NO. 07-10-00460-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 19, 2012

JUAN CARLOS VELETA-HERNANDEZ, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 69TH DISTRICT COURT OF SHERMAN COUNTY; NO. 886; HONORABLE RON ENNS, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION Appellant Juan Carlos Veleta-Hernandez ap peals from his jury conviction of the offense of possession of marijuana and the resulting sentence of eight years of imprisonment. Appellant challenges the court’ s judgment through five points of error. We will affirm. Background Appellant plead not guilty to the indictment charging him with “intentionally or knowingly possess[ing] a us able quantity of marijuana in an amount of two thousand pounds or less but more than fifty pounds.” 1

1 See Tex. Health & Safety Code Ann. § 481.121(5) (West 2009).2 Testimony at trial showed a Stratford, Texas, police officer stopped appellant about noon on July 11, 2007, because the license plate on the pickup truck he was driving was obstructed. The officer spok e with appellant and his passenger. When the officer received information he considered conflicting, he detained appellant and requested consent to search the truck. He spoke with appellant in Spanish because appellant did not under stand English. Appel lant signed a form, written in English, consenting to the search of the truck. The officer called his supervisor, who ca me to observe the search and watch appellant and the passenger. During the search, the officer found a shallow compartment underlying the bed of the pickup truck. Entr y to the compartment was gained by removing a metal plate bolted on the side of the co mpartment, underneath the vehicle’s left rear wheel well. Two wrenches, suitable to use to remove the bolts, were underneath the driver’s seat of the tr uck. Inside the compartment, the officer found what he recognized as bundles of ma rijuana. After appellant and his passenger were arrested, police inventoried sixty-f our brick-sized bundles. Laboratory testing confirmed the substance as marijuana, and det ermined its weight as 67.41 pounds. At trial, appellant test ified he had no knowledge of the marijuana. The jury nonetheless found him guilty. Punishment was assessed as noted and this appeal followed. Analysis Motion to Suppress In appellant’s first point of error, he c hallenges the trial court’s denial of his motion to suppress the evidence seized from the truck.3 As an appellate court, we review the tr ial court's ruling on a motion to suppress under an abuse of di scretion standard. Carmouche v. State , 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). In deter mining whether a trial court has abused its discretion, we view all of the evidence in the light mo st favorable to the trial court's ruling. State v. Garcia-Cantu , 253 S.W.3d 236, 241 (Tex.Crim.App. 2008). If, as is true in the case before us, the trial court has not made explicit findings of fact, the appellate court infers the necessary factual findings that support the trial court's ruling if the evidence, viewed in the light most favorable to the ruli ng, supports these im plied fact findings . Id. , citing State v. Kelly, 204 S.W.3d 808, 818 (Tex.C rim.App. 2006). Therefore, we afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when its implicit fact -finding is based on an evaluation of the credibility and demeanor of witnesses. Id. To support the legality of the officers’ sear ch of the pickup truck, the State relied on the consent for the search a ppellant gave the arresting o fficer. Appellant contends on appeal his consent was ineffective, for two r easons. We must reject both reasons. He first points out his consent to t he search was requested and obtained before Miranda warnings were given him. But the trial court did not err by failing to agree that Miranda warnings were required to validate appe llant’s consent. The warnings required by Miranda to precede custodial interrogation hav e not been required as precedent to a valid consensual search under the Fourth Amendment. Schneckloth v. Bustamonte , 412 U.S. 218, 232-33, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 ( 1973) (rejecting idea that voluntary consent to search necessarily requi res warning of right to refuse consent; contrasting consider ations underlying Miranda requirements from t hose of valid consent for search).4 Appellant secondly contends his consent was ineffective because it was not “knowing,” that is, he did no t understand the form he signed because it was written in English, which he does not read. We evaluate appellant’s contention he lacked sufficient knowledge to understand his action within the general requirement that consent to search, to be valid under t he Fourth Amendment, must be voluntary. See, e.g., Schneckloth , 412 U.S. at 248 (holdi ng voluntariness test circumstances include “the characteristics of the accused”); Reasor v. State , 12 S.W.3d 813, 817-18 (Tex.Crim.App. 2000) (noting determination of voluntariness includes such factors as age, education and intelligence of accused). The voluntariness of an individual’s consent to a search is a question of fact to be determined from all the circumstances. Gutierrez v. State, 221 S.W.3d 680, 686-87 (T ex.Crim.App. 2007); Houston v. State, 286 S.W.3d 604, 608-09 (Tex.App. —Beaumont 2009, pet. ref’d). In Texas, the State must show by clear and convincing evidence that consent was obt ained voluntarily. Gutierrez , 221 S.W.3d at 686. Appellant’s motion to suppr ess was denied after a pret rial hearing at which the arresting officer was the only witness. At t he hearing, the trial co urt heard the arresting officer testify that he is fluent in Spanish and conducted his conversation with appellant in Spanish. The officer gave affirmative responses to questions asking whether he explained to appellant in Spanish, “what he was signing,” “that he did not have to sign it,” and “the consequences of him signing. ” Asked whether he “read through each and every line” in Spanish, the officer responded he could not recall. The officer testified also that he questioned appella nt about his destination, the ownership of the vehicle, and whether “he had anything illegal in his vehicl e.” The officer did not testify to any difficulty conversing with appe llant in Spanish. In his argument to the trial court,5 appellant contended simply that valid consent could not be based on his signature on a document printed in English sinc e he does not underst and English. Appellant’s argument woul d make the language of a written consent form a litmus test of voluntariness, contrary to est ablished law that requires a court to take all the circumstances of the consent into a ccount when deciding the fact issue of its voluntariness. See Gutierrez , 221 S.W.3d at 686. Certainly that an individual’s consent is evidenced by his signature on a form wri tten in a language he do es not understand is a significant circumstance in such an evaluat ion. But it cannot be the only circumstance taken into account. Here, we see no error in the trial cour t’s implicit conclusion, based on the evidence before it, that appell ant’s consent was voluntarily given. Except for the evidence appellant did not speakor read English, the c ourt heard no evidence he did not understand the consent he was asked to give. 2 The Austin court of appeals recently found valid the consent given by a Spanish- speaking individual thr ough execution of an English-language consent form after it was explained to the individual in Spanish. Hernandez v. State, No. 03-08-00246-CR, 2009 Tex. A pp. Lexis 1384 (Tex.App.— Austin, Feb. 25, 2009) (mem. op., not desi gnated for publication) (form for consent for saliva sample translated for Spanish-speaking suspect). See also Cancel v. State , No. 01-02-0587-CR, 2003 Tex. A pp. Lexis 1767, at *12 (Tex.App.—Houston [1 st Dist.] Feb. 27, 2003, no pet.) (mem. op., not designated fo r publication) (finding consent to search valid despite contentions of communications di fficulties). Considered in the light most

2 Nor do we see anything elsewhere in the record to cast doubt on appellant’s understanding of his consent to search the truck. During his testimony at trial, appellant, testifying through an interprete r, agreed he consented to the search.6 favorable to the trial court’s ruling, the o fficer’s testimony of his Spanish-language conversation with appellant permitted the c ourt to conclude appellant had sufficient understanding of the consent r equested of him to make his consent voluntary. We overrule appellant’s first point of error. Denial of Instructed Verdict and Sufficiency of the Evidence We address appellant’s second and thir d issues together. In each point, appellant challenges the sufficiency of the ev idence to support his conviction. His challenge focuses on the evidence showin g he had knowledge of the marijuana in the truck. He testified at tr ial he was not aware of the truck’s hidden compartment. Evidence is sufficient to support a conviction if any rational trier of fact could have found the essential elements of t he offense beyond a reasonable doubt. Brooks v. State , 323 S.W.3d 893, 895 (Tex.Crim.App. 2010). In reviewing the sufficiency of the evidence, we look at "events occurring befor e, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Hooper v. State , 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Cordova v. State , 698 S.W.2d 107, 111 (Tex.Crim.App. 1985). We must account for "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidenc e, and to draw reason able inferences