NO. 12-08-00370-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DARWIN BROWN, ' APPEAL FROM THE 159TH
APPELLANT
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE ' ANGELINA COUNTY, TEXAS
OPINION
Darwin Brown appeals his conviction for aggravated robbery. The indictment contained a
deadly weapon enhancement, and three enhancement paragraphs alleging prior felony convictions.
After a motion to suppress was heard and denied, the case was tried to a jury, which convicted
Appellant, found the enhancement allegations to be true, and sentenced him to imprisonment for
forty-five years. On appeal, Appellant, pro se, raises seven issues: legal and factual insufficiency
of the evidence, lack of probable cause for his warrantless arrest, ineffective assistance of counsel,
improper seizure of his inmate mail without a warrant, erroneous admission of hearsay testimony,
and trial court bias against him. We affirm.
BACKGROUND
On October 12, 2007, between 10:30 and 11:00 a.m., Arester Joe “A.J.” Smallwood robbed
the Homer Mini-Mart on Highway 69 in Huntington, which is in Angelina County, Texas.
During the course of the robbery, Smallwood hit the store clerk in the face with his fist and pistol,
and fled with approximately one thousand dollars. Smallwood was apprehended in the woods
near the Mini-Mart about two hours later, after an extended search by police. Smallwood was
identified by the store‟s owner as the robber. During questioning by the police, Smallwood took
the police to where he had concealed the money and pistol. He also identified Appellant, his
boxing coach, as his accomplice, saying Appellant had planned the robbery because he needed
money to keep his boxing program open. Smallwood said that Appellant had driven him to the
Mini-Mart in a light blue Taurus and given him the pistol he used in the robbery. He told the
police the handgun had been wrapped in a blue towel. Smallwood testified that he ran behind the
store after the robbery because that is where Appellant was supposed to pick him up for his escape.
Smallwood also explained that, before the day of the robbery, Appellant had taken him to the
Mini-Mart to “scope it out.” Appellant had sent Smallwood inside because the owner of the
Mini-Mart knew Appellant.
About four days after his arrest, another inmate handed Smallwood an unsigned,
handwritten note. The note‟s author said that people were trying to get Smallwood to “get a
conviction against me.” The note‟s author explained that he had told a lawyer that some other
people had been trying to get Smallwood to “do some robberies” with them, they had threatened to
harm Smallwood‟s family if he named them, and Smallwood “put my name in it” because
Smallwood did not want his family to get hurt. The note instructed Smallwood to rewrite the
statement and send it back to the author, who would send it to the lawyer. The note promised “we
both will be out of here before Thanksgiving.” The note then encouraged Smallwood to “do the
right thing [a]nd get this back to me” by giving it back to the inmate who had delivered it to
Smallwood. Smallwood testified that he thought Appellant had sent him the note and he thought
he would get out of jail if he changed his statement. As instructed, Smallwood rewrote the
statement the way Appellant told him to write it, and sent it to Appellant. Smallwood also sent
letters to his grandmother and Appellant‟s lawyer recanting his statement to the police that
Appellant had been involved in the robbery.
Smallwood‟s sister testified that Appellant had called her brother at her Lufkin apartment
the morning of the robbery and picked him up there at about 10:00 that morning. She and one of
Smallwood‟s cousins testified that Smallwood had told them Appellant wanted him to commit a
robbery, and, because of that, Smallwood had been trying to avoid Appellant. Additionally,
Smallwood‟s aunt testified that he had told her Appellant wanted him to do something that was
“wrong” and that he did not want to do.
Thomas E. Thomas, the owner of the Mini-Mart, testified that he knew Appellant because
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he was a frequent customer in the Mini-Mart. Thomas said Appellant came into the store ten or
fifteen minutes after the robbery wearing a “plastic wrapper” on his boot. Deputy David
Rodriguez testified that he was almost struck by a departing blue Taurus as he neared the
Mini-Mart in response to the robbery call. Deputy David Wells testified that he saw Appellant in
the blue Taurus near the Mini-Mart when he was returning to his office after Smallwood‟s arrest,
about two hours after the robbery. Later that day, after Smallwood had told the investigators of
Appellant‟s involvement, Deputy Wells and Smallwood saw Appellant at a washateria on
Highway 69 north of the Mini-Mart. Deputy Wells kept Appellant under surveillance until
Deputy Rodriquez arrived and arrested him.
