DONNA BAGGERLY-DUPHORNE, APPELLANT THE STATE OF TEXAS, APPELLEE STATE S BRIEF

Transcription

1 NO CR The State Waives Oral Argument 5th Court of Appeals FILED: 02/21/ :00 Lisa Matz, Clerk IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS DONNA BAGGERLY-DUPHORNE, APPELLANT v. THE STATE OF TEXAS, APPELLEE On appeal from the 204th Judicial District Court of Dallas County in Cause Number F Q STATE S BRIEF Counsel of Record: CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) (214) fax

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... ii-iii STATEMENT OF THE CASE... 1 STATEMENT OF FACTS SUMMARY OF ARGUMENT... 2 ARGUMENT THE RECORD FAILS TO SHOW THAT DUPHORNE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL UNDER STRICKLAND V. WASHINGTON RESPONSE TO SOLE ISSUE: PRAYER CERTIFICATE OF SERVICE i

3 INDEX OF AUTHORITIES Cases Arizona v. Gant, 556 U.S. 332 (2009)... 3, 6, 11 Burgett v. State, 646 S.W.2d 615 (Tex. App. Fort Worth 1983, pet. ref d)... 8 Carrasco v. State, 712 S.W.2d 120 (Tex. Crim. App. 1986)... 7 Contreras v. State, 312 S.W.3d 566 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 427 (2010)... 8, 9 Crunk v. State, 934 S.W.2d 788 (Tex. App. Houston [14th Dist.] 1996, pet. ref d)... 9 Daves v. State, 327 S.W.3d 289 (Tex. App. Eastland 2010, no pet.)... 6 Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011)... 6 Garcia v. State, 2011 Tex. App. LEXIS 8785 (Tex. App. Dallas Nov. 3, 2011, no pet.) (not designated for publication)... 5 Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005)... 9 Hill v. State, 303 S.W.3d 863 (Tex. App. Fort Worth 2009, pet. ref d)... 6 Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)... 7 Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011)... 9 Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007)... 8 Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011)... 6 Moskey v. State, 333 S.W.3d 696 (Tex. App. Houston [1st Dist.] 2010, no pet.)... 5 New York v. Belton, 453 U.S. 454 (1981)... 3n, 11 Owens v. Commonwealth, 291 S.W.3d 704 (Ky. 2009)... 5, 6 Palacios v. State, 319 S.W.3d 68 (Tex. App. San Antonio 2010, pet. ref d)... 5 ii

4 Valadez v. State, 2010 Tex. App. LEXIS 5034 (Tex. App. Dallas July 2, 2010, pet. dism d, untimely filed)... 6 Statutes and Rules Tex. Code Crim. Proc. art , 8 Tex. R. App. P. 38.1(i)... 9 iii

5 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in response to the brief of appellant, Donna Baggerly-Duphorne. STATEMENT OF THE CASE Despite her plea of not guilty, Appellant (hereinafter Duphorne ) was found guilty by a jury of possessing less than one gram of methamphetamine, a penalty group 1 controlled substance. The court, without hearing any additional evidence pertinent to the appropriate punishment, then assessed Duphorne s punishment at two years confinement in a state jail. 1 The court, however, ordered imposition of the sentence was to be suspended and that Duphorne be placed on community supervision for a period of five years. Duphorne s motion for new trial was overruled by operation of law. The community supervision has been postponed by this appeal. STATEMENT OF FACTS About 3:00 a.m. on August 20, 2009, after running a computer check on the license plate number displayed on a vehicle being driven on a public street by Duphorne, Officer Trent Allen of the Grand Prairie Police signaled Duphorne to stop. The computer showed outstanding arrest warrants that were associated with the driver of the vehicle. (RR6: 22-25). Duphorne was identified by Allen as the wanted person and she was arrested (for earlier traffic offenses). (RR6: 26-27). 1 The trial judge had previously heard evidence that Duphorne was under the terms of community supervision in Tarrant County for burglary at the time of the offense. (RR2: 6). 1

