Angelo R. Carrillo v. State ( 2003 )

NO. 07-02-0307-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 4, 2003

______________________________



ANGELO R. CARRILLO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 364^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 99-431390; HONORABLE BILLY JOHN EDWARDS, JUDGE

_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. ⁽¹⁾  

OPINION

In three points of asserted error, appellant Angelo R. Carrillo challenges his conviction, after a guilty plea, of the felony offense of possession of a controlled substance and the plea bargained punishment of seven years penal confinement, probated, and a $750 fine. In his points, he contends the trial court erred in denying his pretrial suppression motion because the affidavit in support of the application for a search warrant was not sufficient to show probable cause. Disagreeing that reversal is required, we affirm the judgment of the trial court.

The standard of review of a trial court's ruling on a motion to suppress is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In conducting our review, we give almost total deference to the trial court's determination of historical facts and review the court's application of search and seizure law de novo. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Here, the trial court did not make explicit findings of historical facts, so we review the evidence in a light most favorable to the trial court's ruling and assume that it made explicit findings of fact supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000). Appellate review of an affidavit in support of a search warrant, however, is not de novo, but rather, great deference is given to the magistrate's determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Probable cause is determined from the four corners of the affidavit and the reasonable inferences drawn therefrom. Cassias v. State, 719 S.W.2d 585, 587-88 (Tex. Crim. App. 1986). The magistrate's task in evaluating an affidavit is to make a practical common sense decision whether, given the totality of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Hennessy v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. 1983).

The affidavit (executed by Officer Robert Hook) submitted to obtain the search warrant in this case contained five paragraphs beginning with a description of a residence at 2122 Cornell Street in Lubbock. In the second paragraph of the affidavit, it was stated that the subject of the search would be cocaine and other controlled substances. In the third paragraph, appellant and Mary Ann Carrillo were named as being in possession of the residence, while in the fourth paragraph it was alleged that the Carrillos possessed and trafficked cocaine within a Drug Free Zone under the Health and Safety Code. A portion of the fifth paragraph read:

(B) Within the last 24 hours Affiant was able to make an undercover purchase of a substance believed to be Cocaine from a subject. Affiant met with this subject and paid in advance for a quantity of Cocaine. The subject advised Affiant he/she had to travel to another location to receive the cocaine. This subject left Affiant and drove directly to this residence. Upon arriving, this subject went inside the residence, and exited a short time later. The amount of time the subject spent inside the residence was consistent with a narcotics transaction. The subject then left and drove a short distance to a pay phone, where a call was placed. After the call, this subject drove directly back to this residence and went inside again. When he/she arrived the second time, a 1991 Plymouth Van had arrived bearing Texas Registration DB28CX. After a short time, this subject left this residence and drove directly back to Affiant, where a quantity of cocaine was delivered to Affiant. This subject was kept under surveillance during this entire time and met with no other subjects. The substance purchased tested positive for cocaine using a Scott Reagent Field Test kit. Affiant is able to recognize Cocaine and other controlled substances.

(C) Lubbock Power and Light records indicate a Virginia Carrillo as the resident of this address. Lubbock Police Department records indicate an Angelo Rufus Carrillo and Mary Ann Carrillo as the residents of this address. The listed vehicle returns to Angel Rufus Carrillo at this resident [sic].

Even though the "subject" listed in the affidavit was later identified by name, our review is limited to the four corners of the affidavit. Robuck v. State, 40 S.W.3d 650, 653 (Tex. App.--San Antonio 2001, pet. ref'd). Our initial decision must be whether the affidavit should be treated as one based on information from a confidential informant or the officer's personal observation. In cases in which probable cause is based on information provided by anonymous informants and in "controlled buys" where police use a citizen as an active participant in a criminal investigation, courts necessarily treat the informant's information with a degree of suspicion.

Appellant argues that the "subject" ⁽²⁾ in this case was a confidential informant because she was not named and she provided information to the police used to support the affidavit for a search warrant. He contends the failure to establish the subject's credibility precludes reliance on her to establish probable cause. However, the two-prong test established in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), which required the police to establish the credibility of confidential informants, was abandoned in favor of a totality of the circumstances test in Illinois v. Gates, 462 U.S. 213, 232-33, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). The Gates Court instructed that the informant's credibility is only one of the factors to be considered. Id.

