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 2005-08

Louron Bernard Willis v. State ( 2005 )


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  • In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana


    ______________________________


    No. 06-04-00172-CR

    ______________________________



    LOURON BERNARD WILLIS, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee


                                                  


    On Appeal from the 354th Judicial District Court

    Hunt County, Texas

    Trial Court No. 22,016


                                                     




    Before Morriss, C.J., Ross and Carter, JJ.

    Memorandum Opinion by Chief Justice Morriss



    MEMORANDUM OPINION


                When Louron Bernard Willis was sixteen years old, he, Cedrick Lewis, and Larry Hatley robbed three men at gun point. After the robbery yielded less than a dollar, the frustrated robbers shot Eddie Garcia to death. Willis was prosecuted as an adult, convicted of capital murder, and sentenced to life in prison.

                We affirm the trial court's judgment because (1) ineffective assistance of counsel has not been shown, (2) sufficient evidence supports the finding that Willis had specific intent to kill the victim, and (3) an automatic life sentence for a juvenile capital murderer is not constitutionally unsound.

    (1)       Ineffective Assistance of Counsel Has Not Been Shown

                Willis contends he did not receive effective assistance of counsel at trial. In our review of a claim of ineffective assistance of counsel, we apply the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, an appellant must prove by a preponderance of the evidence that (a) his or her counsel's representation fell below an objective standard of reasonableness, and (b) the deficient performance prejudiced the defense. Id. To meet this burden, the appellant must prove that counsel'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). Willis expresses three complaints concerning his trial counsel.

                Willis first complains his counsel was ineffective because he did not call Willis to testify at trial, despite being informed of his desire to testify. Any allegation of ineffectiveness must be firmly grounded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record is silent on why counsel did not call Willis to testify. And numerous reasons exist why a defendant should not testify, even if he or she wishes to do so. Error has not been shown.

                Willis next complains his counsel was ineffective for failing to file a motion to suppress Willis' videotaped and written statements. But this record reveals that such a motion was filed, a hearing was held on the topic, and the trial court found the statements admissible.

                Willis also complains counsel was ineffective in failing to request, as a lesser-included offense, a jury charge on felony murder. Willis asserts his counsel could have argued that, instead of charging the jury under only Section 19.02(b)(1) (intentionally or knowingly causing the death of an individual; a prerequisite for capital murder), trial counsel should have asked that the jury be charged on a lesser-included offense under Section 19.02(b)(3) (felony murder). See Tex. Pen. Code Ann. § 19.02(b)(1), (3) (Vernon 2003). The lesser charge carries with it a lesser sentencing range.

                Not requesting a lesser-included-offense charge can be trial strategy. See Lynn v. State, 860 S.W.2d 599, 603 (Tex. App.—Corpus Christi 1993, pet. ref'd). In this case, because of Willis' youth and on the theory that Hatley was the mastermind and the shooter who actually killed Garcia, counsel may have been attempting an all-or-nothing defense in the hope that the jury would choose not to incarcerate the youthful Willis for life. In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation, if any can be imagined. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). The record does not reveal the reasons for counsel's action, but valid reasons can be imagined.

                Ineffective assistance of counsel has not been shown on this record. The contention is overruled.

    (2)       Sufficient Evidence Supports the Finding That Willis Had Specific Intent To Kill the Victim

                Willis contends the evidence was insufficient to show he formulated specific intent to kill Garcia, as is required to obtain a conviction based on the capital murder statute.

                In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

    A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.


    Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). The question, then, is whether the jury had sufficient evidence to find beyond a reasonable doubt that Willis had the conscious objective to cause Garcia's death. We conclude the jury had sufficient evidence.

                Whether a defendant had the intent to kill is a question of fact for the jury to determine. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). In determining whether the State has proven the intent to kill, the jury may use its collective common sense and may apply common knowledge and experience. See Rodriguez v. State, 90 S.W.3d 340, 355 (Tex. App.—El Paso 2001, pet. ref'd). The jury may infer the intent to kill from any evidence that it believes proves the existence of that intent. Brown, 122 S.W.3d at 800. For example, the jury may infer the intent to kill from the defendant's words or conduct. Hall v. State, 418 S.W.2d 810, 812 (Tex. Crim. App. 1967); Robbins v. State, 145 S.W.3d 306, 309 (Tex. App.—El Paso 2004, no pet.). The jury may also infer intent to kill from the defendant's use of a deadly weapon, such as a gun, unless it would be unreasonable to infer that death or serious bodily injury could result from the particular use of the weapon. Brown, 122 S.W.3d at 800–01; Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); see Tex. Pen. Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2004–2005).

