author: GREMILLION, Judge. COOKS, Judge,

text:
    STATE of Louisiana v. Rendrick R. DUKE.
    No. 11-688.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Van Hardin Kyzar, District Attorney, 10th Judicial District Court, Lala Brittain Sylvester, Brittain & Sylvester, Natchi-toches, LA, for Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Rendrick R. Duke.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hOn September 3, 2009, Defendant, Rendrick R. Duke, sold crack cocaine to an undercover agent. Consequently, he was charged by bill of information in count one with distribution of a controlled dangerous substance (CDS), schedule II (crack cocaine), a violation of La.R.S. 40:967; in count two with manufacture of a CDS, schedule II (crack cocaine), a violation of La.R.S. 40:967; in count three with possession of a CDS, schedule II (crack cocaine), a violation of La.R.S. 40:967; in count four with possession of a firearm in the presence of a CDS, a violation of La.R.S. 14:95(E); in count five with possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1; in count six with simple possession of marijuana, first offense, a violation of La.R.S. 40:966; and in count seven with possession of drug paraphernalia, a violation of La.R.S. 40:1033.

A jury trial was held on November 8, 2010, on count one, distribution of a schedule II CDS, and Defendant was found guilty. Defendant was sentenced on December 22, 2010, to serve eight years at hard labor, two years without benefit of probation, parole, or suspension of sentence. Defendant was also ordered to pay a $1,000 fine, $500 to the public defender, and $150 to the crime lab. In default of payment, the trial court imposed an additional six months imprisonment. A motion to reconsider sentence was not filed.

Defendant is now before this court on appeal to assert a single error. He argues that the evidence was insufficient to convict him of distribution of a CDS, schedule II (cocaine).

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by staff for errors patent on the face of the record. We find two.

12At the sentencing hearing, the trial court imposed the following sentence:

[Y]ou are sentenced to eight (8) years with the Louisiana Department of Corrections, two (2) years of which shall be served without benefit of probation, parole or suspension of sentence ... You’re further sentenced to pay to the Sheriff of Natchitoches Parish a fine of one thousand dollars ($1000) plus cost, five hundred ($500) for the public defender, and one hundred fifty dollars ($150.00) for the crime lab, in default of which serve an additional six (6) months in jail.

In State v. Moore, 98-1632 (La.App. 3 Cir. 5/4/94), 640 So.2d 561, 563, writ denied, 94-1455 (La.3/30/95), 651 So.2d 858, this court stated: “An illegal sentence is one not ‘authorized or directed by law.’ State v. Johnson, 220 La. 64, 55 So.2d 782 (1951).”

In State v. Frith, 561 So.2d 879 (La.App. 2 Cir.), writ denied, 571 So.2d 625 (La.1990), the defendant was convicted of simple burglary. He was sentenced to two years at hard labor and ordered to pay a fine in the amount of five hundred dollars, to pay one-hundred sixty-two dollars and fifty cents in restitution to the victim, three hundred dollars to the Indigent Defender Board, and all court costs. On appeal, on error patent review, the court held, in pertinent part:

Second, LSA-C.Cr.P. articles 895 and 895.1 authorize restitution and payment to the indigent defender program as a condition of probation only when the trial court suspends the imposition or execution of sentence. State v. Fluitt, 482 So.2d 906 (La.App. 2d Cir.1986); State v. Starks, 471 So.2d 1029 (La.App. 1st Cir.1985). In this case, the trial court did not suspend the two year hard labor sentence. For this reason, the portion of the sentence ordering restitution and payment to the indigent defender program is illegal. Therefore, we further correct the sentence to delete that portion ordering restitution and payment to the indigent defender program. C.Cr.P. art. 882.

Id. at 883. Cf. State v. Rideau, 05-1470 (La.App. 3 Cir. 11/2/06), 943 So.2d 559, writ denied, 06-2805 (La.9/14/07), 963 So.2d 395.

Louisiana Code of Criminal Procedure Article 895.1 provides, in pertinent part:

B. When a court suspends the imposition or the execution of a sentence and places the defendant on probation, it may in its |sdiscretion, order placed, as a condition of probation, an amount of money to be paid by the defendant to any or all of the following:
(1) To the indigent defender program for that court.
(3) To the sheriff and clerk of court for costs incurred.
(4) To a law enforcement agency for the reasonable costs incurred in arresting the defendant, in felony cases involving the distribution of or intent to distribute controlled dangerous substances.

In this case, the trial court did not suspend imposition or execution of Defendant’s sentence nor place him on probation. The trial court therefore lacked authority to order, as part of the principal sentence, that Defendant make payments to the sheriffs office, the indigent defender’s board, and the crime lab. Accordingly, we amend Defendant’s sentence, deleting the provisions regarding the payments to the sheriffs office, the indigent defender’s board, and the crime lab. The trial court is, hereby, instructed to note the amendment in the court minutes.

Additionally, the trial court erred in ordering, in the event of default of payment, Defendant to serve an additional six months in jail. In State v. Major, 03-249, p. 2 (La.App. 3 Cir. 3/2/05), 898 So.2d 548, 550-51 writ denied, 05-1716 (La.2/10/06), 924 So.2d 161, this court explained in pertinent part:

It is well-settled that “[a]n indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).” State v. Zabaleta, 96-2449, p. 1 (La.3/7/97), 689 So.2d 1369. The need for incarceration raises an issue when fines or costs are not paid, because La.Code Crim.P. art. 884 requires that, when a trial court imposes a fine or costs, it must also impose a specified term of imprisonment in the event the defendant defaults on payment of the fine or costs. Because an indigent person may not be incarcerated for failure to pay a fine, the supreme court has vacated “the portion of ... [a] sentence which provides for a jail term in the event of default of payment of a fine.... ” Zabaleta, 689 So.2d 1369.

|4It appears Defendant is indigent. During the pre-trial, trial, and sentencing proceedings, he was represented by an appointed attorney, and on appeal, he is represented by the Louisiana Appellate Project. This court finds these facts are presumptive evidence of indigence. See State v. Devare, 03-610 (La.App. 5 Cir. 10/28/03), 860 So.2d 191 and State v. Jones, 535 So.2d 3 (La.App. 4 Cir.1988). We recognize that this court’s action of deleting the payments discussed above, renders this part of Defendant’s sentence moot. Nevertheless, for the sake of clarity we also delete that portion of the sentence, and hereby, instruct the trial court to note the amendment in the court minutes.

ASSIGNMENT OF ERROR

In his sole assignment, Defendant argues that the evidence is insufficient to convict him of distribution of a CDS, schedule II (cocaine). Defendant maintains that the jury heard no admissible evidence regarding the offense committed on March 4, 2010, thus, his conviction and sentence should be vacated.

The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 8 Cir. 5/7/97), 695 So.2d 1367, 1371.

To prove Defendant’s guilt of distribution of a CDS, schedule II (cocaine), the State had to show that he produced, manufactured, distributed, or dispensed or | .^possessed with the intent to produce, manufacture, distribute, or dispense the cocaine. La.R.S. 40:967(A)(1). The elements of the crime, however, are not in dispute.

First, Defendant asserts that the date of the offense, as stated in the bill of information and read aloud to the jury, reflects that the offense occurred on May 4, 2010, whereas the evidence presented at trial related to an offense that occurred on September 3, 2009. Defendant also complains that the jury was permitted to hear evidence of another offense that occurred on March 4, 2010, a separate offense not before the jury.

Bill of Information

Count one of the bill of information, which was read aloud to the jury, indicates that on or about March 4, 2010, Defendant was charged with distribution of a CDS, schedule II (crack cocaine), the offense for which he was subsequently tried and convicted herein. Defendant did not object to the bill of information.

The evidence presented at trial involved a charge of distribution of a CDS, schedule II (cocaine), that occurred on September 3, 2009, not March 4, 2010, as provided in the bill of information. Officer Billy Joseph Meziere of the Natchitoches City Police Department testified about his investigation involving the Defendant’s arrest on September 3, 2009, and subsequent charge for distribution of a CDS, mainly crack cocaine. Next, Lieutenant Roger Henson with the Natchitoches Parish Sheriffs Office testified about his involvement with Defendant’s arrest and charge for distribution of crack cocaine on September 3, 2009. Lastly, Julian Williams, an undercover agent with the Beauregard Sheriffs Department, testified that Defendant sold him crack cocaine on September 3, 2009.

