Appendix — Malekzadeh v. Texas

Supreme Court brief1995

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AUG 29 1995

NO. !

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

MOHAMMED MALEKZADEH

Petitioner

vs.

THE STATE OCF TEXAS

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS,

FIRST JUDICIAL DISTRICT OF TEXAS

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Steven J. Lieberman

Counsel of Record

600 Travis Street

Suite 3000

Houston, TX 77002

(713) 228-8500

Table of

Opinion of The Court of Appeals,

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First Judicial District of

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the Texas Court of

Criminal Appeals refusing

Petition For Discretionary

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IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

MOHAMMED MALEZADEH

Defendants-Appellants.

Versus

THE STATE OF TEXAS

Plaintiff-Appellee.

Appeal from the Court of Appeals

First District of Texas

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause Nos. 524,076 and

524,077

(December 8, 1994)

OPINION ON MOTION FOR REHEARING

We overrule appellant’s motion for

rehearing, withdraw our opinion of

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September 29, 1994, and issue this opinion

in its stead.

After a trial to the court, Mohammed

Malekzadeh, the appellant, was found

guilty of indecency with a child and eight

counts of fraudulent possession of a

prescription form, under former Tex. Rev.

Civ. Stat. art. 4476-15 §4.09(a).’ For the

charge of indecency with a child, his

punishment was assessed at 20 years in

prison and a $10,000 fine; for the

fraudulent possession of prescription

forms, his punishment was assessed at 10

years in prison and a $5,000 fine. The

court granted the State’s motion that the

two periods of imprisonment will: run

‘Act of June 3, 1985, 69th Leg., R.S.,

ch. 227, §10, 1985 Tex. Gen. Laws 1102,

1123, repealed and codified by Act of June

14, 1969, 7iet Leg., B.8.,¢ Ca. 678; 8913

and 1, 1989 Tex. Gen. Laws 2230, 3165,

2942. The current version is found at

Tex. Health & Safety Code §481.129 (Vernon

1992).

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consecutively, not concurrently. We

affirm.

FACT SUMMARY

The complainant, a female, was 16

years old in February-1989, when she began

working as a secretary at the appellant’s

automobile repair business. On the

evening of February 13, the appellant

asked her to accompany him to his

apartment to help him with his English

lessons. The appellant offered to pay her

for doing so, and she agreed. Once they

arrived at his apartment, the appellant

left for about 20 minutes, and returned

with drinks and food from McDonald’s.

Shortly after the complainant ate, she

began to feel very drowsy. The appellant

then gave her a drink, other than the one

from McDonald’s, which he claimed would

help her. Something in the food or drink

made her feel so unusually sleepy and

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drowsy that she concluded later she had

been drugged. The appellant then took her

into the bathroom applied shaving cream to

her pubic area, and shaved her pubic hair.

The complainant’s next memory after that

was of waking the following morning when

her sister called the appellant’s

apartment, trying to locate her. Because

complainant was still too drowsy to talk,

the appellant spoke to her sister, and

gave her directions to his apartment to

pick her up. The complainant then got out

of bed; the appellant helped her put on

her clothes, and helped her to the living -

room couch. Soon afterward, the

complainant’s sister and father arrived,

and took her home. The complainant

remained in the same drowsy state during

the next two days, drifting in and out of

full sleep, without ever fully awakening

to normal alertness. On February 16, when

she was first able to communicate

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————

effectively, complainant called the

police.

Based on Officer Peck’s affidavit

about the information complainant gave,

search warrants were issued for the

appellant’s home and place of business, as

well as a warrant for the appellant’s

arrest. The appellant was not at his

place of business when Peck and the other

officers arrived there; they waited, and

he arrived about 30 minutes later,

carrying a briefcase. The officers

arrested him, and then searched him first.

In his left sock, they discovered a small

bottle containing a white substance. They

then searched the business premises and

found documents on the desk with the

complainant's name on them. After that,

they searched the appellant’s briefcase,

and found seven blank prescription forms.

The officers then went to his apartment,

where they searched, and seized other

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items. The appellant was then taken to

the police station, where he made an oral

statement, which Peck’ typed. The

appellant read it, made no changes, but

refused to sign it.

Objection to oral confession

In point of error one, the appellant

asserts that the trial court erroneously

admitted a typed statement of the

appellant’s oral confession that he had

refused to sign. The typed statement is

reproduced below, with the italicized

portions indicating those that the trial

court admitted into evidence:

[The complainant] came over to

my apartment at about 6:00 p.m.

She told me that she had a

headache so I gave her some of

my sleeping pills, it’s

Lorazepam, it makes me sleep.