                The jury had evidence before it showing that Willis shot the victim once and that Hatley shot the second time, but other evidence that Willis personally pulled the trigger both times. Even under the two-shooter scenario, Willis' statement indicates that he shot Garcia in the chest and that Hatley shot Garcia in the leg. The evidence is both legally and factually sufficient to support the verdict. The contention of error is overruled.

    (3)       An Automatic Life Sentence for a Juvenile Capital Murderer Is Not Constitutionally Unsound

                Finally, Willis contends the Texas capital murder scheme effectively mandates an automatic life sentence for a juvenile offender and therefore is constitutionally unsound.

                The argument is based on recent action by the United States Supreme Court. That Court has recently held it is unconstitutional to execute individuals who are not yet eighteen years of age at the time they commit their crimes. Roper v. Simmons, __ U.S. __, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). The Roper Court ruled that such action violates the Eighth Amendment prohibition against cruel and unusual punishment. In Roper's majority opinion, Justice Kennedy noted that youth tend to have a "lack of maturity and an underdeveloped sense of responsibility" and that "these qualities often result in impetuous and ill-considered actions and decisions." Id. The Court also noted that juveniles are more vulnerable to outside pressures and that the character of a juvenile is not as well formed as that of an adult. Id. Based on those differences from adult offenders, the Court found suspect any conclusion that a juvenile falls among the worst offenders, reasoning that "their irresponsible conduct is not as morally reprehensible as that of an adult." Id.

                Nevertheless, the Roper opinion is directed not at life imprisonment, or even life imprisonment without parole, but at the ultimate penalty, death. Imprisonment, even for life, is not in the same category as capital punishment, and no compelling reason has been advanced that convinces us to further expand the Eighth Amendment. The contention of error is overruled.

                We affirm the judgment.

     

                                                                                        Josh R. Morriss, III

                                                                                        Chief Justice


    Date Submitted:          August 17, 2005

    Date Decided:             August 31, 2005


    Do Not Publish

    the time of the questioned action. Illinois v. Gates, 462 U.S. 213, 230-31 (1983). The question is whether a reasonable, prudent, and detached magistrate could read the affidavit in support of probable cause and believe that a crime had probably been committed by the person in the affidavit. Diehl v. State, 698 S.W.2d 712, 714 (Tex. App.‒Houston [1st Dist.] 1985, pet. ref'd).

              Our determination of the sufficiency of an arrest or search warrant is limited to the four corners of the affidavit. Oubre v. State, 542 S.W.2d 875, 877 (Tex. Crim. App. 1976). We interpret affidavits for arrest or search warrants, however, in a common-sense and realistic manner. Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991). The magistrate who reviews an affidavit may draw inferences from the facts contained in it. Id.

              The affidavit in this case provided that the affiant, a police officer, was contacted by a reliable confidential informant who observed Eldridge in possession of a quantity of methamphetamine "within the past 72 hours." Consequently, probable cause existed that Eldridge had committed the offense of possession of a controlled substance. Applying the "totality of the circumstances test," and interpreting this affidavit in a common-sense and realistic manner, and drawing reasonable inferences from the facts contained in the affidavit, this arrest warrant was based on probable cause. Eldridge's contention that his arrest at the time he was stopped in his truck was unreasonable and without probable cause is without merit. Therefore, his further contention the trial court erred in failing to suppress the evidence found in the truck as the fruit of an illegal detention is likewise overruled.

    Movement of the truck

              Eldridge contends the search warrant for the residence did not encompass the vehicle, and that the seizure and movement of the truck to the mobile home by the officers without probable cause was an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. Eldridge contends this seizure became tantamount to a search when the repositioning of the vehicle led to the discovery of the black bag. Thus, he argues, the methamphetamine found in the bag should have been suppressed.