The supreme court in State v. Draughn, 05-1825, pp. 5-6 (La.1/17/07), 950 So.2d 583, 623, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007) stated:

16The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. State v. Gainey, 376 So.2d 1240, 1243 (La.1979). A post-verdict attack on the sufficiency of an indictment should be rejected unless the indictment failed to give fair notice of the offense charged or failed to set forth any identifiable offense. State v. Williams, 480 So.2d 721, 722, n. 1 (La.1985); La.C.Cr.P. art. 465, Official Revision Comment (a). Given counsel’s failure to file a motion to quash, the defendant arguably waived any claim based on the allegedly defective indictment.
Notwithstanding the procedural bar to the claim, the Louisiana Constitution of 1974 provides that an accused shall be informed of the nature and cause of the accusation against him. La. Const. Art. I, § 13. That requirement is implemented by La.C.Cr.P. art. 464, which provides:
The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Additionally, La.Code Crim.P. art. 468 reads in pertinent part:

The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.

In the instant case, Defendant did not file a motion to quash the bill of information. Further, the date of the offense is not an essential element of the offense in proving that Defendant distributed cocaine. As such, the error is one of form, which may be amended at any time. State v. Lawson, 393 So.2d 1260 (La.1981).

On appeal, Defendant maintains that the date of the offense is essential because he was charged with two separate offenses that occurred months apart. As 17such, he contends that the jury could not distinguish what charge Defendant was facing without a correct date on the bill of information.

The testimony of Lieutenant Henson indicates that on March 4, 2010, Defendant was arrested and charged with the offenses listed in counts two through seven of the bill of information, none of which are for distribution of a CDS, schedule II (crack cocaine). Also, at the time of Defendant’s arrest, Lieutenant Henson learned that Defendant had an outstanding warrant for distribution of a CDS, schedule II (crack cocaine) that occurred on September 3, 2009, the offense for which he was charged in count one and was being tried. Lastly, Lieutenant Henson confirmed that Defendant’s charges from March 4, 2010, were still pending at the time of trial. As such, Defendant’s assertion that the date of the offense is essential because the jury could not distinguish what charge Defendant was facing without a correct date on the bill of information is without merit.

Additionally, the bill of information was read aloud at the beginning of trial, giving notice of the essential elements of the offense the State intended to prove. Defendant did not object to the sufficiency of the bill. The record also reflects that prior to trial, on June 28, 2010, counsel for Defendant acknowledged receipt of a copy of the discovery material in connection with the offense that occurred on September 3, 2009. Also, the minutes of a preliminary hearing on October 20, 2010, indicate that the parties discussed the fact that Defendant was involved in two separate transactions on separate dates, and the subsequent testimony involved the offense that occurred on September 3, 2009. Moreover, Defendant does not contend on appeal that he was either surprised or prejudiced by the error.

Accordingly, in addition to his failure to file a motion to quash, we note Defendant’s post-verdict attack on the sufficiency of the bill of information fails to show he was not given fair notice of the offense charged or that the bill did not set forth an identifiable offense. There is no merit in Defendant’s argument with |8regard to the date of the offense as set forth in the bill of information and recited at trial.

Other Crimes

Defendant alleges that “the trial court and the State allowed the jury to be aware of prohibited other crimes evidence.” Further, Defendant contends that the jury was flooded with other crimes evidence as the result of the wrong date on the bill of information.

The record reflects that on cross-examination, Defendant presented Lieutenant Henson with a document that he identified as his initial report form involving the instant offense on September 3, 2009. Defendant then asked:

Q. Okay, and you see there where it indicates that ... this was from the alleged purchase on September 3rd. Do you see where it lists the white Caprice and a license plate?
A. Uh, yes sir.
Q. Okay.
A. Would you like for me to read that
Q. Yes, would you ...
A. ... statement?
Q. Yes.
A. Uh ... ‘Upon the arrival, Agent Williams observed a white Chevrolet Caprice, uh, observed ... bearing, Louisiana, SNG850, pulling into the lot occupied by two black males.’

The document was not introduced into evidence. Next, Lieutenant Henson was shown an application for a search warrant involving an offense on March 4, 2010, and was questioned as follows:

Q. Okay. And I would like for you to read ... this is again your affidavit beginning with the word, this ... read that sentence for the jury ... for the Court, please?
A. This vehicle ... this is in relation to the application of the search warrant that we spoke earlier ...
|;iQ. For ... for March ...
A. March 4th.
Q. ... March 4, 2010?
A. Right. In relation to the search warrant. This vehicle is similar to the vehicle that Peter Richards had been observed driving, bearing Louisiana SNG850.
Q. This was the same license plate number?
A. It was in that particular instance, yes ... the one that was parked three houses down.
Q. But your ... but your statement, here says it was similar to the car ...
A. Uh, huh.
Q. ... Peter Richards had been observed driving bearing Louisiana license plate, SNG850.
Q. So, there’s the same license plate ... the same automobile?
A. No.
Q. No.
A. The way I referred that to be ... was similar vehicle ... I put the license plate that was actually parked three houses down on the affidavit, because it was on the vehicle ... so I put it on my affidavit. So, in the event that we needed to search that vehicle, it would be on the application for the search warrant.
Q. So, it wasn’t ... it wasn’t the car that you saw Peter Richards driving?
A. It’s ...
Q. Or do you know for sure?
A. It’s similar ... to the vehicle. I can’t say for sure ...
Q. Okay.
A. ... but it’s similar.

The March 4, 2010 application for a search warrant was introduced and admitted into evidence without objection

|inIn the application, Lieutenant Henson requested a search warrant be issued for the search of a residence occupied by Defendant and Donterrius Beaudion for the following reasons:

On the early morning of March 4 2010, Natchitoches SWAT executed a Narcotics warrant at a residence located at 618 Sabine Alley. This residence has been occupied by Peter Richards, aka “P.J.” and Tareanesha Lagloria Johnson aka “Reanesha”, who also have active distribution warrants for their arrest.
Upon entry to this residence SWAT members came in contact with a young child in the first bedroom, alone. An infant was located in a car seat on the master bedroom bed along with an elderly black male, identified as Emmett Roy Davis Jr., with just a shirt over his body. These children being the daughters of Tareanesha Johnson. A suspected crack pipe and other items of paraphernalia were located on the bed along with several, rocks of suspected crack cocaine were recovered from the master bedroom.
After speaking with Davis, he stated that he lives there and was babysitting, but did not know the name of the children’s mother. The Office of Children’s Services were [sic] then called to the scene.
SWAT members also observed a white Chevrolet Caprice located at an abandoned residence two houses down. This vehicle is similar to the vehicle that Peter Richards had been observed driving, bearing Louisiana SNG850. As the plate was being called in to the Natchi-toches Police Department, I observed a light on at the residence of 610 Winnona Street that is immediately next door to the 618 Sabine Alley residence. As I was walking up to the residence to knock on the door in an attempt to make contact with Tarneasha Johnson or another family member to take care of the children, Cpl. Linebaugh called me. He stated that he just received information from Emmett Davis, who stated that normally Peter Richards lives at the 618 Sabine Alley residence, but if the white Caprice is at the abandoned house, he might be there.
At that time Cpl. Linebaugh, Officer Derrick Roque and I went to the front door of 610 Winnona Street. I knocked on the front door and seconds later a black male, identified as Donterrious Beaudion, whom I remembered from a search warrant conducted within the past month or so, pulled the curtain back. I stated “SWAT, would open the door”. He said some curse words and took off running. At that time entry was made into the residence, in fear that Richards may be in the residence and attempting to destroy any evidence. Once the door was breached, Cpl. Line-baugh entered the front room. As I entered behind him, someone slammed the door shut. I then breached the door again and took the subject holding it to the ground, who was identified as Ren-rick Duke. Duke also has two active warrants for distribution of crack cocaine and is currently on parole. As the residence was cleared |nfor any other occupants, suspected marijuana was observed in plain view in the master bedroom.
Once this was done both individuals were asked who lives there and both said they didn’t know. As Duke was searched his wallet was located that had a large amount of US Currency within it. Upon asking him how much it was, he stated that it was about 30 $20 dollar bills. A short time later, as Duke was being escorted out of the residence, he stated that he wanted his money out of a shoebox in the bedroom. I asked him how much was in the box and he said about $1000.00, but continued to say that he did not live there.
Duke was then transported to the Task Force Office for booking he stated that the money in his wallet was his personal money. When asked about the shoe box, he again stated that the money in his wallet was his personal money.
For the above reasons I feel a search warrant should be issued to [sic] the purpose of located [sic] any items pertinent to this ongoing investigation.