The State argues the legal requirements imposed upon police use of confidential informants are not applicable here because the subject was not working with the police during the events described in the affidavit. From a cursory reading of the affidavit, that fact is not apparent. However, it is the only conclusion that can be drawn from the statement that Hook made an "undercover purchase [of cocaine] from a subject." Indeed, appellant conceded as much at the hearing on his motion to suppress, in his brief, and in a motion to reconsider the suppression motion when he stated the subject "was not working as a police informant [,] [t]hus she was not searched at any time during the transaction." That being true, cases involving controlled buys are not applicable here.

Appellant also challenges the basis for the affidavit statement that the subject was watched moving between the locations as being necessarily based on hearsay inasmuch as Officer Hook stayed at the original location. There is nothing in the record, either in the affidavit or elsewhere, that established the distance from the location of the sale to the house, or that Hook could not have personally observed the subject's movements. Even ignoring the subject's hearsay statement, there are only two rational inferences that can be drawn from the subject's actions, namely 1) she went to the house to pick up the cocaine, or 2) she went to the house to make Hook believe that was where she obtained the cocaine.

If the subject was a confidential informer and knew Hook was a police officer, she might have been motivated to mislead Hook as to the source of the cocaine to absolve herself of liability or to get appellant in trouble for some unknown reason. This potential to mislead police is the basis for the prophylactic measures taken in "controlled buy" situations. Although appellant argues the subject may have gone to the house to mislead Hook even without knowing he was a police officer, he does not suggest any plausible motive for doing so. Absent any indication that the subject knew Hook was a police officer, the magistrate could have reasonably concluded the likelihood that the subject's actions were the result of subterfuge were sufficiently low to support the conclusion that there was a "fair probability" cocaine was located in the house.

Appellant also contends that the absence of any showing that an occupant of the residence gave the subject the cocaine weighs against a finding of probable cause. We disagree. The question for the magistrate's decision was if there was a fair probability that cocaine could be found in the house rather than whether someone in the house gave it to the subject. His reliance on Haas v. State, 790 S.W.2d 609 (Tex. Crim. App. 1990), is misplaced. In Haas, the court held a showing that police found contraband on passengers of a car departing a storage facility did not justify a search of the facility. Id. at 612. However, in this case, the subject went to the house after offering to sell cocaine and delivered the substance after returning from the house. Thus, the facts before us are distinguishable from those before the Haas court.

Appellant identifies this court's unpublished opinion in State v. DeLeon, No. 07-95-0339-CR (Tex. App.--Amarillo Feb. 9, 1996, no pet.) (not designated for publication) as factually indistinguishable. Rule of Appellate Procedure 47 concerning publication and citation of opinions was revised effective January 1, 2003. Present Rule 47.7 now provides opinions not designated for publication under the former rule "have no precedential value but may be cited with the notation, '(not designated for publication).'" ⁽³⁾ Relying on the former rule which was in effect at the time its brief was filed, the State does not discuss DeLeon.

We have not yet addressed the effect of the change in Rule 47 and are not aware of opinions from other courts directly addressing that issue. Initially, we note that the former rule not only provided that unpublished opinions have no precedential value, but it also forbade the citation of such opinions as authority by either counsel or by a court. The difference then is the citation of unpublished opinions is no longer forbidden. With regard to the provision as to precedential value, the Seventh Edition of Black's Law Dictionary contains a definition of precedent as "[a] decided case that furnishes a basis for determining later cases involving similar facts or issues." Black's Law Dictionary 1195 (7^th ed. 1999). It goes on to define the terms "binding precedent" as precedent that a court must follow, and "persuasive precedent" as that which a court "may either follow or reject but that is entitled to respect and careful consideration." Id. It also explicates that precedent forms the core of the doctrine of stare decisis "under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation." Id. at 1414.

By stating that unpublished opinions may be cited but have no precedential value, we perceive the intent of the rule to be that a court has no obligation to follow such opinions. The effect of the rule is to afford parties more flexibility in pointing out such opinions and the reasoning employed in them rather then simply arguing, without reference, that same reasoning. However, the court to whom an unpublished opinion is cited has no obligation to follow the opinion or to specifically distinguish such opinion. They may be cited merely as an aid in developing reasoning that may be employed by the reviewing court be it similar or different. Even so, we do not view Rule 47.7, or the former rule, as justifying unreasoned inconsistency on the part of an appellate court.

Here, appellant presented the DeLeon opinion to the trial court and argued that it was dispositive of the motion to suppress. The trial court reviewed the opinion and commented:

. . . [A]lthough it's an unpublished opinion, it is interesting to see what the appellate court for this area would do. I do find that there are sufficient differences in that case than this case so that I'm not overly concerned [about] how they ruled in that particular case. . . . I think that . . . if they apply that same reasoning . . . to this case that this search will stand up.

