### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00746- CR

Arm ando Per ez, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 147 TH JUDICI AL DISTRICT NO. D-1 -DC- 06- 2070 20, H ONO RAB LE WI LF ORD F LOW ERS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Arman d o Pe r e z o f th e o f f e n s e of possession of a controlled substance, coca ine, in an amount of one g ram or more but less than four g rams. See Tex. Hea lth & Safety Code Ann. § 481.115(a) , (c) (West Supp. 2009). Punishm ent was assessed at thirty months’ imprisonment. I n five issues on appea l, Perez asser ts that the district court erred in deny ing his motion to suppress evidenc e; in not g ranting his challeng es for cause to cer tain jurors; in excluding

cer tain evidenc e that, acc ording to Perez, “showe d illega l police conduct as well as bias and lack of

cre dibilit y ;” and in not revie wing during the hear ing o n Perez’s motion for new trial a patrol-c ar video rec ording of Perez’s detention and arr est. Additionally , the State h as ac k nowledg ed that the written judgme nt of conviction contains a cler ical err or that o v er s tates the amount of

coca ine that Perez was convicted of possessing. We w ill modify the written judgme nt to corr ectlythe corr ect amount of coca ine that Perez was convicted of possessing. As modified, we will aff irm the judg ment.

BACK GR OUND

The jury hear d evidenc e that Perez was found in possession of a controlled substance

on two occa sions in late 2006. On eac h occa sion, Perez was arr ested. Howeve r, Perez was rele ased

on bond following the first arr est, and the curr ent char g es ag ainst Perez are based on evidenc e obtained during the second arre st. Howeve r, as we explain in more detail below when discussing
Perez’s motion to s u ppress, the war rant that authorized the second arr est was based in part on evidenc e obtained dur ing the first arr est. For now, we pr ovide a br ief ove rview of the fa cts. The first arr est occur

red on October 2 5 , 2 0 0 6

. Offic ers testified that following a traff ic stop during which controlled substances wer e discovere d on Perez’s person and in his vehicle, they obtained information that led them to believe that additional contra band would be found
at Perez’s residenc e. Offic ers also testified that they obtained information that led them to believe that the re sidence was oc cupied a nd that there may have been a firea rm on the premises. Office rs explained that once they arr ived at the resid en ce , and prior to obtaining a sear ch war rant, they conducte d a “prote ctive swee p” of the premises. During the protec tive swee p, office rs testified, they discovere d digital scale s in plain view in one of the bedrooms. Once they clea red the premises,
t h ey ex i t ed the house and waited for a sear ch war rant to be obtained. When they lear ned t h at the war rant was signe d, the office rs re- enter ed the house and found additional contra band, including marihuana , presc ription pill s, and a bag of coca ine. A firea rm was also found in a shoe box in the master be droom.

2Ba sed on the evidenc e o b t ai n ed during the sear ch, one of the arr esting office rs

filed char g es ag ainst Pere z fo r felony possession of marihuana and misdemeanor possession of
presc ription pills. At t hat time, no char g es we re f iled ag ainst Perez based on the cocaine that was found at his re sidence

.

Perez was subsequently rele ased on bond. Shortly there afte r, the police rec eived

a complaint that Perez was ag ain involved with narc otics. Another investiga tion was initiated, and char g es wer e subsequently filed ag ainst Perez conce rning the coca ine that was found at his residenc e during the October 25 sear ch. A war rant was issued, and Perez wa s ar re s t ed a second time on Dec ember 12, 2006. During this a rre st, of fice rs discover ed additional coc aine on Per ez’s person. Perez was subseque ntly

indicted for posse ssing this coc aine. 1
Prior to trial, Perez filed a motion to suppress, alleg ing that the evidenc e discovere d during the October 25 sear ch of his house had been illega lly obtained and that the all eg edly illega l sear ch tainted the evidenc e subsequently discovere d by the office rs during the Dec ember 12

arr est. Following a hea

ring , the district court denied the m otion. The case procee ded to trial, and the jury found Perez g uilty as char g ed. During the punishment phase, more evidenc e conce rning the investiga tion was prese nted, including a patrol-c ar video rec ording of the traff ic stop that prec eded
Perez’s first arr est. Following the punishment hear i n g, Perez was sentenc ed to thirty months’ imprisonment. Perez subsequently filed a motion for new trial, ag ain arg uing that the evidenc e had been illeg ally

obtained. The district court denie d the motion. This appeal followe d.

