Derrick Wayne Middleton v. State ( 2013 )


Menu:
  • Affirmed and Memorandum Opinion filed May 21, 2013.
    In The
    Fourteenth Court of Appeals
    NO. 14-12-00481-CR
    DERRICK WAYNE MIDDLETON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 56th District Court
    Galveston County, Texas
    Trial Court Cause No. 11CR1959
    MEMORANDUM OPINION
    Appellant was convicted of burglary of a habitation. In three issues, he
    challenges whether the evidence is sufficient to support the conviction, whether the
    trial court erred by denying his motion to suppress, and whether he was denied the
    effective assistance of trial counsel. We affirm.
    BACKGROUND
    In 2011, the complainant, Christine Farmer, left her home in Texas City and
    embarked on an extended vacation. Before the trip, Farmer asked her neighbor,
    Lorraine Womack, to keep a watch on her property because she had been warned
    of occasional break-ins in the community. While Farmer was away, Womack
    observed an unfamiliar car at her neighbor’s house. Womack walked over to the
    home and discovered that Farmer’s back door was open. She then saw appellant
    exiting the home with a laptop and printer in hand. Womack told appellant, whom
    she did not recognize, that she would not call the police if he returned the items to
    Farmer’s house. Appellant disregarded Womack and drove away with other stolen
    goods. Womack then contacted the authorities and provided police with a
    description of appellant’s vehicle.
    Shortly after Womack’s call, Officer Amber Lively of the La Marque Police
    Department encountered appellant driving his vehicle in the City of La Marque.
    The vehicle matched the exact description given by a recent police dispatch.
    Officer Lively followed the vehicle to a residence, where she saw appellant quickly
    pull into a driveway and exit his car. Officer Lively chased appellant on foot
    around the house until eventually losing sight of him. Appellant was later found
    peeking through a garage door window. When Officer Lively tried to enter the
    garage through a side door, appellant moved to shut the door in her face. With the
    help of another officer who arrived on scene, Officer Lively pushed the door open
    and detained appellant in handcuffs. Farmer’s belongings were discovered inside
    the garage.
    SUFFICIENCY OF THE EVIDENCE
    In his first issue, appellant argues that the evidence is legally and factually
    insufficient to support the jury’s verdict. Our review is limited to applying just the
    2
    legal sufficiency standard discussed in Jackson v. Virginia, 
    443 U.S. 307
    (1979).
    See Temple v. State, 
    390 S.W.3d 341
    , 360 (Tex. Crim. App. 2013) (citing Brooks v.
    State, 
    323 S.W.3d 893
    (Tex. Crim. App. 2010) (plurality opinion)).
    When reviewing the legal sufficiency of the evidence, we examine all of the
    evidence in the light most favorable to the verdict and determine whether a rational
    trier of fact could have found the essential elements of the offense beyond a
    reasonable doubt. 
    Temple, 390 S.W.3d at 360
    . Although we consider everything
    presented at trial, we do not reevaluate the weight and credibility of the evidence or
    substitute our judgment for that of the fact finder. Williams v. State, 
    235 S.W.3d 742
    , 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the
    credibility of witnesses and of the weight given to their testimony, any conflicts or
    inconsistencies in the evidence are resolved in favor of the verdict. Wesbrook v.
    State, 
    29 S.W.3d 103
    , 111 (Tex. Crim. App. 2000). Our review includes both
    properly and improperly admitted evidence. Clayton v. State, 
    235 S.W.3d 772
    , 778
    (Tex. Crim. App. 2007). We also consider both direct and circumstantial evidence,
    as well as any reasonable inferences that may be drawn from the evidence. 
    Id. To obtain
    a conviction for burglary of a habitation, the prosecution was
    required to show that appellant entered a habitation without the effective consent
    of the owner, and with the intent to commit a felony, theft, or an assault. See Tex.
    Penal Code § 30.02(a)(1). Appellant argues that the prosecution failed to carry its
    burden because no evidence of forced entry or damage to the home was shown,
    and because no fingerprints were ever collected.
