Opinion issued March 1, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00246-CR
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DORSEY NATHANIEL CARR III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 74219
MEMORANDUM OPINION
A jury found Dorsey Carr guilty of driving while intoxicated as a third
offender, enhanced by a prior felony conviction, and it assessed his punishment at
ten years’ confinement. See TEX. PENAL CODE ANN. §§ 12.42, 49.04, 49.09(b)
(West 2011 & Supp. 2015). Carr contends on appeal that his counsel was
ineffective because she did not move to suppress evidence obtained during his
investigative detention. He also contends, and the State concedes, that insufficient
evidence supported the trial court’s assessment of attorney’s fees against him. See
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2009 & Supp. 2015). We hold
that Carr has failed to meet his Strickland burden to demonstrate that his trial
counsel performed deficiently. We agree, however, that the trial court erred by
ordering Carr to pay attorney’s fees. We therefore modify the trial court’s
judgment to delete the order to pay attorney’s fees; we affirm as modified.
BACKGROUND
On July 20, 2014, at around 6:00 p.m., Jordan Brooks was driving to his
house in Angleton after a beach outing in Surfside with his family. As he drove
north on FM 523, an older red minivan, which Brooks identified as a 1990s-model
Chrysler, pulled up behind Brooks, almost rear-ending his car. The red van passed
Brooks and almost clipped Brooks’s car when it moved back into Brooks’s lane.
The red van then went off the road, swerved back onto the road and into oncoming
traffic, and finally reentered Brooks’s lane. Brooks watched the red van turn off
FM 523 onto Stratton Ridge Road, toward the town of Clute; it was traveling at
such a high rate of speed that it almost rolled over. Concerned for the safety of
other motorists, Brooks called 911. He reported that a driver of a red 1990s model
Chrysler minivan was driving recklessly and heading west toward Clute on
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Stratton Ridge Road. In his 911 call, Brooks reported that the van was “all over
the road,” and that it was “riding in both lanes.” Brooks did not, however, identify
himself by name to the 911 operator during the call.
Between 6:00 and 6:30 p.m., Officer Edward Burnett with the Clute Police
Department was notified by dispatch of a drunk driver in a red minivan, who was
moving toward Clute on Stratton Ridge Road. Within Clute, Stratton Ridge Road
is known as Main Street. On Main Street, Officer Burnett saw two red minivans,
one parked in front of a convenience store and the other traveling west on Main
Street. Reasoning that the other van was moving toward the police station where
other officers could stop it, Officer Burnett approached the van at the convenience
store. After determining that the driver of this van was sober, Officer Burnett
drove west on Main Street, in the direction the other van had gone. After traveling
about two blocks, he saw the van pull into the parking lot of a bar. Officer Burnett
radioed his sergeant, Jessie Soley, who was nearby, and they pulled into the bar
parking lot in front of the red van.
As Officer Barnett and Sergeant Soley approached on foot, Carr was sitting
in the van’s driver’s seat with his door open. Barnett and Soley walked up to the
van and Carr climbed out. Soley asked Carr for his driver’s license and insurance,
and told Carr that he was being stopped because someone had reported that he was
“all over the road.” Soley noticed that Carr smelled strongly of alcohol, his
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balance was unstable, his eyes were red and bloodshot, and his speech was slurred.
Carr either failed or did not complete field sobriety tests, whereupon the officers
arrested him and brought him to the police station. Officer Burnett later brought
Carr to Brazosport Hospital, where he consented to blood testing. According to the
test results, Carr had a blood-alcohol level of 0.255 at the time of the blood draw,
above the legal limit of 0.08. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West
2011).
Carr’s appointed counsel moved to suppress the blood test evidence, but did
not move to suppress the evidence gathered during his encounter with the police.
The trial court denied the motion, and the case proceeded to trial. Although the
trial court found Carr to be indigent, the judgment of conviction assessed Carr
$2,954.53 in attorney’s fees.
DISCUSSION
I. Ineffective Assistance and the Suppression Hearing
Carr contends that his trial counsel rendered ineffective assistance by failing
to move to suppress the evidence gathered from the officers’ encounter with him,
and the later investigative detention, on the ground that the officers had no
reasonable suspicion that a crime had been committed when they first approached
Carr.
