Michael Lynn Smith v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00174-CR

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MICHAEL LYNN SMITH, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 20361

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

Opinion by Justice Ross

O P I N I O N

          Michael Lynn Smith was found guilty by a Lamar County jury of burglary of a building. Punishment was enhanced by prior felony convictions, and the jury assessed the maximum punishment of twenty years' imprisonment and a $10,000.00 fine. The trial court sentenced Smith in accordance with the jury's verdict.

          On April 13, 2005, Smith's appellate counsel filed an Anders brief in which counsel professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, also filed a motion to withdraw. Counsel also sent Smith a copy of the appellate brief and informed Smith of his right to review the record and to file a response pro se.

          Smith filed his response May 9, 2005, and was granted leave to file an amended response on June 15, 2005. The State filed its brief expressing agreement with appellate counsel's conclusion that there were no arguable grounds for appeal and also filed its reply to Smith's pro se response, addressing briefly some of the issues raised by Smith. We have independently reviewed the record and the briefs filed by counsel and by Smith in this appeal, and we agree there are no arguable issues that would support an appeal. Accordingly, we affirm the trial court's judgment.

I.        SUFFICIENCY OF THE INDICTMENT

          Both appellate counsel and Smith question the sufficiency of the indictment. A person commits the offense of burglary if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

 

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

 

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

Tex. Pen. Code Ann. § 30.02(a). The State charged Smith with an offense under Subsection (3), alleging in pertinent part that Smith "did then and there intentionally or knowingly enter a building or a portion of a building not then and there open to the public, without the effective consent of . . . the owner . . . and attempted to commit or committed theft of property."

          A.       Any Defect Not Preserved

          The failure to timely file a motion to quash waives the right to complain on appeal or in a post-conviction proceeding of any defect in the charging instrument. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Smith did not file a motion to quash the indictment in this case.

          B.       Indictment Was Sufficient

          The indictment tracks the language of Section 30.02(a)(3). Subject to rare exceptions, an indictment that tracks the words of the penal statute in question is legally sufficient. Phillips v. State, 597 S.W.2d 929, 934 (Tex. Crim. App. [Panel Op.] 1980); Boney v. State, 572 S.W.2d 529, 532 (Tex. Crim. App. [Panel Op.] 1978); Hodge v. State, 756 S.W.2d 353, 355 (Tex. App.—Dallas 1988, no pet.).

          To be sufficient, an indictment must meet certain requirements. It must accuse the defendant of an act constituting an offense. Tex. Code Crim. Proc. Ann. art. 21.01 (Vernon 1989); Sanders v. State, 642 S.W.2d 860, 862 (Tex. App.—Fort Worth 1982, pet. ref'd). It must by plain and intelligible words particularize the act charged sufficiently to protect a defendant's right against double jeopardy, and give the defendant notice in plain and intelligible words with what he or she has been charged so that such defendant may prepare a defense. See Tex. Code Crim. Proc. Ann. art. 21.02(7) (Vernon 1989); Terry v. State, 471 S.W.2d 848, 852 (Tex. Crim. App. 1971). It must state all of the elements of the offense charged. Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989); Hadden v. State, 829 S.W.2d 838, 840 (Tex. App.—Corpus Christi 1992, pet. ref'd).

          We have measured the indictment against such requirements and conclude it was sufficient. We therefore do not find this indictment, drawn in the language of the statute, to be a "rare exception" to the general rule. See Phillips, 597 S.W.2d at 934; Gilliam v. State, 746 S.W.2d 323, 326 (Tex. App.—Eastland 1988, no pet.). Nothing in the indictment presents reversible error.

II.       SUFFICIENCY OF THE EVIDENCE: ACCOMPLICE WITNESS RULE

          The State's evidence at trial established that, in the early morning hours of June 14, 2004, Smith and his nephew, Robert Smith, broke the front door of Scotty's convenience store in Paris, Texas. One of the owners, who was alone in the back office doing after-hours bookkeeping, heard the commotion and telephoned her husband. As she watched the burglary on the monitors in her office, police were summoned to the store. Within minutes, Paris Police Department officers arrived on the scene. They determined the burglars stole lottery tickets and cartons of cigarettes, and had also taken a trash can.

          In their investigation, the officers discovered some of the stolen merchandise dropped on the ground to the south of the store. They searched the nearby storage facility and soon discovered Smith and his nephew hiding in an unoccupied storage unit with the stolen merchandise. Eventually, officers were able to remove and arrest the two men, and both were charged with burglary of a building.