On re-direct examination by the State, Lieutenant Henson clarified that he did not “run” the license plate number in the application for a search warrant involving the March 4, 2010 offense. Also, the vehicle described in the application was similar to the one belonging to Defendant.

Lieutenant Henson was not released by the State at that time and was recalled later at trial by the State. When asked if he remembered the circumstances surrounding the search warrant on March 4, 2010, Lieutenant Henson testified:

A. On the morning of March 4, 2010, we were investigating an unrelated case in which we had a separate search warrant for the residence of the illegal drug activity. And we also had some undercover operations done out of that residence as well. As a result of that search warrant we found two children in there that the parents were not there. Also one of the targets or suspects that we were actually initially looking for was not there as well. Shortly thereafter the search warrant was executed. I personally had gone to a few residences to see if we could actually find the parents of the children, so that we could try to get them somewhere safely that we knew someone would take care of them. I walked a couple of houses down and I noticed ...

Defendant objected on the basis that Lieutenant Henson’s testimony was not within the scope of Defendant’s cross-examination concerning the car described in the warrant application. The State responded that the questioning was leading up to 112the description of the car. The trial court overruled Defendant’s objection, stating that Defendant opened the door by filing the document into evidence and that the State would be discussing the car as well. Lieutenant Henson continued:

A. Okay. As a result of that, I went to a couple of houses down, and I saw a light on inside of a residence. As I begin walking up to the residence to knock on the door. Another agent ... SWAT Agent came up to me and advised me that he received information that the possible suspect that we were initially looking for may be in that residence. So we did continue to go to the residence and I knocked on the door. At that time an individual that I knew pulled a curtain back from the door. He saw us. I announced who we were. And he began to flee from the doorway, cursing and what not. At that time entry was gained into that residence. Uh, due to the fact that they may be trying to destroy evidence, if the actual suspect is inside the residence and trying to destroy anything that might be there for the ongoing investigation. As we entered the residence, we came in contact with two subjects, one being Mr. Duke. And his vehicle, a white Caprice that we spoke earlier bearing SNG850 was parked just adjacent to the residence that he was located in. During that incident, crack cocaine was found inside the residence, a weapon was found in the residence, a large sum of ... US currency was located, uh, marijuana was also located inside the residence. And there was evidence that indicated that they were actually manufacturing crack cocaine from powder cocaine inside that residence. As a result, Mr. Duke as well as the other individual were taken into custody and charged with possession of intent ... manufacturing, possession with intent ... marijuana, possession of a firearm by a convicted felon, as well as possession of a firearm in the presence CDS.

Lieutenant Henson also testified that at the time of Defendant’s arrest on March 4, 2010, he had an outstanding warrant for the distribution of a CDS, schedule II (crack cocaine) that occurred on September 3, 2009. Lastly, Lieutenant Henson confirmed that Defendant’s charges from March 4, 2010, were still pending at the time of trial.

Lastly, Rachel Plaisance with the North Louisiana Crime Lab testified that the evidence seized on September 3, 2009, from a transaction in which Defendant was involved, was determined to contain cocaine.

At the conclusion of evidence and prior to the jury’s deliberation, Defendant renewed his request that the testimony regarding the March 4, 2010 offense be stricken from the record and the jury be asked to disregard anything concerning | ^pending criminal charges. The State responded that Defendant introduced the application for the warrant into evidence and questioned Lieutenant Henson about the application, opening the door to questions surrounding the vehicle which belonged to Defendant who was staying at the residence.

The trial court agreed that Defendant had opened the door by introducing the application for the warrant, thinking the questioning was going to connect Defendant to the vehicle. The trial court, however, did not expect Lieutenant Henson to testify about another offense, and after hearing his testimony, the trial court found that the testimony had gone too far. A better way to have connected the vehicle to Defendant, the trial court stated, would have been “we knocked on the door of the residence where the vehicle was and the defendant was there, and said he resided there.” The trial court then indicated that the jury would be instructed to disregard any other testimony. Defendant did not object to the trial court’s ruling.

The trial court then discussed with the parties a draft of the jury instruction to be given to the jury before closing arguments. The instruction read:

You will remember Lieutenant Henson testified a second time concerning the application for a search warrant on March 4, 2010. The only part of his testimony that you may consider is that the car described in the application was parked at a residence where the defendant was found, and at which the defendant stated he resided. You are to disregard any of Lieutenant Henson’s other testimony on the second occasion he was called to the stand as to what happen at the residence he went to.

Defendant stated he had no objection to the instruction, and the jury received this instruction when it returned to the courtroom.

Considering the record herein, we find that Defendant opened the door to the introduction of other crimes evidence. Prior to Defendant’s questioning of Lieutenant Henson and the introduction of the application for a warrant regarding the offense committed on March 4, 2010, the jury had not been presented with any 114evidence of other crimes. Additionally, Lieutenant Henson’s testimony divulged information about the offense on March 4, 2010, that was already admitted into evidence in the application for the warrant.

At the conclusion of evidence and prior to the jury’s deliberation, the trial court determined that Lieutenant Henson’s testimony should be limited, and without objection, the jury was instructed to consider only the testimony regarding the description of the car parked at the residence where Defendant resided and was found. The jury was also instructed to disregard Lieutenant Henson’s testimony about what happened at the residence. There is merit in Defendant’s allegation that “the trial court and the State allowed the jury to be aware of prohibited other crimes evidence.” However, we find the trial court took the proper corrective steps — steps to which Defendant did not object.

DECREE

Defendant’s conviction and sentence are affirmed. We amend Defendant’s sentence, deleting the payments to the sheriffs office, the indigent defender’s board and the crime lab. Additionally, the contingency of six months in the parish jail in the event of the default of payments is also deleted. The trial court is instructed to note the amendments in the court minutes.

CONVICTION AND SENTENCE AFFIRMED.

COOKS, J., dissents and assigns written reasons.

COOKS, Judge,

Dissenting.

|! This is a case of first impression. This is not a case of any typographical error or mistake in the date alleged in the indictment. It is a mistake in the State’s presentation of the wrong case. The bill of information read to the jury was based upon events allegedly occurring on March 4, 2010. The only evidence presented related solely to events occurring on September 3, 2009. There were two outstanding bills of information charging Defendant with two separate offenses which allegedly occurred on September 3, 2009 and on March 4, 2010. All of the evidence presented at trial related only to the 2009 bill of information, not the 2010 bill of information presently before the jury. The state simply came to trial and put forth evidence of the wrong charged offense. This is not a circumstance where the date is uncertain or hard to ascertain such as in child molestation cases. Defendant had no opportunity to defend himself or fairly prepare for trial when he believed the case upon which he was being tried was for an event that allegedly occurred on March 4, 2010, as alleged in the indictment read to the jury, only to find at trial that the evidence introduced concerned only events on September 3, 2009. These events were the subject of an outstanding bill of information which was not called for trial that day.

This conviction violates Defendant’s constitutional right to due process and a fair trial under both the Louisiana and United States Constitutions. See U.S. Const., Amend. V; La. Const. Art. I, Sect. 13; La. Const. Art. I, Sect. 15; and La. Const. Art. I, Sect. 16. The jurisprudence has long held that an accused is entitled to a fair trial and that such is a fundamental, basic requirement of constitutional due process. As the Louisiana state supreme court reiterated in State v. Cooper, 2010-2344 (La.11/16/10), 50 So.3d 115, 131 “due process of law requires fundamental fairness, i.e., a fair trial in a fair tribunal.” See also Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) and State v. Mejia, 250 La. 518, 197 So.2d 73 (La.1967). It is “the law of the land that no man’s life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.” Chambers v. Florida, 309 U.S. 227, 236, 237, 60 S.Ct. 472, 477, 84 L.Ed. 716 (1940). It is fundamentally unfair to bring a defendant to trial based on events that are alleged to have occurred on March 4, 2010; proceed to introduce at that trial evidence of an offense the state alleges, in a separate and outstanding bill of information, occurred on September 3, 2009; and convict Defendant of the 2010 violation based only upon evidence of activities occurring on September 3, 2009. The State put forth the wrong case at this trial and the conviction based on evidence of criminal activity on another date germane only to events addressed in another bill of information is not valid. This conviction offends all notions of constitutional due process of law and the right to a fair trial. The bill of information read to the jury and for which Defendant had appeared for trial did not inform Defendant of the “nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence.” State v. Marcal, 388 So.2d 656 (La.1980). I believe this conviction is constitutionally infirm and cannot stand. Defendant’s conviction should be reversed, vacated and a judgment of acquittal should be entered. The constitutional prohibition against double jeopardy prohibits the State from re-trying Defendant on the March 4, 2010 charge.