6 During the stop, the officers also located a syringe that contained a clear substance in the purse that Duphorne was carrying over her body. (RR6: 28-29, 48-49, 57, 61). Allen seized the substance and later it was submitted for chemical analysis, which reflected the presence of methamphetamine. (RR6: 44, 92-93, 108). Duphorne was thereafter arrested for possession of the methamphetamine. As her defense, at trial Duphorne denied knowledge of any syringe being in her purse and implied the officers were lying about finding the controlled substance therein. (RR6: , ). SUMMARY OF ARGUMENT The evidence about what was found in Duphorne s purse was not obtained through an unreasonable search by the officer. It was reasonable for the officer to search Duphorne s purse incident to taking her into custody based on the arrest warrants. The search of Duphorne s vehicle was also reasonable, based on exceptions to the warrant clause. Even if the jury should have been given an opportunity to resolve the witnesses conflicting reports about where the purse was located immediately before it was searched, this error in the jury charge clearly did not have any effect upon the ultimate decision reached by the jury. 2

7 ARGUMENT THE FACTUAL BASIS FOR DUPHORNE S ATTACK UPON THE COMPETENCE OF HER TRIAL ATTORNEY IS NOT FIRMLY FOUND IN THE RECORD, NOR IS ANY PREJUDICE ESTABLISHED BY THE ABSENCE IN THE JURY CHARGE OF AN INSTRUCTION ABOUT THE LEGALITY OF THE SEARCH OF DUPHORNE S PURSE. The sole issue raised by this appeal is whether Duphorne s right under the Sixth Amendment to reasonably effective assistance from her trial attorney was denied. She first asserts her attorney, Mr. Abe Factor, should have more vigorously or competently opposed the admission of the testimony of the police officers (who had stopped her) about their discovery of a syringe containing a liquid that itself contained methamphetamine in her purse. Duphorne argues that the record shows her trial counsel rendered ineffective assistance because he should have sought in a better way to have the evidence about the controlled substance in her purse suppressed under Arizona v. Gant. 2 Duphorne s apparent rationale is that the purse was actually removed by an officer from Duphorne s vehicle without probable cause after she had been moved away from the vehicle and not as part of an inventory of the vehicle contents. Officer Allen, however, said he took the purse directly from Duphorne when she was already outside her vehicle. (RR6: 27, 49). He said he handed the purse to Officer Steppe, who apparently looked in it while Allen completed a modified pat-down search of Duphorne and placed her in his patrol vehicle. (RR6: 27-28, 41-42). Allen said he 2 In Gant, the Supreme Court of the United States had restricted the license many courts had understood to be granted, under New York v. Belton, 453 U.S. 454, 460 (1981), to police officers to search the interior of vehicle (for safety reasons) that had been recently occupied by arrestees. 3

8 then re-took possession of the purse and looked inside to discover a single syringe that contained a liquid. (RR6: 28-29, 104). Allen decided to test the liquid once Duphorne explained that her husband used methamphetamine. (RR6: 31). Though not entirely clear, Duphorne s present claim of an illegal search seems to derive from her testimony that it was Officer Steppe who searched her purse, and that he did so after he had retrieved it from her vehicle after she had been moved a considerable distance away. But, this testimony was not brought before the trial judge at the time the State offered its evidence and, in fact, was never relied upon as a basis for questioning the legality of the search. Thus, it is impossible to know how the court might have ruled on such objection, except as can be implied from the ruling it made upon Duphorne s request for an instruction to the jury about the possible illegality of the search. Because that request was denied by the court, the trial judge must have found Duphorne s testimony not to be credible and accordingly would have overruled an objection premised thereon. Duphorne now desires to characterize the search of her vehicle as one merely incident to her arrest on the outstanding warrants related to earlier alleged traffic offenses, which by their nature would provide no legal justification for a search of the vehicle. But, it seems plain that the trial court would not have accepted that argument. Rather, the court would have based its ruling upon the evidence it found to be credible, namely: that the search (1) was made pursuant to an inventory policy of the Grand Prairie 4