She just wanted to feel better.

I went to McDonald’s and brought

her back a hamburger and coke.

She ate when I came back to the

apartment.

We went to my bed and she kissed

me for about’ twenty (20)

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eS ee ne ee NE Mn Sh ee ae

minutes. She wanted to make

love to me. At about 11:30 p.m.

she called her sister and said

that she would be home later.

[The complainant] did not want

to go home, she just wanted to

make love and watch the love

movies.

She made love to me, and said

she "came" three (3) times. She

made me put my penis inside of

her. She put her mouth on my

penis, and she made me put my

mouth on her vagina.

I had been drinking a beer and

about four glasses of Johnnie

Walker, so I was feeling drunk.

We were in my bed and some of

our clothes were on and some

were off.

She wanted to see a movie so I

put in a scary [sic] one but she

wanted to see the love movies.

She watched the Playboy movie,

and she watched some of "Shaved

Part II" she asked me to do her

like they did in the movie.

She told me to use the scissors

just to cut off the top of her

hair down there. She made me

put shaving cream on her then

after the hair was gone _ she

cleaned herself off.

She just watched movies all

night and she slept some, too.

The next day her sister and dad

came and took her home.

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The appellant objected that the entire

statement was inadmissible, by virtue of

article 38.22 of the Texas Code of

Criminal Procedure. In response, the

trial court admitted the portions of the

Statement underlined above, and excluded

the remainder.

When a defendant’s statement is

reduced to writing but he refuses to sign

it, the statement is considered an oral

statement. See Docking v. State, 852

S.W.2d 50, 51 (Tex. App.--Texarkana 1993,

pet. ref’d). When a defendant who is in

the custody of the police makes an oral:

statement in response to interrogation,

the statement is admissible at trial if it

was electronically recorded and meets the

others conditions set forth in Tex. Code

Crim. P. art. 38.22, section 3(a) (Vernon

Supp. 1994). Here, because the statement

was not electronically recorded, it does

not meet the requirements of article 38.22

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§3(a). However, even if an oral statement

made . in response to custodial

interrogation is not recorded, or it does

not meet one of the other conditions of

subsection (a), it is admissible if it

"contains assertions of facts or

circumstances that are found to be true

and which conduce to establish the guilt

of the accused, such as the finding of

secreted or stolen property or the

instrument with which he states’ the

offense was committed." Tex. Code Crim.

P. Ann. art. 38.22, §3(c) (Vernon Supp.

1994). Subsection (c) lists two examples

-- finding secreted or stolen property of

the instrument with which the defendant

said he committed the offense. These

examples are illustrative only, and are

not a limitation on the circumstances

"which conduce to establish" guilt when

shown to be true. Gunter v. State, 858

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S.W.2d 430, 448 (Tex. Crim. App. 1993).

Oral statements made by an accused need

not lead to or result in the discovery of

incriminating evidence so long as the

statutory requirements are met. [J{q. The

requirements of section 3(c) are satisfied

when the suspect makes assertions about

facts about which the police are unaware

at the time of the statement and which are

later verified and found to be true. jq.

Even if only one of the assertions in an

Oral statement is true and conduces to

show the guilt of the accused, the

confession is admissible in its entirety. ©

Id. at 449.

There were two assertions in the

appellant’s oral statement that were later

found true and tended show his guilt.

First, the appellant stated that he showed

the complainant a sexually explicit film

by the name of "Shaved Part II" and that

the complainant asked her to "do to her

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like they did in the movie." The search

warrant for his house instructed the

officers to seize any tapes depicting the

complainant or any other children, clothed

or unclothed. At the time the officers

executed the warrant, they seized 35

tapes. The officer who took the statement

from the appellant testified that another

officer took possession of 35 tapes and

"bagged" them. She said she did not know

the titles of the tapes until after she

took the appellant’s statement. It was

then that she made an inventory of the

names of the tapes and discovered that one

of the tapes was titled "Shaved Part II."

Second, the appellant stated that he

possessed Lorazepam and had given some to

the complainant on the night of the

offense. At the time of appellant’s

statement, the police had already

discovered a prescription bottle

containing 1.4 grams of white powder. The

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evidence in this case shows that on the

day of appellant’s arrest, the police

delivered two prescription bottles to the

HPD crime lab for analysis. Dr. Davis, a

police chemist, testified that he analyzed

1.4 grams of an unknown substance

contained in one of the prescription

bottles and found that it contained

Lorazepam. Davis testified that to analyze

an unknown substance,

We have a battery of

standardized tests ius

[consisting of] what is known as

chemical spot tests which are

color tests to help us determine

the class of compounds and

substances may fall in. Once we

fall into that we then verify

that by going into instrumental

analysis. An ultraviolet

spectrometer is the most common.