Ba s ed on the other drug s found during the course of the investiga tion, Perez was also 1 char g ed in trial court cause numbers D-1-D C-06-206020, D-1-D C-06 -2 0 7 0 2 1, and D-1-D C-06- 302489. Those ca

uses ar e not pre sently

befor e us. 3ANALYSIS

Challenges f

or cause We first addre ss Perez’s t hird issue, in which he c laims that the district court erre d in failing to g rant his challeng es for cause of cer tain jurors who, acc ording to Perez, indicated during voir dire that they could not disreg ard illega lly obtained evidenc e. We revie w a trial court’s ruling

on a challeng e for cause with “conside rable defe renc e” beca use the trial court is in the best position
to evalua te the venire member’ s demea nor an d re s p o nses. Smith v. State , 297 S.W .3d 260, 268 (Tex. Crim. App. 2009), cert. de nied , 2010 U.S. L EXI S 2190, 78 U.S.L .W. 3499 (Mar

. 1, 2010).
We w ill re verse a trial court’s ruling on a challeng e for cause “only if a clea r abuse of discretion is evident.” Id

. No “cle ar abuse of discretion” is evident here

. I n his brief, Perez fails to specific ally identify which jurors indicated that they could not disreg ard illega lly obtained evidenc e. Howeve r, Perez prov i d es ci t at ions to the rec ord that corr espond to his objections to venire persons 10, 11, and 18. The rec ord ref

lects that the district court direc tly asked eac h of these venire persons whether they could disreg ard illega lly obtained evidenc e. Venire person 10 answe red, “Ye ah.” Venire person 11 answe red, “I can, J udg e.” Venire person 18 answe red, “I can follow the law.” On this rec ord, we
cannot conclude that the district court clea rly abused its discretion in d en y i n g P erez’s challeng es fo r cause . See Brown v. State , 913 S.W .2d 577, 580 (Tex. Crim. App. 1996) (explaining t h at venire persons who ultimately state that they “ca n follow the law” are not challeng eable for cause ). We overrule Perez’s third issue.

4Sup pression issu es We will addre ss Perez’s first, second, and fifth issues toge ther, as they all conce rn Perez’s contention that the police illega lly sear ched his house without a war rant and that all evidenc e obtained subsequent to that sear ch, including the coca ine found on Perez’s person on Dec ember 12, should have been suppressed. I n his first and second issues, Perez arg ues that the district court err ed in deny ing his motion to suppress. I n his fifth issue, Perez briefly addre sses his motion for new trial and evidenc e that Perez claims the district court should have revie wed during t h e h ea ri n g on his motion for new tria l.

We first addre ss the merits of Perez’s motion to suppress. “A trial court’s ruling on 2

a mot ion to suppress, li ke any ruling on t h e admission of evidence, is subject t o revie w on appea l for abuse of discretion.” Amador v. State , 2 7 5 S.W .3d 872, 878 (Tex. Crim. App. 2009) (citing
State v. Dixon , 206 S.W .3d 587, 590 (Tex. Crim. App. 2006)). “‘I n other words, the trial court’s ruling will be upheld if it is rea sonably supported by the record and is correct under any theory of law applicable to the case .’” Id

. (quoting Ramos v. State , 245 S.W .3d 410, 417-18 (Tex. Crim. App.

During trial, when the State was lay ing the foundation for the admission of coca ine found 2 on Perez’s person on Dec ember 12, Perez’s counsel stated, “I wil l stipulate it was coca ine in the amount of 3.87 g rams. I will sti pulate that and I will sti pulate the a dmissibi lity .” L ater , when the coc aine wa s formally

offe red into evide nce, counsel’s only comment was, “Judge, I stipulated to that 20 minutes ag o.” The State asser ts that counsel’s “st ipulation” waived any err or in the admission o f t h e evidence. See Holmes v. State , 248 S.W .3d 194, 201 (Tex. Crim. App. 2008) (stating that when defe ndant aff irmatively sta t es “n o objection” to admission of evidenc e at time evidenc e is o ff

er ed, defe ndant waives any complaint on appea l conce rning admissibili ty of evidenc e); Dean v. State , 749 S.W .2d 80, 83 (Tex. Crim. App. 1988) (same)

. Be cause we overr ule Pere z ’s arg ument on the merits, we need not addre ss whether counsel’s “stipulation” is the eq uivalent of an aff

irmative statement of “no objection.” I n any event, a stipulation is not an objection. 52008)). “I n revie wing a trial court’s ruling on a motion to suppress, appellate courts must view all

of the evidenc e in the light mos t fa v o ra b l e to the trial court’s ruling .” State v. Garcia-Cantu , 253 S.W .3d 236, 241 (Tex. Crim. App. 2008).

We are to “af

ford almost t o t al d ef

ere nce to a trial court’s deter mination of the historical fac ts tha t the rec ord supports espec ially when the trial court’s fac t f indings are based

on an evalua tion of cre dibilit y and demea nor.” State v. Ross , 32 S.W .3d 853, 856 (Tex. Crim. App. 2000) (citing Guzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997)). We a re to “af ford the

s am e amount of defe renc e to trial courts’ ruling s on ‘applica tion of law to fac t questions , ’ al s o k n o wn as ‘mix ed questions of l aw and fac t,’ if the resolution of t hose ul timate questions turns on an evaluation of credibility and demeanor.” Id

. We revie w de novo “ mix ed questions of law and fac t” not falling within that categ ory . Id

.