from basic facts to ultimate facts." Hooper , 214 S.W.3d at 13, quoting Jackson , 443 U.S. at 318-19. The sufficiency standard mandates that an appellate court defer to the fact finder's credibility and we ight determinations. Brooks , 323 S.W.3d at 895. The jury may believe all, part or none of a witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). After giving proper deference to the fact finder's role, we will7 uphold the verdict unless a rational fact fin der must have had reasonable doubt as to any essential element. Laster v. State , 275 S.W.3d 512, 517 (T ex.Crim.App. 2009). To prove appellant’s possession of marijuana , the State was required to establish that he exercised care, control, and management over the marijuana , and that he knew he was in possession of it. Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.A pp. 2005) (stating analysis to connect accused to contraband); Martin v. State , 753 S.W.2d 384, 386 (Tex.Crim.App. 1988) (stating elements of offense). Proof of knowledge most oft en is an inference drawn by the jury from all the surrounding circumstances . Dillon v. State , 574 S.W.2d 92, 94 (Tex.Crim.App. 1978). Proof of knowledge may arise from the conduct of and re marks by the accused or from circumstances surrounding the ac ts engaged in by the accused. Sharpe v. State , 881 S.W.2d 487 (Tex.App.--El Paso 1994, no pet.). A driver’s control over the vehicle may give rise to an inference of knowledge of the presence of contraband concealed in the vehicle, particularly when the amount of contraband is large enough to indicate that the accused knew of its presence, Castellano v. State , 810 S.W.2d 800, 806 (Tex.App.— Austin 1991, no pet.), but co urts have expressed hesitation to rely solely on a defendant’s control of the vehicle to show knowledge of the contents of hidden compartments. Additional factors indica ting knowledge, such as circumstances indicating a consciousness of guilt, have been required. Id

. See also Satchell v. State, 321 S.W.3d 127, 134 (Tex.App.—Houston [1 st Dist.] 2010, pet. ref’d) (noting circumstances indicative of a consciousness of guilt, including conflicti ng statements).8 On examining the record, we find evidence that, together with t he undisputed fact appellant was driving the vehi cle containing it, permitted ra tional jurors to conclude beyond a reasonable doubt he knew the contraband was in the vehicle. First, we note the large quantity of the ma rijuana. As noted, it weig hed 67.41 pounds and comprised 64 or 65 bricks. Testimony estimated its “s treet value” up to $765,770. This amount of marijuana supports an inference it s possessor had knowledge of it. Castellano, 810 S.W.2d at 806; s ee Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App.—El Paso 1995, pet. ref’d) (noting rational inference t hat defendant would not have been entrusted with taking a valuable cargo across an internati onal border if he were a mere innocent, ignorant of all the details su rrounding his responsibility and the importance of the cargo in his care); Manzo v. State, No. 08-08-00325-CR, 2010 Tex.App. LEXI S 4937, at *16 (Tex.App.—El Paso June 30, 2 010, no pet.) (mem. op., not designated for publication) (noting 175.3 pounds of mari juana with approximate val ue of $40,000 to $100,000 supported inference of knowledge). In that r egard, the jury in this case also could have inferred the marijuana had crossed an internat ional border because the pickup appellant was driving bore license plates from Chihuahua, Mexico. Second, appellant exhibited behavior t he jury could have seen as deceptive, indicative of knowledge of guilt. See Evans, 202 S.W.3d at 162 n.12; Lassaint v. State, 79 S.W.3d 736, 744 (Tex.App.—Corpus Chri sti 2002, no pet.). The jury heard testimony that appellant and his passenger gav e the officer conflicting stories about their destination (one saying they were going to “Wichita,” the other, to “Washington”), the purpose of their trip (appel lant said they were going to see his uncle and passenger said they were going to Wichita to look for work”); how long they had known each other (appellant said not long and t hen a year while the passenger said a month), and the9 truck’s owner (appellant said a friend of the passenger’s own ed the truck and the passenger said his uncle was the owner). T he vehicle was registered to a party other than appellant and his passenger. After appellant was arrest ed, the jury could have concluded, he gave another version of events . The jury also could have believed the officer’s description of appellant as “a little nervous” at their initial contact. The officer further noted the passenger seemed nervous because he would not make eye contact with him and just “kept looking forward.” Third, the jury could have seen otherconduct