    We conclude that the evidence is sufficient to support the conviction.
    Womack testified that she saw appellant in Farmer’s house carrying items that she
    knew belonged to Farmer. Farmer testified that she had never met appellant before
    and that appellant did not have her consent to enter her home or take her property.
    3
    Despite there being no evidence of forced entry or fingerprints, a rational jury
    could have found every element of the charged offense beyond a reasonable doubt.
    We overrule appellant’s first issue.
    MOTION TO SUPPRESS
    In his second issue, appellant argues that the trial court erred by denying his
    motion to suppress. During the hearing on the suppression motion, testimony was
    taken from only two witnesses: the officers who had arrested appellant. The
    officers’ testimony established that appellant’s vehicle was registered to a
    residence in La Marque, but not the residence where appellant was ultimately
    detained. The trial court found that appellant was detained at the home of his
    cousin, where appellant did not personally reside. Based on this finding, the trial
    court determined that appellant had no expectation of privacy and denied his
    motion to suppress for lack of standing. The court also concluded on alternative
    grounds that appellant’s warrantless arrest was legal because the officers were
    acting on exigent circumstances. Appellant challenges these conclusions on appeal.
    We begin by addressing the question of standing. The Fourth Amendment to
    the United States Constitution and Article I, Section 9 of the Texas Constitution
    protect individuals from unreasonable searches and seizures. Richardson v. State,
    
    865 S.W.2d 944
    , 948 (Tex. Crim. App. 1993). The rights secured by these
    constitutional protections are personal, and a defendant only has standing to
    contest a search if he had a legitimate expectation of privacy in the place that the
    government invaded. Rakas v. Illinois, 
    439 U.S. 128
    , 139 (1978); 
    Richardson, 865 S.W.2d at 948
    –49. A defendant who challenges a search has the burden of proving
    facts demonstrating a legitimate expectation of privacy. Villarreal v. State, 
    935 S.W.2d 134
    , 138 (Tex. Crim. App. 1996). This burden is assigned to the defendant,
    4
    rather than the government, because the defendant has greater access to the
    relevant evidence needed to establish standing. 
    Id. The defendant’s
    burden normally embraces two discrete questions. The first
    is whether the individual, by his conduct, has exhibited an actual subjective
    expectation of privacy, i.e., whether he has shown a genuine intention to preserve
    something as private. Smith v. Maryland, 
    442 U.S. 735
    , 740 (1979). The second
    question is whether the individual’s subjective expectation of privacy is one that
    society is prepared to recognize as objectively reasonable. Id.; 
    Villarreal, 935 S.W.2d at 138
    .
    Several factors are relevant to determining whether a given claim of privacy
    is objectively reasonable: (1) whether the defendant had a property or possessory
    interest in the place invaded; (2) whether he was legitimately in the place invaded;
    (3) whether he had complete dominion or control and the right to exclude others;
    (4) whether, before the intrusion, he took normal precautions customarily taken by
    those seeking privacy; (5) whether he put the place to some private use; and
    (6) whether his claim of privacy is consistent with historical notions of privacy.
    Granados v. State, 
    85 S.W.3d 217
    , 223 (Tex. Crim. App. 2002). This is a non-
    exhaustive list of factors, and no one factor is dispositive. 
    Id. Although we
    defer to
    the trial court’s factual findings and view them in the light most favorable to the
    prevailing party, we review the legal issue of standing de novo. Kothe v. State, 
    152 S.W.3d 54
    , 59 (Tex. Crim. App. 2004).
    The evidence in this case established that appellant was arrested on property
    belonging to a cousin, rather than to him personally. Constitutional protections can
    extend to places where the defendant lacks an ownership interest, but in those
    circumstances, the defendant must still demonstrate that he had a legitimate
    expectation of privacy in the place the government invaded. See, e.g., State v.
    5
    Betts, — S.W.3d —, No. PD-1221-12, 
    2013 WL 1628963
    , at *4 (Tex. Crim. App.