The following evidenc e was considere d by the district court duri n g the hear ing

on Perez’s m o t i o n to suppress. Detec tive J on Walker of the Austin Police Depa rtment testified 3
that he had initiated an investiga tion into Perez’s alleg ed n arc otics activity

. The investiga tion,

During tr ia l, a d d itional details conce rning the investiga tion wer e elicited, and the State cites 3 to and discusses these additional details in its brief. Howeve r, beca use the motion to suppress was n ot relitig ated by the parties during trial, our revie w of the district court’s ruling is limit ed t o t h e evidenc e that was befor e it during the hear ing on the motion to suppress. See, e.g. , Rangel v. State , 250 S.W .3d 96, 97-98 (Tex

. Crim. App. 2008) (per c uriam) ( “We re fuse to ex amine the propriety of a trial judge ’s ruling based on evidenc e that the trial judge had no opportunity to consider when he made his ruling .”); W

eatherred v. State , 15 S.W .3d 540, 542 (Tex. Crim. App. 2000) (I n revie wing trial court’s ruling on admis s i b i l i t y o f evidenc e, “the appellate court must revie w the trial court’s ruling in light of what was befor e the trial court at the time the ruling was made.” ); Rachal v. State , 917 S.W .2d 799, 809 (Tex. Crim. App. 1996) (“[I ]n deter mining whether a trial court’s decision is supported by the rec ord, we g ener ally consider only evidenc e adduced at t h e suppression hear ing beca use the ruling

was ba sed on it rather

than evidenc e introduce d later.” ). 6Walker explained, was based upon two things: (1) “anony mous information that Mr. P ere z was dealing drug s” and (2) Walker lear ning that, at one of Perez’s prior residenc es, “a narc otics tip repor t had been i nitiated by a uniformed patrol officer ba sed on suspicious activity they had seen there .”
Pursuant to th i s i n v estig ation, on October 25, 2006, Walker conducte d surveillance at Perez’s residenc e at 5706 Meadow L ake Boule vard in south Austin. During the surveil l an ce, Walker observe d Perez g et in t o h i s vehicle and drive awa y . Shortly there afte r, Walker order ed other office rs to initiate a traff

ic st o p on Perez’s vehicle. When asked what was the basis for this stop, Walker testified, “I believed Mr. Perez was opera ting a vehicle while his license was invalid, while his privilege to drive wa s invalid.” Walker added, “To my knowledg e he could not lawfully drive

a vehicle at that time.” When as k ed i f d ri v ing without a license is an offe nse “that y ou can stop 4 somebody

for,” Walker testified, “ Yes, sir.”
Detec tive J ason Br

y ant of the Austin Police Depa rtment assisted Dete ctive Walker with the investiga tion. Br y ant testified that while Walker was s t at i o n ed at Perez’s house, he was “fur ther down” the road, “anticipa ting that [P ere z] would come my direc tion.” When Perez passed his vehicle, Br

y ant beg an to f

ollow him. Having lear

ned from Walker that Perez was driving with

a suspended license, Br

y ant reque sted that a patrol office r, Amy L y nch of the Austin Police Depa rtment, initiate a traff

ic stop on Perez’s vehicle. Br y ant then followed L y

nch’s patrol car until she initiated the traff

ic stop at a g as station located at the intersec tion of Wil liam Cannon and I -35.
L y nch testified that she did n o t h av e much involvement in the investiga tion afte r initiating the

No testimony was elicited during the suppression hear ing con ce rn i ng how Walker 4 had knowledg e that Perez’s license was suspended. Perez does not challeng e the leg ality of the traff ic stop on appea l. 7traff

ic stop. She explained, “I responde d, made the traff ic stop based on Mr. Perez’s driver’ s license having been suspe nded, and the n I stood there a nd let the detec tives do their thing.”
W hen Detec tives Walker and Br y ant arr ived at the g as station shortly afte r L y n ch made the stop, Walker proce eded to arr est Perez for driving with a suspended license and place d him in handcuf

fs. Walker “then sear ched him and found a pill or pill and a half in his pocket.” I ncident
to the arr est, the detec tives also sear ched the int er i o r o f t he cab of Perez’s truck and discovere d marihuana under the back passeng er seat. After rea ding Perez his Miranda rig hts, Walker rec alled, 5 6
“I asked him if we would find any thing illega l at his house and he told me that there would be a joint or two of mar ihuana.”

At that time, the office rs also arr ested Guada lup e R ey es, a passeng er in Perez’s vehicle, for possession of marihuana

. Rey es was either Perez’s g irlfriend or common-law wife. I t 7
is undisputed that Rey es and Perez lived toge ther at the time of the traff ic stop. Acc ording to Br

y ant, afte r he ha d advised Rey es of her Miranda rig hts, Rey es informed the detec tives that she had se en Perez “take [t he marihuana ] from the house” and place it under the seat of the truck. Br y ant claimed

Perez has made no arg ument, either befor e or during trial or on appea l, t h at t h e sear ch 5 of the vehicle was illega l. See Arizona v. Gant , 129 S. Ct. 1710, 1723, 173 L