The next one is common is

usually combination or combined

procedure known as GCM is or

gastromortography to positively

identify the substance.

[Emphasis added) .

Appellant was arrested at 1:30 p.m.;

he gave his statement at 4:00 p.m. The

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trial judge could have reasonably

concluded that the battery of tests

required to identify the unknown powder

substance was not completed in the two and

one-half hours that elapsed between

appellant’s arrest and the time he made

his statement. Thus, the trial judge

could also have reasonably concluded that

the police were unaware that the powder

substance was actually Lorazepam at the

time appellant gave his statement.

Davis also testified that Lorazepam

was a "central nervous system depressant

or tranquilizer." The identity of the

substance as Lorazepam conduced to

establish the appellant’s guilt because it

established that the appellant had, in his

possession, the means to induce the

complainant to become extremely drowsy and

sleepy for several days, as the

complainant testified he had, by

"drugging"” her, done.

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The appellant’s oral statement that

Peck transcribed fell within the scope of

subsection 3(c) of article 38.22. The

statement as admissible, and the trial

court did not err in overruling the

appellant’s objection.

We overrule point of error one.

Motion to suppress

In point of error five, the appellant

contends that the trial court committed

reversible error in denying his motion to

suppress any evidence seized at his home

or place of business on the day of his

arrest. The appellant objected that —

Peck’s affidavit in support of the search

warrants was insufficient under Tex. Code

Crim. P. Ann. articles 18.01 and 18.02

(Vernon Supp. 1994).

The evidence that appellant contends

was illegally seized at his place of

business--the blank prescription forms--

was recovered during a search incident to

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ieee iii)

lawful arrest; they were not discovered

during the execution of the search

warrant. Appellant was carrying the

briefcase at the time he was arrested, and

the briefcase was searched incident to the

arrest. The appellant has not attacked

the search warrant incident to arrest. A

lawful arrest authorizes a limited search

of the person arrested without a search

warrant. Gauldin v. State, 683 S.W.2d

411, 414 (Tex. Crim. App. 1984). Here,

insofar as the record shows, the scope of

the search did not exceed those limits.

The rule is that

warrantless searches of luggage

or other property seized at the

time of an arrest cannot be

justified as incident to that

arrest either if the "search is

remote in time or place from the

arrest," or no exigency exists.

Once law enforcement officers

have reduced luggage or other

personal property not

immediately associated with the

person of the arrestee to their

exclusive control, and there is

no longer any danger that the

arrestee might gain access to

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the property to seize a weapon

or destroy evidence, a search of

that property is no longer an

incident of the arrest. ~

United States v. Chadwick, 433 U.S. 1, 15,

97 | 2476, 2485 (1977) (citation

omitted) .

In Carrasco v. State, 712 S.W.2d 120,

122-23 (Tex. Crim. App. i966), the

defendant argued that because the police

had exclusive control over his bag at the

time they searched it, the search could

not be justified as an incident of arrest.

The Court of Criminal Appeals held that

the police did not have exclusive control

over the bag because the search was made

at the scene of che arrest, and the

appellant was only a few feet away at the

time, and could have obtained access to a

weapon, had one been in the bag. Iq. The

court distinguished Chadwick, in which the

warrantless search was conducted after the

property had been removed from the arrest

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—

scene, and the defendant had been placed

in custody. 433 U.S. at 4, 97 S.Ct. at

2480.

The record affirmatively shows that

the briefcase had not been reduced to the

exclusive control of law enforcement

officers at the time of the _ search.

Appellant was carrying the briefcase at

the time he was arrested; it was within

his immediate control. The search of the

briefcase was performed in appellant’s

presence at the scene of the arrest.

Under Carrasco, the search of appellant’s

briefcase was valid as a search incident

to arrest.

We overrule point of error five.

Objection to extraneous crimes, wrongs,

or acts

In point of error’ three, the

appellant asserts that the trial court

committed reversible error by overruling

his objections, under rule 404(b) of the

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Texas Rules of Criminal Evidence, to

testimony concerning three extraneous

crimes, wrongs, or acts.

The three extraneous matters were the

small bottle of white powder --

purportedly cocaine -- found in the

appellant’s sock at the time of his

arrest; marijuana found in his apartment;

and a homemade videotape -- purportedly of

the appellant committing unspecified

sexual acts with a drugged female other

than the complainant -- also found in his

apartment.

