Donny Kevin Davis v. State

NO. 07-07-0025-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 4, 2008

______________________________

DONNY KEVIN DAVIS,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 53,837-E; HON. ABE LOPEZ, PRESIDING

_______________________________

On Motion for Rehearing

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Pending before the court is the motion of Donny Kevin Davis for rehearing. We withdraw our previous opinion and judgment entered in this cause and substitute the following in its stead.

          Davis appeals his conviction for burglarizing a habitation via four issues. He contends 1) the trial court erred in failing to hold a hearing on his motion for new trial, 2) the trial court erred in failing to include an accomplice witness instruction in the charge, 3) he received ineffective assistance of counsel because his counsel failed to request an accomplice witness instruction, and 4) the accomplice witness testimony was not sufficiently corroborated. We overrule issues two and four, sustain issue one, stay action on issue three, and abate and remand the cause for a hearing on appellant’s motion for new trial.

          Corroboration of Accomplice Testimony

          Corroborating evidence need only tend to connect the accused to the offense, not establish guilt beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997). Moreover, there is no exact rule as to the amount of evidence that is required for corroboration. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Instead, each case must be decided upon its own facts and circumstances. Martinez v. State, 163 S.W.3d 92, 94 (Tex. App.–Amarillo 2005, no pet.).

          The following non-accomplice evidence is found in the record before us. Appellant had a history of soliciting money from individuals, including the burglary victim, at the site of the burglary. Immediately prior to the burglary, appellant indicated that someone who lived at the apartment complex (other than the eventual burglary victim) owed him money. Additionally, appellant was seen by the burglary victim looking into various apartment windows within twenty-four hours of the time the burglary occurred. He also went to the apartment complex shortly before the burglary to collect money allegedly owed to him. He was not only there when the burglary victim left for work but also at or around the time of the burglary. Next, of the various items stolen, one consisted of a black, thin PlayStation II. Shortly after the burglary, appellant pawned, at a nearby pawnbroker, a PlayStation II matching the description of the one stolen. Finally, appellant admitted he was in the company of the accomplice before and after the burglary; in fact, both were captured together on video when the item was pawned.

          While the accused’s presence at the crime scene is by itself insufficient to connect him to the crime, presence coupled with other circumstances may be enough. Trevino v. State, 991 S.W.2d 849, 851-52 (Tex. Crim. App. 1999). Here, we have not only presence at the scene and with the accomplice but also motive (i.e. appellant’s repeated quest for money from those at the apartment complex), opportunity (presence throughout the pertinent times), suspicious activity shortly before the burglary (looking into apartment windows), possession of an item matching the description of one that was stolen, interaction between appellant and the accomplice, and appellant’s pawning the item for money. These facts are more than sufficient to tend to connect appellant to the burglary. See Gill v. State, 873 S.W.2d 45, 48-49 (Tex. Crim. App. 1994) (finding the non-accomplice evidence sufficient corroboration when it showed 1) that the complainant was robbed by a person or persons, 2) the defendant had the opportunity to commit the robbery because he lived nearby, 3) after the robbery, the defendant acted secretively, 4) the defendant was in the presence of the accomplice after the theft, and 5) the defendant jointly possessed items matching those stolen). The fact that the complainant did not at trial positively identify the pawned PlayStation device as his own does not mean the jury could not infer under these facts that it was the same. See Watson v. State, 728 S.W.2d 109, 111-12 (Tex. App.–Houston [14^th Dist.] 1987, no pet.) (finding sufficient corroboration even though no one testified that the dresser in appellant’s possession after the theft was the one stolen).

          Moreover, the two authorities relied upon by appellant are inapposite. In Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991), the non-accomplice testimony illustrated that Zepeda was “near” the murder scene with a group of people that did not include the decedent, the decedent was shot with a rifle, and Zepeda later tried to sell a rifle to a third party. The connection between the rifle and the murder was established only through accomplice testimony which could not be considered. Moreover, nothing discussed in the opinion suggested that the rifle was of the same make, model, or caliber as that used in the killing. The Court of Criminal Appeals found these circumstances to be less than enough to connect appellant to the murder. Similarly, the non-accomplice evidence in Howard v. State, 972 S.W.2d 121 (Tex. App.–Austin 1998, no pet.) was found wanting because it simply placed Howard in the room wherein drugs were found to be hidden in a light fixture. Without the accomplice testimony, nothing else linked him to those drugs. Like both Howard and Zepeda, here we have non-accomplice evidence placing appellant near the crime scene before the crime occurred. Yet, unlike those two cases, we also have non-accomplice testimony illustrating motive (i.e. appellant’s quest for money), preparation (i.e. appellant’s looking in windows of various apartments), appellant’s presence with the accomplice before and after the burglary, appellant’s possession of an item actually matching the description of something stolen from the apartment soon after the burglary, and appellant’s pawning of the item in exchange for money. These additional factors cannot be ignored and suffice to carry the situation before us over the threshold which could not be cleared in Howard and Zepeda. Accordingly, we overrule appellant’s complaint that the non-accomplice evidence was insufficient to connect him to the burglary.