. Ed. 2d 485 (2009) (providing that police may perf orm war rantless sea

rch of vehicle inc ident to arre st only if arr estee is within rea ching distance of passeng er compar tment at time of sear ch, or it is rea sonable to believe vehicle c ontains evidenc e of of fense for whic h person ha s been a rre sted). See M iranda v. Arizona , 384 U.S. 436, 444 (1966). 6 Rey es testified that Perez was her boy friend, but Detec tive Walker t es t i fi ed t h at he 7 “would call her Mr. Perez’s wife.” He explained, “I was under the impression that they had children toge ther. I had indi cations from previous police reports that they cohabitate d in three other—two other pe rmane nt residenc es and also cohabitate d in a hotel room bef ore.” Two of Rey es’ c hildren wer e in the back of the vehicle at the time of the traff ic stop. There was no testimony elicited at the suppression hea

ring conce rning whether

these c hildren we re r elated to Per ez. 8that Rey es also told them that there was more marihuana still inside the house, as well as coca ine in

the amount of “about half the siz e of a golf ball.” Br y ant furth er testified t hat R ey es also advised him that “there was possibly a g un in the house.” At that time, the office rs did not have a sear ch war rant for the premises. Howeve r, Walker testified that Rey es g ave the detec tives permission to sea rc h the house. Acc ording to Walker, when Rey es consente d to the sear ch, she understood that they wer e police office rs and that they wer e g oing to sear ch the house for narc otics. Walker, Br y ant, and L y

nch then acc ompanied Perez and Rey es to the couple ’s re sidence

.

When the office rs a

r rived at the residenc e, they encounte red Rey es’s 17-y ear -old son, J .R. Acc ording to Br

y ant, J .R. “ca

me out a l i t tle bit hostile” and was “ag g ressive in demea nor.”
Br y ant testified that he frisked J .R. to make sure he did not have t h e gu n t h at Rey es had

ear lier descr ibed, found marihuana on J .R.’s person, and “subseque ntly arr ested [hi m] for that.” Next, Bry ant testified, the of fice rs “clear ed the house t o make sure t here was nobody in the house who would have acc ess to the g un. Once we verifie d that there was nobody in the house, we

came back out.” When asked if he had enter ed the house before the sear ch wa rra nt was obtained,
Br y ant testified,

Sure. To clea

r it fo r any people inside the house who may have acc ess to that wea pon. I knew that we would be outside the house waiting awhile for the sear ch war

rant. We didn’t want them t o h ave acc ess to that wea pon at any time. They could use that we apon on us.

Whil e clea

ring the house, the offi ce rs d i s co vere d digital scale s, but no other evidenc e was found at that time.

9Walker testified that h e re m ai n ed outside the house in his car talking to Perez

during the protective swee p. “At that point,” Walker recalled, Perez “said we would find a lar g er
amount of marihuana , some coca ine, a g un, and a lar g e amount of c ash” inside the house. Shortly there afte r, Walker transporte d Perez to jail, booked him, and o b t ained a sear ch war rant for the premises. Once the sear ch war rant was signe d, office rs who had rema ined outside the proper ty

re- enter ed the house and discove red a dditional contraba nd inside, including c ocaine

. Finally , Walker testified conce rning the events leading up to Perez’s second arr est on Dec ember

12. Walker explained,
Subsequent to Mr. Perez being booked into jail on the 25th and bonding b ack out, I rec eived a

nother c omplaint that Mr. Perez was ag ain dealing drug s. So I initiated another inves t i gat ion during which I sat down and revie wed the fac t that we h ad not filed the rela tively small amount of coca ine from the sear ch war rant as a criminal char g e ag ainst him. After confirming with my supervisor, we decide d to seek a war

rant for that char g e and to use that arr est as a starting point for another investi gat i o n. After locating Mr. Perez at a differ ent addre ss in his front y ard, I arr ested him for that war rant and I believ e t h at m y partne r at the time, Detec tive Br

y ant, found a

number of othe r nar cotics in his pocket.

Walker added that he at first ref raine d from filing char g es ag ainst Perez for the coca ine found in Perez’s house beca

use “it is sometimes unrea sonable to file seven felony char g es for ever y small amount of a felony g rade narc otic found in a person’ s possession.” I nstead, Walker explained, “it seems more rea sonable to take [t he] lar ges t amount , most rele vant amount of narc otics, file that case and allow that defe ndant to deal with that criminal char g e hoping” that the def en d ant will then “discontinue [hi s] criminal activities. ” Ho we v er , if the defe ndant resumes his criminal

10activities, the pol ice “may find it nece ssary to file t hose criminal char g es.” Acc ording to Walker,

that was wha t happene d here

.