The trial court correctly considered our opinion in DeLeon in the light by which such an opinion should be considered, namely, as a guide to the application of legal principles to the facts then before it. The trial court determined that the facts before it were factually distinguishable from the facts before the DeLeon court. We agree with that decision. To explicate why we agree, we must refer to those facts. In DeLeon, the affidavit used in obtaining a search warrant showed that the person who offered cocaine to the officer there drove to a house on 21^st Street in Lubbock, picked up a second person, drove to a convenience store where one of the people entered the store while the other drove to the defendant's house on 38^th Street, also in Lubbock, and went into the house. After leaving the house, the driver picked up the second person at the convenience store and then returned to the officer to complete the sale. We held the trial court did not abuse its discretion in finding the affidavit did not establish probable cause to believe cocaine could be found at the defendant's house. State v. DeLeon, No. 07-95-0339-CR, slip op. at 4. There, the trial court was justified in believing that the fact that two suspects went to two different locations between the offer to sell and the delivery was too attenuated to show probable cause. That is not the case here, and the trial court acted within its discretion in overruling the motion to suppress.

Appellant's points of error are overruled, and the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2. Although referring to the person who dealt with Officer Hook and went to the house as the "subject" is somewhat awkward, we will use that reference in this opinion to be consistent with the references in the affidavit.

3. Former Rule 47.7 provided: "Opinions not designated for publication by the court of appeals have no precedential value and must not be cited as authority by counsel or by a court."

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                                                NO. 07-09-0351-CR

                                       IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                                     AT AMARILLO

                                                          PANEL B

                                                FEBRUARY 4, 2010

                                ______________________________

                                 EX PARTE MIKEL PETER EGGERT,

Relator

                                ______________________________

             FROM THE 266^TH DISTRICT COURT OF ERATH COUNTY;

               NO. CR12110A; HON. DAVID CLEVELAND, PRESIDING

                                ______________________________

Memorandum Opinion

                                ______________________________

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

Relator Mikel Peter Eggert appeals pro se from the denial of his application for writ of habeas corpus by contending the trial court erred in failing to find that his appointed counsel was ineffective during his trial for criminal conspiracy in fabricating physical evidence and that his retained counsel was ineffective in prosecuting his petition for discretionary review of that conviction.  We affirm the trial court=s order.

Background

Relator and his father Peter Helmuth Eggert, neither of whom was licensed to practice law in Texas at the time, attempted to assist Marcos Gallardo, who had previously pled guilty in a criminal case, from being deported.  In doing so, they contacted Jason Cashon, an assistant district attorney in Erath County, for assistance and later contacted Leroy Gaitan, the former chief of police who had investigated Gallardo=s crime.  They sought to have Gaitan contact the mother of the complaining witness and obtain her and her daughter=s signatures on affidavits which stated that Gallardo had not committed any offense.  During this time, an appeal of Gallardo=s application for writ of habeas corpus was pending in the Eleventh Court of Appeals.

After an offer of assistance for a fund raiser for Gaitan=s campaign for constable and after receiving a check for $100 from Peter Eggert as well as the affidavits Eggert sought to have executed, Gaitan contacted the complainant=s mother.  Gaitan did not cash the check and did not present the affidavits to the victim=s mother but did tell her that Peter Eggert wanted to speak to her and that there might be money available to her if she and her daughter were to sign the affidavits. The mother met with Peter Eggert and relator and eventually contacted the Texas Rangers through her attorney and turned the affidavits over to them.  Relator was convicted of the charge of criminal conspiracy to fabricate physical evidence. 

 Habeas Corpus Standard of Review

The decision to deny an application for writ of habeas corpus lies within the trial court=s discretion.  Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).  In reviewing that decision, we examine the record in the light most favorable to the trial court=s ruling, id., and defer to findings of the trial court supported by the record.  Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006).   Moreover, the applicant has the burden to prove his allegations by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d at 664.  

Ineffective Assistance of Counsel -Trial

In his first six issues, relator asserts that his trial counsel was ineffective in failing to 1) object to opinion testimony of the prosecutor/witness Jason Cashon about the ultimate issue of the case, 2) request an instruction that Gaitan was an accomplice witness, 3) interview witnesses, 4) investigate and adequately prepare for trial, and 5) understand applicable criminal law.  Moreover, he contends the totality of counsel=s representation was ineffective. 

