Appeal from the 177th District Court Harris County, Texas
Trial Court Cause No. 1513928
consists of Justices Wise, Zimmerer, and Hassan.
Suzanne Elizabeth Wexler was convicted of possession of
methamphetamine with intent to distribute. See Tex.
Health & Safety Code §§ 481.102, 481.112(d).
The trial court sentenced appellant to serve 25 years in
prison. Appellant appeals her conviction in two issues.
Appellant asserts in her first issue that the trial court
erred when it overruled her objection to the admission of a
statement she made at the scene of her arrest and before she
was given Miranda warnings. See Miranda v,
Arizona, 384 U.S. 436 (1966). We overrule this issue
because appellant's statement was made before she was in
custody. Appellant argues in her second issue that she
received ineffective assistance of counsel because her trial
counsel failed to request a trial continuance due to a
missing defense witness. We overrule this issue because
appellant has not demonstrated that she was prejudiced by her
trial counsel's allegedly deficient handling of her case.
We therefore affirm the trial court's judgment.
Hill is a narcotics detective with the South Houston Police
Department. Hill was assigned to the Harris County
Sheriff's Department Narcotics Task Force doing
undercover narcotics work. Hill received information from the
Humble Police Department that crystal methamphetamine had
been sold from a residence located at 318 Avenue A in South
Houston. Based on that information, Hill set up surveillance
of the residence by a South Houston narcotics K-9 unit. The
K-9 unit was instructed to monitor traffic in and out of the
318 Avenue A residence. The K-9 unit eventually made three
traffic stops of vehicles leaving the 318 Avenue A address
where methamphetamine was discovered.
result of the three traffic stops, Hill believed that the 318
Avenue A residence was being used to distribute drugs.
According to Hill, appellant lived at the 318 Avenue A house
and she was a suspect in the investigation, in fact, she was
one of two targets of the investigation. Hill obtained a
search warrant for the 318 Avenue A house. The plan for
searching the house called for uniformed police to initially
block access to Avenue A. The Harris County Sheriff's
Office High Risk Operations Unit ("HROU") would
then surround the house, serve the warrant, and conduct a
protective sweep of the house. Only when the protective sweep
was completed, and any people in the house had been removed,
would the narcotics officers enter the house to conduct the
search for narcotics.
16, 2016, the HROU, narcotics officers, and other uniformed
police units arrived on the scene. The uniformed police units
blocked off both ends of the street to prevent any traffic on
the street while the warrant was being executed. The HROU
surrounded the house and announced their intention to search
the home based on a search warrant over a loud
speaker. The HROU directed anyone in the house
to exit. Appellant came out of the house where she was
detained by the HROU and placed in the back seat of a patrol
car. According to Hill, once appellant was
placed in the patrol car, she was detained as part of the
investigation and she was not free to leave. The HROU then
began its protective sweep of the house to ensure there were
no threats present.
the HROU was performing its protective sweep of the house,
Hill stated the following to appellant: "Hey, we have a
search warrant. We're going to find the drugs. Just tell
me where they are." Appellant responded that the
narcotics were "in her bedroom in a dresser
drawer." At the time that Hill spoke with appellant, the
actual search of the house by narcotics officers had not
started, and no illegal drugs had been found. While it is
undisputed that appellant was placed in the backseat of a
patrol car for officer safety and so that police could
conduct the search of the house, there is no evidence she was
handcuffed or otherwise restrained by officers. In addition,
there is no evidence that officers pointed firearms at
appellant or threatened her. There was also no evidence that
Hill was hostile in tone when he addressed appellant. While
Hill considered appellant a suspect at the time of the
search, he did not tell appellant that she was a suspect.