      . With regard to the remaining charges, Defendant pled guilty on July 7, 2011, to count two, manufacture of a CDS, schedule II (crack cocaine), and the remaining charges in counts three through seven were dismissed as part of the plea agreement.

      . In the Southern Reporter, it appears West mistakenly put the prior report as 857 So.2d 1252 which was reversed by the supreme court and remanded to this court in 888 So.2d 798.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Carlos Rios CORTES.
    No. 11-794.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      J. Phil Haney, District Attorney, Sixteenth Judicial District, Angela B. Odinet, Assistant District Attorney, St. Martin-ville, LA, for Appellee, State of Louisiana.
    Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, for Defendant/Appellant, Carlos Rios Cortes.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|,In this criminal case, Defendant, Carlos Rios Cortes, was found guilty by jury verdict of attempted possession of heroin in the amount of 400 grams or more and was sentenced to serve fifteen years at hard labor. He appeals, alleging insufficiency of the evidence, trial court error in denying his Motion to Suppress, and trial court error in not granting his pro se Motion for New Trial. For the following reasons, we affirm Defendant’s conviction with instructions pertaining to post conviction relief.

FACTS AND PROCEDURAL HISTORY

On July 7, 2009, at approximately 8:17 a.m., Vonita Cisneros was driving her 2001 Mitsubishi Montero eastbound on Interstate Highway 10 (I — 10) within St. Martin Parish, Louisiana, when she was stopped by a Louisiana State Trooper for following too closely. Defendant was the only passenger in the Cisneros vehicle. Ms. Cisne-ros and Defendant are of the Hispanic race. I — 10, at the time, was experiencing very wet road conditions and very heavy work traffic. After questioning both Ms. Cisneros and Defendant, the state trooper obtained written consent from Ms. Cisne-ros to search her vehicle. The search produced six pounds, over 400 grams, of heroin hidden in a rear panel of the vehicle. Both Ms. Cisneros and Defendant were charged with possession of over 400 grams of heroin, in violation of La.R.S. 40:966(D)(l)(c).

On November 16, 2009, Defendant filed a Motion to Suppress, alleging that the evidence was illegally seized. On April 6, 2010, Defendant filed a second Motion to Suppress, alleging that both the stop and the search leading to the ^collection of evidence were unconstitutional because they were done without reasonable suspicion or probable cause.

Following a trial by jury on April 29, 2010, Defendant was found guilty of attempted possession of heroin in the amount of 400 grams or more, in violation of La.R.S. 14:27 and La.R.S. 40:966(D)(l)(c). On June 9, 2010, the trial court received a pro se letter from Defendant; the missive was written in Spanish. Thereafter, on June 15, 2010, Defendant appeared in court for sentencing, and the trial court ordered him to serve fifteen years at hard labor. Defendant now appeals his conviction only.

ASSIGNMENTS OF ERROR

Defendant presents the following three assignments of error:

ASSIGNMENT OF ERROR NUMBER ONE: The trial court was in error to deny Mr. Cortez’ [sic] motion to suppress evidence.
ASSIGNMENT OF ERROR NUMBER TWO: It was error patent for the trial court not to have considered Mr. Cortez’ [sic] pro se filing as a motion for new trial.
ASSIGNMENT OF ERROR NUMBER THREE: The evidence was insufficient to convict Mr. Cortez [sic] of the crime of attempted possession of over 400 grams of heroin.

DISCUSSION OF THE RECORD

Trooper David Speyrer with the Louisiana State Police (LSP) was the State’s first witness. He testified that he had over eight years of experience with the LSP. Trooper Speyrer was working on July 7, 2009, and came into contact with Defendant while on duty. Ms. Cisneros’ vehicle was the first car Trooper Speyrer stopped after beginning his shift. This occurred at 8:17 a.m. Defendant was a passenger in the Cisneros vehicle. Trooper Speyrer stated, “The roadway was very wet. I saw a white Mitsubishi Montero traveling eastbound on I — 10 in the inside |,Jane directly behind a small passenger car. At that time of the morning[,] it was heavy work traffic.”

Trooper Speyrer explained that he observed the car committing a traffic violation at milepost 109 in St. Martin Parish by the Breaux Bridge scale house and that he caught up with the car near milepost 111. He ran the Pennsylvania license plate on the car, found out that it had not been reported stolen, and initiated the traffic stop between milepost 111 and milepost 112.

Trooper Speyrer reported that the driver of the vehicle had been following two to three car lengths behind the car ahead of it and that this was dangerous because of the “very wet” road conditions and heavy traffic. Trooper Speyrer asked the driver to present her driver’s license and informed her as to why she had been pulled over. The driver’s license presented was a North Carolina license that identified the driver as Vonita Cisneros. Ms. Cisneros stated that she was traveling from Houston.

Trooper Speyrer noted that while he was asking Ms. Cisneros questions, she did not look him in the eye, she looked away a lot, and her hands trembled. When Trooper Speyrer asked Ms. Cisneros about the passenger in her car, she stated that he was her husband, Carlos, and that they had been together for two years.

Trooper Speyrer related that he also spoke with Defendant, who was the passenger of the car:

I walked over onto the passenger side, while she stood in front of my unit, and I greeted him by shaking his hand. At that moment, I noticed when he shook my hand, his right palm of his hand was soaking wet with sweat. I also immediately noticed he was nervous due to [his] carotid artery ... pulsating in his neck. It’s very obvious, because where I’m standing, I’m right near the door, standing right next to the side mirror[,] and you can see the nervous in somebody!;] it’s just like a popping in the neck on the skin. And that’s usually, from my experience, an indication of extreme nervousness.

LTrooper Speyrer requested Defendant’s identification, and Defendant handed him a Mexican National Identification Card. He asked Defendant if he spoke English, and Defendant indicated he spoke some English. Defendant informed Trooper Speyrer that he was coming from Dallas. This is significant because Ms. Cisneros said they were coming from Houston and because Texas is a source state for illegal drugs. While questioning Defendant, Trooper Speyrer also noticed a strong chemical odor emanating from the vehicle’s interior. Trooper Speyrer stated he was not used to smelling that type of odor in vehicles and that strong-smelling chemicals can sometimes be used to mask other smells, such as those exuded by contraband.

Trooper Speyrer testified that the conflicting answer given by Defendant and the strong chemical odor emanating from the car aroused his suspicions. He returned to Ms. Cisneros and questioned her further before going to his unit and checking their criminal histories. While he waited for that information to be relayed, Trooper Speyrer requested consent to search the vehicle. The consent to search form was dated July 7, 2009, and showed the time as 8:38 a.m. and a location of 1-10 eastbound at milepost 113. The consent form further showed that Vonita Cisneros, a resident of North Carolina, authorized Trooper Speyrer to search a 2001 Mitsubishi Montero bearing Pennsylvania license plate number HCC644 and to seize any items the LSP deemed pertinent to its investigation. Trooper Speyrer witnessed Ms. Cisneros signing the form. The consent form showed the time of the stop as 8:17 a.m. and listed the time of arrest of both occupants as 8:58 a.m. The bottom of the form had a Spanish translation for non-English speaking people.

Trooper Speyrer stated that he had been involved in making narcotics arrests since 1997 and had received training in narcotics criminal interdiction, which 1,.¡included schools and classes, and that this training included education about indicators or points of interest showing that a particular driver may be involved in crimi- ' nal activity. He related that he had been involved in twenty car-related narcotics arrests during 2009 and that it was common for two people to occupy a vehicle containing large quantities of narcotics.

Trooper Speyrer testified that, upon searching the vehicle, officers discovered concealed compartments on both the driver’s side and passenger’s side that contained contraband. The alterations to the vehicle were aftermarket and made after its sale from a dealership. The contraband consisted of three packages of heroin; it field-tested positive, and the results were confirmed. The heroin weighed six pounds. Trooper Brad Guidroz seized the heroin on behalf of law enforcement.

On cross-examination, Trooper Speyrer agreed that some people become nervous when pulled over by a police officer, but, sometimes, that nervousness abates, and the person calms down. He further stated that nervousness exhibited by Ms. Cisneros’ hands shaking and her avoiding eye contact, by itself, was not an indicator; however, when he considered the nervousness with the other points of interest he observed as the traffic stop progressed, he became suspicious. Trooper Speyrer related that the amount of nervousness Defendant displayed during the stop was unusual and that passengers are not normally that nervous during traffic stops.

