Brittany Cnae McCutcheon v. the State of Texas

Affirmed and Memorandum Opinion filed October 26, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00295-CR
BRITTANY CNAE MCCUTCHEON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 18-CR-0917
MEMORANDUM OPINION
Appellant Brittany Cnae McCutcheon appeals her conviction for engaging in
organized criminal activity by committing the underlying offense of fraudulent
possession of fifty or more items of identifying information, in combination with
others. Appellant asserts that she received ineffective assistance of counsel. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Some retail stores like Kohl’s permit a person to make purchases using a
store credit card even when the customer leaves the card behind. It’s an old-
fashioned convenience that pre-dates Apple Pay. With a customer’s social security
number and driver’s license as proof, the store will look up and verify a customer’s
store credit card account and charge the customer as if they had the card with them.
This is how appellant purchased a Bulova watch at the League City Kohl’s.
And while appellant was permitted to make the transaction, she was “red-
flagged” because, in the course of the process, she presented an out of state license.
The cost of the item, the out-of-state license, and the fact that appellant had to
consult her phone to recite her own social security number prompted the jewelry
department supervisor, Lacy Brychta, to question the transaction and alert loss
prevention.
After the store was alerted of possible suspicious activity, appellant was
monitored and observed to then go purchase a $500 gift card from another register.
When David Ruiz, Kohl’s asset protection manager, was alerted to observe
appellant from the monitors in the loss prevention office, he recognized appellant
as a person identified in a BOLO (be on the lookout) notice he had received a week
earlier. He noticed two other individuals with appellant, but they disappeared as
she went to the back of the store. Ruiz noticed the group talked amongst
themselves before the other two left. Ruiz called the police.
Officer Michael Guzman of the League City Police Department responded
to the call of a potential fraud in progress. He met with Ruiz and another store
employee at the front entrance and was advised appellant was still in the store.
When Guzman approached appellant and asked for her ID, she retrieved a
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small purse and thumbed through the purse, revealing several different IDs from
different states, before providing her Texas ID. Guzman ran the Texas ID through
dispatch and confirmed several active warrants on appellant. Appellant identified
herself as Brittany McCutcheon.
Guzman placed appellant in handcuffs and led her to the loss prevention
office. Guzman arrested appellant, and believes that he read appellant her Miranda
rights, but could not be sure. He said generally, when he handcuffs someone, he
reads them Miranda rights immediately, but he could not remember this particular
occasion. Guzman said appellant made no statement. Ruiz confirmed that
appellant remained silent while in the office. Ruiz testified that he thought the
officer read the appellant her Miranda rights when they were in the office, but
agreed that appellant already had handcuffs on when Guzman brought her back to
the office. The Police Department did not retain the body cam footage and Kohl’s
did not retain its surveillance footage from the day of the incident.
Guzman said he searched her purse incident to arrest and found two
fictitious state IDs that contained appellant’s face and someone else’s name and
date of birth. Additionally, Guzman found a $200 Kohl’s gift card and a blank
VISA card in the name of “William Law”. Believing that more information was
contained on appellant’s cell phone, Guzman seized the cell phone and placed it
into evidence, pending a search warrant.
On March 22, 2018, appellant was indicted for the offense of engaging in
organized criminal activity, namely fraudulent possession of identifying
information.
When cross examined by appellant’s counsel at trial, Guzman agreed that he
obtained appellant’s phone passcode subsequent to her arrest, but only at
appellant’s request so she could get some telephone numbers. Guzman stated he
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never searched the phone until after obtaining a warrant. Guzman said the date of
the search warrant was eleven days after her arrest. Guzman explained that he
performed the entire task of retrieving those numbers for appellant in her presence
before shutting off the phone and placing it back in the loss prevention bag and that
this was his only contact with the phone prior to the execution of the warrant.
The evidence and forensic manager with the League City Police Department
testified that after a search warrant was issued for the phone’s data, he used a
forensic tool to extract call records, text messages, chat messages, images, websites
visited on the phone, as well as contact names and numbers.
Through the officers’ testimony, significant information was obtained from
the phone and offered into evidence in support of the State’s case. As conveyed
through Guzman, the phone informed that
• Appellant would purchase and receive personal identifying
information from the dark web.