Deputy Wells also testified about the postarrest inventory of the Taurus. Officers found a
blue towel matching Smallwood‟s description of the towel the gun had been wrapped in and two
slips of paper with Smallwood‟s sister‟s telephone number written on them. During the course of
the investigation, Deputy Wells found a store video from a business located on Highway 69 that
showed a clear view of the highway. In the video, a Taurus that could have been driven by
Appellant was traveling toward Lufkin at 10:40 a.m. Deputy Wells explained that the Mini-Mart
is five and one-half miles from Smallwood‟s apartment and Appellant would have had enough
time to go get Smallwood and get to the Mini-Mart in time to rob it at 10:50. Additionally,
Deputy Wells testified that he recovered the Mini-Mart video showing Smallwood inside the store
making a purchase several days before the robbery, supporting Smallwood‟s contention that
Appellant had brought him to the Mini-Mart to “case” the store for the robbery.
Lufkin police investigator Otis Almand, who also has training as a handwriting analyst,
testified that the note Smallwood received in jail encouraging him to recant his allegation against
Appellant had been written by Appellant.
Tony Buchanan, whose stepfather is Appellant‟s uncle, testified for the defense. He said
that Appellant came to his house in Lufkin between 10:15 and 10:30 the morning of the robbery
and stayed there for twenty to thirty minutes. Maybe half an hour later, he saw Appellant at the
nearby home of Rosalynd Price, Buchanan‟s cousin, helping her spread lime in her front yard.
Rosalynd Price, Appellant‟s cousin, testified that she saw Appellant at Buchanan‟s house
at about 10:40 or 10:45. He was getting out of his car as though he had just arrived. She went
home and, about thirty minutes later, called Appellant who was then on his way back to his house.
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She asked him to come to her house to put out lime to kill fleas, and he returned about 12:00 or
12:20. They put plastic bags on his pants legs to keep the lime off his clothes, and he put out the
lime, which took one to one and one-half hours.
Ruth Price, Appellant‟s aunt, testified that Appellant was at the Homer Mini-Mart
sometime during the morning of the robbery and helped her pump gas. Appellant still had the
plastic leg coverings on, and he told her he had just come from Rosalynd‟s house. Kasandra
Malone testified that Appellant was her boyfriend, and used her blue Taurus, which had numerous
mechanical problems, including problems with the transmission. She also identified a receipt she
found in her car‟s ashtray for a purchase at 11:50 a.m. the morning of the robbery at a Dollar Store
in Huntington, for items including transmission fluid.
The jury convicted Appellant as charged and sentenced him to imprisonment for forty-five
years.
SUFFICIENCY OF THE EVIDENCE
In his first and second issues, Appellant asserts that the evidence is legally and factually
insufficient to support his conviction. More specifically, he contends that the State‟s evidence
fails to establish that he was a party to the offense. He argues that the circumstantial evidence
supports theories of both guilt and innocence and forensic evidence refutes any connection
between the gun and the blue towel found in his car.
Standard of Review
In conducting a legal sufficiency review, the evidence is viewed in the light most favorable
to the verdict to determine whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); LaCour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App.
2000). The jury is the sole judge of the credibility of witnesses and of the weight to be given their
testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Any reconciliation of
conflicts and contradictions in the evidence is entirely within the jury‟s domain. Losada v. State,
721 S.W.2d 305, 309 (Tex. Crim. App. 1986).
When reviewing the factual sufficiency of the evidence to support a conviction, we view
the evidence in a neutral light. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009).
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The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury‟s
verdict seems clearly wrong and manifestly unjust, or when, considering conflicting evidence, the
jury‟s verdict, though legally sufficient, is nevertheless against the great weight and
preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A
clearly wrong and unjust verdict occurs where the jury‟s finding is manifestly unjust, shocks the
conscience, or clearly demonstrates bias. Id. In conducting a factual sufficiency review, we
must discuss the evidence that, according to the appellant, most undermines the jury‟s verdict.
Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Although we are authorized to
second guess the jury to a very limited degree, we must nevertheless give the jury‟s verdict a great
degree of deference. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). The jury
alone determines the weight to place on contradictory testimonial evidence because that
determination depends on the jury‟s evaluation of credibility and demeanor. Cain v. State, 958
S.W.2d 404, 408-09 (Tex. Crim. App. 1997).
Any issue in a criminal case may be proven circumstantially. See Jordan v. State, 707
S.W.2d 641, 644-45 (Tex. Crim. App. 1986). Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a circumstantial
evidence case, it is unnecessary for every fact to point directly and independently to the
defendant‟s guilt; rather, it is sufficient if the finding of guilt is supported by the cumulative force
of all the incriminating evidence. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).
Further, the factual sufficiency of the evidence is measured against the elements of the offense as
defined by a hypothetically correct jury charge. Grotti, 273 S.W.3d at 281. This charge
accurately promulgates the law, is authorized by the indictment, does not unnecessarily increase
the state‟s burden of proof or restrict the state‟s theories of liability, and adequately describes the
particular offense for which the defendant was tried. Id. at 280-81.
