Taezer Thompson v. the State of Texas ( 2021 )

Opinion filed November 12, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00413-CR
__________
TAEZER THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR25124
MEMORANDUM OPINION
In 2017, Taezer Thompson, Appellant, waived his right to an indictment and
pled no contest to the charge, by information, of impersonating a public servant, a
third-degree felony. The trial court entered an order of deferred adjudication and
placed Appellant on community supervision for a term of ten years. Some two and
a half years later, the State filed a motion to adjudicate Appellant guilty of the 2017
offense of impersonating a public servant. The State alleged that Appellant had not
only failed to perform community service restitution as required, but also had
committed a new offense: unlawful restraint. Appellant pled not true to both
allegations. The trial court found the State’s allegations to be true, adjudicated
Appellant guilty of the 2017 offense, and assessed his punishment at confinement
for three years in the Institutional Division of the Texas Department of Criminal
Justice.
The trial court denied Appellant’s motion for a new trial, where it was argued
that any evidence of the new alleged offense and his lack of community service
restitution was insufficient to sustain the adjudication. Appellant further claimed to
possess evidence not admitted at the adjudication hearing that proved him innocent
of the new offense. While the trial court refused to receive the evidence during the
hearing on the motion for new trial, Appellant made a Bill of Exception in which he
presented alleged exculpatory evidence, including an audio file and a video file, that
he argued his original counsel had failed to introduce during the hearing on the
State’s motion to adjudicate. Appellant argues on appeal (1) that the evidence was
legally insufficient to find that he committed the newly charged offense of unlawful
restraint and (2) that he received ineffective assistance of counsel at the hearing on
the State’s motion to adjudicate. We affirm.
Background Facts
At the adjudication hearing, the State presented four witnesses giving
evidence relevant to Appellant’s failure to abide by the terms of his community
supervision: Amber Boswell, Appellant’s probation officer; the victim, Tammy
Martin; and two Stephenville police officers, Andrew Honecker and Danna Parr.
Boswell testified that Appellant was required, per the conditions of his community
supervision, to perform 160 hours of community service, 8 hours per month,
beginning on May 20, 2017. She further testified that at the time the State filed its
motion to adjudicate, Appellant had not completed any of his required community
service hours. Boswell further testified that only recently had Appellant made a
large donation to a food bank to satisfy all of his outstanding community service
hours.
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Tammy Martin testified that she was on her way home from the airport at
about 2:00 a.m., driving down a one-lane street when she saw a car taking up the left
side of the single lane with its hazard lights flashing. The vehicle was a Taxiville
cab belonging to one of Appellant’s employees. As she proceeded to pass the cab
on the right side of the single lane, Appellant abruptly propelled his vehicle into the
road, emerging from an intersecting street, and blocked her path forward. The
vehicle that had its hazard lights on pulled up and blocked Martin in on the driver’s
side of her vehicle. Martin was initially unable to make out details about Appellant’s
vehicle because Appellant was using a high-powered white light to shine into the
cabin of her vehicle and into her eyes. Martin testified that at first she believed that
Appellant must be affiliated with the sheriff’s office because his vehicle was
equipped with a high-powered light bar on top. Martin explained that Appellant
rolled his window down and asked her: “Do you enjoy following people?” Once
she realized that Appellant was not affiliated with law enforcement, she turned
sharply to the right and drove onto the intersecting street, running over a one-foot-
high curb in the process, which damaged the undercarriage of her vehicle on the
passenger side. Martin testified that she would have just gone home, but the vehicles
that had blocked her in proceeded to follow her. She drove to the police department
and went inside. Martin testified that she was unsure how long the blocking incident
lasted, but she guessed that it might have been ten to fifteen minutes.
Officers Honecker and Parr both testified that Martin was “visibly shaking”
when they interviewed her about the incident. Officer Honecker testified that
Appellant told him that the incident transpired after one of his Taxiville employees,
Susan Bertram, called him because she believed that a car had been following her,
at which point Appellant instructed her to meet him at his house, near where the
incident occurred. Officer Parr testified that Martin indicated that Appellant had
given her the impression that he was a police officer.