• Through various people like Latasha Krauth, appellant would
send the identifying information to others and get physical IDs
made with appellant’s picture and someone else’s name, date of
birth and social security number.
• Appellant and others would purchase merchandise and sell it at
a discount. Appellant was involved with other participants
which included Latasha Krauth, a male named Eric, a woman
named Ma, a woman named Puney, and a man named Shake.
• Latasha was acting as a look-out for appellant at Kohls.
Appellant and Latasha texted each other throughout the
transaction at Kohls and those text messages were recovered.
• Latasha and appellant passed texts, sharing different names,
dates of birth, addresses, credit card numbers, expiration dates,
security codes, phone numbers and social security numbers.
• Eric, appellant’s brother, made fraudulent purchases and
provided appellant the merchandise to off load and sell at a
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discounted price. Eric procured physical IDs and provided
them to appellant and Latasha. Eric also received proceeds and
money from the illicit activities.
• Shake was a facilitator for the gift cards and some merchandise,
converting it into cash. Shake employed others that returned
merchandise to retailers and received cash back. Guzman
referred to these people as “returners,” according to the text
messages.
• The money flowed from appellant to Latasha, Shake to
appellant, Eric to appellant, and appellant to her mother.
The State’s investigator testified that she was provided information on all the
names, dates of birth, social security numbers, driver’s license, and addresses
extracted from appellant’s phone in this case. She said that she ran each name and
verified that the names and addresses matched; that they were real people and had
real social security numbers. Three of these people testified at trial. Each testified
that their names, dates of birth, social security numbers, and driver’s licenses
matched the information contained on appellant’s phone. Each testified that they
did not know appellant or grant her permission to use their respective identifying
information.
The first issue in this appeal concerns the State’s trial counsel’s closing
argument. While explaining the legal standard for finding a “Combination” which
the charge states means “three or more person who collaborate carrying on
criminal activities” he made the following comment:
That’s why this is an engaging case. She’s working with Tasha, Ma
and Eric and Puney and Shake and the way the offense is worded it
has to be the defendant working with two or more other people. But
you as a jury you don’t all have to agree on who the three people
were. You have to agree there were at least three people involved in
this criminal organization. So jurors #1 and #2 may believe this
operation was primarily the defendant, Tasha and Eric. And juror #12
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may believe the operation was mainly the defendant, Shake and Ma.
That’s fine. Many of you believe like I do, that all six of these
people were involved. They were absolutely involved. As the charge
will instruct you, the law doesn’t require that all members of the
organization know each other or work directly with each other….
Appellant’s trial counsel did not object to the bolded comment.
The second issue in the case concerns appellant’s trial counsel’s own
comments in closing argument:
One, there is an issue of Miranda which is always questionable for us
as attorneys as far as if you read Miranda rights versus not reading it.
If he took her purse and took her phone before she was actually placed
in custody. Of course, all we have is his word. We don’t have any
video which would be helpful. All we have is his word. So you know
it’s our contention there may be some issues within a reasonable
search and seizure.
In the State’s concluding arguments it glossed appellant’s trial counsel’s
Miranda-related arguments as a non-issue merely raised to confuse the jury. He
explained, “You heard from Officer Guzman multiple times; [appellant] did not
make a statement.”
The jury found appellant guilty of the offense of engaging in organized
criminal activity as charged in the indictment.
During punishment, the State presented evidence of ten prior convictions,
including one that enhanced the punishment. Appellant pled true to the
enhancement. The remainder of appellant’s prior convictions included five
misdemeanors and four state jail felonies. The State also provided evidence that
appellant had been out on parole for only three months before she committed the
current offense and that she was attempting to fraudulently obtain a firearm
through a third party so she could work as an armed security guard.
Through cross-examination, appellant’s trial counsel elicited information
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that appellant was not violent or disruptive when she was arrested, that she had
four children and she had made efforts to find a job other than the security guard
job. The State rested its case. Appellant’s trial counsel rested and explained she
had attempted reach appellant’s brother, and that he had not responded to her. In
closing, the State asked for life in prison. Appellant’s trial counsel asked for
leniency of fifteen years, based on her being a mother of four children, the non-
violent nature of her crime, and the fact that no one was physically harmed by her
conduct.