Applicable Law
A person commits an offense if he unlawfully appropriates property with intent to deprive
the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2009).
Appropriation of property is unlawful if it is without the owner‟s effective consent. Id.
§ 31.03(b)(1). “Appropriate” means to acquire or otherwise exercise control over property other
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than real property. Id. § 31.01(4)(B). The Texas Penal Code states that “[a] person is criminally
responsible as a party to an offense if the offense is committed by his own conduct, by the conduct
of another for which he is criminally responsible, or by both.” TEX. PENAL CODE ANN. § 7.01(a)
(Vernon 2003). Further, a person is criminally responsible for an offense committed by the
conduct of another if, acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. TEX.
PENAL CODE ANN. § 7.02(a)(2) (Vernon 2003).
Article 38.14 of the Texas Code of Criminal Procedure provides that “[a] conviction
cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending
to connect the defendant with the offense committed; and the corroboration is not sufficient if it
merely shows the commission of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon
2005).
When evaluating the sufficiency of corroboration evidence under the accomplice-witness
rule, we eliminate the accomplice testimony from consideration and then examine the remaining
portions of the record to see if there is any evidence that tends to connect the accused with the
commission of the crime. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). To
meet the requirements of the rule, the corroborating evidence need not prove the defendant‟s guilt
beyond a reasonable doubt by itself; rather, the evidence must simply link the accused in some way
to the commission of the crime and show that rational jurors could conclude that this evidence
sufficiently tended to connect the accused to the offense. Id. It is possible that circumstances
that are apparently insignificant may constitute sufficient evidence of corroboration. Id.
Additionally, proof that the accused was at or near the scene of the crime at or about the time of its
commission, when coupled with other suspicious circumstances, may tend to connect the accused
to the crime so as to furnish sufficient corroboration to support a conviction. Id. Evidence of
flight or other suspicious behavior can also corroborate accomplice testimony and connect a
defendant to a crime. Hernandez v. State, 939 S.W.2d 173, 178 (Tex. Crim. App. 1997).
Discussion
In a review of the legal sufficiency of the evidence, we view the evidence in the light most
favorable to the verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. A.J. Smallwood
testified that Appellant, who wanted the money to keep his boxing program open, had been urging
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him to commit the robbery. Smallwood also testified that Appellant had driven him to the
Mini-Mart, once to “case” the store in preparation for the robbery, and again on the day of the
crime to commit the robbery. Smallwood further testified that Appellant gave him the pistol he
used to rob the store, and was to pick him up after the robbery. Smallwood testified that
Appellant‟s pistol had been wrapped in a blue cloth. Smallwood also testified that Appellant had
requested, in a note he received while he and Appellant were in jail, that he recant his statement to
police that Appellant had been involved in the robbery. In response, Smallwood had written
letters recanting his statement of Appellant‟s involvement.
The evidence before the jury further indicated that Appellant was at the scene of the crime
immediately after the robbery. Deputy Rodriguez testified he was almost struck by a blue Taurus
while responding to the robbery call. Later, he saw Appellant in the same car at a washateria near
the Mini-Mart. Deputy Wells also saw Appellant in the blue Taurus near the Mini-Mart after
Smallwood‟s arrest. During the inventory of Appellant‟s Taurus, Deputy Wells found a blue
towel in the car, as well as two pieces of paper with Smallwood‟s sister‟s telephone number
written on them. And Deputy Wells recovered security video from the Mini-Mart taken days
before the robbery, showing Smallwood in the store. This was consistent with Smallwood‟s
claim that Appellant took him to the store to evaluate the store in anticipation of the robbery. A
handwriting analyst testified that the note to Smallwood urging him to recant the allegations
against Appellant had been written by Appellant.
Smallwood‟s sister testified that Appellant picked him up the morning of the robbery.
She and one other witness testified that Smallwood had told them that Appellant wanted him to
commit the robbery, while a third witness testified that Appellant wanted Smallwood to do
something he knew was “wrong.” They also testified that Smallwood had been avoiding
Appellant because of the pressure to commit the crime.
In applying Article 38.14, we must also consider whether there was sufficient
corroborating evidence of Smallwood‟s statements that Appellant was involved in the robbery,
other than Smallwood‟s statements and the facts of the crime itself. See TEX. CODE CRIM. PROC.
ANN. art. 38.14. As noted, the evidence does not have to establish his guilt beyond a reasonable
doubt or directly link him to the crime, but there must be “some” evidence that “tends to connect”
him to the crime. See Malone, 253 S.W.3d at 257. Such evidence includes Appellant‟s presence
7
at the scene and his leaving the area of the robbery immediately after the crime, as well as the blue
cloth police recovered during the inventory of his car. Further, Appellant picked Smallwood up
from his sister‟s apartment the morning of the robbery. Also, Smallwood‟s family testified that
Smallwood had told them before the robbery that Appellant was trying to get him to commit the
robbery. And the note asking Smallwood to recant his allegations against Appellant was
established by the handwriting expert to have been written by Appellant. Those facts constitute
“some evidence” that is sufficient corroboration tending to connect Appellant to the robbery. Id.