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Appellant only called one witness: his wife, Emily Thompson. She testified
about the location where the incident took place, and she said that the curb over
which Martin drove to effectuate her escape was about a foot tall. After that,
Appellant rested.
In his closing argument, Appellant’s trial counsel argued that Appellant had
cured the defect regarding his community service hours by making a donation and
that the State had failed to meet its burden to prove that Appellant committed
unlawful restraint. The State responded, inter alia, that the failure to perform the
community service hours when required was a violation and that any late effort to
cure it by donation is only relevant to sentencing. The State also argued that the trial
court had sufficient evidence to find that Appellant had committed a new offense
because any amount of restraint is sufficient to constitute unlawful restraint, “even
one to two minutes.”
After Appellant was adjudicated and his community supervision was revoked,
Appellant filed a motion for new trial. Before the hearing on that motion, Appellant
fired his original trial attorney. During the hearing, Appellant argued that his
previous trial attorney was given exculpatory evidence before the adjudication
hearing, including audio and video files that allegedly (1) confirmed Appellant’s
explanation as to why he stopped Martin and (2) impeached Martin’s assertion that
the stop lasted about ten to fifteen minutes. Appellant’s previous trial attorney chose
not to introduce that audio/video information at the adjudication hearing.
Appellant’s new trial counsel never reached out to former trial counsel for an
explanation of his decision not to proffer that evidence.
The trial court denied Appellant’s request to introduce this evidence at the
hearing on his motion for a new trial, but permitted its introduction as part of a Bill
of Exception for purposes of Appellant’s appeal. In Appellant’s Bill of Exception,
he testified that he expected his original trial attorney to present the evidence that
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Appellant gave him and was surprised when he did not do so. Appellant further
testified that when asked why he failed to introduce any of the evidence he was
given, Appellant’s original trial attorney responded that “there would be a lot of time
and difficulty in setting up the videos” and that he was not even sure “that this was
going to go forward that day.” The audio and video files were admitted as part of
Appellant’s Bill of Exception, for purposes of arguing that his original trial attorney
had rendered ineffective assistance of counsel. The trial court denied Appellant’s
motion for a new trial.
The audio file contains a conversation between Appellant and two of his
Taxiville employees, during which one of those employees, Susan Bertram,
complains that a car had been following her. Appellant instructed the other
employee in the conversation, Trisha Gomez, to follow Bertram and the car tailing
her, and for both to proceed to McCart Street and Frey Street, where the incident
occurred. The audio file reveals that after the altercation, Gomez followed Martin
to the police station, where she then waited for Appellant and Bertram to arrive as
well. The video file appears to demonstrate that the two Taxiville cars involved in
the altercation with Martin were only in the same location for a couple of minutes,
at most.
Discussion
I. Issue One – The evidence was sufficient to support the trial court’s
revocation of Appellant’s community supervision based upon the trial court’s
findings that Appellant committed the offense of unlawful restraint and that
Appellant failed to timely complete his required community service per the
court’s terms and conditions.
A. Standard of Review
The violation of a single condition of community supervision is sufficient to
support a revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel
Op.] 1980). Thus, to prevail on appeal, Appellant must successfully challenge all of
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the trial court’s findings that support revocation. Silber v. State, 371 S.W.3d 605,
611 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see Jones v. State, 571 S.W.2d
191, 193–94 (Tex. Crim. App. [Panel Op.] 1978). In this case, Appellant’s challenge
is that the evidence was insufficient to support the trial court’s finding that Appellant
committed the new offense of unlawful restraint. Appellant does not challenge the
trial court’s finding that Appellant failed to comply with the community service
condition of his community supervision. While that finding alone is sufficient to
affirm the trial court’s judgment, we nevertheless proceed to consider Appellant’s
sufficiency claim.