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A. Standard of Review and Applicable Law
To prevail on his ineffective-assistance-of-counsel claim, Carr must show
that (1) his counsel’s performance was deficient and (2) a reasonable probability
exists that the result of the proceeding would have been different. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065 (1984); Andrews v. State,
159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A defendant has the burden to
establish both prongs by a preponderance of the evidence; failure to make either
showing defeats his ineffectiveness claim. Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002). The first prong of this test requires the defendant to show
that counsel’s performance fell below an objective standard of reasonableness, in
that counsel made such errors that he was not functioning effectively as counsel.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2065; Lopez v. State, 343 S.W.3d 137,
142 (Tex. Crim. App. 2011). We apply a strong presumption that trial counsel was
competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We
presume trial counsel’s actions were reasonably professional and motivated by
sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994); Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004,
pet. ref’d). Furthermore, a claim of ineffective assistance must be firmly supported
in the record. Thompson, 9 S.W.3d at 813. Where the record does not offer an
explanation for trial counsel’s actions, we must presume that counsel made all
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significant decisions in the exercise of reasonable professional judgment. Jackson,
877 S.W.2d at 771; Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston
[1st Dist.] 2002, pet. ref’d) (en banc). However, “when no reasonable trial strategy
could justify the trial counsel’s conduct, counsel’s performance falls below an
objective standard of reasonableness as a matter of law, regardless of whether the
record adequately reflects the trial counsel’s subjective reasons for acting as she
did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); see also
Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App. 1998) (“[A] claim on
direct appeal of denial of counsel should be entertained and upheld if supported by
the record.”).
The second prong requires the defendant to show a reasonable probability
that, if not for counsel’s errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at
1442. A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” Thompson, 9 S.W.3d at 812 (citing Hernandez v.
State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986)).
When an ineffective assistance claim alleges that counsel was deficient in
failing to move to suppress or to object to the admission of evidence, the defendant
must show, as part of his claim, that the evidence was inadmissible and that the
motion to suppress or the objection would have been granted. Ortiz v. State, 93
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S.W.3d 79, 93 (Tex. Crim. App. 2002); Jackson v. State, 973 S.W.2d 954, 957
(Tex. Crim. App. 1998). A police officer may temporarily detain a person for
investigative purposes if the officer reasonably suspects that the detained person is
connected with a crime. Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880
(1968); Wade v. State, 422 S.W.3d 661, 668–69 (Tex. Crim. App. 2013).
Reasonable suspicion exists when a police officer has “a particularized and
objective basis for suspecting the particular person stopped of criminal activity.”
Navarette v. California, 134 S. Ct. 1683, 1687 (2014). Courts determine if
reasonable suspicion exists by objectively viewing the totality of the
circumstances. Id.
Whether a reasonable suspicion exists “is dependent upon both the content
of information possessed by police and its degree of reliability.” Id. (quoting
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). The
detaining officer need not personally be aware of every fact that supports a
reasonable suspicion to detain; rather, “the cumulative information known to the
cooperating officers at the time of the stop is to be considered in determining
whether reasonable suspicion exists.” Derichsweiler v. State, 348 S.W.3d 906, 914
(Tex. Crim. App. 2011) (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim.
App. 1987)).
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A police officer need not personally observe the facts giving rise to
reasonable suspicion for a traffic stop. See Navarette, 134 S. Ct. at 1687–88; see
also Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (“The factual
basis for stopping [an individual] need not arise from the officer’s personal
observation, but may be supplied by information acquired from another person.”).
Rather, a stop may be justified if the facts underlying the traffic stop are observed
by a civilian informant. See Navarette, 134 S. Ct. at 1688. An anonymous tip
alone is rarely enough to justify a traffic stop. See id. (quoting White, 496 U.S. at
329, 110 S. Ct. at 2415). However, when an anonymous tip is supported by
“sufficient indicia of reliability,” it may justify a stop. Id.
Courts have identified several indicia of reliability with respect to tips from
a citizen informant. An informant may be treated as more reliable if he provides a
firsthand account and a detailed description of wrongdoing. Hawes v. State, 125
S.W.3d 535, 539 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also
Navarette, 134 S. Ct. at 1689 (observing that contemporaneous eyewitness reports
of suspected criminal activity have “long been treated as especially reliable”).
Courts consider an informant who is not connected with the police inherently
trustworthy when advising the police of suspected criminal activity. Taflinger v.
State, 414 S.W.3d 881, 885 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
Further, the Supreme Court has recognized that because the 911 system “has some
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features that allow for identifying and tracing callers,” tips from 911 callers should
be considered more reliable. Navarette, 134 S. Ct. at 1689–90.