The evidence being legally sufficient, we overrule Appellant‟s first issue.
In his second issue, Appellant contends the evidence is factually insufficient to support his
conviction. We consider all of the evidence in a neutral light. See Steadman, 280 S.W.3d at
246. In addition to the evidence in support of the verdict, the evidence also shows that technicians
working for police investigators were unable to detect either Appellant‟s DNA or his fingerprints
on the gun, and the blue towel police found in Appellant‟s car was not the source of the blue
threads found on the gun. Also, Buchanan testified that Appellant was at his house the morning of
the robbery, and then went to Rosalynd Price‟s house. Rosalynd Price also testified that
Appellant came to her house to help her put lime in her yard, and they tied plastic around his pants
legs to keep the lime off his clothes. Ruth Price testified she later saw Appellant at the Mini-Mart
and he still had the plastic on his legs. Kasandra Malone testified Appellant used her car, which
had transmission problems. She offered a receipt she found in the ashtray after she recovered the
car from the police that indicated someone had purchased transmission fluid at the Dollar Store in
Huntington at 11:50 a.m. on the morning of the robbery.
The technicians explained that any fingerprints and DNA could have been removed while
the gun was in the waistband of Smallwood‟s pants. The jury could have determined that the fact
that the blue towel found in the car was not the source of threads found on the gun did not
necessarily mean that Smallwood lied about the gun having been wrapped in a blue towel in
Appellant‟s vehicle. Defense witnesses said Appellant was with Buchanan at the time of the
robbery and spreading lime just after noon. This conflicts with Smallwood‟s testimony and that
of the officers who saw Appellant just after the morning robbery. Additionally, Thomas testified
that Appellant was in the Mini-Mart just ten or fifteen minutes after the robbery, with plastic on his
boot. Further, defense witnesses conflicted with each other. Rosalynd and Buchanan said
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Appellant was spreading lime after noon, while Ruth said she saw him at the Mini-Mart in the
morning with plastic on his legs. It is the jury‟s role to weigh such conflicting evidence, and
determine the facts of the case. See Cain, 958 S.W.2d at 408-09. The evidence that Appellant
adduced is not so strong as to put the jury‟s verdict in question. See Berry, 233 S.W.3d at 854.
The jury‟s verdict is not manifestly unjust, does not shock the conscience, and does not clearly
demonstrate bias. See id. Thus, the evidence is factually sufficient to support the judgment.
We overrule Appellant‟s second issue.
WARRANTLESS ARREST
In his third issue, Appellant contends that his constitutional rights under the Fourth1 and
Fourteenth 2 Amendments were violated by his warrantless arrest, which he asserts was made
without probable cause and in the absence of exigent circumstances. Further, Appellant alleges
his initial arrest violated Article 14 of the Texas Code of Criminal Procedure. He asserts that
Smallwood was not a credible witness and Smallwood‟s testimony was not corroborated by other
evidence to support the arrest. Finally, Appellant argues that the evidence seized when he was
unlawfully arrested cannot be used against him.
Standard of Review
We review the trial court‟s ruling on a motion to suppress for an abuse of discretion. State
v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). We reverse the judgment only if it is
outside the zone of reasonable disagreement. Id. We will sustain the lower court‟s ruling if it is
reasonably supported by the record and is correct on any theory of law applicable to the case. Id.
An appellate review of a trial court‟s decision to overrule a motion to suppress requires the
reviewing court to recognize the trial court is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.
1
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S.
CONST. amend. IV.
2
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
U.S. CONST. amend. XIV, § 1.
9
Crim. App. 2000). We give almost total deference to a trial court‟s express or implied
determination of historical facts and review de novo the trial court‟s application of the law to the
facts. Dixon, 206 S.W.3d at 590.
Applicable Law
As a general rule, police officers must obtain an arrest warrant before taking someone into
custody. Hughes v. State, 24 S.W.3d 833, 838 (Tex. Crim. App. 2000). There are exceptions to
this rule. Article 14.03(a)(1) of the Texas Code of Criminal Procedure provides that any peace
officer may arrest, without warrant, persons found in suspicious places and under circumstances
that reasonably show such persons have been guilty of some felony. TEX. CODE CRIM. PROC.
ANN. art. 14.03(a)(1) (Vernon Supp. 2009); Gallups v. State, 151 S.W.3d 196, 201-02 (Tex. Crim.