We review a sufficiency of the evidence in cases like this, where the appellant
challenges the sufficiency of the evidence upon which the trial court made a finding
during a hearing to adjudicate and revoke community supervision, under a less
rigorous standard than that set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013). In Hacker, the
Texas Court of Criminal Appeals explained, at length, that:
To convict a defendant of a crime, the State must prove guilt
beyond a reasonable doubt, but to revoke probation (whether it be
regular probation or deferred adjudication), the State need prove the
violation of a condition of probation only by a preponderance of the
evidence. . . .
The State’s burden of proof informs the appellate standard of
review for legal sufficiency of the evidence. When the burden of proof
is “beyond a reasonable doubt,” an appellate court reviews the evidence
in the light most favorable to the prosecution and asks whether a
rational jury could have made the requisite finding beyond a reasonable
doubt. For issues governed by the less rigorous burden of proof of
“preponderance of the evidence,” the appellate standard of review for
legal sufficiency is also less rigorous. For probation-revocation cases
. . . the appellate standard of review [i]s whether the trial court abused
its discretion.
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Id. (footnotes omitted). We defer to the trial judge’s role as the sole judge of the
witnesses’ credibility and the weight their testimony is to be afforded. Id. at 865.
A person commits the offense of unlawful restraint when he intentionally or
knowingly restrains another person. TEX. PENAL CODE ANN § 20.02 (West 2019).
The term “restrain” in this provision means “to restrict a person’s movements
without consent, so as to interfere substantially with the person’s liberty, by moving
the person from one place to another or confining the person.” Id. § 20.01. Restraint
is without consent if it is accomplished by force, intimidation, or deception. Id. In
order for such restraint to constitute a “substantial interference,” it is not necessary
for the State to prove that a defendant restrained the victim for any specific length
of time. Hines v. State, 75 S.W.3d 444, 446–47 (Tex. Crim. App. 2002). Thus,
“there is no specific time requirement for determining whether a restraint has taken
place.” Id. at 447–48. Rather, it is up to the factfinder, in this case the trial judge,
“to distinguish between those situations in which a substantial interference with the
victim’s liberty has taken place and those situations in which a slight interference
has taken place.” Id. at 448. The trial judge makes this determination “by looking
at all of the circumstances surrounding the offense.” Id.B. Analysis
Appellant contends that the victim in this case, Tammy Martin, was not
restrained because the movement of her person was never restricted or confined and
because her liberty was not substantially interfered with. Appellant supports these
contentions by arguing that the State failed to present any evidence demonstrating
that Appellant prevented Martin from putting the car in reverse or exiting her vehicle
and simply walking away. Appellant further argues that it is significant that
Appellant never instructed Martin to stay in her car. The State, in response, argues
that Appellant did restrain Martin, both by force and by deceit. The State
emphasized that Appellant physically blocked Martin from proceeding forward on
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the street in her vehicle and deceived her into believing he was law enforcement by
shining a powerful light into her car and in her face during the encounter. The State
further contends that it is unreasonable to expect Martin to leave the relative safety
of her vehicle in the presence of “several strangers in vehicles accosting her at two
in the morning.” We agree. In any event, the trial court’s finding that Appellant
committed the new offense of unlawful restraint must be affirmed if there is evidence
to support that finding.
At around 2:00 a.m., Appellant, in coordination with an employee under his
direction, abruptly blocked off a one-lane street to deliberately halt Martin’s vehicle
in its forward progress. Throughout the incident, Appellant shined a powerful white
light into Martin’s vehicle, obstructing her ability to see what was happening.
Martin testified that Appellant’s use of the powerful white light gave her the
impression that Appellant was affiliated with the sheriff’s office. If police, as
believed, had abruptly stopped a person’s vehicle by cutting it off from the front and
immediately shining powerful lights into the person’s vehicle, that person would not
likely believe that they were at liberty to reverse the vehicle and drive away, nor to
exit and abandon the vehicle on foot. Appellant’s contention that Martin was not
restrained because she could have put her vehicle into reverse is without merit
inasmuch as performing a potentially dangerous and possibly illegal maneuver with
one’s vehicle is hardly a reasonable expectation under ordinary circumstances in
which a person is not being unlawfully restrained. Eventually, Martin did take
extreme measures in order to make her escape, upon discovering that Appellant was
not affiliated with law enforcement, driving over a one-foot-tall curb and damaging
the undercarriage of her car on the passenger side. Furthermore, even if Martin had
not thought that Appellant was affiliated with law enforcement, we are unpersuaded
that anyone would feel safe exiting their vehicle at 2:00 a.m. after being suddenly
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cut off in mid traffic, blinded by a bright light invading the cabin of their vehicle,
and accosted by the other driver.