              We hold that the movement of the truck to the mobile home was a lawful impoundment of the vehicle pursuant to the community care-taking function of the officers, as well as pursuant to a custodial arrest. In Benavides v. State, 600 S.W.2d 809, 810 (Tex. Crim. App. [Panel Op.] 1980), the Texas Court of Criminal Appeals enumerated several instances in which the impoundment of a vehicle is lawful. One such instance includes "[t]he authority of police to seize and impound from the streets vehicles impeding traffic or threatening public safety and convenience . . . ." Id. at 811 (citing South Dakota v. Opperman, 428 U.S. 364, 368 (1976)). Nipper testified the truck was partially obstructing the roadway.

              In addition, the court in Benavides found that a vehicle may be impounded if the driver is removed from his or her vehicle and placed under custodial arrest and no other alternatives are available other than impoundment to ensure the protection of the vehicle. Benavides, 600 S.W.2d at 811 (citing Evers v. State, 576 S.W.2d 46, 50 (Tex. Crim. App. [Panel Op.] 1978)). As discussed above, Eldridge was under arrest, and transporting the vehicle to the mobile home was a reasonable alternative to impoundment. The fact that the vehicle was taken to the mobile home, not to the place where the police normally impound vehicles, does not make the officers' conduct unreasonable. In order to remove the obstruction to traffic and to secure the vehicle from the roadside, the action of the police in driving the vehicle to the mobile home was less drastic than impoundment at the regular police vehicle pound. Evers, 576 S.W.2d at 49 (holding failure to place lawfully impounded vehicle in regular police vehicle pound not relevant). The movement of the truck to the mobile home was therefore lawful pursuant to both the police's care-taking function and pursuant to the custodial arrest.

    Repositioning of the black bag

              Eldridge contends that the officers did not have probable cause to justify a search of the black bag found in the truck and that the movement of the bag from the floorboard to the seat was the underlying support for the affidavit to obtain the search warrant for the truck. Eldridge relies on Arizona v. Hicks, 480 U.S. 321 (1987), for his position that this movement of the bag amounted to an illegal search because the officers lacked a warrant or probable cause.

              In Hicks, police officers entered an apartment after a bullet had been fired through the floor, striking a man in the apartment below, searching for the shooter, for other victims, and for weapons. One of the officers noticed expensive stereo equipment in the apartment. Suspecting the equipment was stolen, he recorded the serial numbers, moving some of the equipment to do so. The officer then relayed the numbers to police headquarters and was advised that some of the equipment was stolen property. He immediately seized the equipment and obtained a warrant for a further search of the apartment. The United States Supreme Court held that the officer's movement of the equipment, even though slight in nature, amounted to a search separate and apart from the search for the shooter, other victims, and weapons that was the lawful objective of his entry into the apartment. Such a search was not reasonable under the Fourth Amendment because the officer lacked probable cause.

              Hicks is distinguishable from the instant case. First, the record is not clear that, in repositioning the black bag, the officers acquired any information they did not already have. Eldridge asserts the officers were able to "gain a much better view" of the bag, but fails to identify any new information acquired in this repositioning comparable to the information the officer in Hicks obtained in his manipulation of the stereo equipment. Second, the officer in Hicks immediately seized the stereo equipment after learning it was stolen property and then obtained a warrant for a further search of the premises, while here, the officers obtained a separate search warrant for the truck before looking inside the bag. Finally, the movement of the bag from the floorboard of Eldridge's truck to the seat and the ensuing search of that bag was justified as a search incident to arrest.

              The Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution guarantee the right of the people to be secure against unreasonable searches of their persons, house, papers, and effects. U.S. Const. amend. IV; Tex. Const. art. I, § 9. Warrantless searches are per se violative of the Fourth Amendment's proscription of unreasonable searches unless they fall within one of the specifically established exceptions. Mincey v. Arizona, 437 U.S. 385, 390 (1978). One recognized exception to the Fourth Amendment's warrant requirement is that an officer may search the area within the immediate control of an arrestee. Chimel v. California, 395 U.S. 752, 762-63 (1969). These searches are considered valid because of the need "to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape" and the need to prevent the concealment or destruction of evidence. Id. at 763. The United States Supreme Court went on to pronounce a more straightforward rule, easily applied and predictably enforced, in United States v. Robinson, 414 U.S. 218, 235 (1973), when it held that "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." The Court rejected the suggestion that "there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest." Id.