App. 2004). Article 14.04 states that “[w]here it is shown by satisfactory proof to a peace officer,
upon the representation of a credible person, that a felony has been committed, and that the
offender is about to escape, so that there is no time to procure a warrant, such peace officer may,
without warrant, pursue and arrest the accused.” TEX. CODE CRIM. PROC. ANN. art. 14.04
(Vernon 2005). What must be shown by “satisfactory proof” is the legal equivalent of
constitutional “probable cause.” Hughes, 24 S.W.3d at 838. The necessary inquiry is “not
whether there was a warrant or whether there was time to get one, but whether there was probable
cause for the arrest,” and if there was probable cause, whether “the arrest, though without a
warrant, was lawful.” United States v. Watson, 423 U.S. 411, 417, 96 S. Ct. 820, 824-25, 46 L.
Ed. 2d 598 (1976).
Probable cause for a warrantless arrest exists where the police have reasonably trustworthy
information sufficient to warrant a reasonable person to believe a particular person has committed
or is committing an offense. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). The
determination of the existence of probable cause concerns “the factual and practical considerations
of everyday life on which reasonable and prudent [people], not legal technicians, act.” Id.
Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence
than that needed to support a conviction or even that needed to support a finding by a
preponderance of the evidence. Id.
Discussion
After the suppression hearing, the trial court explained that the officers had some
10
indication of the reliability of Smallwood‟s information because the car matching the description
he gave had been encountered in the area of the robbery three different times and the money and
gun were where he said they would be. The court found that there were suspicious circumstances
warranting further investigation and detention to determine if the Taurus and Appellant were
connected to the robbery, meeting the exception to the warrant requirement.
Appellant argues that the person who identified him, Smallwood, was his co-defendant,
and since Smallwood had just been arrested for the robbery, Smallwood, as a criminal, was an
unreliable witness. Therefore, the argument continues, the State did not meet the requirement of
Article 14.04 that the police obtain information from a “credible person.” Appellant asks this
court, in effect, to establish a new rule, that a criminal‟s statement to police can never be the basis
for arresting another criminal. Clearly, the effect of such a broad rule would eviscerate any
reason for the police to interrogate a defendant regarding co-defendants, if, after acquiring the
information, it lacks any credibility because it came from a confessed criminal. This is not the
case. Rather, a confessing criminal‟s statements, including those implicating others, are weighed
by the officers in light of the other evidence available. See Self v. State, 677 S.W.2d 781, 783
(Tex. App. – San Antonio 1984), aff’d, 709 S.W.2d 662 (Tex. Crim. App. 1986).
In the present situation, Smallwood is, besides his co-defendant, the only one who could
identify Appellant as being a party to this crime. Further, the officers had seen Appellant in the
immediate area. Notably, Deputy Rodriquez saw Appellant leaving quickly as he arrived to begin
the investigation of the robbery. In retrospect, immediately after Smallwood identified Appellant
in the car at the washateria, the officers realized that, consistent with what Smallwood had told
them, Appellant had been in the area to pick up Smallwood after the robbery, and that he was still
driving the same vehicle Smallwood identified. In this situation, Smallwood was sufficiently
credible for police to rely on the information he provided about Appellant. See Coffey v. State,
744 S.W.2d 235, 241 (Tex. App. – Houston [1st Dist.] 1987), aff’d, 796 S.W.2d 175 (Tex. Crim.
App. 1990).
Appellant contends that, since the robbery had occurred several hours before his arrest, the
police had time to get a warrant for his arrest, based on Smallwood‟s statements to the police.
However, at that time, as Appellant previously argued, Smallwood‟s credibility was not
sufficiently substantiated. It was after Smallwood pointed out Appellant, near the location of the
11
robbery, and the police immediately recognized the car as the one that had been speeding from the
area just after the robbery, that indices of Smallwood‟s credibility were substantiated. At that
point, investigators were not required to then suspend their investigation of a man implicated in a
violent robbery.
Under the facts of this case, the trial court correctly determined that when Appellant was
found sitting in his car in front of the washateria, near the scene of the robbery, he was found in a
suspicious place and under circumstances reasonably showing him to be guilty of a felony. See
TEX. CODE CRIM. PROC. ANN. art. 14.03(a)(1). Further, in light of Appellant‟s previous quick
departure when he had seen the police patrolling the area as they searched for Smallwood, and
because he was in the driver‟s seat of an automobile, the police were within the law to deem
Appellant as “about to escape,” thereby eliminating the requirement that the police get a warrant
for Appellant prior to arresting him. See TEX. CODE CRIM. PROC. ANN. art. 14.04. Thus, it was
shown by satisfactory proof, by a credible person, that a felony had been committed and the
offender was about to escape. See id.
