Paul Clatt v. State ( 2008 )

NO. 07-07-0130-CR

                                                     NO. 07-07-0131-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 29, 2008

______________________________

PAUL CLATT,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 16^TH DISTRICT COURT OF DENTON COUNTY;

                     NOS. F-2006-1630-A, F-2006-1631-A; HON. CARMEN

                                           RIVERA-WORLEY, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

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

          Paul Clatt appeals his two convictions for possessing, with intent to deliver, controlled substances, namely, cocaine and methamphetamine. Three issues are before us. The first two relate to the trial court’s order overruling his motions to suppress evidence. The third involves the claim of ineffective assistance of counsel. We affirm the judgments.

          Issues One and Two

          As previously mentioned, appellant moved to suppress the admission into evidence of his statements and of the contraband found after his initial stop and later arrest. The trial court denied the motions. According to appellant, that decision was wrong. We overrule the issues.

          The standard of review is well settled, and we cite the parties to Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) and State v. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000) for its description. Furthermore, the trial court had before it evidence of 1) appellant’s driving a vehicle at night with a non-functioning rear license plate light, 2) appellant’s nervousness, 3) appellant’s hesitancy to inform the detaining officer of the locale from which he and his passengers had departed, the person they supposedly had visited for several days in Dallas, and the nature of his criminal record, 4) a passenger’s inability to recall the name of the person with whom they supposedly stayed, 5) a passenger’s statement that they had been in Dallas for only hours as opposed to days, 6) appellant’s attempts to distract the officer as the latter attempted to speak with the passengers, 7) appellant’s presence on I-35, which the officer knew to be a drug corridor, 8) appellant’s residence being in Iowa, 9) appellant’s statement that he had a knife in his pocket, 10) appellant’s failure to completely empty his pockets after disclosing the presence of the knife and being asked to do so by the trooper, 11) the discovery, during a pat down, of an item remaining in appellant’s pocket and its likeness to contraband, 12) appellant’s refusal to put his hands behind his back after the officer discovered the item remaining in appellant’s pocket, 13) appellant’s resistance and effort to grab the trooper’s flashlight after the trooper attempted to “grab” appellant’s arm, 14) appellant’s flight from the scene, and 15) the absence of any other officers to assist or protect the trooper until after appellant took flight. These circumstances provide basis upon which the trial court could have reasonably concluded that the trooper not only had probable cause to stop appellant but also reasonable suspicion of a crime being afoot to continue the detention for the few short minutes that lapsed and to justify a pat down for officer safety.

          Indeed, we have held that as part of a traffic stop, an officer may require the detainee to identify himself, produce a valid driver’s license and proof of insurance, detain the individual for a period of time reasonably sufficient to check for outstanding warrants, question the individual about his destination and the purpose of the trip, and request him to step out of the vehicle. Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.–Amarillo 2003, pet. ref’d). And, though the trooper initially told appellant he would receive a warning for having a defective license plate light, there is no indication in the record that the officer had written the warning by the time he began encountering hesitancy and evasiveness on the part of appellant or discovering the conflicts within the stories being uttered. And, once the officer felt the item in appellant’s pocket and, based on his experience with how some package drugs, he was not obligated to ignore it. Wilson v. State, 132 S.W.3d 695, 700 (Tex. App.–Amarillo 2004, pet. ref’d).

          Issue Three

          Appellant next argues that he was afforded ineffective assistance of counsel since the latter purportedly waived all complaints regarding the trial court’s denial of the motions to suppress. This purported waiver occurred when counsel stated that he had no objection to the admission of the evidence in question at trial. Having held that the trial court did not err in denying the motions, the claim of ineffective assistance is moot. Simply put, if the trial court acted correctly, it matters not whether the complaint was preserved. Thus, we overrule the issue.

          Accordingly, the judgments are affirmed.

 

                                                                           Brian Quinn

                                                                          Chief Justice

 

Do not publish.

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NOS. 07-09-00026-CR, 07-09-00027-CR, 07-09-00028-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL A

 

MAY 13, 2010

 

 

RODOLFO R. SOSA, APPELLANT

 

v.