The only other witness to testify at the supp re s s i o n hear ing was Rey es. Rey es confirme d that she was with Perez when he was pulled over on October 25 and that she was arr ested
at that time. Rey es also confirme d that she and Perez acc ompanied the office rs to the house; Perez

was “in an APD car ” an d s h e was in Perez’s truck, which was being driven by Detec tive Br y ant. Rey es further confirme d that her son was at the residenc e when they arr ived, but she denied that he

was being “ag g ressive toward the office rs” when he encounte red them. Rey es provided no te s ti mo ny either confirming or deny ing that she g ave co n s en t to sear ch the house or whether she told the office rs that there was a

g un inside. The district cour

t denied the motion to suppress and made the following finding s:

The court finds that Mr. Perez, on October 25, 2006, was driving without a driver’ s license or afte r license had been suspended. There was a valid and leg al stop by a uniformed law enfor ceme nt office r at the reque s t of another office r who had knowledg e that the defendant’s license was suspended. At the time of the s top the defe ndant, h i s t ru ck was found in a controlled substance sear ch incident to arr est [si c]. The def

endant made admissions with reg ard to the substanc e being his. The Court further finds the defe ndant admitted that there wer e contro l l ed substances, marihuana , coca ine, in his home and a w eapon a lso. The Court furt her finds that a person Guada lupe Rey es, also known as Guada lupe Rodrigue z in the rec ord, g ave consent to ente r and/or sear ch the house. She was a resident, had valid rig ht and autho ri t y t o d o s o . The Court further finds that beca use of the exis tence of a w eapon a nd the delay that was nece ssary in or der to obtain and secur e a valid sear ch war rant, the office rs exercising proper proce dure and prac tice set up on the house. They did an initial inspection of the house to ensure that there would be no one in there to pose a dang er or threa t to them or their safe ty and did not conduct a

sear ch at that time. A searc h war rant was validly issued and executed. Those a

re the finding s of fa ct and c onclusions of law.

11Wit h reg ard to the events of

. . . Dec ember 12, 2006.

. . . The C o u rt fi n ds the

defe ndant was—ha d a valid war rant for his arr est and the arr est wa rr an t was executed, found substanc es pursua nt to that.

I n arg uing that his motion to suppress should have been g rante d, Perez focuse s a lm o s t exclusively on the leg ality of the protec tive swee p of the premises. I n his first issue, Perez contends that “ther e was no basis for [t he] protec tive swee p of appellant’ s residenc e as a matter of law.” 8
Perez further contends that the claimed illega lity of the protec tive swee p tainted all evidenc e subsequently obtained by the office rs during the investiga tion. I n his second issue, Perez asser ts that
“eve n if a protec tive swee p could be proper under the fac ts of this case , there was no cre dible basis for believing that appellant ever indicated that there was a firea rm inside his residenc e until afte r the office rs had c onducted the pr otective swe ep.”

Even assuming wit hout deciding that the officers were not authorized to conduct a protec tive swee p of the re sidence in this case, we cannot c onclude on the rec ord befor e us that the district court abused its discretion in deny ing Perez’s motion to suppress. First, the rec ord supports the district court’s finding that the office rs had consent to sear ch the premises. See Johnson v. State , 226 S.W .3d 439, 443 (Tex. Crim. App. 2007) (explaining that consent to sear ch is “one of a few well-de lineated exceptions” to war rant require ment). Detec tive Walker testified that Rey es g ave the detec tives permission to sear ch the house. Walker further testified that when Rey es consente d to the

See Maryland v. Buie , 494 U.S. 325, 327 (1990) (“A ‘protec tive swee p ’ i s a q uick and 8 limit ed sear ch of premises, incident to an arrest and conducte d to protec t the safe ty of police office rs or others.”) (empha sis added) ; Reasor v. State , 12 S.W .3d 813, 817 (Tex. Crim. App. 2000) (“When cond u ct i n g an in-home arrest , a police office r may swee p the house only if he possesses an objectively rea sonable belief, based on specific and articula ble fac ts, that a person in that are a poses a dang er to that police office r or to other people in the a

rea .”) ( emphasis adde d). 12sear ch, she understood that they wer e poli ce office rs and that they wer e going to sear ch the house

for narc otics. At the suppressio n h ea ri n g , no contra ry evidenc e was prese nted that Rey es did not
consent to the sear ch. I t was undisputed that Rey es and her children lived in t h e h o u s e. I n fact, 9 Rey es provided te stimony from which the district court could have rea sonably inferr ed that Rey es and her children lived there , including that her son had exit ed the g ara g e when the office rs arr ived, that one of her daug hters went inside the house to use the bathroom, and that the door to the master bedroom wa s locked whe n she and Perez had earlier left the hous e. Thus, the record supports the district court’s finding that Rey es was a resident of the house and had the authority to consent to the

sear ch. See United States v. Matlock , 415 U.S. 164, 172 & n.7 (1974) (explaining that co-inha bitants of residenc e have ri gh t to consent to sear ch of premises). Counsel for Perez arg ued at the
suppre s s i o n h ea ri n g that Perez himself did not consent to the sear ch. See Georgia v. Randolph , 547 U.S. 103, 120 (2006) (“[A] war rantless sear ch of a share d dwelling for evidenc e over the express ref usal of consent by a phy sically prese nt resident cannot be justified as rea sonable as to him on the basis of consent g iven to the police by another resident.” ). Howeve r, Perez provided no testimony

or evidenc e at the suppression hear ing tending to show that he expressly ref used consent. See Luna

v. State , 268 S.W .3d 594, 604 n.26 (Tex. Crim. App. 2008) (noting that, for Randolph to apply , there
must be eviden ce p re s en t ed that defe ndant “wa s both phy sically prese nt [at the residenc e] and expressly ref used conse nt”).