Trooper Speyrer recalled that, as he filled out the consent form and inquired about Ms. Cisneros’ and Defendant’s criminal histories, it began to drizzle. Consequently, they moved a mile from their original location to get underneath the Bordelon Road overpass. Once there, after he explained the consent form to her, Ms. Cisneros readily agreed to the search and voluntarily signed the consent form.

| (¡Trooper Guidroz with the LSP was the second witness to testify. He stated that he had been employed with LSP for four years, had worked in the narcotics division for the two years prior to trial, and had been assigned to handle the evidence in Defendant’s case. Trooper Guidroz seized packages of heroin weighing 2.74 kilograms, 2,740 grams, or approximately six pounds. The crime lab report subsequently showed that samples taken from each of the packages were heroin. On cross-examination, Trooper Guidroz testified that the packages of heroin were neither fingerprinted nor tested for DNA evidence.

Agent Vernon Bison, employed by Immigration and Customs Enforcement for the eight years prior to trial, was the State’s third witness. He interviewed Defendant in the presence of Agent Joseph Lopez as well as a translator, Officer Robinson Olivero.

Through Officer Olivero, Defendant was Mirandized (read his rights) in Spanish prior to the interview. On cross-examination, Agent Bison stated that both Cisne-ros and Cortes denied knowledge of the heroin in the vehicle. Officer Olivero, with the Lafayette Police Department, testified that he had worked with the Lafayette Police Department for thirteen and one-half years, that Spanish was his first language, and that translating between English and Spanish was one of his duties as a police officer. He stated that he always began his interviews by advising the subject of his Miranda rights in Spanish.

Officer Olivero testified that he did the translation during Agent Bison’s interview of Defendant on July 9, 2009. At the time, Defendant was shown a Miranda rights card containing the advisement of rights in both Spanish and English. Defendant stated that he understood. Officer Olivero further testified that |7Pefendant did not appear to be under any pressure during the interview and that he was neither coerced nor restrained in order to have him participate in the interview.

Officer Olivero recalled that Defendant made several statements during the interview. Defendant said that his girlfriend, Ms. Cisneros, and her mother and brother, were involved in selling narcotics. Defendant related that Ms. Cisneros knew about the drugs in the vehicle. During the interview, Defendant also stated that a man named Esteban Esfino had told him there was marijuana in the automobile. Defendant never indicated or stated that he did not understand what was going on.

The State’s fifth witness was Trooper Justin Bertrand with the LSP. Trooper Bertrand learned Spanish while attending school in France near its border with Spain. Trooper Bertrand interviewed Defendant on July 7, 2009. After establishing that Defendant would rather be interviewed in Spanish than English, Trooper Bertrand read Defendant his Miranda rights in Spanish, and Defendant signed the form. Trooper Bertrand and Trooper Walter Mire witnessed Defendant’s signature. There was a video recording made of the July 7, 2009, interview. Trooper Bertrand stated that he saw Trooper Mire count the money in Defendant’s wallet during the video interview.

During the interview, Defendant never said that he was having difficulty understanding. He claimed to have ridden to Houston with Esteban Esfino. When Ms. Cisneros, Defendant’s fiancée, had to return home to North Carolina for work, Mr. Esfino decided to remain in Houston, but to allow Defendant and Ms. Cisneros to drive his vehicle back to North Carolina. Defendant denied having knowledge that the drugs were in the automobile.

Trooper Mire was called as the prosecution’s last witness. He testified that he had worked for the LSP for eight years, that he had been investigating narcotics | Scases for five years, that his primary duties were narcotics investigations, that he had personally handled approximately 150 narcotics investigations during that time, and that he had investigated Defendant’s case. Trooper Mire further testified that he was present for Defendant’s July 7, 2009 interview and witnessed Trooper Bertrand read Defendant his Miranda rights in Spanish. He also signed the Miranda form in his capacity as a witness and counted the money in Defendant’s wallet ($915.00 in cash) during the interview.

Trooper Mire stated that the wholesale value of the heroin seized in the instant case was $450,000.00 and that the drugs were wrapped in grease, tape, and carbon paper. There was no attempt to fingerprint the packages because those materials, by their nature, would have made obtaining clear fingerprints difficult. The grease was used as a ploy to disguise the smell of the heroin.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent.

First, the trial court failed to delay sentencing for twenty-four hours after it denied Defendant’s Motion for Post Verdict Judgment of Acquittal and Alternative Motion for a New Trial. Louisiana Code of Criminal Procedure Article 873 requires a twenty-four-hour delay between the denial of a motion for new trial or a motion in arrest of judgment and the imposition of sentence. Because Defendant does not argue excessiveness of his sentence on appeal and does not claim he was prejudiced by the lack of delay, this error is harmless. State v. Roberson, 06-1568 (La.App. 3 Cir. 5/2/07), 956 So.2d 736, writ denied, 07-1243 (La.12/14/07), 970 So.2d 531; State v. Boyance, 05-1068 (La.App. 3 Cir. 3/1/06), 924 So.2d 437, writ denied, 06-1285 (La.11/22/06), 942 So.2d 553; and State v. Shepherd, 02-1006 (La.App. 3 Cir. 3/5/03), 839 So.2d 1103.

Second, the trial court failed to properly advise Defendant of the time limitation for filing an application for post-conviction relief. At sentencing, the trial court stated:

The sentence will become final in thirty (30) days.... That’s not to say that the [c]ourt believes that any error has been committed, but if the [Defendant or anyone on his behalf believe[s] or allege[s] that an error oceurred[,] then it must be filed within that two-year period or the [Djefendant will lose the right to complain of any error thereafter.

Louisiana Code of Criminal Procedure Article 930.8 provides that [D]efendant has two years after the conviction and sentence become final to seek post-conviction relief. Accordingly, we instruct the trial court to inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within fifteen days of the rendition of this opinion and to file same in the record of these proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant claims, “The evidence was insufficient to convict Mr. Cortez [sic] of the crime of attempted possession of over 400 grams of heroin.” Defendant complains that the evidence presented at trial did not show that he, as a passenger, had any knowledge that there was heroin hidden in the car. He maintains that, because he was a passenger in the car and because the drugs were hidden within the structure of the car, there was no direct evidence that he possessed or attempted to possess the drugs. Defendant argues that his statement during his police interview should not be considered because Officer Olivero did not specifically |inremember Mirandizing him and because Officer Bison testified that Defendant denied knowing drugs were in the car. Defendant asks this court to vacate his conviction.

The State replies that there was sufficient evidence to support Defendant’s conviction as the evidence showed that Defendant was a passenger in the car and that he was aware that there were drugs in the car.

The Louisiana Supreme Court has discussed the standard of review for evaluating the sufficiency of the evidence on appeal:

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the fact-finding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.

State v. Macon, 06-481, pp. 7-8 (La.6/1/07), 957 So.2d 1280, 1285-86 (citations omitted).

[The supreme court has] repeatedly cautioned that due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection of due process of law.”

State v. Calloway, 07-2306, p. 10 (La.1/21/09), 1 So.3d 417, 422 (citations omitted). “The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness[.]” State v. Higgins, 03-1980, p. 17 (La.4/1/05), 898 So.2d 1219, 1232, cert. denied, 546 U.S. 883, 126 S.Ct. 182, 163 L.Ed.2d 187 (2005). “Credibility determinations are within the sound discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence.” State v. Marshall, 04-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369, cert. denied, 552 U.S. 905, 128 S.Ct. 239, 169 L.Ed.2d 179 (2007).

It is prohibited to possess a Schedule I substance without a valid prescription:

Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule I unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner or as provided in R.S. 40:978, while acting in the course of his professional practice, or except as otherwise authorized by this Part.

La.R.S. 40:966(C). A person may be in violation of La.R.S. 40:966(C) through either actual or constructive possession:

[T]he mere presence of a defendant in an area where narcotics are discovered is insufficient to support a finding of possession. What must be shown is that each defendant had a direct right and ability to exercise control. The prosecutor does not need to show that a defendant was in actual possession of the illegal substance in order to convict; proof of constructive possession is sufficient. In order to convict a person on the basis of constructive possession, something more than mere presence in the area where the drug is found or mere association with the person in actual custody of the drug must be shown. A person may be in constructive possession of an illegal substance, even though not in physical possession, if it is subject to his dominion and control. A person may be deemed to be.in joint possession of a drug which is in the physical custody of a companion if he willingly and knowingly shares with the other the right to control it. Besides showing that a defendant had a direct right and ability to exercise control, the prosecutor must show guilty knowledge. Several factors to be considered in determining whether a defendant exercised “dominion and control” over narcotics in order to constitute constructive possession are as follows:
“... a defendant’s knowledge that illegal drugs are in the area; the defendant’s relationship with the person found to be in actual possession; the defendant’s access to the area where the drugs were found; the evidence of recent drug use by the defendant; the defendant’s physical proximity to the drugs; and any evidence that the area was frequented by drug users.”