    Apr. 17, 2013) (holding that defendant had a legitimate expectation of privacy in
    his aunt’s backyard). Appellant did not call any defense witnesses during the
    suppression hearing, and he did not testify personally that he had a possessory
    interest in the property or permission to be in the garage. Without such evidence,
    appellant did not satisfy his burden of showing that he had standing to contest the
    government’s warrantless search and seizure. Cf. Garza v. State, 
    705 S.W.2d 818
    ,
    820 (Tex. App.—San Antonio 1986, no pet.) (concluding that defendant failed to
    establish that he had standing where appellant did not testify during suppression
    hearing and there was no evidence that he had an ownership or possessory interest
    in the property searched). The trial court did not err by denying appellant’s motion
    for lack of standing. We overrule appellant’s second issue.
    INEFFECTIVE ASSISTANCE CLAIM
    In his third issue, appellant argues that his trial counsel was constitutionally
    ineffective. His argument proceeds on two points. First, appellant contends that
    counsel was ineffective because he failed to present evidence of standing during
    the suppression hearing. Second, appellant contends that counsel was ineffective
    because he failed to request a jury instruction regarding evidence that, he alleges,
    was illegally obtained. We examine these claims under the standard set forth in
    Strickland v. Washington, 
    466 U.S. 668
    (1984).
    Under Strickland, appellant must prove that his trial counsel’s representation
    was deficient and that the deficient performance was so serious that it deprived him
    of a fair trial. 
    Id. at 687.
    Counsel’s representation is deficient if it falls below an
    objective standard of reasonableness. 
    Id. at 688.
    This deficiency will deprive
    appellant of a fair trial only when counsel’s performance prejudices appellant’s
    defense. 
    Id. at 691–92.
    To demonstrate prejudice, appellant must show a
    6
    reasonable probability that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different. 
    Id. at 694.
    Failure to make the required
    showing of either deficient performance or sufficient prejudice defeats the claim of
    ineffectiveness. 
    Id. at 697.
    This test is applied to claims arising under both the
    United States and Texas Constitutions. See Hernandez v. State, 
    726 S.W.2d 53
    ,
    56–57 (Tex. Crim. App. 1986).
    Our review of defense counsel’s performance is highly deferential,
    beginning with the strong presumption that the attorney’s actions were reasonably
    professional and were motivated by sound trial strategy. Jackson v. State, 
    877 S.W.2d 768
    , 771 (Tex. Crim. App. 1994). When the record is silent as to trial
    counsel’s strategy, we will not conclude that appellant received ineffective
    assistance 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). Rarely will the trial record contain sufficient information
    to permit a reviewing court to fairly evaluate the merits of such a serious
    allegation. Bone v. State, 
    77 S.W.3d 828
    , 833 (Tex. Crim. App. 2002). In the
    majority of cases, the appellant is unable to meet the first prong of the Strickland
    test because the record on direct appeal is underdeveloped and does not adequately
    reflect the alleged failings of trial counsel. Mata v. State, 
    226 S.W.3d 425
    , 430
    (Tex. Crim. App. 2007).
    A sound trial strategy may be imperfectly executed, but the right to effective
    assistance of counsel does not entitle a defendant to errorless or perfect counsel.
    See Robertson v. State, 
    187 S.W.3d 475
    , 483 (Tex. Crim. App. 2006). “[I]solated
    instances in the record reflecting errors of omission or commission do not render
    counsel’s performance ineffective, nor can ineffective assistance of counsel be
    established by isolating one portion of trial counsel’s performance for
    7
    examination.” McFarland v. State, 
    845 S.W.2d 824
    , 843 (Tex. Crim. App. 1992),
    overruled on other grounds by Bingham v. State, 
    915 S.W.2d 9
    (Tex. Crim. App.
    1994). Moreover, “[i]t is not sufficient that appellant show, with the benefit of
    hindsight, that his counsel’s actions or omissions during trial were merely of
    questionable competence.” 