During punishment, Rey es testified that she did not consent to the sear ch. Ag ain, howeve r, 9 our revie w of the district court’s ru l i n g i s limit ed to what was befor e it during the suppression hear ing. See R achal , 917 S.W .2d at 809. 13Moreove r, the district court would not have abused its discretion in fi n d i n g that

any taint from the October 25 protec tive swee p was sufficie ntly attenuate d when the police arr ested
Perez on Dec ember 12. See W ong Sun v. United States , 371 U.S. 471, 487-88 (1963) (explaining that question to be asked in deter mining whether evidenc e should be suppressed under “fr uit of the poisonous tree ” doctrine is “whe ther, g ranting establishment of the primary illega lity , the evidenc e to which instant objection is made has been come a t by exploi tation of that illeg ality or instead by means sufficiently distinguishable t o b e p u rged of the prim ary taint”). Her e, the office rs t estified that the onl y evidenc e obtained during the protective swee p we re the digital scales. Acc ording to the office rs, all other evidenc e discovere d in the house, including the coca ine that formed the basis for the war

rant t h at au t h o rized Perez’s second arr est, was obtained following the execution of a

sear ch war

rant—the vali d i t y of which Perez did not challeng e at the suppression hear ing. The 1 0

sear ch wa rr an t was based on Perez’s admiss ions to Detec tive Walker, bot h during the t raf fic stop and at the house, that marihuana , coca ine, money , and possibly a g un would be found in the house, and Rey es’s admission to Detec tive Br y ant that the marihuana found during the traff ic stop had been broug ht from the house into the vehicle by Perez. Additionally , Perez is curr ently being char g ed for

I n his brief, Perez asser

ts that Detec tive Walk er p ro v i d ed false testimony both at the 1 0 suppression hear ing and during trial and that the sear ch war rant was based on false statements that Walker made in his offe nse repor t and in the probable cause aff idavit. Howeve r, there is nothing in the rec ord to support these asser tions. Perez did not reque st a hear ing to deter mine whether any of Walker’s stateme nts were false, see Frank s v. De laware , 438 U.S. 154 (1978), nor did he provide any evidenc e of Walker’s alleg ed mi sstatements at the suppre ssion hearing

. Thus, Perez’s claims reg arding the validity of the sear ch war rant have not been prese rved for revie w. See Harris v. State , 227 S

. W

. 3 d 8 3, 85-86 (Tex. Crim. App. 2007) (explaining what defe ndant is require d to show trial court in orde r to be e ntitled to Franks hear ing a nd to preser

ve issue for

appellate revie w).

14possessing the coca ine that was foun d o n h i s person during the Dec ember 12 arr est, not for the

coca ine that was found in his house on October 25. Walker testified that the Dec ember 12 arr est was based on a complaint that Perez was ag ain selling narc otics. Thus, the district court would not have abused its discretion in finding that this evidenc e was obtained independe nt of the protec tive swee p.

We overrule Perez’s first and se cond issues.
I n his fifth issue, Perez claims that the district court err ed in ref using to revie w, during the hea ring on his moti on for new trial, the patrol-c ar video re cording of the tra ffic stop a nd arr est

o n October 25. Perez also contends g ener ally in this issue that his “motion for new trial s h o u l d have be en g rante d.”

We revie w a trial court’s denial of a motion for new trial u n d er the “abuse of discre t ion” s tandar d. Charles v. Stat e , 146 S.W .3d 204, 208 (Tex. Crim. App. 2004). We do not substitut e our judgme nt for that of the trial court, but rathe r we decide whether t h e t ri al co u rt’s decision was arbitra

ry or unrea sonable. Id

. We must view the evidenc e in the light most favor able
to the trial court’s ruling and presume that all rea s o n ab l e fac tual finding s that could have been

m ad e against the losing party wer e made ag ainst that losing party

. Id

. Thus, a trial court abus es its discretion in deny ing a m otion for n ew t ri al only when no rea sonable view of t he record could support the trial cour

t’s ruling

. Id

. We could not conclude on this re cord tha t the district court abused its discretion in deny ing Perez’s motion for new trial. The rec ord ref lects that the re cording Perez soug ht to admit
at the hear ing had alre ady been play ed i n i t s en t i rety during the punishment phase and that the

same judge presided o v er b o t h t h e trial and the hear ing on the new- trial motion. Having alre ady

15viewed the rec ording at an ear lier stag e of the proce eding s, the district court would not have abused

its discretion in declining to reviewit ag ain at the hearing on the m otion for ne w trial. More over, Perez’s counsel took the stand and testified at the hear ing on the motion for new trial that he believed the recording “positively shows that Mr. P ere z did not make a statement which Detec ti v e W al k er alleg ed to him, namely that there was a g un in the hous e prior to t h e d et ec t i v es . . . g oing into his house.” Thus, Perez’s arg ument for having the district court consider the rec ording was that it was

re l evant to the issue of the leg ality of the protec tive swee p of Perez’s house on October 2 5

. Bu t ,

as we h ave alre ady explained, even if the protec tive swee p was impermissible, this alone wo u l d
not have made the evidenc e that was found on Perez when he was arr est ed on Dec ember 12 inadmissible. Acc ording ly , the district court would not have abused its discretion in finding that the

rec ording would not have a ffe cted its pretr ial ruling on Perez’s motion to suppress.