State v. Reynaga, 93-1520, pp. 8-9 (La.App. 3 Cir. 10/5/94), 643 So.2d 431, 436 (quoting State v. Tasker, 448 So.2d 1311, 1314 (La.App. 1 Cir.), writ denied, 450 So.2d 644 (La.1984)) (citations omitted).

Heroin is listed as a Schedule I controlled dangerous substance. La.R.S. 40:964. It is also illegal to attempt to possess a Schedule I substance without a valid prescription:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

La.R.S. 14:27.

The evidence most favorable to the prosecution shows that Defendant admits he was aware that he was riding in a vehicle transporting illegal drugs. Defendant’s guilty knowledge was supported by his display of nervous behavior during the traffic stop and his statement that he was aware of the fact that drugs were in the vehicle. Trooper Speyrer stopped the vehicle as it traveled along a known drug corridor, and a search of the vehicle revealed heroin concealed in a custom-made compartment in the car, which gave Defendant and his fiancée equal access to the drugs.

We find that the facts in this case are sufficient to support Defendant’s conviction for attempting to possess CDS I (heroin) over 400 grams. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues, “The trial court was in error to deny Mr. Cortez’ [sic] motion to suppress evidence.” He asserts that he has the right to be free from a wrongful stop, from detention, and from self-incrimination. Defendant claims that the trooper had no objective basis to support his suspicion that the car was engaged | isin criminal activity, that he was stopped as a result of racial profiling, that his stop and everything that followed was illegal, that he was not fully advised of his Miranda rights, and that his conviction should be overturned. Defendant adds that, after he was arrested, he was improperly questioned because he had not been fully advised of his Miranda rights.

In his motion to suppress, Defendant alleged that the video of the traffic stop did not support a finding that the vehicle he was riding in had been engaged in following too closely, in violation of La.R.S. 32:81, because, at the time of the stop, there were no automobiles near his co-defendant’s car. Defendant further contended that his co-defendant did not act in a suspicious manner or give answers that would arouse reasonable suspicion. Defendant also complained about the length of the traffic stop, that it should have been concluded after the trooper gave the driver a warning about following too close, and that the driver’s consent to search the vehicle did not dissipate the taint of the Fourth Amendment violation.

STANDARD OF REVIEW

This court has determined that the proper standard of review for examining mixed questions of fact and law on a motion to suppress is abuse of discretion:

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion.

State v. Bargeman, 98-617, p. 5 (LaApp. 3 Cir. 10/28/98), 721 So.2d 964, 967, writ denied, 99-33 (La.5/28/99), 743 So.2d 658. The State bears the burden of proving the admissibility of evidence seized without a warrant. La.Code Crim.P. art. 703(D). “In determining whether the ruling on a motion to suppress was correct, the court is not limited to the evidence adduced at the hearing on the | umotion, but may consider all pertinent evidence given at the trial of the case.” State v. Williams, 04-1309, pp. 21-22 (La.App. 5 Cir. 4/26/05), 902 So.2d 485, 499, writs denied, 05-1640 (La.2/3/06), 922 So.2d 1173, 924 So.2d 144.

EVIDENCE PRESENTED AT THE SUPPRESSION HEARING

The trial court conducted a hearing on Defendant’s motion to suppress on April 14, 2010. Trooper Speyrer was the first witness to testify at the suppression hearing, and he testified that he came into contact with Defendant while working on July 7, 2009. He stated that Defendant was the passenger in a white Mitsubishi Montero with a Pennsylvania license plate that he pulled over by milepost 112 where I — 10 passed through St. Martin Parish, that it had been raining, and that he first saw the Mitsubishi at milepost 109. Trooper Speyrer noted that the Mitsubishi vehicle was traveling two or three car lengths behind another vehicle, that this was an unsafe distance, and that operating a vehicle in such a manner (considering the road conditions) constituted a violation of following too closely.

Trooper Speyrer related that the Mitsubishi vehicle pulled over at milepost 112, and he asked the driver to step out of the vehicle. The driver handed him a North Carolina driver’s license that identified her as Vonita Cisneros. Ms. Cisneros told him that they were traveling from Houston where they had spent the Fourth of July weekend. Ms. Cisneros stated that the passenger in her vehicle was her husband, Carlos, and that the vehicle belonged to her father. Trooper Speyrer stated that while speaking with him, Ms. Cisneros barely made eye contact with him and that her right hand, which was holding the vehicle registration, was shaking. He checked the paperwork and saw that the Mitsubishi was registered to Javier Alvoto Soto and had recently been purchased with registration issued June 29, 2009. Ms. Cisneros stated that she and Defendant had been together for two years and that they were driving home to North Carolina.

| i ¡¡Trooper Speyrer said, when he then walked over to the passenger window to speak with Defendant, he shook Defendant’s hand and noticed that Defendant’s hand was soaking wet with sweat. This drew Trooper Speyrer’s attention because, normally, the passenger in a vehicle will be less nervous than the driver. Trooper Speyrer also noticed that he could see Defendant’s carotid artery pulsing in his neck. Defendant turned over his Mexican National Identification Card bearing his name and picture, and Trooper Speyrer began questioning him in a mix of Spanish and English. Defendant said he was coming from Dallas and traveling to North Carolina. Defendant said the name on the vehicle registration was “familia”; but, when asked if it was Ms. Cisneros’s father, Defendant said “no” and that he did not know. This was suspicious to Trooper Speyrer because they purported to have been in a relationship for two years. Trooper Speyrer then stated that he noticed a chemical odor emanating from the vehicle as he spoke to Defendant.

Trooper Speyrer testified that he returned to his unit to check the validity of Ms. Cisneros’s driver’s license and request a criminal history. His primary objective was not to issue citations; instead, it was to interdict criminal activity. While waiting for the criminal history, Trooper Speyrer prepared a consent to search form for the Mitsubishi. After exiting his unit, he approached Ms. Cisneros, gave her license and registration back to her, and informed her that he was going to give her a verbal warning for the violation.

After warning Ms. Cisneros about the traffic violation, he asked her if there was anything illegal in the vehicle. She said “no.” Trooper Speyrer asked if it was okay for him to search the automobile since there was nothing illegal in there, and Ms. Cisneros gave verbal consent. Trooper Speyrer presented the consent form to Ms. Cisneros and watched as she signed the form both in the English and Spanish sections. He then signed both sections as a witness to the consent with the form | ^indicating the time as 8:38 a.m. Once he had consent, Trooper Speyrer requested the assistance of other troopers. He explained that the troopers work in teams on the interstate for safety purposes. Trooper Troy Dupuis was the first trooper to arrive at the scene, and Senior Trooper Brooks David arrived shortly thereafter.

Trooper Speyrer recalled that the rain had become heavier, so he asked Ms. Cisneros to move her vehicle under the next overpass'; she complied. Once the car was out of the rain, the troopers searched the vehicle. During the search, one of the troopers discovered packages secreted in one of the vehicle’s natural voids. The troopers immediately arrested and read Miranda rights to both Defendant and Ms. Cisneros before attempting to determine what was in the packages. The contents of the packages field-tested positive for heroin, weighing 6.02 pounds.

On cross-examination, Trooper Speyrer stated that it took approximately twenty-one minutes from the stop of the vehicle through search of the vehicle and that that amount of time exceeded the amount of time it would normally take to issue a traffic citation and let the motorist go with just the citation.

Trooper Bertrand was the second witness to testify at the suppression hearing. Being fluent in Spanish, Trooper Bertrand was called upon to act as a translator during the subsequent interview of Defendant. Trooper Bertrand advised Defendant of his Miranda rights in Spanish and witnessed him signing the rights form. Defendant indicated that he understood his rights and wished to waive them. Defendant was not threatened, put under duress, or deprived of food or anything else in order to obtain the statement. On cross-examination, Trooper Bertrand stated that Defendant denied having anything to do with the drugs and made no inculpa-tory statements during the interview.

Agent Bison, with Immigration and Customs Enforcement, was the State’s third witness at the suppression hearing. Agent Bison, Agent Lopez, and Officer |1701ivero interviewed Defendant on July 9, 2009. Before the interview, Officer Olivero read Defendant his Miranda rights in Spanish using Agent Bison’s rights card, and both Agent Bison and Agent Lopez witnessed the advisement of rights.

