MEMORANDUM OPINION

No. 04-11-00357-CR

Terrance MENDOZA,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 12, Bexar County, Texas

Trial Court No. 311251

Honorable Scott Roberts, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 14, 2011

AFFIRMED

Terrance Mendoza was convicted by a jury of possession of marijuana. On appeal, 

Mendoza presents five issues raising evidentiary, Brady, and procedural challenges. We affirm 

the trial court’s judgment.

BACKGROUND

Deputy Benjamin R. Olvera, Jr. stopped Mendoza because the registration to the vehicle 

Mendoza was driving was expired. Deputy Olvera approached the driver’s side of the vehicle, 
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while his field training officer, Anthony Doggett, approached the passenger side. Upon 

approaching the driver’s side window, Deputy Olvera smelled a strong odor of fresh marijuana. 

Based on furtive movements by the passenger and after a brief struggle, the passenger was 

removed from the vehicle and handcuffed by Officer Doggett. Deputy Olvera asked Mendoza to 

also exit the car, and Mendoza consented to a search of the vehicle. Marijuana and a scale were 

discovered inside a backpack on the back seat of the vehicle. Although Mendoza and the 

passenger both initially denied that the backpack was theirs, Deputy Olvera placed Mendoza 

under arrest when he subsequently admitted the backpack belonged to him. Deputy Olvera could 

not recall when Mendoza was placed in handcuffs, but stated that Mendoza was definitely placed 

in handcuffs when Deputy Olvera told Mendoza that he was under arrest.

MOTION TO SUPPRESS

The trial court’s ruling on a motion to suppress is reviewed for abuse of discretion. Lujan 

v. State, 331 S.W.3d 768, 771 (Tex. Crim. App. 2011). The trial court is given almost complete 

deference in its determination of historical facts, especially when based on an assessment of 

credibility and demeanor. Id. The same deference is given to the trial court with respect to its 

rulings on the application of the law to questions of fact if resolution of those questions depends 

on an evaluation of credibility and demeanor. Id. Mixed questions of law and fact that do not 

turn on credibility and demeanor are reviewed de novo. Id.

In his first issue, Mendoza contends the trial court erred in denying his motion to 

suppress his statement admitting ownership of the backpack because Deputy Olvera had not 

provided him with his Miranda1 warnings. The need for Miranda warnings arises when a person 

has been subjected to a custodial interrogation. Campbell v. State, 325 S.W.3d 223, 233 (Tex. 

App.—Fort Worth 2010, no pet.); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 7 (West 2005). 

 1 Miranda v. Arizona, 384 U.S. 436 (1966).
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Custodial interrogation is questioning initiated by law enforcement officers after a person has 

been taken into custody or otherwise deprived of his freedom of action in any significant way. 

Campbell, 325 S.W.3d at 233; Meadoux v. State, 307 S.W.3d 401, 408 (Tex. App.—San Antonio 

2009), aff’d, 325 S.W.3d 189 (Tex. Crim. App. 2010). A person is in custody only if, under the 

circumstances, a reasonable person would believe that his freedom of movement was restrained 

to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. 

Crim. App. 1996); Hernandez v. State, 107 S.W.3d 41, 47 (Tex. App.—San Antonio 2003, pet. 

ref’d). A person held for a temporary investigative detention is not in custody. Campbell, 325 

S.W.3d at 233; Hernandez, 107 S.W.3d at 47. “An officer who lacks probable cause but whose 

observations lead to a reasonable suspicion that a particular person has committed, is 

committing, or is about to commit a crime, may detain that person briefly in order to investigate 

the circumstances that provoke the suspicion.” Hernandez, 107 S.W.3d at 47. “The officer may 

ask a moderate number of questions to determine the person’s identity and to try to gather 

information to confirm or dispel the officer’s suspicions.” Id.

In this case, Deputy Olvera could not recall if Mendoza was placed in handcuffs for 

safety reasons before he was placed under arrest. Even if Mendoza was placed in handcuffs 

while being detained, there is no bright-line rule that handcuffing a suspect always constitutes an 

arrest. Campbell, 325 S.W.3d at 234. Based on the record, the trial court did not abuse its 

discretion in concluding Deputy Olvera asked only a moderate number of questions during his 

investigation, and Mendoza was not in custody until after he admitted that he owned the 

backpack which contained the marijuana. Mendoza’s first issue is overruled.

In his second issue, Mendoza contends that searching the backpack exceeded the scope of 

his consent for Deputy Olvera to search the vehicle. Mendoza consented to the search of the 
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vehicle knowing Deputy Olvera was searching for marijuana. Accordingly, the scope of the 

permissible search included any containers in the vehicle which might contain marijuana, 

including the backpack. See Florida v. Jimeno, 500 U.S. 248, 251 (1991); Lopes v. State, 85 

S.W.3d 844, 849 (Tex. App.—Waco 2002, no pet.); see also Montagnino v. State, No. 04-03-

00090-CR, 2003 WL 22047213, at *1, 3 (Tex. App.—San Antonio Sept. 3, 2003, pet. dism’d, 

untimely filed) (search of backpack in vehicle within scope of consent to search vehicle for 

narcotics) (not designated for publication). Mendoza’s second issue is overruled.