The jury sentenced appellant to 30 years confinement with the TDCJ and a
$1000.00 fine. A motion for new trial was not filed. This appeal followed.
II. ISSUES AND ANALYSIS
In her first and second issues, appellant claims she received ineffective
assistance of counsel during the guilt-innocence phase of trial because (1) her
attorney failed to object to a prosecutor’s comment in closing argument and, (2)
her attorney alluded to a Miranda violation in closing argument, without first
moving to suppress or requesting an appropriate instruction. In her third issue, she
claims that she received ineffective assistance of counsel during the punishment
phase of trial because her trial counsel did not present any mitigating evidence.
A. Appellate Review of Ineffective Assistance Complaints on Direct Appeal
Both the United States Constitution and the Texas Constitution guarantee an
accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art.
I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (Supp.). This right
necessarily includes the right to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945
S.W.2d 830, 835 (Tex. Crim. App. 1997). To prevail on her ineffective-assistance-
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of-counsel claims, appellant must prove (1) counsel’s representation fell below the
objective standard of reasonableness, and (2) a reasonable probability that but for
counsel’s alleged deficiency the result of the proceeding would have been
different. See Strickland, 466 U.S. at 687–88; see also Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to
ineffective-assistance claims under the Texas Constitution). In considering an
ineffective-assistance claim, we indulge a strong presumption that counsel’s
actions fell within the wide range of reasonable professional behavior and were
motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994). To defeat this presumption, any allegation of
ineffectiveness must be firmly grounded in the record so that the record
affirmatively shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113,
117 (Tex. Crim. App. 2017).
Trial counsel generally should be given an opportunity to explain counsel’s
actions before the court finds counsel ineffective. Id. In most cases, a direct appeal
proves an inadequate vehicle for raising an ineffective-assistance claim because the
record generally stands undeveloped and cannot adequately reflect the motives
behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex.
Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. In the face of a silent record,
we cannot know trial counsel’s strategy, so we will not find deficient performance
unless the challenged conduct is “so outrageous that no competent attorney would
have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005).
A sound trial strategy may be executed imperfectly, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
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Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we
“review the totality of the representation and the circumstances of each case
without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011). Though counsel’s conscious decision not to object to evidence is not
insulated from review, unless the defendant overcomes the presumption that
counsel’s actions were based in sound trial strategy, counsel generally will not be
found ineffective. Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).
B. Did appellant’s trial counsel render ineffective assistance for failing to
object to the prosecutor’s expression of personal opinions during closing
arguments?
In her first issue, appellant asserts that her trial counsel rendered ineffective
assistance because she did not object to the prosecutor’s statement — “[m]any of
you believe like I do, that all six of these people were involved.” — as an improper
opinion injected over the issue. The prosecutor made the statement in the context
of explaining the charge to the jury--that each juror only had to believe the
appellant conspired with two or more of the co-conspirators. Proper jury argument
generally falls within one of the following four areas: (1) summation of the
evidence; (2) reasonable deduction from the evidence; (3) answer to argument of
opposing counsel; and (4) plea for law enforcement. Freeman v. State, 340
S.W.3d 717, 727 (Tex. Crim. App. 2011).
The prosecutor’s comment “many of you believe like I do” is a personal
opinion, and as such is improper. See Beltran v. State, 99 S.W.3d 807, 811 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d) (holding that prosecutor’s statement
that “[i]f I believed the man was not guilty I wouldn’t be here” was improper).
One rationale courts have stated for this rule is that the opinion improperly conveys
the idea that the prosecutor has a basis for such an opinion outside the evidence
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presented at trial. Williams v. State, 417 S.W.3d 162, 172 (Tex. App.—Houston
[1st Dist.] 2013, pet. ref’d). We are doubtful that, in a context such as here where
the prosecutor’s expressed personal opinion directly followed his reference to trial
exhibits implicating all six co-conspirators’ participation, the jury believed the
prosecution’s ‘belief’ was based on something other than the evidence to which he
had just referred them. In short, in a case such as this, where the rationale for the
rule is not served, the trial court may have properly exercised its discretion in
overruling an objection to the prosecutor’s statement.