Agent Lopez, also with Immigration and Customs Enforcement, testified as the prosecution’s fourth witness at the suppression hearing and stated that he witnessed Officer Olivero read Defendant his Miranda rights.

Officer Olivero testified as the State’s next witness. He explained that Spanish was his first language and that he participated in the July 9, 2009 interview with Defendant. Officer Olivero began his translations by advising Defendant of his rights, and then he translated the questions asked and answers given. Defendant stated that he understood his rights.

After considering the evidence and arguments presented at the suppression hearing, the trial court denied relief, stating:

THE COURT: All right. The [cjourt is of the opinion that the Motion to Suppress should be denied[,] and the [cjourt will deny the Motion to Suppress and admit the statements for the purpose of the request of the State to use it at trial and during Opening Statement.
The [cjourt finds that the stop by the Officer on ... July 7th is not unreasonable or untenable under the circumstances. He starts out by talking about the weather conditions, the time and date, indicating that it was during the period of 8:00 a.m. in the morning, a period when a number of traffic — traffic is high, persons — people going to work, raining, moving the car from an uncovered situation to a covered situation under the underpass.
The [cjourt is aware of the jurisprudence that admonish[es] law enforcement of tardiness and [tarrying] ... and, perhaps, having some other objectives in mind when they stop on a traffic stop.
The [c]ourt believes that the Officer articulated reasonable suspicion to ask for consent to search and obtain the consent to search. The Officer does not have to be ninety percent correct. He doesn’t have to be fifty percent correct. He simply has to articulate a reasonable suspicion!,] and the [c]ourt believes that the testimony establishes it.

| mTHE STOP

Defendant objects to the state trooper being stationed on the roadside to watch for suspicious activity other than traffic violations. Defendant further complains that, upon having his suspicions aroused, the state trooper used a traffic violation as a pretextual basis for stopping the vehicle. Defendant asserts that officers are not allowed to stop vehicles on the basis of a hunch or a whim.

Defendant argues that the Equal Protection Clause prohibits race-based selective enforcement of the law; therefore, his stop was illegal because it was based on racial profiling and that similarly situated Caucasian motorists were not stopped. Defendant adds that the trooper also improperly relied on the couple originating from Texas, a source state for illegal drug traffic, as a suspicious circumstance. Defendant contends the fact that Defendant and his co-defendant were traveling as a pair was not a suspicious circumstance since “virtually everyone travels in pairs in a car at some time.” Defendant also disagrees with the trooper’s assessment that the vehicle having Pennsylvania plates while it was not being driven directly to Pennsylvania was a suspicious indicator since the trooper also acknowledged that, on the interstate, he had seen cars from all states traveling in all directions.

Based upon these arguments, Defendant maintains that there was insufficient objective information for the trooper to conclude that the couple was involved in suspicious criminal activity and that the evidentiary fruit of the stop should be suppressed.

The State responds by stating that the trooper observed the vehicle commit a ticketable offense; therefore, the stop was valid. The prosecution argues that there was no evidence that the trooper stopped the vehicle based upon the ethnicity of its 11floccupants. Moreover, once stopped, there was enough suspicious behavior to arouse the experienced officer’s suspicions.

Law enforcement officers have the authority to stop anyone if the officers have a reasonable suspicion that that person committed a crime. “A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.” La.Code Crim.P. art. 215.1(A). This also applies to traffic stops:

As a general matter, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) (citations omitted). The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Whren, 517 U.S. at 813, 116 S.Ct. at 1774 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants.

State v. Waters, 00-356, p. 4 (La.3/12/01), 780 So.2d 1053, 1056. Furthermore, “even if a stop is pretextual, the actual motives of the police are irrelevant if the police do ‘no more than they would be authorized to do.’ ” State v. Morris, 03-269, p. 9 (La.App. 3 Cir. 9/10/03), 854 So.2d 989, 995, writ denied, 03-2853 (La.10/15/03), 855 So.2d 743 (quoting Waters, 780 So.2d at 1056).

“A traffic stop made on the basis of following too closely, a violation of La. R.S. 32:81, is a valid stop.” State v. Arnold, 34,194, p. 7 (La.App. 2 Cir. 12/6/00), 779 So.2d 840, 846. “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” La.R.S. 32:81(A).

| ^Therefore, regardless of any additional motives Trooper Speyrer may have had in stopping the vehicle, there was reasonable suspicion to stop the Mitsubishi based on the vehicle following too closely to another automobile considering the weather conditions, the wet pavement, the traffic density, the speeds of vehicles traveling on 1-10, and the distance of only two or three car lengths between the Mitsubishi and the car it was behind.

Accordingly, Defendant’s objections to the stop are without merit.

THE ROADSIDE QUESTIONING

Defendant argues that the trooper improperly interrogated Defendant and his co-defendant without fully advising them of their Miranda rights. He complains that the trooper questioned them in such a way as to obtain conflicting answers for the purpose of obtaining probable cause to search the vehicle. Defendant contends that the trooper detained them long after the basis for stopping them had passed and that, because the questioning was performed for the purpose of obtaining suspicious information, he should have been Mirandized beforehand.

The State replies that as the trooper questioned Defendant within the legal confines of a traffic stop, no Miranda warning was necessary and the law does not preclude an officer from engaging a motorist in conversation while investigating routine traffic violations.

Under La.Code Crim.P. art. 215.1(A), once a law enforcement officer has conducted a valid traffic stop based upon reasonable suspicion that the person in the vehicle committed an offense, that law enforcement officer may demand of the vehicle’s occupants their names, addresses, and an explanation of their actions though the questioning must be brief:

During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the | ^investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity. However, nothing herein shall prohibit a peace officer from compelling or instructing the motorist to comply with administrative or other legal requirements of Title 32 or Title 47 of the Louisiana Revised Statutes of 1950.

La.Code Crim.P. art. 215.1(D). Furthermore, “La.C.Cr.P. art. 215.1(D) does not preclude a police officer, who may lack reasonable suspicion of other criminal activity, from engaging a motorist in conversation while investigating a routine traffic violation.” State v. Cowan, 99-2888, p. 1 (La.6/16/00), 763 So.2d 583, 584.

“[Rjoadside questioning of a motorist pursuant to a routine traffic stop does not constitute custodial interrogation sufficient to trigger an advisal of rights as required by the Miranda rule.” State v. Bourgeois, 00-1585, p. 6 (La.App. 5 Cir. 3/14/01), 785 So.2d 848, 852.

A Miranda warning must be given prior to interrogation after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. A warning is not required before there is general questioning of citizens in the fact-finding process, but only when the investigation ceases to be exploratory in nature.

State v. Cooper, 45,568, p. 14 (La.App. 2 Cir. 12/8/10), 55 So.3d 873, 881-82; but see, State v. Gustavis, 00-1855 (La.App. 4 Cir. 5/30/01), 788 So.2d 1242, writ denied, 01-1828 (La.5/10/02), 815 So.2d 833 (holding that a Miranda warning becomes necessary for further questioning once the officer has developed probable cause to arrest the motorist). The Cooper court determined that basic questions such as where the motorist was coming from and where he was going do not require a Miranda advisement.

Accordingly, Defendant’s contention that the trooper violated his constitutional rights by asking him questions for the purpose of fact-finding without first advising him of his Miranda rights is without merit.

| ^CONTINUED DETENTION

Defendant contends that the trooper’s continued detention of him and his co-defendant was also unconstitutional. He asserts that the trooper’s statement of suspicious factors during the stop was insufficient or should not have been considered suspicious factors; therefore, the trooper’s act in continuing to detain the couple was baseless and unjustified.

The State responds that the length of the stop was neither unreasonable nor a constitutional violation. The prosecution adds that, as Defendant did not speak English, the twenty-one minute traffic stop was not unreasonably long.

Under La.Code Crim.P. art. 215.1(D), law enforcement officers are prohibited from detaining motorists for unreasonably long periods of time. “A generalized suspicion or hunch that an individual is involved in criminal conduct is not sufficient to detain the individual or his automobile. A police officer must have a particularized suspicion based upon articulable facts.” State v. Burton, 93-828, p. 4 (La.App. 3 Cir. 2/23/94), 640 So.2d 342, 345, writ denied, 94-617 (La.4/7/94), 641 So.2d 203. “If the police officer has a specific suspicion of criminal activity, he may further detain the individual while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion.” State v. Lewis, 97-1244, p. 9 (La.App. 3 Cir. 3/6/98), 728 So.2d 1, 6, writ denied, 98-977 (La.9/18/98), 724 So.2d 752 (citing U.S. v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605, (1985)).