We overrule Perez’s fifth issue.

Exclusion of evid ence

Finally , in his fourth issue, Perez contends that the district court abused its discretion in excluding evidenc e during trial that, ac cording to Perez, “showe d illega l police conduc t as well

as bias and lack of cre dibilit y .” Perez is ref err ing to evidenc e tending to show that Detec tive Walker did not immediately file char g es ag ains t h i m fo r all of the drug s found in Perez’s possession on October

25. When revie wing a trial court’s decision to admit or exclude evidenc e, we apply

an abuse- of-discr etion standard. Ramos , 245 S.W .3d at 417-18. The trial court doe s not a buse its

16discretion unless its ruling lies “outside the zone of rea s o n ab l e disag ree ment.” W alters v. State , 247 S.W .3d 204, 217 (Tex. Crim. App. 2007).

When Perez attempted t o elicit testimony from Detec tive Walker conce rning Walker’s decision to ref

rain from filing ch ar ges against Perez for all of the drug s found in his possession, the State objected, and the district court allowed Perez to make an offe r of proof outside the pre sence of the jury . The following testimony was e licited:
Q: Detec tive Walker, y ou would ag ree with me that it wouldn’t be proper for an office r who completed a sear ch war rant and found three arr estable units—do y ou know what I

am say ing w hen I

say three arr estable units?
A: I think I understand w hat y ou mean, y es. Q: Three differ ent offe nses which could be char g ed. I t wouldn’t be appropr iate fo r an o ff i cer to file two and then pocket one so that at some later date h e could arr est the person and sear ch them to see if he could obtain more drug s. That would not be prope r. Would y ou ag ree with that?
A: I am confused with y our words tha t y ou are using w hen y ou say “pocke t an arr est war rant.” I think that investiga tors and prosec utors have discretionar y bou n d s within which they pursue investigations and prosec ute defendants. I think that the judicious application of that d i s cr et i on is absolutely appropr iate and if that discretion points an investig ation toward not filing a whole lot of charg es at one ti me, t hen I think that would be the appropr iate thing to do. Q: Sure, sure, and if that was the motive, that wo u l d b e grea t. But what I am say ing is w hat if an office r had the specific intent of just filing two with the specific intent of waiting unt il the person makes b o n d to then fil e the other one so that they cou l d ex ecute that arr est war rant and sear ch the individual ag ain in hopes of discovering more drug s. I f that was an officer’s specific int en t , wo u ld y ou ag ree with me that that narc otics office r would have a specific bias ag ainst the person he was investig ating ?

. . . .

17A: I think that if what y ou are descr ibing is somebody apply ing discretion i n a biased fa shion, that would be improper, y es. . . .

. . . . Q: And y ou did conduct the se arc h war rant, c orre ct?
A: I did. Q: And that did y ield three differ ent offe nses which he does now stand char g ed with, corre ct?
A: The sear ch war

rant specific ally dealt with, y eah, at least three drug offe nses that I can think of r ight now. T here was a potential firea rms investiga tion. I think it was rene wed [si c] for fede ral prosec ution and declined. There wer e traff ic offe nses just previous to the sear ch war rant with which he wasn’t char g ed. And y es, I did do that. I ex ercised di scre tion in that case which I felt wa s appropr iate af

ter c onfer ring with my

supervisor. Q: So there wer e three units that could have been char g ed in this case that are now cha rg ed pre sently . Yes?
A: So far a s I know. . . . Q: And y ou filed—the day that y ou did the sear ch war rant y ou filed for two, y es?
A: I believe

. . . shortly there afte r within the appropr iate amount of time I did file some cha rg es, y es. Q: Whil e he w as in custody y ou filed cha

rg es, two cha

rg es, cor rec t?
A: I think I would have ha d to, y eah. Q: And then y ou waited until afte r he was out of custody to f ile the last char g e, the one that we are now basingthe ar rest wa rra nt for this case on?
A: No, not the way

y ou say it. I didn’t wait to file the cha rg e— Q: There was a

time ga p. A: I didn’t have any anticipation or need to file that char g e. I t wasn’t until I rec eived a subsequent complaint about Mr. Perez alleg edly dealing drug s that

18I thought it was appropr iate to open another investiga tion, which I started by filing tha t relatively

small amount of coca ine cha rg e. Q: Right. There was a time g ap in betwee n when he was in custody , y ou filed the first two cha

rg es and w hen y ou filed the third cha rg e?
A: Yes. Q: And he wa s out of custody when y ou filed the third cha rg e?
A: As far

as I know. Q: And y ou are say ing that that wasn’t as a result of intentional bias ag ainst Mr. Perez?
A: No. I

kind of hoped he would stop dealing drug s.

