Billy Don Smith v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00126-CR

Billy Don Smith,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2006-1465-C2

MEMORANDUM  Opinion

            A jury convicted Billy Don Smith of one count of aggravated sexual assault and three counts of indecency with a child.  The court sentenced him to fifteen years’ imprisonment on each count. Smith contends in his sole issue that he received ineffective assistance of counsel.  We will affirm.

            The complainant, who was eighteen at the time of trial, testified that she was spending the night at Smith’s home on the occasion in question.  Smith is her uncle.  He awakened her in the middle of the night and led her to a nearby shed where he sexually assaulted her and committed the other acts alleged in the indictment.

            Smith complains that his trial counsel was ineffective because counsel failed to object to the hearsay testimony of three witnesses to whom the complainant had told details about what Smith had done to her.[1]

            The first of these witnesses was a leader in the complainant’s youth group at church.  The youth group had gone to a summer camp in Colorado.  This witness testified without objection that the complainant had confided in a small group setting at camp that she had been raped.  On cross-examination, Smith’s counsel elicited from the witness that the complainant had said that the rapist was “Billy, a friend of their family.”  Counsel further had her testify that she understood that the complainant had been raped in a bedroom.  On redirect, the witness testified without objection that she thought the complainant had been sexually abused, thus implicitly vouching for the complainant’s credibility.

            The next witness about whom Smith complains is the complainant’s mother.  She testified without objection that her daughter told her after returning from youth camp that Billy had done “something” to her.  She understood it to be “sexual in nature.”

            The third witness is the sheriff’s deputy who conducted the investigation.  The deputy testified, similar to the complainant, that she reported to him that Smith had awakened her and taken her to a shed in the early morning hours and sexually assaulted her.  He testified that he found the complainant to be “very, very believable.”

            Smith argues that counsel’s failure to object to this testimony constitutes ineffective assistance because there was “no conceivable basis for admission” of the testimony and it only served to bolster the complainant’s testimony which was not supported by any physical evidence.

            The State responds that counsel had a legitimate strategy for not objecting to this testimony because counsel made note of the discrepancies and inconsistencies in the various witnesses’ testimony during closing argument in an effort to undermine the credibility of the complainant and convince the jury that the State had failed to prove its case beyond a reasonable doubt.

            We begin with a “strong presumption” that counsel provided reasonably professional assistance, and Smith bears the burden of overcoming this presumption.  See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).  Generally, the appellate record is insufficient to satisfy this burden.  Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Curry v. State, 222 S.W.3d 745, 754 (Tex. App.—Waco 2007, pet. ref’d).  If nothing in the record reveals the reason for the act or omission which is the basis of an ineffective assistance complaint, we may not speculate on that reason.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Curry, 222 S.W.3d at 754; Hajjar v. State, 176 S.W.3d 554, 567 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).

            Here, Smith did not file a motion for new trial.  Thus, we have no record providing his trial counsel’s rationale for failing to object to this testimony.  Without a record elucidating the reasons for trial counsel’s failure to object, Smith has failed to overcome the “strong presumption” that counsel provided reasonably professional assistance.  See Andrews, 159 S.W.3d at 101; Jones v. State, 170 S.W.3d 772, 776-77 (Tex. App.—Waco 2005, pet. ref’d); Hajjar, 176 S.W.3d at 567.

Accordingly, we overrule Smith’s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed May 28, 2008

Do not publish

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[1]               Because the complainant was thirteen years old at the time of the offenses, none of these witnesses qualified as an outcry witness.  See Tex. Code Crim. Proc. Ann. art. 38.072, § 1 (Vernon 2005) (outcry statute applies to prosecution of offense “committed against a child 12 years of age or younger”).

e officer’s jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the officer is listed in Subdivision (4), Article 2.12.  A peace officer making an arrest under this subsection shall as soon as practicable after making the arrest notify a law enforcement agency having jurisdiction where the arrest was made.  The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06.

Act of May 10, 1999, 76th Leg., R.S., ch. 210, § 2, 1999 Tex. Gen. Laws 686, 686-87 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 14.03(g) (Vernon Supp. 2005)).

          An “arrest” under article 14.03 is not limited to a formal, custodial arrest.  See State v. Kurtz, 152 S.W.3d 72, 79-80 (Tex. Crim. App. 2004); see also Brother v. State, 166 S.W.3d 255, 260 (Tex. Crim. App. 2005) (approving of Terry stop made by police officer outside of city limits).  Thus, the provisions of article 14.03 apply when an officer makes a Terry stop.  Id.

          In Brother, the Court of Criminal Appeals held that under either article 14.03(d) or (g) a municipal police officer has the authority to stop a driver outside of the city limits if the officer has reasonable suspicion that the driver is driving while intoxicated.  See Brother, 166 S.W.3d at 260.

          Here, Fulbright testified that, based on the unidentified citizen’s report and his own observations, he suspected Mitchell of driving while intoxicated.  Thus, he was authorized to stop Mitchell under both subdivisions (d) and (g) of article 14.03, even though he was outside the Venus city limits.  Id.  Accordingly, we overrule Mitchell’s second point.

Reasonable Suspicion

          Mitchell contends in his first point that Fulbright did not have reasonable suspicion because Fulbright stopped him on the basis of uncorroborated information received from an unidentified citizen.

            “We review the trial court’s ruling for an abuse of discretion, giving ‘almost total deference to a trial court’s determination of historical facts.’”  Welch v. State, 93 S.W.3d 50, 53 (Tex. Crim. App. 2002) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).  When as here the underlying facts are undisputed and the court’s findings do not turn on the credibility of a witness, we conduct a de novo review.  See Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Johnson v. State, 146 S.W.3d 719, 721 (Tex. App.—Texarkana 2004, no pet.); Davis v. State, 74 S.W.3d 90, 95 (Tex. App.—Waco 2002, no pet.).