SUFFICIENCY

In his fifth issue, Mendoza contends the evidence is legally insufficient to sustain his 

conviction because the marijuana was excluded from evidence based on concerns with the chain 

of custody. Specifically, the evidence room was unable to locate the marijuana for Deputy 

Olvera to bring to the first day of trial; however, Deputy Olvera brought the marijuana to the 

second day of trial after it was found in the property room at the main jail. In his third issue, 

Mendoza contends that the trial court erred in denying his motion to dismiss and request for 

directed verdict after the trial court excluded the marijuana from evidence. “[A] complaint about 

overruling a motion for directed/instructed verdict is in actuality an attack upon the sufficiency 

of evidence to sustain the conviction.” McDuff v. State, 939 S.W.3d 607, 613 (Tex. Crim. App. 

1997); see also Sony v. State, 307 S.W.3d 348, 353 (Tex. App.—San Antonio 2009, no pet.). 

Accordingly, we will address and dispose of Mendoza’s third and fifth issues together.

In evaluating the legal sufficiency of the evidence to support a criminal conviction, “we 

consider all the evidence in the light most favorable to the verdict and determine whether, based 

on that evidence and reasonable inferences therefrom, a rational juror could have found the 

essential elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13 
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(Tex. Crim. App. 2007). Although the trial court excluded the marijuana from evidence, the jury 

still could consider Deputy Olvera’s testimony that the backpack contained 18.2 grams of 

marijuana, and Mendoza’s admission that he owned the backpack. See Osbourn v. State, 92 

S.W.3d 531, 538 (Tex. Crim. App. 2002) (officer qualified to identify substance as marijuana); 

Curtis v. State, 548 S.W.2d 57, 59 (Tex. Crim. App. 1977) (same). This testimony provided a 

proper basis for the trial court to deny the motion for directed verdict and is sufficient evidence 

to support the jury’s verdict. Mendoza’s third and fifth issues are overruled.

BRADY VIOLATION

In his fourth issue, Mendoza contends the prosecutor violated Brady v. Maryland, 373 

U.S. 83 (1963), when he failed to disclose the fact that the marijuana was missing. When a 

defendant complains that the State failed to disclose the fact that evidence was lost, the 

complaint is a Brady due process claim. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 

1999). The three part test used to determine whether the prosecutor’s actions have violated due 

process is whether the prosecutor: (1) failed to disclose evidence; (2) favorable to the accused; 

and (3) the evidence is material, meaning there is a reasonable probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would have been different. Id. 

In this case, the testimony established that Deputy Olvera and the prosecutors were 

unaware that the marijuana was missing until Deputy Olvera attempted to retrieve it from the 

evidence room on the day of trial. Mendoza argues that the duty to disclose under Brady extends 

to information in the possession of police agencies or other members of the prosecutorial team. 

Ex parte Mitchell, 977 S.W.3d 575, 578 (Tex. Crim. App. 1998). Mendoza further argues that 

the State could have called the narcotics officer in charge of the evidence room to testify and that 

the narcotics officer would have known the evidence was missing from the evidence room. 
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Mendoza’s argument assumes that the narcotics officer had actual knowledge that the marijuana 

was missing before Deputy Olvera went to retrieve the marijuana; however, there is no evidence 

to support this assumption.

Even if we accept that a member of the prosecutorial team knew the marijuana was 

missing from the evidence room, the fact that the evidence was missing was disclosed in time for 

defense counsel to successfully argue for its exclusion when it was subsequently found. On 

appeal, Mendoza contends that if defense counsel had known the evidence was lost, he could 

have suppressed all evidence pertaining to the marijuana, including Deputy Olvera’s testimony 

that the marijuana was subsequently found which was presented to the jury before the trial court 

ruled that the marijuana would be excluded. Mendoza’s contention does not, however, show a 

reasonable probability that the outcome would have been different. See Little, 991 S.W.2d at 

866. Deputy Olvera’s testimony established that the substance in the backpack was marijuana 

independent of the introduction of the marijuana itself. Accordingly, Mendoza’s fourth issue is 

overruled.

ARTICLE 38.23 CHARGE

In his final issue, Mendoza asserts the trial court erred in denying his request for a jury 

charge under article 38.23. A defendant’s right to the submission of a jury instruction under 

article 38.23 is limited to disputed issues of fact that are material to his claim of a constitutional 

or statutory violation that would render evidence inadmissible. Madden v. State, 242 S.W.3d 

504, 509-10 (Tex. Crim. App. 2007). Mendoza argues that he was entitled to an instruction so 

the jury could determine whether or not he was entitled to Miranda warnings before Deputy 

Olvera asked him about the ownership of the backpack. Mendoza appears to be arguing that the 

instruction was necessary for the jury to determine whether or not Mendoza was in custody and 
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entitled to Miranda warnings; however, determining whether a person is in custody is an issue of 

law, not a factual issue for the jury to resolve. Mbugua v. State, 312 S.W.3d 657, 669-70 (Tex. 

App.—Houston [1st Dist.] 2009, pet. ref’d). To raise a disputed fact warranting an article 38.23 

instruction, there must be some affirmative evidence that puts the existence of a fact into 

question. Madden, 242 S.W.3d at 513. In this case, the only affirmative evidence was Deputy 

Olvera’s testimony, and his testimony was not contradictory with regard to the events that 

occurred. Accordingly, because the evidence did not raise a disputed fact issue, the trial court 

properly denied the requested instruction.

CONCLUSION

The trial court’s judgment is affirmed.

Catherine Stone, Chief Justice

DO NOT PUBLISH