    Mata, 226 S.W.3d at 430
    . Rather, to establish that the
    attorney’s acts or omissions were outside the range of professionally competent
    assistance, appellant must show that counsel’s errors were so serious that he was
    not functioning as counsel. Patrick v. State, 
    906 S.W.2d 481
    , 492 (Tex. Crim. App.
    1995).
    We begin with appellant’s first complaint, which focuses on counsel’s
    failure to present evidence of standing on the motion to suppress. Appellant argues
    that counsel could have called the owner of the residence to testify during the
    suppression hearing. He also argues that he could have testified himself for the
    limited purpose of showing that he had a reasonable expectation of privacy at his
    cousin’s house. The State counters that appellant’s arguments are meritless because
    the record does not indicate that any witness could establish that appellant had a
    reasonable expectation of privacy at the invaded residence.
    Even if we were to assume that appellant’s standing could have been
    established, appellant must still show that his motion to suppress would have been
    granted. Cf. Jackson v. State, 
    973 S.W.2d 954
    , 957 (Tex. Crim. App. 1998) (noting
    that in the context of a complaint that counsel failed to pursue a motion to
    suppress, the defendant could only show prejudice under Strickland if he proved
    that the motion would have been granted). Appellant contends that he meets this
    standard for prejudice, arguing that the State lacked probable cause to arrest him
    without a warrant. We disagree.
    8
    Any peace officer may arrest, without warrant, “persons found in suspicious
    places and under circumstances which reasonably show that such persons have
    been guilty of some felony.” See Tex. Code Crim. Proc. art. 14.03(a)(1). If an
    officer intends to make a warrantless arrest, he may not enter a residence without
    the consent of a resident unless required by exigent circumstances. 
    Id. art. 14.05(2).
    The determination of whether a place is a “suspicious place” is a highly fact-
    specific analysis. Dyar v. State, 
    125 S.W.3d 460
    , 468 (Tex. Crim. App. 2003).
    Reviewing courts often apply a totality of the circumstances test. 
    Id. Although no
    individual factor is determinative, case law tends to recognize that a place will
    qualify as suspicious if the time frame between the crime and the apprehension of
    the suspect is short. 
    Id. In this
    case, the evidence showed that Womack called the police as appellant
    was leaving the scene of the burglary. She gave the dispatcher a detailed
    description of the intruder’s vehicle, including the license plate number. Shortly
    after the dispatch, Officer Lively encountered a vehicle matching the exact
    description stated by Womack. The vehicle was traveling at a high rate of speed,
    and not in the direction of the address where the vehicle was registered. Officer
    Lively saw appellant park the vehicle at a residence, which was later determined
    not to be his. Appellant grabbed some of the stolen goods and ran around the
    house. After a foot chase, appellant was spotted hiding inside a garage. When
    officers attempted to enter the garage, appellant tried to block their entry by
    closing the door on them.
    The officers could have detained appellant on a reasonable suspicion; just
    after reports of a burglary, appellant was seen driving the exact car observed at the
    scene of a crime. Cf. Mount v. State, 
    217 S.W.3d 716
    , 728–29 (Tex. App.—
    9
    Houston [14th Dist.] 2007, no pet.) (holding that officer was justified in stopping a
    vehicle that was similar to a vehicle recently reported as stolen). The officers’
    reasonable suspicion elevated to probable cause when appellant ran from police,
    hid inside a garage, then attempted to shut the police out. See Amador v. State, 
    275 S.W.3d 872
    , 878 (Tex. Crim. App. 2009) (stating that probable cause for a
    warrantless arrest exists “if, at the moment the arrest is made, the facts and
    circumstances within the arresting officer’s knowledge and of which he has
    reasonably trustworthy information are sufficient to warrant a prudent man in
    believing that the person arrested had committed or was committing an offense”).
    A garage may not be a suspicious place per se. However, after considering the
    totality of the circumstances, including the fact that appellant was seen hiding
    inside the garage just after a chase from police, we conclude that the garage
    qualified as a suspicious place under Article 14.03. Cf. Muniz v. State, 
    851 S.W.2d 238
    , 251 (Tex. Crim. App. 1993) (holding that defendant was arrested in a
    suspicious place after he was found hiding inside his brother’s closet shortly after a
    murder).
