Salinas complained about the extraneous offense
evidence—explaining that he was on trial for only two robberies—and moved for
a mistrial. The trial court denied the motion but instructed the jury to disregard
the officer‘s testimony about the robberies.
In the other part of his third point, Salinas argues that the trial court erred
by denying his motion for mistrial complaining of Officer Krouskup‘s testimony
that police discovered marijuana and drug paraphernalia during the search of
Salinas‘s residence.
When the trial court sustains an objection and instructs the jury to
disregard but denies a defendant‘s motion for mistrial, the issue is whether the
trial court abused its discretion by denying the mistrial. Hawkins v. State, 135
S.W.3d 72, 76–77 (Tex. Crim. App. 2004). A mistrial is required only in extreme
circumstances—when the prejudice caused by the improper question and
answer is incurable, i.e., ―so prejudicial that expenditure of further time and
expense would be wasteful and futile.‖ Ladd v. State, 3 S.W.3d 547, 567 (Tex.
Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). In most instances, an
instruction to disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d
103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001). We
consider the following factors in determining whether the trial court abused its
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discretion by denying a motion for mistrial: (1) the severity of the misconduct,
(2) curative measures, and (3) the certainty of conviction absent the misconduct.
Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.
App. 1998) (op. on reh‘g), cert. denied, 526 U.S. 1070 (1999).
Regarding Officer Smith‘s uninvited testimony about four robberies, there
is nothing in the record to indicate that the jury was unable to abide by the trial
court‘s instruction to disregard. Considering each of the Hawkins factors, we
hold that the trial court did not abuse its discretion by denying Salinas‘s motion
for mistrial on this ground. We overrule this part of Salinas‘s third point.
Regarding Officer Krouskup‘s testimony that marijuana and drug
paraphernalia were found in Salinas‘s residence, there is nothing in the record to
show that those items belonged to Salinas—unlike with the ammunition, there
was no testimony that the items were found in his bedroom, but there was
evidence that several other people, including Hector, lived in the residence.
Considering each of the Hawkins factors, we hold that the trial court did not
abuse its discretion by denying Salinas‘s motion for mistrial on this ground. We
overrule the remainder of Salinas‘s third point.
B. Jail Time Pending Trial
In his fourth point, Salinas argues that the trial court erred by denying a
motion for mistrial that he filed early on the first day of trial. Salinas moved for a
mistrial because he learned that a docket sheet posted outside of the courtroom
indicated that he had served 754 days in jail pending trial. The trial court
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consequently asked each juror, individually, the following question: ―At any time
prior to today, did you see, read any document, overhear, view, or become
involved in any conversation or discussion regarding this Defendant?‖ All twelve
jurors answered in the negative. Because there is no evidence that any of the
jurors noticed the docket sheet, Salinas‘s argument rests upon mere speculation.
We hold that the trial court did not abuse its discretion by denying the motion for
new trial. See Payne v. State, No. 02-09-00100-CR, 2010 WL 1730857, at *4–5
(Tex. App.—Fort Worth Apr. 29, 2010, pet. ref‘d) (mem. op., not designated for
publication) (holding that trial court did not abuse its discretion by denying motion
for mistrial complaining about docket sheet posted in courthouse that stated
appellant was being tried for DWI second). We overrule Salinas‘s fourth point.
VI. CONCLUSION
Having overruled each of Salinas‘s points, we affirm the trial court‘s
judgments.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DAUPHINOT, J., dissents without opinion.
GARDNER, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 13, 2013
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