          

 

          Failure to Provide Accomplice Instruction

          Next, appellant asserts that the trial court erred in omitting an accomplice witness instruction from its charge. We agree that it was error but find the error harmless.

          The trial court had an obligation to provide the instruction irrespective of any request by counsel. Howard v. State, 972 S.W.2d at 126. Yet, the harm emanating from the trial court’s omission must be egregious due to counsel’s failure to request it. Id. at 126-27. We conclude here that the trial court did err but that the error did not rise to the level of egregiousness.

          As previously addressed, sufficient non-accomplice evidence existed to connect appellant to the burglary. Indeed, it alone could have been enough to warrant conviction. One need only read Poncio v. State, 185 S.W.3d 904 (Tex. Crim. App. 2006) to conclude this. There, our Court of Criminal Appeals held that the recent possession of stolen property is enough to support the conviction of the possessor for burglary. Id. at 904-05. Here, we have that and more. Again, the record contained evidence not only placing appellant at the scene but also revealing his quest for money, preparation to act, possession of a PlayStation matching the description of the stolen one, pawning the game console, and being in the presence of another of the thieves before and after the burglary.          While no one directly testified that the PlayStation which appellant pawned was the same one that was stolen, we nonetheless have circumstantial evidence sufficient to fill the void. It consisted of the matching descriptions of the item stolen and the item pawned, the close geographic proximity between the pawn shop and the burglary scene, and the close temporal proximity between the time of the burglary and the time that appellant pawned the item. These indicia enable one to conclude beyond reasonable doubt that the item pawned was the item stolen and dispel any notion that omitting the instruction constituted egregious harm.

          Ineffective Assistance of Counsel/Failure to Request Accomplice Instruction

          Appellant again questions the omission from the charge of the accomplice witness instruction but does so by attacking the quality of his trial counsel’s performance. Counsel’s performance was purportedly defective because he did not ask for the instruction. Furthermore, appellant raised this contention via a motion for new trial accompanied by the affidavit of defense counsel. A hearing on the motion was scheduled by the trial court but later cancelled. This resulted in the motion being overruled by operation of law. So, according to appellant, both counsel’s failure to request the instruction and the trial court’s failure to hold a hearing on the matter were reversible. We agree in part.

          Whether the trial court erred in failing to conduct an evidentiary hearing upon a motion for new trial depends upon whether it abused its discretion. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Furthermore, one is entitled to such a hearing only when the motion and supporting affidavits raise matters not discernible from the existing record and which could entitle the movant to relief. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). With these rules in mind, we turn to the circumstances before us.

          Authority exists holding that a reasonably competent attorney could not legitimately forego requesting an accomplice witness instruction (when warranted by the evidence) as part of some trial strategy. See Ex parte Zepeda, 819 S.W.2d at 876-77 (holding that the failure evinced deficient performance). Moreover, appellant attached to his timely motion for new trial the affidavit of trial counsel wherein counsel admitted that the omission was not part of some trial strategy. That admission was not discernible from the record developed at trial, and because it could have entitled appellant to relief in view of Zepeda, the trial court abused its discretion by not convening an evidentiary hearing on appellant’s motion.

          Accordingly, we overrule issues two and four, sustain issue one, and stay action on issue three. We also reverse the ruling that implicitly denied (by operation of law) appellant’s motion for new trial, abate the appeal, and remand the cause to the trial court with directions that it convene a hearing on appellant’s motion for new trial. See Reyes v. State, 849 S.W.2d 812, 815-16 (Tex. Crim. App. 1993) (remanding the cause for a hearing on the appellant’s motion for new trial); Pifer v. State, 893 S.W.2d 109, 112 (Tex. App.–Houston [1^st Dist.] 1995, pet. ref’d) (abating and remanding the cause for a hearing on the claim that the State withheld exculpatory evidence). Once the hearing is held, the trial court is ordered to execute findings of fact and conclusions of law addressing the claim of ineffective assistance and cause those findings and conclusions, along with a transcription of the hearing, to be filed with this court on or before February 15, 2008.