Accordingly, the officers had probable cause to arrest Appellant without a warrant
according to Article 14.04 and Article 14.03(a)(1). See Hughes, 24 S.W.3d at 838. The ensuing
search of Appellant‟s vehicle was a proper inventory conducted pursuant to a lawful impoundment
and the items found in the vehicle were admissible. See Garza v. State, 137 S.W.3d 878, 882
(Tex. App. – Houston [1st Dist.] 2004, pet. ref‟d). The trial court‟s ruling is not outside the zone
of reasonable disagreement. See Dixon, 206 S.W.3d at 590. The warrantless arrest of Appellant
was consistent with both federal constitutional and state statutory law. We overrule Appellant‟s
third issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth issue, Appellant contends that his trial counsel provided him ineffective
assistance during the pretrial, trial, and posttrial phases of the case against him. Specifically,
Appellant asserts that counsel failed to have “a firm grasp of the essential facts and law which
caused him to be ineffective, as a matter of law.” Appellant argues that, but for trial counsel‟s
errors, the motion to suppress would have been granted and the items found in the vehicle would
not have been entered into evidence. Then there would have been no evidence to corroborate
12
Smallwood‟s testimony and Appellant would not have been found guilty.
Standard of Review
The standard for testing claims of ineffective assistance of counsel is set out in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted for Texas
constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To
prevail on his claim of ineffective assistance, an appellant must show that his attorney's
representation fell below the standard of prevailing professional norms, and that there is a
reasonable probability that, but for the attorney's deficiency, the result of the trial would have been
different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). A reasonable probability
is a probability sufficient to undermine confidence in the outcome. Id. Appellant bears the
burden of proving his ineffective assistance claim by a preponderance of the evidence. Jackson
v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
Our review of counsel's representation is highly deferential. When evaluating a claim of
ineffective assistance, the appellate court looks to the totality of the representation and the
particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). An appellant faces the onerous burden of overcoming a strong presumption that counsel's
conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104
S. Ct. at 2065; Tong, 25 S.W.3d at 712. This court will not second guess through hindsight the
strategy of counsel at trial, nor will the fact that another attorney might have pursued a different
course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App.
1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. When
there has been no posttrial proceeding at which trial counsel has been afforded the opportunity to
present evidence of the strategic bases, if any, for his trial decisions, it is extremely difficult for an
accused to make a showing of deficient performance. See Bone v. State, 77 S.W.3d 828, 833
(Tex. Crim. App. 2002). Ordinarily, this kind of record is best developed in a hearing on an
application for writ of habeas corpus or a motion for new trial. See Jackson, 973 S.W.2d at 957.
Absent such evidence, appellate courts are not at liberty to find trial counsel‟s conduct was
ineffective unless the challenged conduct was so outrageous that no competent attorney would
have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
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Discussion
Appellant‟s counsel on appeal filed a motion for new trial on the sole ground that “the
verdict was not in the interest of justice.” Appellant filed his notice of appeal just thirty days later.
There is no indication in the record before us that a hearing was held on the motion for new trial.
Appellant first complains that, at the suppression hearing, Appellant‟s trial counsel had no
case law to offer the judge when asked. At the suppression hearing, the court and counsel
discussed the warrant requirements for an arrest, indicating counsel had a sufficient grasp of the
law and the facts. Counsel was not ineffective because he had no cases printed out and ready to
hand to the court. Appellant also complains that counsel did not present sufficient law to support
motions presented at trial. Appellant‟s complaint regarding motions presented at trial is so vague
and conclusory that it presents no complaint at all. See TEX. R. APP. P. 38.1(i); Stahle v. State,
970 S.W.2d 682, 692 (Tex. App.–Dallas 1998, pet. ref‟d).
Appellant complains that trial counsel failed to hire an expert to analyze the handwriting on
the letters admitted into evidence at trial. The State‟s expert testified the letters were all written
by the same person. Appellant contends a defense expert would have testified that he did not
write the note urging Smallwood to change his story. The general rule is that the failure to call
additional witnesses does not constitute ineffective assistance of counsel without a showing that
the witnesses were available to testify and that their testimony would have benefitted the
defendant. See Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986). Likewise, the failure
to request the appointment of an expert witness is not ineffective assistance in the absence of a
showing that the expert would have testified in a manner that benefitted the defendant. Cate v.
State, 124 S.W.3d 922, 928 (Tex. App.–Amarillo 2004, pet. ref‟d). Nothing in this record shows
that an expert witness had been contacted and was willing to testify or what his testimony would
have been with respect to an analysis of the handwriting in the note. Id. Therefore, based on the
record before us, we cannot say that counsel‟s performance was deficient for failing to present
testimony of a handwriting analyst. See Thompson, 9 S.W.3d at 813.