          At trial, Smith's nephew testified for the State and described the plan as Smith's and detailed the commission of the offense. Responding officers Chris Bean and Jamie Blount testified regarding the discovery of the two men in the storage unit. Additionally, the State presented surveillance videotape footage consistent with the nephew's depiction of the events and fingerprint evidence linking Smith to the stolen merchandise. Smith contends that he had been in the area fishing at a nearby pond since 2:00 a.m. and that he did not commit this offense.

          A.       Accomplice Witness Rule

          Article 38.14 of the Texas Code of Criminal Procedure provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). In reviewing the record for this corroborative evidence, we eliminate from consideration that evidence of the accomplice witness to ascertain if there is inculpatory evidence which tends to connect the defendant with the commission of the offense. Vertz v. State, 702 S.W.2d 196, 196 (Tex. Crim. App. 1986); Cruz v. State, 690 S.W.2d 246, 250 (Tex. Crim. App. 1985).

          B.       Accomplice Testimony Sufficiently Corroborated

          Eliminating for the moment Robert's testimony, we conclude that the corroborative evidence is sufficient to connect Smith to the burglary. First, we look to the officers' testimony regarding their discovery of Smith and his nephew in a nearby, unused storage unit. The mere presence of the accused in the company of the accomplice shortly before or after the time of the offense is not, in itself, sufficient corroboration of the testimony of an accomplice. Ayala v. State, 511 S.W.2d 284, 287 (Tex. Crim. App. 1974). However, the presence of the accused with the accomplice, when coupled with other circumstances, may be sufficient to corroborate the testimony of the accomplice. Id. Here, Smith's presence with his nephew is coupled with his hiding in the storage unit in close proximity to the crime scene and the recovery of the stolen items in the same storage unit in which Smith was hiding. See id.

          Additionally, surveillance camera footage revealed two men breaking into the store after having been dropped off by a person driving a white minivan. Footage from inside the store reveals a closer image of one of the burglars and shows Smith's distinctive facial tattoos. Also, Smith's fingerprints were matched to those found on two of the recovered cartons of cigarettes taken from the store. This evidence constitutes sufficient corroboration of Robert's testimony.

III.      ADMISSIBILITY OF OFFICERS' TESTIMONY DURING PENALTY PHASE

          Counsel discussed concerns regarding the admission during the penalty phase of officers' testimony regarding Smith's character. At issue is the following testimony of Detective Jeff Springer:

[STATE:] Do you have an opinion about Mr. Smith's character or whether he's law abiding?

 

[SPRINGER:] Yes, sir.

 

[STATE:] Is that good or bad?

 

[SPRINGER:] It's bad.

 

[STATE:] Are you aware of his reputation in the community?

 

[SPRINGER:] Yes, sir.

 

[STATE:] Is it good or bad?

 

[SPRINGER:] It's bad.

Also at issue is very similar testimony from Lieutenant Randy Tuttle.

          A.       Opinion Testimony Admissible

          Character may be proven through reputation or opinion testimony. Tex. R. Evid. 405(a). "Conceptually, different predicates are required for reputation and opinion testimony." Hollingsworth v. State, 15 S.W.3d 586, 598 (Tex. App.—Austin 2000, no pet.); Calderon v. State, 950 S.W.2d 121, 131 (Tex. App.—El Paso 1997, no pet.). Springer testified to his opinion of Smith's character. To be qualified to testify regarding one's opinion of a defendant, a witness "must be familiar with the underlying facts or information upon which [his or her] opinion was based." Hollingsworth, 15 S.W.3d at 598 (citing Ibarra v. State, 11 S.W.3d 189, 197–98 (Tex. Crim. App. 1999)). The State need not show that the witness' opinion was based on a community observation or by talking to people in the community. See Hollingsworth, 15 S.W.3d at 598.

          Before the State's question regarding Springer's opinion of Smith's character, the State asked Springer whether, in his twenty-six years of law enforcement, he was familiar with Smith. Springer answered affirmatively. The State also established that Springer knew Smith before the day of trial and that Springer had interviewed him July 6, 2004. Similarly, the State established that Tuttle had experience with Smith and had been familiar with him for "[s]everal years." Based on this testimony, the trial court could have concluded the State established that Springer and Tuttle were "familiar with the underlying facts or information upon which [their] opinion[s] [were] based." Therefore, the trial court did not abuse its discretion by admitting the officers' testimony regarding their opinions of Smith's character.

          B.       Reputation Testimony Probably Inadmissible, Not Preserved

          The Texas Court of Criminal Appeals has recognized that "[a] reputation witness's testimony must be based on discussions with others concerning the defendant, or on hearing others discuss the defendant's reputation, and not just on personal knowledge. Adanandus v. State, 866 S.W.2d 210, 225–26 (Tex. Crim. App. 1993). The State must establish that the testimony regarding a defendant's reputation is based on a "synthesis of . . . observations and discussions which results in a conclusion as to the individual's reputation." Id. at 226.