It is immaterial whether the stop lasted fifty seconds or fifteen minutes,
because there is no minimum time requirement for a nonconsensual restraint to
constitute a substantial interference with someone’s liberty. Hines, 75 S.W.3d at446–47. What is required of the trial court is that it consider the surrounding facts
and circumstances and determine whether the restraint rose to the level of a
substantial interference with the victim’s liberty. Id. at 448. We presume that the
trial court resolved any uncertainties in favor of the finding it made, and we defer to
that finding so long as there is evidence to support it. The details recounted above,
which must be reviewed by us in the light most favorable to the prosecution,
constitute evidence from which the trial court could have found by a preponderance
of the evidence that Appellant committed the new offense of unlawful restraint. See
Hacker, 389 S.W.3d at 864–65. There is enough within the record to sustain the trial
court’s finding on that matter.
Even if the recounted facts and circumstances were insufficient to support the
trial court’s finding that Appellant committed the new offense of unlawful restraint,
Appellant did not contest that he failed to perform his monthly community service
hours. Appellant invites us to overlook this fact by characterizing the allegation that
Appellant committed a new offense as the “primary allegation in the motion to
adjudicate.” The allegation that Appellant committed a new offense is only primary
in the arbitrary sense that it is mentioned first in the State’s motion to adjudicate. In
any event, it makes absolutely no difference because the violation of a single
condition of community supervision is sufficient to support a revocation. Moore,
605 S.W.2d at 926. Appellant may not prevail unless he successfully challenges
both of the trial court’s findings that support the revocation of his community
supervision. Silber, 371 S.W.3d at 611; Jones, 571 S.W.2d at 193–94. In this case,
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Appellant did nothing to contest the trial court’s finding that he failed to timely
perform his community service hours as required by the terms and conditions of his
community supervision. As such, the trial court’s revocation of Appellant’s
community supervision must be affirmed, independent of the merits of Appellant’s
sufficiency-of-the-evidence attack on the trial court’s finding that Appellant
committed a new offense.
II. Issue Two – Appellant was not deprived of the effective assistance of
counsel because his trial counsel’s decision not to offer evidence regarding
the duration of the restraint was not so outrageous that no competent attorney
would have engaged in it. Even if trial counsel’s failure to present evidence
was deficient, there is no reasonable probability that, but for that error, the
result would have been different.
A. Standard of Review
To determine whether Appellant’s trial counsel rendered ineffective
assistance at the hearing on the State’s motion to adjudicate, we must first determine
whether Appellant has shown that counsel’s representation fell below an objective
standard of reasonableness and, if so, then determine whether there is a reasonable
probability that the result would have been different but for counsel’s errors.
Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Andrews v. State, 159
S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999). We must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance, and
Appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered trial strategy. Strickland, 466 U.S. at 689;
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “Counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.
An allegation of ineffective assistance must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness.
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Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct
appeal will not be sufficient to show that counsel’s representation was so deficient
and so lacking as to overcome the presumption that counsel’s conduct was
reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). Rarely will the record on direct appeal contain sufficient information to
permit a reviewing court to fairly evaluate the merits of such a serious allegation.
Id. The Court of Criminal Appeals has said that “trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If
trial counsel did not have an opportunity to explain his actions, we will not find
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001).