When Peck testified to finding the.

small bottle of white powder in the

appellant’s sock, the appellant objected

that that was an extraneous matter

unrelated to the charges against him. The

prosecutor responded that the testimony

was "going to be related" to the indecency

charge. The trial court overruled the

objection, but stated, "(I)f it turns out

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it’s not relevant to that issue then the

court will not consider it for any

purpose." Later, after both sides had

rested, the trial court asked the

prosecutor about the identity of that

substance, and the prosecutor responded

that it was cocaine, not Lorazepam. The

court then stated that that item was not

"of any particular relevance" and the

prosecutor agreed.

Peck also testified that when she

searched the appellant’s apartment, she

found "something that was believed to be

marijuana." The appellant did not object.

Shortly after, however, the trial court

Stated, sua sponte,

For the purposes of the record,

at this point, the court having

heard the detective mention she

found what appeared to be

marijuana, to the extent that it

becomes a substance that the

officer testified to with a

great degree of reliability, the

court will now note that the

court will not utilize that at

this point, unless somebody can

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show me some high degree of

relevance. The court will not

consider that for any probative

value. And Rule 403, even

though it’s not specifically

addressed yet by counsel, this

is one example where the court

will not allow that unless the

state can show some expert or

some other type of testimony

that marijuana could have the

kind of effect that affected

this complaining witness, and

the description of her being

drugged like she indicated that

she was.

No testimony or other evidence about the

effects of marijuana use was presented

during the balance of the trial.

Finally, Peck testified to finding

the homemade videotape. The appellant

objected that the conduct it showed was an

extraneous offense, if any, and had

nothing to do with juveniles because the

female appearing on the tape had been

identified as an adult. After listening

to the prosecutor and defense counsel each

argue the admissibility of testimony

concerning the videotape, the trial court

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stated that the testimony was of no

relevant "right now," and sustained the

appellant’s objection.

If a trial court admits evidence

subject to its later being "connected up,"

the party objecting to the evidence must

re-urge the objection after both sides

rest; if the objection is then sustained,

the party who objected must ask that the

evidence be stricken. Puller v. State,

829 S.W.2d 191, 198-99 (Tex. Crim. App.

1992). Here, the trial court’s inquiry,

sua sponte, about the cocaine, and its

stated conclusion that testimony about the

cocaine was not of any particular

relevance to its decision as the finder of

fact, were, together, the functional

equivalent of sustaining the original

objection and giving an instruction to

disregard the evidence -- as was the

court’s statement, again sua sponte, that

it would not consider the testimony about

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the marijuana. Finally, with respect to

testimony concerning the videotape, the

appellant’s objection was, an fact,

sustained, and the appellant requested no

further relief. With respect to all three

matters about which the appellant

complains here, nothing is presented for

review.

We overrule point of error three.

Prosecutorial misconduct

In point of error six, the appellant

addresses the three extraneous matters

that were challenged under point of error

three. He contends that the introduction’

of that evidence and the prosecutor’s

false and misleading statements about it

constituted deliberate prosecutorial

misconduct that deprived him of a fair

trial, in violation of his rights under

the sixth amendment. To the extent that

the appellant complains about the

introduction of the evidence itself, this

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point of error duplicates the complaint

that is the subject of point of error

three, and, to that extent, is without

merit, for the reasons set forth in the

discussion of that point.

The appellant does not in his brief

direct our attention to any juncture at

which he raised this complaint in the

trial court and preserved the matter for

review, under Tex. R. App. P. 52. Thus,

the issues in this point were not

preserved separately from those already

considered and overruled.

We overrule point of error six.

Bill of exceptions

In point of error two, the appellant

asserts that the trial court committed

reversible error by refusing to allow him

to complete a bill of exceptions.

After the complainant testified on

direct, the appellant moved to discover a

"summary" Peck took down of an oral

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statement the complainant made to Peck.

Tex. R. Crim. Evid. 614(a). Both parties

then questioned the complainant on voir

dire, and the trial court concluded that

the statement was Peck’s statement and not

the complainant’s; accordingly, the trial

court denied the appellant’s motion. The

following exchange then took place:

Defense: Then, for purposes of

the record, I ask that that

portion of Donna Peck, that

contains statements made by [the

complainant]. be marked and

identified an admitted into

evidence for purposes of the

court’s ruling, and for purposes

of impeachment.

The court: We’ll go ahead

and hold it until Detective Peck

comes up and we can get her to

identify that is, in fact,

probably needs to be better

identified for the purposes of

the ruling of 614(a) and right

now you do have a couple of