          Here, the record does not contain any testimony regarding the officers' communications leading to their knowledge of Smith's reputation in the community. So, it appears the officers' testimony regarding Smith's reputation, unlike their testimony regarding their opinions, was inadmissible. However, the record reveals that Smith did not object to the admission of the officers' testimony; therefore, the issue was not preserved for appeal. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired, and either the trial court ruled on the issue, or the complaining party objected to the trial court's failure to rule. Tex. R. App. P. 33.1; see also Tex. R. Evid. 103(a)(1).

IV.      INEFFECTIVE ASSISTANCE OF COUNSEL

          Texas follows the federal standard, enunciated in Strickland v. Washington, 466 U.S. 668 (1984), in determining whether an appellant has received effective assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). Under that standard, the appellant must establish two things: (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 688, 693.

          We will not conclude that trial counsel's failure to object to officers' testimony during punishment renders his representation ineffective. While a portion of the testimony may have been inadmissible, we cannot say that this represents a departure from the objective standard of reasonableness. An accused is entitled to reasonably effective counsel, not errorless counsel judged by hindsight. See Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). At any rate, counsel may have made the tactical decision not to object in the presence of the jury to the relatively harmless testimony. We will presume counsel's actions and decisions were reasonable and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994).

          The various other allegations of deficient performance Smith advances likewise do not rise to the level of ineffective assistance. Presuming trial counsel's actions were a part of his sound trial strategy and holding that Smith has failed to overcome that presumption, we find Smith's contentions regarding ineffective assistance of counsel without merit.

V.       OTHER ISSUES

          A.       Appearance of Accomplice Witness in Jail Clothes

          Smith contends it was error to allow his nephew Robert, the accomplice in the June 14 burglary, to testify while wearing jail clothes. No objection was made at the point at which Robert entered the courtroom in such clothing. Nor did counsel move for a mistrial as was the case in Jenkins v. State, 912 S.W.2d 793, 808 (Tex. Crim. App. 1993) (op. on reh'g). Thus, the issue is not preserved.

          Even if the issue had been preserved, we rely on the Texas Court of Criminal Appeals' opinions in Jenkins and Kimble v. State, 537 S.W.2d 254, 255 (Tex. Crim. App. 1976). In Jenkins, it was unclear from the record whether the jury even saw the accomplice in jail clothes. Jenkins, 912 S.W.2d at 808. Even assuming the jury did see the witness in jail clothing, however, the court found no harm. Id. Distinguishing between the impact of the appearance of a defendant in jail clothes and the impact of an accomplice's appearance in jail clothes, Kimble held there was "no showing of harm or prejudice to the appellant as contended in appellant's brief and our own examination of the record discloses none." Kimble, 537 S.W.2d at 255.

          Smith likewise fails to show harm. We note that the State mentioned the attire during direct examination of Robert, bringing it to the attention of the jury. So, we do know that the jury's attention was brought to the clothing. Nevertheless, with the overwhelming evidence of guilt, we conclude that error, if any at all, would be harmless. We add the possibility that a jury could perceive the witness' appearance in another light entirely apart from that which Smith casts. That is to say, the jail clothes could as easily served as a signal to the jury to be cautious of the witness' credibility, thereby undermining Robert's testimony in favor of Smith's defense.

          B.       Jury Allowed Too Many Breaks

          Smith argues the trial court allowed the jury too many breaks. The trial court conducts a trial within its discretion so long as the court's action does not prejudice the rights of an accused. Young v. State, 691 S.W.2d 757, 759 (Tex. App.—Texarkana 1985, no pet.). The trial court's discretion in the course and conduct of a trial has long been respected:

This latitude extends to and includes the manner and method of the presentation of the testimony and the examination of the witnesses. To be reversible, errors claimed in such matters must be such as to be openly prejudicial to the rights of the accused, and must constitute an abuse of discretion by the trial court.

Flannery v. State, 153 Tex. Crim. 36, 216 S.W.2d 980, 982 (1948). Here, there is no evidence that the breaks allowed by the trial court were unusually frequent or lengthy, or that the breaks harmed Smith in any way. We find no merit in this contention.