Appellant also contends that counsel‟s request for more funds for his attorney fees, beyond
that normally paid lawyers to represent indigent clients, so, as the lawyer suggested, he would not
be “working for free,” should be read as an indication of ineffective assistance. Or, to use
Appellant‟s own words, it was “not a far stretch of the imagination to conclude that Appellant‟s
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case has suffered prejudice because counsel did not get the needed funds to perform the vital task
to provide effective assistance of counsel.” The burden is on Appellant to establish his claim of
ineffective assistance of counsel. The record is silent as to how a lack of additional funds may
have affected Appellant‟s case. See id. at 814.
Appellant further complains counsel failed him posttrial because “counsel did not tell him
the meaning of the judgment or anything about the appeal.” Though Appellant asserts that
“counsel had his engine reved [sic] up; but (he) was going nowhere because he failed to engage the
gear and let his foot off the clutch,” this is not legal argument, or specific explanation of the actions
Appellant complains of. See Stahle, 970 S.W.2d at 692. Moreover, the record contains a
document signed by Appellant, the judge, and trial counsel entitled “Certification of Defendant‟s
Right of Appeal” specifically stating that Appellant was informed of his rights concerning any
appeal. Furthermore, on the same day the judgment was signed, the trial court appointed new
counsel to handle Appellant‟s appeal. The order permitting trial counsel to withdraw was signed
a day later. Once appellate counsel was appointed and trial counsel permitted to withdraw, trial
counsel no longer had any duty to discuss appellate options. See TEX. CODE CRIM. PROC. ANN.
art. 26.04(j)(2) (Vernon Supp. 2009).
Next, Appellant contends that trial counsel erred in having the State‟s handwriting expert
read to the jury the portion of the letter Appellant wrote to Smallwood‟s family indicating that
Appellant has a criminal record. Appellant contends this could not be trial strategy, and
complains that trial counsel “should be made to explain [whether the reading of this section is] said
strategy.” We note that the entire exhibit had previously been introduced into evidence without
objection. However, since Appellant did not request a hearing on his motion for new trial
alleging this error, he has not established a record explaining trial counsel‟s strategy regarding why
he failed to object or why he asked the witness to read that portion aloud. When the record is
silent, there is insufficient evidence to overcome the presumption that counsel‟s actions were part
of a strategic plan and therefore within the wide range of reasonable professional assistance. See
Tong, 25 S.W.3d at 714.
We do not decide appeals on the basis of speculation about matters not shown in the record.
Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). The record before us does not
demonstrate the alleged ineffectiveness. We cannot say that trial counsel‟s conduct was so
15
outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at
392. Appellant failed to meet his burden to show that trial counsel‟s representation fell below the
standard of prevailing professional norms and that there is a reasonable probability that, but for
these alleged errors, there would have been a different verdict. See Tong, 25 S.W.3d at 712. We
overrule Appellant‟s fourth issue.
SEIZURE OF INMATE MAIL
In his fifth issue, Appellant contends that, because he had a “justifiable expectation of
privacy” in his inmate mail, the Fourth Amendment to the United States Constitution required the
State to obtain a warrant before seizing his mail. Appellant also asserts there should have been a
hearing outside the presence of the jury addressing the veracity of the evidence. He argues the
letters should not have been admitted because their prejudicial effect outweighed their probative
value.
Appellant does not specify which exhibits he is complaining about. The State offered six
letters into evidence. Appellant‟s counsel stated on the record, as to each one, that he had “no
objection” to their admission. When a defendant affirmatively states that he has no objection to
the admission of the evidence during trial, he waives his right to complain on appeal that the
evidence was illegally obtained. See Holmes v. State, 248 S.W.3d 194, 196 (Tex. Crim. App.
2008). Neither has Appellant preserved his complaint that the letters were inadmissible because
their prejudicial effect outweighed their probative value as there was no trial court objection on
that basis. See TEX. R. APP. P. 33.1.
Moreover, an inmate does not have an expectation of privacy. Hudson v. Palmer, 468
U.S. 517, 527-28, 104 S. Ct. 3194, 3201, 82 L. Ed. 2d 393 (1984). Seizure of inmate mail is not a
violation of an inmate‟s constitutional right to be free from unreasonable search and seizure.
Stroud v. United States, 251 U.S. 15, 22, 40 S. Ct. 50, 53, 64 L. Ed. 103 (1919). Additionally,
there is no violation of an inmate‟s constitutional rights by prison officials reading the inmate‟s
nonlegal mail. See Thomas v. Allsip, 836 S.W.2d 825, 828 (Tex. App - Tyler 1992, no pet.).
