Joshua Salinas v. State ( 2012 )


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  •                                COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00262-CR
    Joshua Salinas                            §   From the 367th District Court
    §   of Denton County (F-2009-1255-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
    ----------
    FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
    ----------
    MEMORANDUM OPINION1
    ----------
    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.
    3
    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
    4
    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
    ,
    6
    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.
    7
    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
    9
    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
    11
    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,
    12
    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.]
    13
    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
    14
    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
    15
    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
    16
    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
    17