This court has previously addressed a similar factual scenario for the purpose of determining whether the officer had reasonable cause to extend the investigation after a traffic stop:

In the present case, defendants were validly stopped for driving in excess of the speed limit. Trooper Lafleur ran a check on both individuals which revealed that neither had criminal records.
| ^Afterwards, the driver was given back his driver’s license, warned to slow down, and told he was free to go. It was after these events had transpired that Trooper Lafleur approached the driver with the Consent to Search form.
Defendants argue in their brief that once the purpose for the initial stop had concluded and the defendants were told they were “free to go,” any action taken by the police to search the defendants’ vehicle was in violation of the defendants’ right to be free from unreasonable searches and seizures. Trooper Lafleur filled out the Consent to Search form before he returned defendant-Burton’s driver’s license and told the defendants they were free to go; he asked defendant-Burton to look at the Consent to Search form seconds later. It is obvious that the trooper had the intent to search the defendants’ vehicle after he had completed the routine duties for a traffic stop. The fact that the trooper finished the steps for the traffic stop with the statement “you are free to go” should not be construed to mean that all proceedings were concluded, that the initial reasonable suspicion had been dispelled, and that before any further actions could be taken the police had to reestablish reasonable suspicion on other grounds.
The key issue in the case sub judice is whether or not Trooper Lafleur reasonably suspected defendants were engaged in criminal activity based upon “reasonable suspicion.” We find, after review of the pertinent case law, that the suspicion of Trooper Lafleur was sufficient to reasonably believe defendants were engaged in criminal activity, and the continued detention of the automobile after defendants were given a warning and allowed to go was justified.

Burton, 640 So.2d at 346-47.

The evidence presented in the instant case shows that the traffic stop began at 8:17 a.m. Trooper Speyrer then questioned both Ms. Cisneros and Defendant, verified the validity of Ms. Cisneros’ license, ran a criminal history check on both Ms. Cisne-ros and Defendant (which Trooper Speyrer said could take up to twenty minutes), issued a verbal warning to Ms. Cisneros for the traffic violation, returned her license and paperwork, asked for and obtained consent to search at 8:38 a.m., called for backup, had Ms. Cisneros move her car to a more sheltered location, had backup arrive, searched the vehicle, found illicit narcotics, and arrested Ms. Cisneros and Defendant at 8:58 a.m.

1 pm The suspicious factors Trooper Speyrer noticed included an unusually high level of nervousness in Defendant because he was the passenger, nervous behavior by Ms. Cisneros, a discrepancy in their stories concerning their point of origin, the license plate being registered to a different state than the one in which Ms. Cisneros was licensed, the recent purchase date of the vehicle, Defendant not knowing who the vehicle’s owner was despite having been in a relationship with Ms. Cisneros for two years, the strong chemical smell emanating from the vehicle when strong smells are used to mask the odor of drugs, and the fact that Ms. Cisneros and Defendant had been traveling a known drug corridor from a state known to be a source for drug traffic.

Considering the circumstances of the stop and the testimony showing that the criminal history check could take up to twenty minutes, Ms. Cisneros’ consent to search was not vitiated by an illegal detention.

CUSTODIAL INTERROGATION

Defendant gave one custodial interrogation on July 7, 2009, and another on July 9, 2009. He complains that the interviews were not recorded and that Officer Olivero had no independent recollection of the interview. Defendant argues that the testimony regarding the standard operating procedure for issuing Miranda warnings prior to interviews was constitutionally insufficient to prove that such a warning was given.

The evidence at trial clearly shows that Defendant was read his Miranda rights by law enforcement officers acting as interpreters prior to both of his custodial interrogations. Moreover, the Miranda warning and Defendant’s subsequent waivers were also witnessed by the officers conducting the interviews. Contrary to the Defendant’s contention that Officer Olivero did not specifically recall reading him his Miranda rights, the evidence shows that Officer Olivero | ^remembered reading Defendant his rights and accepting Defendant’s waiver of those rights. Because Officer Olivero was not the official conducting the interview, he did not take notes. As a result, he did not have a complete recollection of the other statements Defendant made during the interview.

Accordingly, Defendant’s argument on this issue is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant asserts, “It was error patent for the trial court not to have considered Mr. Cortez’ [sic] pro se filing as a motion for new trial.” He states that, following his conviction, he wrote a pro se letter to the trial court complaining of problems in the case. Defendant argues that it was error for the trial court to not consider his “letter” at sentencing; therefore, his sentence should be vacated and the matter remanded for consideration of his pro se complaint.

Defendant contends that he speaks Spanish and has a very limited understanding of English. He alleges that the interpreter used during the second interview was uncertain whether Defendant understood his Miranda rights and that the translator had occasional difficulties translating for Defendant during trial. After trial, Defendant sent a three-page letter to the trial court, written in Spanish, recounting the language problems Defendant had during the case. Defendant urges that these problems should have been the basis for a new trial. Defendant complains that the trial court did not address the contents of the letter even though the State offered the letter into evidence at the sentencing hearing. Defendant asks this court to vacate the sentence and remand the matter for consideration of Defendant’s pro se complaint.

The State contends that the trial court’s failure to consider Defendant’s pro se motion for new trial was not error as defense counsel asserted a motion for new trial in conjunction with another motion. The record shows that the trial court 126received a pro se letter from Defendant, written in Spanish, on June 9, 2010. Thereafter, the defense filed a motion seeking a post-verdict judgment of acquittal on the basis that there had been insufficient evidence to convict Defendant of attempted possession of heroin over 400 grams. Defense counsel asserted, in the alternative, that a new trial should be granted because the jury’s verdict was contrary to law.

On June 15, 2010, the trial court conducted a hearing on Defendant’s motion for acquittal followed by Defendant’s sentencing. The defense did not mention the letter during its argument; instead, it maintained that the evidence had been insufficient to convict Defendant. Defendant presented no additional arguments prior to the trial court’s ruling, which denied the motion upon finding sufficient evidence to convict Defendant. The trial court then considered the defense’s alternative motion for new trial. When Defendant asserted that a new trial should be granted because there had been insufficient evidence to convict him, the trial court denied Defendant’s alternative motion for new trial.

Next, the parties presented evidence for the trial court to consider in sentencing Defendant. During this portion of the hearing, the trial court noted for the record that he had provided both the State and the defense with copies of the letter Defendant sent to the court. The trial court then introduced a copy of the letter into evidence, and the prosecution introduced an interpretation of that letter into evidence without any objection by the defense. The translation contained no request for a new trial; it asserted Defendant’s innocence, accused defense counsel of not visiting him in prison and of asking him not to speak about the case until trial, and claimed that law enforcement failed to contact the owner of the vehicle, which was an allegation already made at trial. Furthermore, after the letter was | ^introduced into evidence, defense counsel did not ask that the letter be considered a motion for new trial.

After the trial court imposed Defendant’s sentence, Defendant filed a motion to reconsider the penalty given. On August 20, 2010, the trial court conducted a hearing on Defendant’s motion to reconsider sentence, and defense counsel did not mention the Defendant’s pro se letter at the hearing.

Though motions for new trial must be ruled on prior to sentencing, the record contains no indication that the letter contained a request for a new trial or that defense counsel considered the letter to be a motion for new trial. La.Code Crim.P. art. 853. Because “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence^]” Defendant may not now assert that the letter was a motion for new trial when he did not ask the trial court to consider it to be one. La.Code Crim.P. art. 841.

Accordingly, this assignment of error is without merit.

DISPOSITION

Defendant’s conviction is affirmed. The trial court is instructed to inform Defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant within fifteen days of the rendition of this opinion and by filing said notice in the record of these proceedings.

AFFIRMED WITH INSTRUCTIONS.

      . The spelling of Defendant’s name appears as "Cortes” and "Cortez.” For purposes of this opinion, he will be referred to as "Cortes.”

      . This pleading was clearly written for Defendant’s co-defendant and relabeled for Defendant as it refers to Defendant as "she” and as the driver of the vehicle. The record shows that Defendant is male and was the passenger in the automobile.

      . The transcripts in the record also spell Officer Olivero’s last name as "Olivera.” We shall use the spelling Officer Olivero put in the record during the suppression hearing.

      . "When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence.” State v. Hearold, 603 So.2d 731, 734 (La.1992).