But even presuming that the prosecutor’s statement was improper as to result
in the reasonable expectation that the trial court would sustain the objection, if
appellant’s trial counsel made a deliberate decision not to object, we cannot
conclude that such a decision was categorically unreasonable. Appellant cites no
authority for the proposition that a failure by trial counsel to object to purported
improper jury argument, standing alone, would be “so outrageous that no
competent attorney would have engaged in it.” See Goodspeed, 187 S.W.3d at 392.
In fact, we have recognized that the failure to object to improper jury argument
may be based on a reasonable trial strategy: to avoid drawing attention to the
prosecutor’s statement. Lopez v. State, 565 S.W.3d 879, 887 (Tex. App.—Houston
[14th Dist.] 2018, pet. ref’d); See Orellana v. State, 489 S.W.3d 537, 550 (Tex.
App.—Houston [14th Dist.] 2016, pet. ref’d).
Appellant has not met her burden to rebut the presumption that counsel’s
actions were motivated by sound trial strategy by not objecting when appellant
claims that counsel should have. See Perez v. State, 56 S.W.3d 727, 731 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d) (explaining that the appellant has the
burden to rebut presumption of sound trial strategy with evidence).
We overrule appellant’s first issue.
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C. Did appellant’s trial counsel render ineffective assistance by commenting
about a Miranda violation, or alternatively for not taking steps earlier?
Appellant’s second complaint is layered with subordinate parts that are
distinguishable enough to demand separate attention. Her primary contention is
that her trial counsel rendered ineffective assistance because of a statement she
made in closing argument about “a lack of Miranda warning in connection with the
defendant’s statement.” She points out that one officer testified that appellant was
read her Miranda warning. Under this complaint, she argues her counsel was
ineffective in the earlier phases of trial because she neither moved to suppress any
statement obtained in violation of Miranda, nor did she request an instruction
under article 38.23 of the Texas Code of Criminal Procedure. Whichever the
complaint, our conclusion is the same.
Appellant does not attempt to identify the statement (or any other evidence)
to which she refers. As the State points out, the trial record reveals that the only
“statement” appellant made to the police in connection with her apprehension and
arrest was her approval to unlock her already seized phone so that the police could
relay to her phone numbers stored in her phone so she could call her family
members while in custody. This statement was elicited from the testifying officer
in cross-examination; he stated that appellant initiated the discussion by requesting
to have her cell phone. The State did not offer this statement or any other
statement from appellant into evidence. From our record, it would appear that no
statement was made by appellant concerning the facts of the offense. It also was
established that password that she provided was not used by the police to access
any other information on her phone at any other time. Appellant’s phone, which
was the source of significant evidence, was not searched until ten days after her
arrest pursuant to a warrant.
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Two officers testified that they believed that appellant was read her Miranda
rights. Neither officer had a record to refer to support their assertion and expressed
that their belief was connected to routine. No evidence was offered to contradict
their statements.
Motion to Suppress
To the extent that appellant argues that her counsel was ineffective for
failing to file a motion to suppress a statement, her argument lacks support in the
record. A person who is questioned by a police officer after she is taken into
custody or otherwise deprived of her freedom of action in any significant way must
first be warned that she has a right to remain silent, that any statement she does
make may be used as evidence against her, and that she has a right to the presence
of an attorney, either retained or appointed. Miranda v. Arizona., 384 U.S. at 436,
444, 86 S.Ct. 1602 (1966). “Statements elicited in noncompliance with this rule
may not be admitted for certain purposes in a criminal trial.” Stansbury v.
California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528 (1994). To prevail on this
complaint, the record on direct appeal must affirmatively prove appellant’s motion
to suppress would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex.
Crim. App. 1998). To meet her burden, appellant was required to produce
evidence that would defeat the presumption of proper police conduct. Id. at 957;
Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).