 

THE STATE OF TEXAS, APPELLEE

 

 

 FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY;

 

NOS. D-1-DC-06-100022, D-1-DC-06-300403, D-1-DC-XX-XXXXXXX

 

HONORABLE JON N. WISSER, JUDGE

 

 

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

 

 

MEMORANDUM OPINION

 

 

Appellant, Rodolfo Sosa, appeals Judgments of Conviction by Jury that found appellant guilty of five counts of indecency with a child by contact[1] and one count of indecency with a child by exposure.[2]  The trial court then sentenced appellant to ten years incarceration in the Institutional Division of the Texas Department of Criminal Justice.  By one issue, appellant appeals.  We affirm.

Background

            Appellant was accused of indecency with a child based on conduct involving three boys ranging in age from eleven to thirteen. Appellant came into contact with these boys through his employment as a maintenance man at various apartment complexes and as a minister of a church. 

            One of these boys, C.G., became friends with appellant after meeting him at church.  C.G. described an incident in which appellant came up behind C.G. and hugged him while whispering into C.G.’s ear that he loved him.  C.G. indicated that he could feel appellant’s penis on his buttocks and that he could tell appellant was aroused.  On two separate occasions, appellant rubbed C.G.’s upper thigh, near C.G.’s crotch.  C.G. also described an incident in which appellant took C.G. to an empty apartment, pulled down C.G.’s pants, touched C.G.’s genitals and buttocks, and masturbated in front of C.G.  Following this, appellant then put C.G.’s penis in his mouth and, despite C.G.’s requests that appellant stop, appellant continued until C.G. ejaculated.

            Another of the boys, O.Z., also met appellant at church.  Appellant began giving O.Z. rides to and from church.  O.Z. described two instances when appellant rubbed his leg and told O.Z. that he loved him or cared for him.  On another occasion, appellant took O.Z. to an empty apartment and told O.Z. that the apartment was where appellant and C.G. had sex.  While in this apartment, appellant attempted to kiss O.Z., but O.Z. moved his head.  Finally, O.Z. described one occasion when appellant followed him into a storage closet at the church and hugged him from behind.  O.Z. said that he could feel appellant’s penis through their clothes.

            The final boy, J.B., described an incident when appellant came to J.B.’s apartment to fix a cupboard.  J.B. was alone in the apartment.  Appellant sat down on the couch and told J.B. to sit by him.  When J.B. complied, appellant undid the drawstring on J.B.’s sweatpants and put his hands on J.B.’s inner thigh and penis.

            Appellant was indicted for committing the offenses of indecency with a child by contact against each of the three boys and indecency with a child by exposure against C.G.  Prior to trial, the State moved to consolidate all of the pending charges against appellant.  Appellant moved to sever the trials, but this motion was denied by the trial court. Following trial, a jury found appellant guilty of all charges, and the trial court sentenced appellant to ten years incarceration in each cause.  Appellant then timely filed notice of appeal.

            By one issue, appellant contends that the trial court erred in denying appellant’s motion to sever the separate causes resulting in unfair prejudice to appellant.

Standard of Review

            A trial court’s denial of a defendant’s motion for severance is reviewed for abuse of discretion.  See Salazar v. State, 127 S.W.3d 355, 365 (Tex.App.--Houston [14th Dist.] 2004, pet. ref’d).  A trial court abuses its discretion when the trial court’s decision is arbitrary, unreasonable, and made without reference to guiding rules or principles.  See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh’g).

Law and Analysis

A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.  Tex. Penal Code Ann. § 3.02(a) (Vernon 2003).[3]  "Criminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person, if the offenses were committed pursuant to the same transaction or pursuant to two or more transactions that are connected to or constitute a common scheme or plan, or if the offenses are the repeated commission of the same or similar offenses.  § 3.01 (Vernon 2003).

