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Wexler v. State

Court of Appeals of Texas, Fourteenth District

August 27, 2019

SUZANNE ELIZABETH WEXLER, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 1513928

          Panel consists of Justices Wise, Zimmerer, and Hassan.

          MAJORITY OPINION

          Jerry Zimmerer, Justice.

         Appellant 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.

         Background

         Jerome 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.[1]

         As a 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.[2] 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.

         On June 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.[3] 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.[4] 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.

         While 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.

         Once 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.

         During 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.

         During 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.

         The 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 followed.

         Analysis

         I. The trial court did not commit reversible error when it overruled appellant's objection and admitted appellant's statement into evidence.

         Appellant 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.

         Appellant 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).

         In 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. ...


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