In the absence of a statement or evidence to suppress, the appellant has not
affirmatively shown by a preponderance of the evidence that any motion to
suppress would have been granted. See id.12
Failure to request article 38.23 Instruction
Likewise, to the extent that appellant complains that her counsel was
ineffective for failing to request an instruction under article 38.23 of the Texas
Code of Criminal Procedure, we conclude such complaint unavailing. A trial court
is required to include an Article 38.23 instruction only if the trial evidence raised a
factual issue concerning whether the evidence was obtained in violation of the
federal constitution or the Texas Constitution or any of its laws. Ramirez v. State,
76 S.W.3d 121, 128 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); Tex. Code
Crim. Pro. Ann. art. 38.23. Because appellant has not shown she was entitled to an
instruction under article 38.23, her trial counsel’s failure to request such an
instruction is not ineffective assistance. Cummings v. State, 401 S.W.3d 127, 132
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Silent Record
Because no motion for new trial was filed, there is no record of appellant’s
trial counsel’s explanation for her comment in closing or her decisions not to
suppress or seek an instruction with respect to any statement. Even if we assume
appellant’s attorney concluded that appellant’s exchange permitting the officer to
open her phone was subject to Miranda, that Miranda warnings were not given,
and that such statements could have been suppressed or that a court would have
suppressed, we cannot conclude that appellant’s trial counsel’s failure to act on
such and seek the exclusion or an instruction with respect to the evidence in
question — with no discernable bearing on her offense or the seizure of her cell
phone data — was “so outrageous that no competent attorney would have engaged
in it.” Goodspeed, 187 S.W.3d at 392. Even if she lacked a statement to suppress
or seek a 38.23 instruction, her counsel may have strategically sought to engulf the
jury in suspicion of police misconduct to distract them from weaknesses in her
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client’s case.
Therefore, we overrule appellant’s second issue.
D. Did appellant’s trial counsel render ineffective assistance for failing to
present mitigating evidence during the punishment phase?
In her third issue, appellant complains that her trial counsel was ineffective
in failing to present any mitigating evidence at the punishment phase. Other than
her general complaint, appellant has not added significant detail in support; she has
neither identified any particular evidence or category of mitigating evidence
available to her counsel that she omitted, nor has she addressed her counsel’s
reasoning behind this decision not to offer any evidence. A hearing on a motion for
new trial would have given the parties and opportunity to present evidence to shed
light on these subjects. However, as set out in previous parts of this opinion,
when the record is silent as to trial counsel’s strategy, we will not conclude the
defendant received ineffective assistance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Goodspeed, 187
S.W.3d at 392; see Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
We cannot reach such a conclusion in this case.
Appellant even notes in her brief that “this issue may be more appropriately
developed through a state writ of habeas corpus” and concedes that under a silent
record “her trial counsel reasonably could have determined that the potential
benefit of additional witnesses was outweighed by the risk of unfavorable counter-
testimony.” This latter point bears particular application to this case because in
addition to the State’s evidence of 10 prior convictions, text messages from
appellant’s phone showed appellant’s criminal ideas and thinking in the three
months since she was last released. These communications illustrated that she
spoke in a derogatory manner to others about the parole system and she actively
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sought out other criminals to establish her criminal enterprise.
When the Court asked appellant’s attorney if she had any witnesses, she
responded, “We attempted to gather a witness, which is actually her brother. We
haven’t heard back from him. So at this time we rest.” Prior to resting, her counsel
demonstrated a willingness elicit mitigating testimony. She elicited testimony that
appellant was non-violent, that she had attempted to get work by means other than
stealing and defrauding others, and she attempted to elicit testimony that appellant
was a mother of four children. On this record, without and further explanation
about her trial counsel’s decision-making, it is not clear what other witnesses and
evidence were available to her trial counsel and her decision-making process with
respect any available evidence, and what other external limitations beyond her
control may have been placed on appellant’s counsel. Jones v. State, 572 S.W.3d
841, 850–51 (Tex. App.—Houston [14th Dist.] 2019, no pet.)(concluding that
shortcomings of a silent record prevented meaningful consideration of first
Strickland prong in failure-to-present-mitigating evidence ineffective assistance
complaint on direct appeal); see also Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.
Crim. App. 1992) (trial counsel not ineffective for not presenting more mitigating
evidence in capital murder trial when on appeal defendant did not specify what
evidence should have been presented).
For the foregoing reasons, we overrule the third issue.
III. CONCLUSION
Appellant’s three ineffective-assistance-of-counsel arguments provide no
basis for appellate relief. Accordingly, we overrule appellant’s complaints and
affirm the trial court’s judgment.
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/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., concurs without
opinion).
Do Not Publish — Tex. R. App. P. 47.2(b).
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