by appellant as indicating a consciousness of guilt. The arresting office r’s supervisor testifi ed he watched appellant while the officer removed t he plate to the hidden compartm ent. He testified appellant was “picking at grass, just real nervous. He wasn’t standing still. He was looking at the passenger quite nervously. I mean, he was—he was not calm and relaxed like somebody would be if they had no thing to hide.” He further testified that once the officer removed the plate, appellant “w ent from picking grass, play ing with grass, playing with his hands to...shoulders slumped forward, ducked his head, and you could just see that it drained him. He knew they had been caught.” The inference the supervisor drew from appellant’s shoulder-slumping reaction to the opening of the hidden compar tment, that indicating appellant “knew they had been caught,” is one of the reasonable inferenc es that could be dr awn from appellant’s reaction. See Manzo, 2010 Tex.App. LEXIS 4937, at *15-16 (finding evidence of anxious conduct permitted rational inference of consciousness of guilt). Appellant testified, and urges, that his reaction instead simply indicated his surprise that the vehicle contained such a compartment. That, too, is a reasonable inference that could10 be drawn by someone observing his conduc t. The choice between reasonable inferences that may be drawn from evidence is made by the jury. See Evans, 202 S.W.3d at 164; Hooper, 214 S.W.3d at 13. The jury here was free to agree with the guilty inference. The jury also heard appellant’s testimony describing how he came to be driving through Stratford, unaware he was carrying such a cargo. He testified that every element of the charge was true except his know ledge of the marijuana. He told the jury he was a carpenter by trade, a nd at the time of his arrest was living temporarily in Moriarty, New Mexico, for work. He had a roommate, a man named Ortiz. Appellant said that another man, Madrid (the passenger at the time appellant was stopped), came to the residence where appellant and Ortiz lived , in the early morning hours. Madrid was to drive the truck to Wichita and drive another vehicle back to New Mexico. Ortiz was supposed to accompany Madrid but could not do so. They two woke appellant and, as a favor, he agreed to drive with Madrid in Ortiz’s place. He was not scheduled to work that day. He did not inspect t he truck and did not k now of the hidden compartment or of the mari juana. Madrid had driven t he truck until they reached Stratford, when he suggested t hat appellant drive. As noted, appell ant asserted his reaction to the presence of the drugs was one of surprise. Appellant was the only wit ness who testified to the events he said happened in Moriarity. No other witne ss supported his testimony of the purpose of his trip. Although, as he points out on appeal, much of his testimony was uncontroverted, the jury still was not required to accept his expl anation for his presence in Stratford with a11 large amount of marijuana. See Evans, 202 S.W.3d at 164 (discussing difference between “undisputed facts” and “uncontradicted testimony”). It is worth noting at this point that the Stat e was not required to prove appellant possessed the marijuana to the exclusion of Madrid. Evidence of the joint possession of contraband will sup port a conviction. Martin, 753 S.W.2d at 387. Considered in the light most favorable to the verdict, we find the evidence of inconsistent and changing stories, nerv ous and anxious behavior, and a large and valuable cargo, when added to the inferences properly drawn from appel lant’s control of the vehicle, permitted the jury rationally to conclude appellant was not ignorant of the presence of the contraband but in stead was aware of it. For t hat reason, the trial court did not err by denying appellant’s motion for in structed verdict, and the evidence is not insufficient to support the conviction. We resolve appellant’s se cond and third points of error against him. Jury Misconduct and Trial Court’s Response to Jury Note In his fourth point of error, appellant argues the trial court erred in failing to instruct the jury, in response to its note du ring deliberations, that the jury should not consider an issue of race. Appellant c ontends the error denied him due process and equal protection of the law. While in deliberations during the guilt-innocence phase of tr ial, the jury sent out a note asking, “Considering evidence for the ca se, can Defendant’s race and culture be considered toward(s) the way he would react or respond to the situation he is involved with? Example: The way a Hispanic male may act or respond to the situation he is12 involved in.” The court responded, “You may consider all facts and circumstances that are in evidence.”