In making these claims, it was relator=s obligation to prove that counsel was deficient and that the deficiency caused prejudice.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984); Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009).  Moreover, claims of ineffective assistance must be firmly founded in the record.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). That record must be sufficient to illustrate that the alleged deficiency was something other than reasonable trial strategy.  Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007).

Prejudice

We address the last prong of the Strickland test first.  Though relator acknowledges in his brief that analyzing prejudice requires the examination of counsel=s Aerrors not as isolated incidents, but in the context of the overall record,@ he undertakes no such examination.  Instead, his analysis consists of proffering such generalities as Athe record before us undisputedly establishes >the benchmark for judging any claim of ineffectiveness,=@ A>counsel=s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result,=@ Athe totality of counsel=s constitutionally deficient performance prejudiced his defense,@ and the like.  Though such generalities may have their place in argument they are neither evidence of prejudice nor explanation developing prejudice. Nor is it our responsibility to fulfill the burden of showing prejudice which authority clearly placed on him.

Indeed, the phrase ipse dixit best sums up what we have before us; we are to conclude that the supposed errors are prejudicial merely because relator says they are.  That, however, is not enough to satisfy the second prong of Strickland.  We must follow the law and avoid concluding that we are always right simply because we say we are.  That same obligation lies with relator.  He must follow the law espoused in Strickland and prove prejudice.  Having not done so, each of his contentions is overruled for that reason alone. Nonetheless, we will also address the substance of his claims.  

 Failure to Object to Opinion Testimony

First, relator argues that his counsel permitted Jason Cashon to testify as to his guilt on three separate occasions without objection.  However, in the first cited instance, objection was made by counsel for relator=s father^[1] and that objection was overruled.  In the second cited instance, the witness was asked whether another attorney was involved in procuring phony affidavits to which he replied that, in his opinion, it was relator and his father who had done that.  In the third cited instance, Cashon testified that either relator or his father or both Atyped out those affidavits ahead of time, knowing the falsity thereof, and asking [the victim=s mother] to sign them, in order for - - to make an actual innocence claim.@  No objection was made to either of the last two statements. 

 A witness may give a lay opinion if it is rationally based on the perception of the witness and helpful to a clear understanding of the testimony or a determination of a fact in issue.  Tex. R. Evid. 701. Such testimony is not objectionable because it includes an ultimate issue to be decided by the trier of fact.  Tex. R. Evid. 704; Ex parte Nailor, 149 S.W.3d 125, 135 (Tex. Crim. App. 2004); Davis v. State, 223 S.W.3d 466, 476 (Tex. App.–Amarillo 2006, pet. ref=d, untimely filed).  Furthermore, counsel is not incompetent for failing to object to opinion evidence on the ground it goes to an ultimate issue.  Ex parte Nailor, 149 S.W.3d at 135. 

Relator does not argue that this testimony was not based on the perception of the witness and/or was not helpful to an understanding of a fact in issue.  Rather, he complains about Cashon being an officer of the court; yet, that was not the capacity in which Cashon was called as a witness.  Cashon was a fact witness because he had indeed met with relator and his father with respect to their desire to prevent the deportation of Gallardo and had suggested a means to them as to how to prevent that deportation.  He was also involved in the appeal of Gallardo=s application for writ of habeas corpus and to some extent was an expert witness as well.          

Relator also concludes that there could have been no reasonable trial strategy in failing to object. However, given the fact that one such objection was overruled by the court, counsel could have chosen not to emphasize the matter further to the jury by additional objections. As previously stated, we may not speculate as to counsel=s reasons for failing to object when the record fails to reveal them.  Rodriguez v. State, 292 S.W.3d 187, 190 (Tex. App.–Amarillo 2009, no pet.).  Accordingly, we cannot say the trial court abused its discretion in finding that relator failed to prove by credible evidence that counsel=s performance was deficient. 

Jury Instruction

Next, relator argues that his counsel was deficient in not requesting an accomplice witness jury instruction with respect to Gaitan.  It is relator=s contention that Gaitan was an accomplice and that relator was entitled to an instruction that the jury could not consider Gaitan=s testimony unless it was corroborated by other evidence tending to connect relator to the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005).