              Where the arrestee was the occupant of a vehicle, however, police had difficulty in determining whether the passenger compartment was actually within an arrestee's reach. In New York v. Belton, 453 U.S. 454 (1981), the United States Supreme Court extended the exception to include the interior of the automobile when the arrestee is its recent occupant. The Court held that, when an officer makes a lawful custodial arrest of the occupant of an automobile, the officer may conduct a contemporaneous search of the passenger compartment of that automobile. Id. at 460. The Court held "that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach." Id. Belton thus defined the passenger compartment of an automobile and containers within it as being within the hypothetical immediate control of an occupant or recent occupant of the vehicle. The Texas courts adopted Belton in Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986).

              In the case at bar, Eldridge was the driver of the pickup truck when he was arrested, and according to Nipper's testimony, the black bag was on the floorboard of the truck in the passenger compartment. Eldridge was, therefore, a recent occupant of the vehicle when he was lawfully arrested, and the bag was in his immediate control. It is of no consequence that Eldridge had been removed from the truck at the time the bag was discovered and searched. See State v. Ballard, 987 S.W.2d 889, 891-92 (Tex. Crim. App. 1999). Nipper also testified that he drove the truck from the place of Eldridge's arrest to the mobile home and that, at the time the black bag was discovered, no other person had been inside the truck.

              The repositioning of the bag was permissible under the Fourth Amendment and Article I, Section 9 of the Texas Constitution as a search incident to Eldridge's arrest. In addition to moving the bag onto the seat, the officers could have lawfully searched the bag at this point. We therefore need not address Eldridge's contentions regarding defects in the search warrant for the truck.


    Probable cause to search the mobile home 

              Eldridge contends the affidavit in support of the search warrant for the mobile home failed to demonstrate probable cause. The affidavit presented in support of the search warrant read in relevant part as follows:

    1. THERE IS IN GREGG COUNTY, TEXAS A SUSPECTED PLACE DESCRIBED AND LOCATED AS FOLLOWS: A mobile home located at 100 N. Owens Road, in White Oak, Gregg County, Texas. The specific mobile home to be searched is Lot Number 66. The mobile home is green and white in color. The Mobile Home Park is named Pine Valley Mobile Home Park. Traveling North on White Oak Road, turn left on Owens Road, travel West and turn right on Mendy Street, continue on Mendy Street through the curve and the mobile home will be on your left.

     

    2. THE SUSPECTED PLACE IS IN CHARGE OF AND CONTROLLED BY EACH OF THE FOLLOWING NAMED PARTIES (HEREAFTER CALLED "SUSPECTED PARTY" WHETHER ONE OR MORE) TO WIT: A white male known to affiant as "Jeff Eldridge". The white male is further described as being 5'11'' tall, and weighing approximately 190 pounds.

     

    3. IT IS THE BELIEF OF AFFIANT, AND AFFIANT HEREBY CHARGES AND ACCUSE [sic] THAT SAID SUSPECTED PARTY HAS POSSESSION OF, AND IS CONCEALING WITHIN SAID SUSPECTED PLACE THE FOLLOWING DESCRIBED PERSONAL PROPERTY, TO WIT: A quantity of methamphetamine/amphetamine kept in violation of the Texas Controlled Substance Act.

     

    4. AFFIANT HAS PROBABLE CAUSE FOR THE SAID BELIEF BY REASON TO THE FOLLOWING FACTS, TO WIT:

     

    That, Affiant is a certified peace officer employed by the Gregg County Sheriff's Office and is currently assigned to the Gregg County Organized Drug Enforcement Unit and has been a peace officer for over 10 years.

     

    That, Affiant was contacted by a confidential informant, who advised that he/she had been to the location listed in paragraph one within the past 72 hours prior to the issuance of this warrant, and did at that time observe the suspected party listed in paragraph two in possession of a quantity of methamphetamine/amphetamine.

     

    That, Affiant believes the confidential informant's information to be true and reliable, because the confidential informant has provided Affiant with information in the past relating to narcotics traffic, and that information did prove to be true and correct.

     

    That, Affiant knows that the confidential informant is familiar with the appearance of methamphetamine/amphetamine.

     

              Eldridge contends the above affidavit suffered from several defects, including: (1) its failure to show the reliability and credibility of the informant; (2) its timeliness; and (3) its conclusory nature in regard to the location of the search and the identity of the suspect. He contends that, because of these defects, there was no substantial basis on which the issuing magistrate could have determined probable cause, and the evidence from the residence should therefore have been suppressed.