    Appellant suggests that exigent circumstances did not require the officers’
    warrantless entry into the garage. He contends that officers could have surrounded
    the garage, secured a warrant, then effectuated his arrest.
    A warrantless entry may be justified by a number of exigent circumstances,
    including: (1) a risk of danger to the police or the victim; (2) an increased
    likelihood of apprehending a suspect; (3) possible destruction of evidence or
    contraband; (4) hot or continuous pursuit; and (5) rendering aid or assistance to
    persons who the officer reasonably believes are in need of assistance. Randolph v.
    State, 
    152 S.W.3d 764
    , 771 (Tex. App.—Dallas 2004, no pet.). The evidence here
    showed that Officer Lively was engaged in a hot and continuous pursuit. She
    10
    encountered appellant driving a vehicle that matched the description reported over
    a police dispatch. Officer Lively followed the vehicle to a residence, chased
    appellant on foot, and ultimately arrested him after finding him hiding in a garage.
    The pursuit was “lawfully initiated on the ground of suspicion.” Yeager v. State,
    
    104 S.W.3d 103
    , 107 (Tex. Crim. App. 2003). Appellant’s escape to a place of
    private refuge did not terminate the chase or defeat the exigency of the officers’
    warrantless entry. See United States v. Santana, 
    427 U.S. 38
    , 43 (1976) (providing
    that a defendant may not “defeat an arrest which has been set in motion in a public
    place . . . by the expedient of escaping to a private place”); see also LaHaye v.
    State, 
    1 S.W.3d 149
    , 153 (Tex. App.—Texarkana 1999, pet. ref’d) (“If, during the
    course of a chase, the offender turns a corner and the pursuing officer momentarily
    loses sight of the offender, hot pursuit is not defeated so long as the chase is
    immediate and continuous. Moreover, if an offender fleeing from the police turns a
    corner and then enters a private residence, the pursuit is continuous and immediate
    even though the officer does not see the offender run into the residence.”).
    We conclude that appellant was lawfully arrested and that the trial court did
    not err by denying his motion to suppress. Therefore, even if counsel were
    ineffective by failing to present evidence of standing, appellant cannot show that
    he was prejudiced under Strickland.
    Appellant next complains that counsel was ineffective because he did not
    request a jury instruction under article 38.23 of the Texas Code of Criminal
    Procedure. Under Article 38.23, the trial court is required to exclude any evidence
    that it finds, as a matter of law, was obtained in violation of state or federal law.
    Tex. Code Crim. Proc. art. 38.23. If there is a fact issue regarding the manner in
    which the evidence was obtained, Article 38.23 permits the court to submit the
    question to the jury with an instruction that if the jurors find that the evidence was
    11
    obtained in violation of the law, then they are not to consider it in reaching their
    verdict. 
    Id. A defendant
    is only entitled to an instruction under Article 38.23 when the
    record demonstrates a factual dispute concerning how the evidence was obtained.
    Wesbrook v. State, 
    29 S.W.3d 103
    , 121 (Tex. Crim. App. 2000); Thomas v. State,
    
    723 S.W.2d 696
    , 707 (Tex. Crim. App. 1986). Appellant has not identified any
    factual disputes in this case. He challenged the admissibility of the stolen goods on
    legal, not factual, grounds. The record contains no conflicts regarding the manner
    in which the officers seized this evidence. Accordingly, appellant was not entitled
    to an instruction under Article 38.23, and defense counsel was not ineffective for
    failing to request one. See Hardin v. State, 
    951 S.W.2d 208
    , 211 (Tex. App.—
    Houston [14th Dist.] 1997, no pet.). We overrule appellant’s third issue.
    CONCLUSION
    The judgment of the trial court is affirmed.
    /s/     Tracy Christopher
    Justice
    Panel consists of Justices Frost, Christopher, and Donovan.
    Do Not Publish — Tex. R. App. P. 47.2(b).
    12