The district court sustained the State’s objection and did not allow Perez’s counsel to
proce ed with this line of questioning. The district court then addre ssed Perez direc tly and explained
to him that the questions “would result in the jury k n o wi n g throug h testimony of this detec tive that y ou have this case y ou are being tried for plus three case s that are felonies.” Such testimony , the district court believed, “mig ht harm y our case in a sense that the jury may think y ou are a person
g ener ally involved in these ty pe activities an d i t p o s s i bly could harm y ou in the fairne ss of y our trial in this case .” Perez indicated that he understood these conce rns. Perez’s counsel explained, “I have informed Mr. Perez that I believe tha t on punishment . . . much of this evidence would come in any way , so why not just g et it out ear ly .” The district court maintained its ruling , stating, “I will
not in any way have this jury in any way decide th at t h i s d ef endant [i s], as the rules have said, a criminal in g ener al, and I

think the prejudicial impac t outweig hs any probative va lue.

19Rule of evidenc e 403 pro vides that otherwise rele vant evidenc e “may be excluded

if its probative v al u e i s s ubstantially outweig hed by the dang er of unfair prejudice , confusion of the issues, or by

considera

tions of undue delay , or needless prese ntation of cumulative evidenc e.”
Tex. R. Evid. 403. I n making this deter mination, courts examine the proff ere d evidenc e in light of

sever al fac tors including the following : (1) the probative value of the evidenc e; (2) the potential to impress the jury in some irrational, y et indelible, way ; (3) the time neede d to develop the evidenc e; and (4) the propone nt’s need f or the e vidence

. The district court would n o t h av e ab used its discretion in finding that the balanc e of the above fac tors weig hed in favor of excluding the evidenc e. First, the district court could have found that the probative value of the evidenc e was low, as was Perez’s need for the evidenc e. We
ag ree with the State that “it is not at all clea r wha t the probative va lue of the e vidence would be.” The district court could have found that, far from showing “illeg al police conduct,” “bias,” and “lac k of cre dibilit y ,” the evidenc e tended to show that Detec tive Walker exercised discretion and lenience toward Perez in ref

raining from immediately filing all three char g es ag ainst him. Walker denied any improper motive or bias. And, g iven Walker’s knowledg eable response s to counsel’s questions, the district court could have found that the testimony tended to enhanc e Walker’s cre dibilit y rathe r than detra ct from it. Moreove r, even if the evidenc e did show some sort of bias of Walker ag ainst Perez, such evidenc e would do nothing to addre ss the ultimate issue of whether Perez was g uilty of committing the off

ense f or which he was c urre ntly being char g ed.
On the other hand, the district court could have found that the time neede d to develop the evidenc e would have b ee n s ignif icant. I f the testimony would have been admitted, the

20parties would have ne eded to de velop evidenc e conc erning , among other thing s, the other c harg es

against Perez, the specific rea sons why not all the char g es wer e filed at once, the p ro ce d u re s and protocol the Austin Police Depa rtment ty pically follo ws i n s u ch case s, and whether Walker followed those proce dures in this case . The district court also could have found t hat t he potential of the evidenc e to impress the jury in s o m e i rrational, y et indelible, way was high. “I t is a fundame ntal tenet of our criminal justice sy stem that an accuse d may be tried only for the of fense for which he is char g ed and not for being a criminal g ener ally .” Pavlack a v. State , 892 S.W .2d 897,
904 (Tex. Crim. App. 1994). I t is for this rea son that there ar e ru les of evidenc e prohibiting the admissio n of extraneous offe nses except in cer tain narr owly define d circ umstances. See Tex. R. Evid. 404(b), 609. As the district c ourt observe d, by admitting Perez’s extraneous felony offe nses
at g uilt/i nnocenc e, the jury might have been inclined to convict Perez of the other char g es for which he was not at that time b eing tried. On this rec ord, we cannot conclude that the district court’s decision t o exclude evidenc e concer ning the other char g es aga inst Perez was “outside the z one of

rea sonable disag ree ment.”

We overrule Perez’s four th issue.

Cleric al err or in judgme nt

Finally , the State has pointed out that while the written j u d gm en t of conviction specifie s that Perez was convicted of possessing coca ine in an amo u n t o f four g rams or more but less than 200 g rams, Perez was actua lly convicted of possessing coca ine in an amount of one g ram

or m ore but less than f

our g rams. The appropr iate re medy is to modify the di strict court’s written judgme nt to ref

lect the corr ect amount. See Tex. R. App. P. 43.2(b); Bigle y v. State , 865 S.W .2d

2126, 2 7 -2 8 (Tex

. Crim. App. 1993); Nicholas v. State , 56 S.W .3d 760, 767 (Tex. App.—Houston

[14t h Dist.] 2001, pet. re f’d)

.

CONCLUSION

We modify t h e d i s t ri ct court’s judgme nt to ref lect that Perez was convicted of possessing coca ine i n an amount of one g ram or more but less th an fo u r gra m s. As modified, we aff irm the judg ment of the district cour t.

__________________________________________ Bob Pembe rton Be fore J ustices Patterson, Pury ear and Pember

ton Modified and, a s Modified, Aff irmed Filed: May

5, 2010 Do Not Publish

22