          C.       Conspiracies Among Lamar County Officials Against Smith

          Smith alleges that the law enforcement officials in Lamar County have lied about him and conspired against him for years. During the punishment phase, Smith testified as to how this conspiracy led officers to arrest him for this crime when they found him at 4:00 a.m. innocently hiding in the storage unit after fishing at a nearby pond. There is no evidence in the record, other than Smith's own statements, to support his allegations of a Lamar County conspiracy to convict him of crimes he did not commit.

          D.       Derogatory References to Smith

          Citing to Riascos v. State, 792 S.W.2d 754, 756 (Tex. App.—Houston [14th Dist.] 1990, pet. ref'd), Smith also complains that the State's counsel made derogatory references to him throughout the trial. He points to no specific instances in the record. Our review reveals only that State's counsel referred to Smith as an "opportunist" during its opening statement and described his occupation as a "thief" during closing argument at punishment. These references do not qualify as derogatory as contemplated by Riascos. Consequently, defense counsel made no objection to these remarks, and rightly so.

          E.       Failure to Allow Smith to Cross-Examine Witnesses

          Smith complains that the trial court erred and that his attorney rendered ineffective assistance of counsel by not allowing him to cross-examine witnesses. Having been represented by counsel, Smith had no right to hybrid representation. See Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977); Reeves v. State, 46 S.W.3d 397, 400–01 (Tex. App.—Texarkana 2001, pet. dism'd). Therefore, we find no error.

          F.       Additional Considerations

          In his pro se response, Smith also alleges it was error not to have a court reporter recording voir dire. He is mistaken in his belief that no court reporter was present. We have before us a reporter's record of the voir dire proceedings. Smith also lists issues of entrapment, intoxication, and DNA testing. We note that these issues are inadequately briefed, and their relevance to these proceedings is dubious. See Tex. R. App. P. 38.1(h). Nevertheless, we have reviewed the record and considered these issues, and conclude each is wholly without relevance and merit.

 

  VI.      CONCLUSION

          Having independently reviewed the record and having addressed the issues discussed in counsel's Anders brief and raised in Smith's pro se response, we find no reversible error in the trial resulting in Smith's conviction for burglary of a building.

          We affirm the trial court's judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      July 18, 2005

Date Decided:         August 18, 2005

Do Not Publish

s of the order. This constitutes a sufficiency of evidence issue which may be reviewed even though it is first raised on appeal. Id. at 922.

IV.       Sufficiency of Evidence      

            Due process requires that evidence in the record must exist to show that the amount of restitution has a factual basis.  Campbell v. State, 5 S.W.3d 693, 696, 699 (Tex. Crim. App. 1999) (citing Cartwright, 605 S.W.2d at 289).  The restitution awarded must be just and have a factual basis within the loss of the victim. Id. 

            In this instance, the total amount of restitution was established at the time Flowers entered a negotiated plea of guilty. Flowers and his attorney signed all the documents at the time of the entry of the plea acknowledging restitution in the amount of $2,425.00.  There was no dispute about the amount of restitution, but it was presented to the trial court as a part of the overall negotiated plea agreement, to which both the State and Flowers “mutually agreed and recommended” to the judge.  If any dispute had existed on this issue, it could have been presented to the trial court to resolve.  Tex. Code Crim. Proc. Ann. art. 42.037(k) (West Supp. 2010).  The original restitution order of $2,425.00 is supported by the specific agreement of the parties as to the appropriateness and accuracy (or factual basis) for the restitution order.

            Flowers was placed on community supervision on August 20, 2010; during his short supervision period, Flowers reported to the supervision officer two times (September 21 and October 19).  The State moved to revoke Flowers’ supervision based upon allegations that he failed to perform community service and that he had burglarized a home and/or a building.  Notably, the State did not allege that Flowers failed to pay restitution. From the absence of such an allegation, it is logical to infer that just as Flowers fulfilled the requirement to report to the community supervision office, he also satisfied the restitution condition of his community supervision by paying the $25.00 monthly restitution payments for September and October, leaving $2,375.00 as the balance.  Since the State moved to revoke Flowers’ supervision on November 1, 2010, he was arrested the next day, remained incarcerated until the hearing in January 2011, and was then sentenced to a ten-year term, without bond.  It can reasonably be inferred that he made no restitution payment for November or thereafter. Based upon these facts, we find that there was evidence to support the award of $2,375.00 in restitution. 

            Accordingly, we overrule this point of error and affirm the trial court’s judgment.

 

 

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          September 6, 2011

Date Decided:             September 7, 2011

 

Do Not Publish

 

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^[1]The trial court made no finding regarding the State’s allegations that Flowers committed another burglary.

 

^[2]Flowers does not challenge the trial court’s revocation of his community supervision or the amount of $2,425.00 in restitution adjudicated at the time of his negotiated plea agreement.