The Code of Criminal Pr ocedure regulates communica tions between the court and jurors during deliberations. See Tex. Code Crim. Proc. A nn. art. 36.27 (West 2006). As provided by the statute, the trial court gave appellant the opportunity to object to its proposed response to the jury’s question. Appellant stated he had no objection to the trial court’s response. As noted, appellant couches his complaint in terms of constitutional violations. Even constitutional violations are genera lly subject to the error preservation requirements. Because his asserted due proc ess and equal protection violations were not raised with the trial court, the claims present nothing for review on appeal. See Saldano v. State, 70 S.W.3d 873, 888 (Tex.Crim.Ap p. 2002) (equal protection claim forfeited by failure to assert error at trial); Curry v. State , 910 S.W.2d 490, 496 (Tex.Crim.App. 1995) (due process complaints not preserved for review absent timely, specific objection). Further, cour ts have found claims of error in trial court responses to jury questions forfeited for lack of preservation. See Word v. State , 206 S.W.3d 646, 649-50 (Tex.Crim.App. 2006), citing Green v. State, 912 S.W.2d 189, 193 (Tex.Crim.App. 1995); Ortega v. State, Nos. 11-03-00126-CR, 11- 03-00127-CR, 2004 Tex.App. LEXIS 5797 (Tex.App.—Eastland June 30, 2004,pet. ref’d) (mem. op., not designated for publication). Appellant’s fourth point of error thus presents nothing for review, and is overruled.13 Reopening of Case to Admit Marijuana In his last point of erro r, appellant argues the trial court erred by permitting the State to reopen its case to admit as evidence 65 bundles of marijuana, “when the record shows that only 64 bundles were seized.” The point of error must be overruled, for two

reasons. When police inventoried t he bundles of marijuana, t hey counted 64 bundles. The DPS chemist also testified he exami ned 64 bundles. But when the bundles were brought to the courtroom , 65 bundles were count ed. Appellant stipul ated that all of the bundles in court bore crime l ab labels. The report admitted at trial stated the bundles tested positive for marijuana and weighed 67. 41 pounds, an amount wit hin the statutory
range. See Tex. Health & Safety Code Ann. § 481.121(5) (West 2009) (felony of the second degree to possess marijuana of 2, 000 pounds or less but more than 50 pounds). In his argument under this poi nt of error, appellant c ontends the trial court should not have admitted one of the 65 bundles, or perhaps should have excluded all the bundles. The first reason the point of error must be overruled is that it does not comport with the objection appellant voiced to the tr ial court. That objection was a general objection to the reopening of t he State’s presentation of ev idence, not an objection focusing on the number of bun dles of marijuana admitted. To preserve error for appellate review, the party’s point of erro r on appeal must compor t with the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex .Crim.App. 2002).14 Second, appellant’s argument contains no citation to authority to aid in our understanding of the natur e of his complaint and in its dis position. An argument that fails to cite supporting author ity presents nothing for review. Tex. R. App. P. 38.1(i); Rocha v. State, 16 S.W.3d 1, 49 (Tex.Crim.App. 2000). We therefore resolve appellant’s final point against him. Having resolved each of appellant’s poin ts of error against him, we affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.