                                                                           Brian Quinn

                                                                          Chief Justice

 

Do not publish.

ght:normal'>IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

JUNE 15, 2011

__________________________

 

SAM GARZA,  

 

                                                                                         Appellant

v.

 

THE STATE OF TEXAS, 

 

                                                                                         Appellee

__________________________

 

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

 

NO. 2008-421,831; HONORABLE QUAY PARKER, PRESIDING

__________________________

 

Memorandum Opinion

__________________________

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

            Sam Garza appeals his conviction for possessing a controlled substance with intent to deliver.  Two issues are asserted on appeal.  The first involves the effectiveness of his trial counsel, while the second encompasses the legitimacy of the traffic stop that initiated the detention during which the drugs were acquired.  We affirm the judgment.

           

 

Issue Two -- Traffic Stop

            We address the last issue first.  Through it, appellant contends that the officer who detained him lacked probable cause to make the stop.  We overrule the issue because, under the circumstances before us, the existence of probable cause or reasonable suspicion to support the detention is irrelevant.  Appellant was the subject of one or more outstanding arrest warrants at the time of the stop and eventual arrest, according to the record.  The existence of those warrants purged the detention of whatever taint that may have existed.   Fletcher v. State, 90 S.W.3d 419, 420 (Tex. App. –Amarillo 2002, no pet.).

            Issue One -- Effectiveness of Counsel

            Appellant contends that his trial attorney was ineffective because he did not challenge the inventory search of the car.  The latter was subject to challenge, according to appellant, since it was not undertaken in conformance with departmental policy.  We overrule the issue.

            The stop in question occurred at the behest of another officer who had just been a witness to a controlled drug buy via appellant and the officer’s confidential informant.  Immediately after completion of the buy, the informant informed the officer that appellant had additional drugs in his vehicle (the latter being the place in which the drug sale happened).  This information was imparted to the officer who eventually detained appellant.  Though we do not necessarily decide the issue, we nevertheless acknowledge that these circumstances could have led one to believe that probable cause existed to not only stop and arrest appellant for drug trafficking but also to search the vehicle for the drugs being sold.  See Hereford v. State, 302 S.W.3d 903, 905 (Tex. App.–Amarillo 2009), aff’d, No. PD-0144-10, 2010 Tex. Crim. App. Lexis 730 (Tex. Crim. App. April 6, 2011) (holding that a warrant is not needed to effectuate an arrest when the crime occurred in the presence of an officer); Campbell v. State, 325 S.W.3d 223, 231 (Tex. App.–Fort Worth 2010, no pet.) (holding that the existence of probable cause or reasonable suspicion is not dependent solely upon the information known to the detaining officer but rather the cumulative knowledge of those officers involved); Dahlem v. State, 322 S.W.3d 685, 689 (Tex. App.–Fort Worth 2010, pet. ref’d) (holding that an officer need not acquire a search warrant to search for contraband in a vehicle if there is probable cause to believe that drugs are present in that vehicle); see e.g., Garcia v. State, 327 S.W.3d 243, 248-49 (Tex. App.–San Antonio 2010, no pet.) (finding probable cause for a warrantless search of a vehicle when a police officer witnessed a known credible informant make arrangements for delivery of drugs at his residence in fifteen minutes, when the officers arrived they observed the person the informant had called in a vehicle located at the residence, and the vehicle attempted to drive away).  Given this, trial counsel may have concluded that it would serve little purpose to question whether any “inventory search” undertaken by the arresting officers was legitimate.  See Kent v. State, 982 S.W.2d 639, 641 (Tex. App.–Amarillo 1998, pet. ref’d, untimely filed) (holding that an attorney need not assert a meritless point to be effective); see also Palacios v. State, 319 S.W.3d 68, 75 (Tex. App.–San Antonio 2010, pet. ref’d) (finding counsel not ineffective in failing to challenge an inventory search because there was probable cause to search the vehicle).  And, since the decision to do so or not could fall within the realm of reasonable trial strategy, and nothing of record discloses what strategies, if any, motivated trial counsel to do what he did, appellant failed to prove that his attorney rendered ineffective assistance.^[1]  Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007) (requiring us to presume that counsel had legitimate strategies for his actions); Ex parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App. 2011) (stating that the foregoing presumption cannot generally be overcome absent evidence in the record of the attorney’s reasons for his actions).   

            The judgment is affirmed.

 

                                                                        Brian Quinn

                                                                        Chief Justice

Do not publish.

 

 

                                   

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^[1]Trial counsel did include within his motion to suppress the contention that discovery of the contraband was not pursuant to a legitimate inventory search.  However, he apparently opted not to pursue that ground at the hearing.