          Because the citizen-informant’s identity is unknown, the information he provided is treated as an anonymous tip.  See Bilyeu v. State, 136 S.W.3d 691, 694-95 (Tex. App.—Texarkana 2004, no pet.); State v. Fudge, 42 S.W.3d 226, 230 (Tex. App.—Austin 2001, no pet.); State v. Garcia, 25 S.W.3d 908, 912-13 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

          “[A]n anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is ‘by hypothesis largely unknown, and unknowable.’”  Alabama v. White, 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301 (1990) (quoting Illinois v. Gates, 426 U.S. 213, 237, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983)).  “[H]owever, there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’”  Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 1378, 146 L. Ed. 2d 254 (2000) (quoting White, 496 U.S. at 327, 110 S. Ct. at 2414); accord Pipkin v. State, 114 S.W.3d 649, 654 (Tex. App.—Fort Worth 2003, no pet.); Hawes v. State, 125 S.W.3d 535, 538 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Garcia, 25 S.W.3d at 913.

          Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability.  Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion.  Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.

White, 496 U.S. at 330, 110 S. Ct. at 2416; accord Pipkin, 114 S.W.3d at 654; Fudge, 42 S.W.3d at 229-30.

          The Fort Worth Court has identified the following factors from federal decisions as important in evaluating the reliability of information received from an informant:

· whether the informant provides a detailed description of the wrongdoing;

· whether the informant observed the wrongdoing firsthand;

· whether the informant places himself in a position to be held accountable for the report;

· whether the informant is somehow connected with the police (e.g. a paid informant).

Pipkin, 114 S.W.3d at 655 (citing Gates, 462 U.S. at 234, 103 S. Ct. at 2330; United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir. 1978)) (other citations omitted); accord Hawes, 125 S.W.3d at 538-39; Fudge, 42 S.W.3d at 230-32.

          Here, all four of these factors suggest that the unidentified citizen-informant’s report “exhibits sufficient indicia of reliability.”  The informant provided a detailed description of Mitchell’s car and the reckless manner in which Mitchell was driving.  See Pipkin, 114 S.W.3d at 655; Fudge, 42 S.W.3d at 232.  The informant personally observed the manner in which Mitchell drove the car.  See Pipkin, 114 S.W.3d at 655.            The record reflects no connection between the informant and the police.  See Pipkin, 114 S.W.3d at 655; Fudge, 42 S.W.3d at 232.  Perhaps most importantly, the informant placed himself in a position to be easily identified by Fulbright and held accountable for his report.  See Bilyeu, 136 S.W.3d at 696; Fudge, 42 S.W.3d at 232; Garcia, 25 S.W.3d at 913; State v. Sailo, 910 S.W.2d 184, 188 (Tex. App.—Fort Worth 1995, pet. ref’d).

          Accordingly, the citizen-informant’s report exhibits heightened indicia of reliability.  Thus, the level of corroboration required under the totality of the circumstance to establish reasonable suspicion is lessened.  See White, 496 U.S. at 330, 110 S. Ct. at 2416; Pipkin, 114 S.W.3d at 654; Fudge, 42 S.W.3d at 229-30.

          “[C]orroboration” in this sense does not mean that the officer must personally observe the conduct that causes him to reasonably suspect that a crime is being, has been, or is about to be committed.  Rather, corroboration refers to whether the police officer, in light of the circumstances, confirms enough facts to reasonably conclude that the information given to him is reliable and a temporary detention is justified.  

Pipkin, 114 S.W.3d at 654 (citing Sailo, 910 S.W.2d at 189); see also White, 496 U.S. at 330-32, 110 S. Ct. at 2416-17; Bilyeu, 136 S.W.3d at 696; Garcia, 25 S.W.3d at 913.

          Observation of “easily obtained facts and conditions” (such as identifying information) will not generally provide the requisite corroboration.  See White, 496 U.S. at 332, 110 S. Ct. at 2417; Bilyeu, 136 S.W.3d at 696.  However, the officer need not personally witness criminal activity, for “even innocent acts can give rise to reasonable suspicion under certain circumstances.”  Bilyeu, 136 S.W.3d at 696; accord Brother, 166 S.W.3d at 258-59 (“argument that an officer must personally witness facts giving rise to criminal activity is against the great weight of authority”).

          Here, the citizen-informant reported to Fulbright “that a tan-colored, four-door sedan with an American flag in the back window had almost sideswiped him” and that the driver was “possibly intoxicated.”  Fulbright promptly located a car matching this description and observed the driver weaving within his lane of travel.  He testified that he stopped the car because he suspected the driver may be intoxicated based on the citizen’s report and his own observations.

          In light of the heightened indicia of reliability arising from the circumstances of the unidentified citizen-informer’s report, Fulbright’s observations under the totality of the circumstances were sufficient to corroborate the report and provide reasonable suspicion to stop Mitchell’s car.  See Bilyeu, 136 S.W.3d at 697-98; Fudge, 42 S.W.3d at 232; Garcia, 25 S.W.3d at 913-14; Sailo, 910 S.W.2d at 189.  Accordingly, we overrule Mitchell’s first point.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray joins no part of this opinion but concurs in affirming the trial court’s judgment.  Brother v. State, 166 S.W.3d 255 (Tex. Crim. App. 2005)).

Affirmed

Opinion delivered and filed January 18, 2006

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