When two or more offenses have been joined for trial under section 3.02, the defendant has a right to severance of the offenses, except when the defendant is being prosecuted for an offense described by section 3.03(b), in which case, severance is permitted only when the trial court determines that the defendant or the State would be unfairly prejudiced by joinder of the offenses.  § 3.04(a), (c) (Vernon 2003).  The offenses described by section 3.03(b) include indecency with a child under the age of seventeen years.  § 3.03(b)(2)(A) (Vernon Supp. 2009); see § 21.11. There is no presumption that the joinder of cases described by section 3.03(b) that were allegedly committed against different children is unfairly prejudicial. See Salazar, 127 S.W.3d at 365 (citing Diaz v. State, 125 S.W.3d 739, 742-43 (Tex.App.--Houston [1st Dist.] 2003, pet. ref'd.)). The burden to show how he would be unfairly prejudiced by consolidation rests with the defendant.  See Lane v. State, 174 S.W.3d 376, 380 (Tex.App.--Houston [14th Dist.] 2005, pet. ref'd).

            Initially, appellant seems to contend that the facts and circumstances surrounding the allegations made in the present causes are so different that they do not constitute “the repeated commission of the same or similar offenses,” § 3.01, and, therefore, the trial court erred in denying appellant’s motion to sever.  Because appellant’s issue challenges the denial of the motion to sever, we must initially determine whether the trial court abused its discretion in denying the motion on the basis that the causes were not appropriate for consolidation.  Appellant attempts to distinguish adverse case law by highlighting the facts that these causes involved three separate victims that were not members of appellant’s family, and the offenses were singular occurrences rather than recurrent. However, nothing in the case law cited by appellant establishes that any of these factors are required to establish that offenses are sufficiently similar to justify consolidation.  After reviewing the record, we conclude that these offenses were sufficiently similar to justify consolidation.  The similarities include: each of the three victims were in the same age range when assaulted by appellant, appellant met each of the three victims through his position of employment, and many of appellant’s statements and actions were consistent with each child.  As such, we cannot say that the trial court abused its discretion in denying appellant’s motion on the basis that the offenses were not sufficiently similar to justify joinder.  See §§ 3.01, 3.02(a).

However, even if causes under section 3.03(b) are properly joined, severance is appropriate if the defendant or State would be unfairly prejudiced by the joinder.  § 3.04(a), (c).  Appellant contends that the testimony of the victims, when taken separately, reveals flaws and inconsistencies that were masked by the consolidation of the cases. Further, appellant contends that the admission of the testimony from each of the victims in the same proceeding impermissibly bolstered the testimony of each victim.

As previously stated, when the charged offenses are offenses described by section 3.03(b), there is no presumption that the joinder of cases allegedly committed against different children is unfairly prejudicial.  See Salazar, 127 S.W.3d at 365.  Additionally, it is well-established that evidence of other crimes may be admitted in a case if it rebuts a defensive theory.  See Moses v. State, 105 S.W3d 622, 627 (Tex.Crim.App. 2003). Appellant’s defensive theories at trial primarily consisted of denying that he committed the offenses and claiming that the victims’ testimony was inconsistent or coached.  As such, even if the severance had been granted, it is likely that, in each case, the testimony of the other victims would have been admissible to refute the defensive theories that the victims’ testimony is unreliable or was the result of coaching.  See Salazar, 127 S.W.3d at 365. Therefore, we conclude that the trial court could have reasonably found that the joinder of the cases was not unfairly prejudicial to appellant.  Id. at 365-66. Consequently, the trial court did not abuse its discretion in denying appellant’s motion for severance.  We overrule appellant’s issue.

 

Conclusion

For the foregoing reasons, we overrule appellant’s sole appellate issue and affirm the judgment of the trial court.

 

                                                                                                Mackey K. Hancock

                                                                                                            Justice

 

Do not publish. 

 

 

           

 

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[1] See Tex. Penal Code Ann. § 21.11(a)(1) (Vernon Supp. 2009).

 

[2] See Tex. Penal Code Ann. § 21.11(a)(2)(A).

[3] Further references to provisions of the Texas Penal Code will be by reference to “section __” or “§ __.”