HROU had completed the protective sweep of the house, the
narcotics officers entered to conduct the search. The house
had two bedrooms and a small addition had been added to the
back. Inside appellant's bedroom, officers found female
clothing, drug paraphernalia, several cell phones, scales,
and marijuana individually bagged for sale. Additionally, the
narcotics officers found 25.077 grams of methamphetamine in
appellant's dresser drawer. Along with the
methamphetamine, the police found "a bunch of plastic
baggies and some currency." Police also found handgun
ammunition and magazines. According to Hill, the items that
the narcotics officers found inside the house were consistent
with the sale of narcotics. Once the search of the house had
been completed, Hill placed appellant under arrest.
trial appellant objected to the admission of her statement
made in response to Hill's question. In appellant's
view, Hill's question was a custodial interrogation and
she should have received the warnings required by
Miranda and article 38.22 of the Code of Criminal
Procedure before being questioned. Because she was not given
those warnings, appellant argued that her statement should be
excluded. After allowing appellant's trial counsel to
conduct a voir dire examination of Hill outside the presence
of the jury, the trial court overruled appellant's
objection and admitted appellant's statement.
her case, appellant called a single witness to testify, Jimmy
Sherlock. Sherlock testified that he had been friends with
appellant for about twenty years. According to Sherlock,
appellant had moved out of the Avenue A house in April and
was living with him. Sherlock explained that appellant had
broken up with her boyfriend, Jimmy McCullough, and had
decided to move out of his house. Sherlock testified
McCullough was a drug dealer and that he believed the drugs
found in the house were his. Sherlock further testified that
he went with appellant to the Avenue A house on June 16, 2016
to pick up the last of her possessions. When they arrived at
the Avenue A house, Sherlock dropped appellant off and he
left. During cross-examination, Sherlock revealed that he had
been previously convicted of burglary and robbery. Sherlock
also admitted that appellant was a close friend.
jury found appellant guilty and she was sentenced to serve 25
years in prison. Appellant moved for a new trial claiming
that her trial counsel was ineffective for, among other
things, failing to request a continuance in order to compel
John Forster to appear to testify. The trial court held a
hearing on appellant's motion. During the motion for new
trial hearing, appellant did not call Forster, or produce any
evidence related to Forster's availability to testify
during appellant's trial, or his prospective testimony.
Appellant instead relied on Forster's affidavit that had
been previously secured by appellant's trial counsel. The
trial court denied appellant's motion. This appeal
The trial court did not commit reversible error when it
overruled appellant's objection and admitted
appellant's statement into evidence.
argues in her first issue that the trial court committed
reversible error when it overruled her objection to the
admission of her statement made at the scene. In
appellant's view, she was in custody when she was placed
in the backseat of a patrol car, she should have received the
warnings required by Miranda and article 38.22 of
the Code of Criminal Procedure before Hill questioned her,
and because she did not, the trial court should have
sustained her objection and excluded the statement.
did not file a pre-trial motion to suppress her statement.
She instead objected to its admissibility during trial. After
appellant objected, the trial court allowed appellant's
trial counsel to question Hill outside the presence of the
jury. The trial court then heard argument from
appellant's counsel as well as the State before
overruling appellant's objection. Because a motion to
suppress is simply a specialized objection to the
admissibility of evidence, we shall apply the same standard
of review to the trial court's custody determination as
if appellant had moved to suppress her statement. See
Kuether v. State, 523 S.W.3d 798, 807, n.10 (Tex.
App.-Houston [14th Dist.] 2017, pet. ref'd).
reviewing a trial court's ruling on a motion to suppress,
an appellate court applies an abuse-of-discretion standard
and will overturn the trial court's ruling only if it is
outside the zone of reasonable disagreement. Martinez v.
State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). We
view the evidence in the light most favorable to the trial
court's ruling. Weide v. State, 214 S.W.3d 17,
24 (Tex. Crim. App. 2007). At a suppression hearing, the
trial judge is the sole trier of fact and assesses the
witnesses' credibility and decides the weight to give
that testimony. Id. at 24-25. If a trial court has
not made a finding on a relevant fact, we imply the finding
that supports the trial court's ruling, so long as it
finds some support in the record. State v. Kelly,
204 S.W.3d 808, 818-19 (Tex. Crim. App. ...