Fabricating physical evidence occurs when a person, knowing that an investigation or official proceeding is pending or in progress makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding. Tex. Penal Code Ann. '37.09(a)(2) (Vernon Supp. 2009). A criminal conspiracy occurs when a person agrees with one or more persons that they or one of them engage in conduct that constitutes the offense and he or one or more of them performs an overt act in pursuance of the agreement.  Id. '15.02(a) (Vernon 2003).  An accomplice participates with a defendant before, during or after the commission of the crime and acts with the culpable mental state. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).  If the parties present conflicting or unclear evidence as to whether a witness is an accomplice, the jury must initially determine whether the witness is an accomplice as a matter of fact.  Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006).  A court=s failure to submit an accomplice as a matter of fact instruction may be harmless error if some non-accomplice evidence exists tending to connect the accused to the offense and there is no rational basis upon which to disregard it.  Herron v. State, 86 S.W.3d 621, 632-33 (Tex. Crim. App. 2002). 

Even assuming arguendo that Gaitan was an accomplice, there was other evidence tending to connect relator to the offense.  The victim=s mother testified that she met with Peter Eggert at a time when relator was present and that they told her they would give her money if she would sign the affidavits and have them notarized.  She further testified that Peter Eggert asked relator to type up the affidavits.  She also told Peter Eggert the next day that the affidavits were not true.  This is some evidence tending to connect relator to the offense.  Therefore, we cannot find error in the trial court=s conclusion that relator failed to prove that the result of the proceeding would have been different.  

Failure to Investigate

Relator then contends that his trial counsel did not adequately investigate his case and prepare for trial.  Yet, he fails to provide information as to what evidence might have been uncovered if counsel had conducted an Aadequate@ investigation or of what that adequate investigation should have constituted.  Without the same, he has failed to meet his burden to show that counsel=s performance was deficient.  Flowers v. State, 133 S.W.3d 853, 858-59 (Tex. App.–Beaumont 2004, no pet.). 

Failure to Interview Witnesses

Relator also alleges that his counsel did not interview potential witnesses.  In particular, he mentions Jose Lopez, a licensed attorney who signed Gallardo=s pleadings with respect to his application for writ of habeas corpus since relator and his father were not licensed in Texas.  Relator contends that his counsel would have discovered that Lopez was not just a figurehead on pleadings if he had interviewed Lopez.  However, he fails to explain how this evidence would have affected the outcome of the case.  See In re A.D., 287 S.W.3d 356, 363 (Tex. App.–Texarkana 2009, pet. denied) (stating that the applicant must show that the evidence would have been of some benefit to him).  It was relator=s burden to establish that he was prejudiced by counsel=s actions and he has not.

Failure to Understand Criminal Law

Finally, relator argues that counsel did not understand how to make an offer of proof and failed to object to Cashon=s opinion testimony as to his guilt.  We have already addressed the latter complaint. As to the former, counsel attempted to inquire of the victim=s mother as to the facts of the underlying offense committed by Gallardo.  The State objected and the objection was sustained.  Counsel then remarked, A[w]e may want to present an offer of proof on that too, your honor.@  Nevertheless, an offer of proof was not made. 

Relator contends that whether the affidavits were true or false Astrikes at the very heart of the case.@  Yet, he offers no authority to show that the evidence was admissible.  Moreover, counsel may have changed his mind about wanting to make an offer of proof based on his trial strategy.  Without more in the record to show the reason for counsel=s actions, we may not find that his failure to make that offer of proof was deficient. Furthermore, to the extent that relator complains that the totality of his trial counsel=s performance was deficient, we find that he has failed to meet his burden to prove that each individual complaint has merit and thus the totality of that representation is likewise not deficient.

Ineffective Assistance of Counsel - Petition for Discretionary Review

Relator further contends that the trial court erred in rejecting his contention that his retained counsel was ineffective in petitioning for discretionary review because he omitted various issues (e.g. legal impossibility, abuse of discretion in denying a motion for new trial, and legal and factual sufficiency challenges) from the petition.  We overrule the contention for the following reason.  There is no right to counsel for purposes of seeking a petition for discretionary review. Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex. Crim. App. 2001); Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).  Because no such right exists at that stage of the proceeding, he cannot claim that his purported right to effective assistance of counsel was denied him.  Ex parte Graves, 70 S.W.3d 103, 111 (Tex. Crim. App. 2002) (holding that because he had no right to counsel during the habeas proceeding, he cannot claim that his right to effective assistance of counsel was denied him).

Accordingly, we overrule all of relator=s issues and affirm the order of the trial court.

Per Curiam

Do not publish.                                          

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^[1]Relator and Peter Hellmuth Eggert were tried together.