B. Analysis
Carr argues that his trial counsel should have objected to the admission of
the evidence gathered by the investigating officers because their detention of Carr
was not justified by a reasonable suspicion. He reasons that the police officers’
identification of Carr’s vehicle as matching Brooks’s description is not itself
enough to corroborate Brooks’s tip.
We note that the officers approached Carr in a parking lot after seeing him
parked there; they did not institute a traffic stop. During their encounter with Carr,
they personally observed evidence that Carr was impaired. Even if their actions
constituted a traffic stop, the Supreme Court has held that a traffic stop was
justified by reasonable suspicion under similar circumstances. See Navarette, 134
S. Ct. at 1692. In Navarette, the highway patrol received a report from an
anonymous 911 caller that a silver Ford F-150 pickup traveling southbound on the
highway had run him off the road. Id. at 1686–87. A few minutes later, a highway
patrolman encountered a truck matching the one described by the caller traveling
in the direction reported. Id. at 1687. Though the record contained no indication
that the patrolman himself observed the silver pickup driving erratically, the Court
held that the caller’s tip contained adequate indicia of reliability to support a
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reasonable suspicion for a stop, given that it was based on eyewitness knowledge,
was contemporaneously made, and was made to the 911 emergency system. Id. at
1686–87, 1692. The Court also found it persuasive that the caller reported conduct
resembling “paradigmatic manifestations of drunk driving.” Id. at 1691.
The present facts echo those in Navarette. Brooks reported that the red van
had swerved “all over the road,” and was “riding in both lanes,” behavior that is
consistent with the “lane positioning problems” and “impaired judgment” that
Navarette recognized as indicators of drunk driving. Id. at 1691. Brooks reported
that the van he saw was a red 1990s Chrysler style minivan. Carr was driving a red
1994 Plymouth minivan. Brooks reported Carr’s dangerous driving via the 911
system. Like the 911 call in Navarette, Brooks’s 911 call makes it clear that he
reported Carr’s driving immediately after personally witnessing it. Taken together,
these factors establish that Brooks’s anonymous tip provided the police with a
“particularized and objective basis” to justify a traffic stop. See Navarette, 134 S.
Ct. at 1687 (quoting United States v. Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690,
695 (1981)); Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d) (holding traffic stop justified when vehicle’s make, type,
and color, combined with its location and direction of travel, were consistent with
the report).
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II. Ineffective Assistance and Assessment of Attorney’s Fees
Carr next contends that the trial court erred in ordering him to repay fees for
his court-appointed attorney because the record contains no evidence that he had
the ability to pay, as required by Article 26.05(g) of the Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2009 & Supp.
2015) (requiring trial court to order defendant to pay for appointed counsel if
“defendant has financial resources that enable [him] to offset . . . the costs of the
legal services provided . . .”).
We review the assessment of court costs, including court-appointed
attorney’s fees, to determine if a basis exists for the award. See Johnson v. State,
423 S.W.3d 385, 389–90 (Tex. Crim. App. 2014). If there is no basis in the record
to support assessment of court-appointed attorney’s fees, the proper remedy is to
reform the judgment by striking the court-appointed attorney’s fees. Gates v.
State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013).
An indigent defendant is entitled to have an attorney appointed to represent
him in criminal proceedings at no cost. TEX. CODE CRIM. PROC. ANN. art. 1.051(c)
(West 2005 & Supp. 2015). Once the court determines that a defendant is indigent,
the defendant is presumed to remain indigent for the duration of the proceedings.
TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Gates, 402 S.W.3d at 251–52. A
material change in the defendant’s financial circumstances must occur to overcome
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this presumption. TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Gates, 402 S.W.3d
at 251–52. If the trial court later finds that the defendant has resources to pay the
court-appointed attorney’s fees, the court may order him to do so. TEX. CODE
CRIM. PROC. ANN. art. 26.05(g).
The trial court found that Carr was indigent and appointed counsel to
represent him. The State concedes, and we agree, that the record contains no
evidence that would support a finding that Carr could pay his attorney’s fees.
Accordingly, we reform the judgment and strike the portion ordering Carr to repay
the fees for his court-appointed attorney. See TEX. CODE CRIM. PROC. ANN. art.
26.05(g); Johnson, 423 S.W.3d at 389–90; Gates, 402 S.W.3d at 251–52.
CONCLUSION
We modify the judgment to delete the portion ordering payment of
attorney’s fees. We affirm the judgment of the trial court, as modified.
Jane Bland
Justice
Panel consists of Justices Bland, Brown, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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