B. Analysis
In this case, Appellant’s original trial attorney was not given the opportunity
to explain his actions to the trial court in a hearing on a motion for new trial before
being denounced as having been ineffective. We need not infer this lack of
opportunity simply from the absence of any explanation by Appellant’s original trial
attorney, since it is readily conceded at the hearing on Appellant’s motion for a new
trial. Although Appellant’s original trial attorney could have been subpoenaed to
testify at the hearing on Appellant’s motion for a new trial to explain his reasons for
not presenting the audio and video files at the hearing on the State’s motion to
adjudicate, Appellant ostensibly elected not to do so. As such, the presumption that
Appellant’s original trial counsel’s performance fell within the wide range of
reasonable professional assistance and trial strategy will not be rebutted unless his
conduct “was so outrageous that no competent attorney would have engaged in it.”
Id.11
The State contends that the introduction of the video and audio evidence
would have harmed Appellant’s defense because it would have placed Appellant at
the time and place of the altercation with Martin. Moreover, the State argues,
Appellant’s trial counsel had good reason not to introduce the evidence because it
may have necessitated calling Appellant as a witness to authenticate the evidence,
and this would have exposed Appellant to cross-examination. The State further
argues that it is doubtful the evidence would have benefitted Appellant since it would
confirm that Appellant blocked Martin’s ability to drive away and would only
contest the length of time for which he did so. This is important, the State argues,
because there is no minimum amount of time for which a person must restrain
another in order to be guilty of unlawful restraint. Thus, the State concludes, there
was more risk than reward by introducing the audio and video files into evidence. It
is unclear what Appellant’s trial counsel’s trial strategy actually was. It was not
explained, but the State articulates a reasonable trial strategy. When considered in
light of the strong presumption that Appellant’s trial counsel’s conduct fell within
the wide range of reasonable and professional performance, the conduct at issue here
cannot be characterized as so outrageous that no competent attorney would have
pursued it. See id. We hold that Appellant has not shown that his trial counsel’s
performance was deficient; Appellant therefore has not shown that he was deprived
of the effective assistance of counsel.
Even if Appellant’s trial counsel’s performance was deficient with respect to
litigating the issue of whether Appellant committed the new offense of unlawful
restraint, Appellant still cannot prevail on his ineffective assistance of counsel claim
because he has not shown that the error was prejudicial. In order to prevail on a
claim for ineffective assistance of counsel, an appellant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Andrews, 159 S.W.3d at 102.
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Appellant has shown no probability, reasonable or otherwise, that the result
of the hearing on the State’s motion to adjudicate would have been different but for
the decision of Appellant’s trial counsel not to introduce evidence pertinent to the
allegation that Appellant committed the new offense of unlawful restraint. We reach
this conclusion for two reasons. First, the law is clear that “there is no specific time
requirement for determining whether a restraint has taken place.” Hines, 75 S.W.3d
at 447–48 (citing Santellan v. State, 939 S.W.2d 155, 163 (Tex. Crim. App. 1997);
Earhart v. State, 823 S.W.2d 607, 618 (Tex. Crim. App. 1991), vacated and
remanded on other grounds, 509 U.S. 917 (1993); Rogers v. State, 687 S.W.2d 337,
342 (Tex. Crim. App. 1985); Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim.
App. 1980)). Having viewed and listened to the recordings and in light of the above,
it is reasonably probable that, had Appellant’s original trial counsel offered the
omitted evidence challenging the length of time for which Martin was restrained, the
trial court’s finding of unlawful restrain would not have been different. Secondly,
Appellant has done nothing to challenge the other ground upon which his guilt was
adjudicated and his community supervision was revoked: namely, that he failed to
perform his hours of community service as required by the terms and conditions of
his community supervision. Even if Appellant had prevailed on his claims attacking
the trial court’s findings that he committed the new offense of unlawful restraint, the
revocation of his community supervision because of his failure to perform the
required community service hours would require affirmation of the judgment. See
Day v. State, No. 11-19-00087-CR, 2021 WL 503464 (Tex. App.—Eastland Feb. 11,
2021, pet. ref’d) (mem. op., not designated for publication) (because one ground
with sufficient evidence will support a trial court’s revocation order, an appellant’s
other issues on appeal need not even be addressed to affirm the revocation).
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This Court’s Ruling
We affirm the judgment of the trial court.
W. BRUCE WILLIAMS
JUSTICE
November 12, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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