Since Appellant has no expectation of privacy, the corrections officers were within their authority
to obtain copies of his mail without a search warrant. Therefore, Appellant‟s fifth issue is
overruled.
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HEARSAY EVIDENCE
In his sixth issue, Appellant alleges the trial court erred in allowing hearsay testimony by
Smallwood‟s family members who testified that he told them Appellant tried to persuade him to
rob a store. Appellant alleges that the testimony was offered to bolster the State‟s case and to
establish that Appellant was a party to the offense. Appellant argues that the trial court
committed “nonconstitutional error” and we must conduct a harm analysis. He further argues that
admission of the testimony was harmful because it “had the egregious injurious effect upon the
jury‟s psyche.”
Smallwood‟s sister testified that Smallwood tried to avoid Appellant because Appellant
wanted Smallwood to rob a store and Smallwood did not want to. Smallwood‟s cousin testified
that Smallwood told him Appellant wanted him to rob a store, that Appellant asked Smallwood if
he was scared of committing the robbery, and that Appellant took Smallwood to the store to show
him how he would do it and where they would go. Smallwood‟s aunt testified that Smallwood
told her Appellant was trying to get him to do things that were “wrong” and that he did not want to
do, so Smallwood avoided Appellant. Smallwood testified, explaining that, about a week after
the gym closed, Appellant started talking to him about robbing a store named Homer‟s in
Huntington. Smallwood said he was stunned and scared and tried to hide from Appellant and
avoid his calls. Smallwood testified that he told his sister and cousin what Appellant wanted him
to do.
A statement is not hearsay if it is offered against a party and is a statement made by a
co-conspirator during the course and in furtherance of the conspiracy. TEX. R. EVID.
801(e)(2)(E); King v. State, 189 S.W.3d 347, 359 (Tex. App. – Fort Worth 2006, no pet.). A
statement furthers a conspiracy if it advances the cause of the conspiracy or serves to facilitate it.
Guidry v. State, 9 S.W.3d 133, 148 (Tex. Crim. App. 1999). Statements that are made in
furtherance of a conspiracy include those made (1) with intent to induce another to deal with
co-conspirators or in any other way to cooperate with or assist co-conspirators, (2) with intent to
induce another to join the conspiracy, (3) in formulating future strategies of concealment to benefit
the conspiracy, (4) with intent to induce continued involvement in the conspiracy, or (5) for the
purpose of identifying the role of one conspirator to another. Lee v. State, 21 S.W.3d 532, 538
(Tex. App.–Tyler 2000, pet. ref‟d).
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Here, Appellant‟s statements to Smallwood were made in furtherance of the conspiracy
because Appellant was attempting to induce Smallwood to enter into a conspiracy to rob the store.
See id. Therefore, the challenged statements fall within the co-conspirator statements exception
to the hearsay rule and were admissible. See TEX. R. EVID. 801(e)(2)(E). Furthermore, even if
the trial court erred by admitting the statements, the error is harmless because the same facts were
admitted into evidence without objection when Smallwood testified. See Estrada v. State, No.
AP-75,634, 2010 Tex. Crim. App. LEXIS 722, at *71 n.29 (Tex. Crim. App. June 16, 2010).
Appellant‟s sixth issue is overruled.
TRIAL COURT BIAS
In his final issue, Appellant contends the trial court was biased in its rulings denying his
motion to suppress and motion for directed verdict. 3 Appellant contends that the trial court
“carried the State‟s unmet burden of proof” and “erred to relieve the State of its burden.”
Appellant also contends that the trial court “relieve [sic] the State of its burden when it [the court],
not the State cited a „suspicious place‟ as an exception to the warrant requirement.” He further
asserts that bias is demonstrated because the State did not present any case law, yet the court ruled
in its favor.
Due process requires that a neutral and detached judicial officer preside over the
proceedings. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). Absent a clear
showing to the contrary, we presume that the trial court was neutral and impartial. Id. In
addressing issue three, we explained that the trial court properly denied Appellant‟s motion to
suppress. In addressing issues one and two, we explained that there is both legally and factually
sufficient evidence to support the trial court‟s judgment and therefore the motion for directed
verdict was properly denied. The record does not support Appellant‟s bare assertions that denials
of his motions indicate bias on the part of the presiding judge. We overrule Appellant‟s seventh
issue.
3
We note that the hearing on the motion to suppress and the trial on the merits were presided over by two
different judges. Appellant also asserts without supporting argument that the trial court lacked jurisdiction to rule on
the suppression motion. This assertion has no merit. See TEX. CONST. art. V, § 8.
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DISPOSITION
Having overruled Appellant‟s seven issues, we affirm the trial court‟s judgment.
SAM GRIFFITH
Justice
Opinion delivered July 14, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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