              We review the trial court's decision on a motion to suppress evidence based on a claim that the search warrant was not supported by probable cause by applying a bifurcated standard of review deferring to the trial court's determination of historical facts that depend on credibility, but reviewing the trial court's application of the law of probable cause de novo. See Burke v. State, 27 S.W.3d 651, 654 (Tex. App.‒Waco 2000, pet. ref'd). The magistrate is confined to the four corners of the affidavit in determining whether "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238; see Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); Burke, 27 S.W.3d at 654. In determining whether the magistrate had a substantial basis for concluding that probable cause existed, we examine the totality of the circumstances and accord deference to the reasonable inferences the magistrate was entitled to draw. See Gates, 462 U.S. at 238; see also Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996); Hass v. State, 790 S.W.2d 609, 612 (Tex. Crim. App. 1990); Burke, 27 S.W.3d at 654. The totality of the circumstances includes the credibility and reliability of both the informant and the informant's information, including the basis of the informant's knowledge of the facts related. See Gates, 462 U.S. at 230-31. We affirm the trial court's ruling if the ruling is reasonably supported by the record and is correct on any theory of law applicable to the case. Roberts v. State, 963 S.W.2d 894, 903 (Tex. App.‒Texarkana 1998, no pet.).

              Eldridge first contends the affidavit for the search warrant fails to establish the reliability or credibility of the informant. He contends the affidavit provides no details that make the statement credible, and the statement that the confidential informant had provided the affiant with information in the past relating to narcotics trafficking, which proved to be true and correct, was conclusory only. He further contends the affidavit failed to state whether this information led to arrests, convictions, or cases being filed, and how many times the informant had given any information or over what period of time. He also asserts the affidavit provides no factual support for the statement the affiant knows that the confidential informant is familiar with the appearance of methamphetamine.
              The Texas Court of Criminal Appeals has held that the affidavit in support of a warrant to search for narcotics need not provide more specific details regarding the informant's reliability than to state the informant had given information in the past regarding narcotics trafficking which had proved correct. Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977); see also Hammond v. State, 898 S.W.2d 6, 7-8 (Tex. App.‒Dallas 1995, no pet.). Further, because such a statement, when interpreted in a realistic and common-sense manner, indicates the informant's familiarity with controlled substances, no further details are required to spell out the informant's qualifications in recognizing specific drugs. See Torres, 552 S.W.2d at 823-24; see also Palmer v. State, 614 S.W.2d 831, 832-33 (Tex. Crim. App. [Panel Op.] 1981).

              The affidavit here clearly stated that the informant had provided information in the past relating to narcotics trafficking and that such information had proved true and correct. The affidavit went on to state the affiant knew the informant was familiar with the appearance of methamphetamine. The affidavit was sufficient to provide the magistrate with facts on which to base a determination of the informant's credibility.
              However, a finding of credibility and reliability for the information contained within the affidavit is not enough. The information in the affidavit, found to be credible and reliable, must provide the magistrate with a substantial basis for concluding there is a fair probability that contraband or evidence of a crime will be found in a particular place. See Gates, 462 U.S. at 238. To this end, the affidavit must be sufficient to determine the timeliness of the information contained in that affidavit. See Sherlock v. State, 632 S.W.2d 604 (Tex. Crim. App. [Panel Op.] 1982) (affidavit insufficient where no information regarding when informant's observations made); Mendiola v. State, 865 S.W.2d 540, 542 (Tex. App.‒Corpus Christi 1993, no pet.) (affidavit sufficient when it stated informant's observation was within past seventy-two hours).

              Eldridge contends the phrase "within the past 72 hours prior to the issuance of this warrant" fails to provide the magistrate with a meaningful basis to determine the timeliness of the information the informant provided because the warrant could not have been issued at the time the affidavit was being prepared and it would be impossible for the officers to know, at the time the affidavit was being prepared, when or whether the warrant would be issued. Several cases have found an affidavit inadequate where it fails to disclose facts which would enable the magistrate to ascertain that the event on which probable cause was founded occurred within a reasonable time before the affidavit was made. Jones v. State, 579 S.W.2d 240, 242 (Tex. Crim. App. [Panel Op.] 1979); Gonzales v. State, 577 S.W.2d 226, 228 (Tex. Crim. App. [Panel Op.] 1979); Heredia v. State, 468 S.W.2d 833, 835 (Tex. Crim. App. 1971); Odom v. State, 121 Tex. Crim. 209, 50 S.W.2d 1103, 1103 (1932); Garza v. State, 120 Tex. Crim. 147, 48 S.W.2d 625, 627 (1930) (op. on reh'g). In Garza, 48 S.W.2d at 626, the court found that:

    The affidavit for a search warrant on probable cause, based on information and belief, should in some manner, by averment of date or otherwise, show that the event or circumstance constituting probable cause occurred at a time not so remote from the date of the affidavit as to render it improbable that the alleged violation of law authorizing the search was extant at the time the application for the search warrant was made.


    It is significant that no facts or dates were disclosed in any of these cases as to when the informant had observed the event on which probable cause was founded.

              In this case, there is sufficient information in the affidavit to convey to a magistrate that the informant observed Eldridge in possession of methamphetamine within a reasonable time before the affidavit was made. The affidavit and the search warrant were signed the same day. The magistrate, viewing the date on the affidavit, would have been able to take that into account in interpreting the affidavit and making inferences from the facts stated in that affidavit. He could reasonably have concluded that the confidential informant had observed Eldridge in possession of methamphetamine to very nearly within seventy-two hours of the affidavit, since it was the same date of the application for the warrant. Even assuming the magistrate interpreted that statement to mean within seventy-two hours of the affidavit being signed at the furthest possible point of that day, to at most ninety-six hours before, the affidavit provided an indication of when the informant's observations were made, which cannot be construed as not being reasonably timely, given the facts of the case. See Douglas v. State, 794 S.W.2d 98, 101-02 (Tex. App.‒Houston [1st Dist.] 1990, pet. ref'd).

              As to the contention the affidavit does not specifically show the basis of knowledge of the identity of Eldridge or the basis of the informant's knowledge that the premises were under Eldridge's control, the case of Gates, 462 U.S. 213, negates the necessity of a showing of the basis of knowledge and adopts a totality of the circumstances review.
              The affidavit in this case makes clear that the basis for the informant's conclusion was personal observation; thus, the magistrate could reasonably infer that the informant observed the methamphetamine and the suspect in some way that, based on the relation of one to the other, the informant concluded the methamphetamine was in the control of the suspect.

              Reviewing the affidavit in the light of the totality of the circumstances, the information contained in the affidavit provided the magistrate with a substantial basis for concluding there was a fair probability that contraband would be found in the mobile home. Eldridge's contentions to the contrary are overruled.

    Admissibility of the note

              At the punishment phase of the trial, the State offered proof of an extraneous offense involving the possession of a controlled substance occurring October 25, 2001. Testimony was offered from an officer that, on October 25, 2001, Eldridge attempted to elude the officer while driving a car. In addition, a handwritten note was admitted into evidence that also suggested Eldridge was acting to avoid apprehension on that day. Nipper seized the note at Eldridge's residence October 25, 2001, and the State offered it into evidence during Nipper's testimony. The note read as follows, "Jeff, Keith went to jail in your truck. I believe it's your dad said they are looking for you in Keith's car. P.S. Be careful. Everyone knows to let you know. I love you, Stephanie." Eldridge objected to the admission of the note "unless this witness can positively identify the author of the note." The trial court overruled the objection. On appeal, Eldridge contends that, in addition to its unproven authorship, the note consists of hearsay offered to prove the truth of the matter asserted.

              To preserve error for appellate review, the complaining party must make a timely, specific objection. Armstrong v. State, 718 S.W.2d 686, 699 (Tex. Crim. App. 1985) (op. on reh'g). The point of error on appeal must correspond or comport with the objection made at trial. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998) (op. on reh'g); Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986). If the complaint on appeal does not correlate to the objection made at trial, the complainant has not preserved error. Tex. R. App. P. 33.1(a); Dixon, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998); Thomas, 723 S.W.2d at 700. In this case, Eldridge objected at trial to the unproven authorship of the note, which is an objection to its authenticity. On appeal, Eldridge cannot complain that it constitutes hearsay unless its admission amounts to fundamental error.

              In the context of the admission of evidence, Texas Rule of Evidence 103(d) provides that "[i]n a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Tex. R. Evid. 103(d). The rule allows a reviewing court to reverse fundamental error even in the absence of an objection. However, this exception to the rule requiring preservation of error is rarely applied. See Miller v. State, 939 S.W.2d 681, 688 (Tex. App.‒El Paso 1996, no pet.) (stating application of exception is "frugal"). When the error is improper admission of evidence, it is fundamental only if the admission operates to render the defendant's trial fundamentally unfair. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Preservation of error on the admission of hearsay requires a timely and specific objection to the evidence. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). In addition, "[i]nadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay." Tex. R. Evid. 802. We will therefore determine only if the note was properly authenticated, and not consider whether the note contained inadmissible hearsay.

              We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). We will not reverse a trial court whose ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391 (op. on reh'g).

              Before a document may be admitted into evidence, it must be properly authenticated. See Tex. R. Evid. 901(a). Rule 901(a) provides that, generally, when authentication or identification is necessary, the requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Id. The Texas Rules of Evidence provide examples of authentication and identification conforming with the requirements of the rule:

    (1)Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

     

    (2)Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

     

    (3)Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with specimens which have been found by the court to be genuine.

     

    (4)Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.


    Tex. R. Evid. 901(b).


              The State did not offer expert or nonexpert testimony comparing the note with other writings made by the purported signer. Authorship, however, can be shown circumstantially. See Soria v. State, 933 S.W.2d 46, 60 (Tex. Crim. App. 1996) (holding evidence that drawing found in appellant's cell sufficient connection to render drawing relevant and permit state to make argument it was appellant's drawing). In Borak v. Bridge, 524 S.W.2d 773, 777-78 (Tex. Civ. App.‒Corpus Christi 1975, writ ref'd n.r.e.), a showing that a writing disclosed knowledge possessed only by the purported signer was sufficient circumstantial evidence for authentication.

              The State presented evidence to support the finding that the note was written by the purported signer, Stephanie. The letter was found in Eldridge's residence on the kitchen table, taken into police custody, and marked as evidence. The letter contained the signature of "Stephanie," and there was evidence in the record Eldridge had a girlfriend named Stephanie. The writing, however, did not disclose knowledge possessed only by the purported signer, and the sponsoring witness did not contend that the "Stephanie" in the note and Eldridge's girlfriend were the same person. There were also no surrounding circumstances that indicated Eldridge's girlfriend had the opportunity to author this note. Given the absence of any testimony comparing the note with other writings made by the purported signer, and given the lack of supporting circumstances, admission of the note was an abuse of the trial court's discretion.

              Even so, the admission of the note was harmless error. Under the Rules of Appellate Procedure, we are to disregard errors, defects, irregularities, or variances that do not affect substantial rights of the accused. Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If, on the record as a whole, it appears the error "did not influence the jury, or had but a slight effect," we must conclude the error was not harmful and allow the conviction to stand. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In considering harm, the entire record must be reviewed to determine whether the error had more than a slight influence on the verdict. See King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Reeves v. State, 969 S.W.2d 471, 491 (Tex. App.‒Waco 1998, pet. ref'd). If the court finds the error did have more than a slight influence on the verdict, it must be concluded the error affected the defendant's substantial rights in such a way as to require a new trial. Reeves, 969 S.W.2d at 491. If the court has grave doubts about the error's effect on the outcome, the case must be remanded for a new trial. Id. Otherwise, the court should disregard the error. Id.; Lopez v. State, 990 S.W.2d 770, 778 (Tex. App.‒Austin 1999, no pet.).

              Eldridge claims that the admission of the note portrayed him as affirmatively attempting to avoid capture and that this perception of deception led to a more severe punishment from the jury. While the note portrayed Eldridge as possibly attempting to elude capture, there was far more damaging testimony from the officer who in fact pursued him. Officer Jason Brannon testified that he maintained surveillance on Eldridge October 25, 2001, and that Eldridge sought to elude him by car. The officer testified Eldridge took drastic driving measures, by speeding and taking numerous turns, to elude the officer. This testimony was far more damaging on the issue of whether Eldridge was attempting to elude capture October 25, 2001, than was the note. The admission of the note was therefore harmless.

              We affirm the judgment.




                                                                               Donald R. Ross

                                                                               Justice


    Date Submitted:      October 2, 2003

    Date Decided:         October 27, 2003


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