9 Police Department in connection with the officer s decision that Duphorne s vehicle would have to be impounded or seized as a necessary incident of her arrest 3, and (2) after discovery of the loaded syringe in Duphorne s purse. (RR6: 57, 64-65). Such inventory searches of impounded vehicles have repeatedly been found reasonable, not unreasonable, under the Fourth Amendment. Nothing in the Gant decision changed this. Moskey v. State, 333 S.W.3d 696, 702 (Tex. App. Houston [1st Dist.] 2010, no pet.); Palacios v. State, 319 S.W.3d 68, 74 (Tex. App. San Antonio 2010, pet. ref d); Garcia v. State, No CR, 2011 Tex. App. LEXIS 8785, at *10-11 (Tex. App. Dallas Nov. 3, 2011, no pet.) (not designated for publication). Furthermore, once the officer discovered what appeared to be an un-prescribed controlled substance in Duphorne s purse (in a syringe), the officer had developed probable cause to believe that the vehicle might contain additional evidence of the offense of illegal possession of drugs (for which Duphorne was then subject to arrest in addition to the traffic warrants). E.g., Owens v. Commonwealth, 291 S.W.3d 704 (Ky. 2009). As the Owens court explained: Although [the driver] was initially stopped and arrested because of his suspended driver s license, the search of [the driver] incident to that arrest revealed the presence of a suspected crack pipe. His possession of the suspected crack pipe gave rise to another reason for [the driver] to be arrested. It was then reasonable for the arresting officer to believe that the vehicle... contained evidence of the offense of the de facto second offense 3 While there was no direct evidence of the policy or need for its implementation, such was inferable from the evidence. 5

10 giving rise to the arrest (i.e., possession or trafficking in drugs). The search of the vehicle, therefore, was permissible, both before and after Gant. Owens, 291 S.W.3d at 708. Hence, independent of the need for an inventory of the contents of Duphorne s vehicle, the evidence showed a good reason for the officer to search it. Arizona v. Gant, 556 U.S. 332, (2009) ( the offense of arrest [can] supply a basis for searching the passenger compartment of an arrestee s vehicle and any containers therein ); Daves v. State, 327 S.W.3d 289, 293 (Tex. App. Eastland 2010, no pet.); Valadez v. State, No CR, 2010 Tex. App. LEXIS 5034, at *5 (Tex. App. Dallas July 2, 2010, pet. dism d, untimely filed). It was immaterial how far away Duphorne was from the vehicle when it was searched. Hill v. State, 303 S.W.3d 863, (Tex. App. Fort Worth 2009, pet. ref d); see also Meekins v. State, 340 S.W.3d 454, 467 (Tex. Crim. App. 2011) (Johnson, J., concurring) (had marijuana been discovered before the search of the car and the officer had then arrested the defendant on either the warrants or possession of marijuana, he would then have had probable cause to search the car pursuant to the automobile exception ). Because there was evidence upon which the court could find the officer did not violate the Fourth Amendment in searching the vehicle, Duphorne s claim of ineffective assistance in this respect fails. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (concerning failure to object to admission of evidence). To succeed on a 6

11 claim of ineffective assistance with respect to a missed challenge to admissibility of evidence, the defendant must show an objection to the evidence would have succeeded at the trial. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Exactly the opposite appears here because Duphorne s counsel specifically agreed that there was no evidence suggesting the search of the vehicle could not be conducted as part of an inventory procedure. (RR6: 139). The trial judge could further have determined primary evidence of Duphorne s guilt was found in Duphorne s purse before any search of the vehicle. 4 (RR6: 32). The officer testified that Duphorne was attempting to bring the purse along with her (on her shoulder) at the time he determined to take her into custody. (RR6: 27-28). This justified his search of the purse and the admissibility of its fruits. Carrasco v. State, 712 S.W.2d 120, 123 (Tex. Crim. App. 1986). Duphorne also levels an attack on her trial counsel for his failure to get an article instruction included in the jury charge. That provision of the Code of Criminal Procedure states: In any case where the legal evidence raises an issue [about whether evidence was illegally obtained], the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. 4 Indeed, it appears that the contents of the syringe found in the purse was the only controlled substance that the State sought to say Duphorne possessed. See CR: 7; RR6: 36.. This fact, alone, makes any question about the search of the vehicle largely immaterial. Although evidence about a backpack and its contents (found during the inventory search) was offered, it had limited relevance and was unlikely to have any influence on the outcome of the case. (RR6: 34-36). 7

12 The trial judge should probably have instructed the jury about the significance, if any, of Duphorne s testimony about how or when in the sequence of events her vehicle and purse came to be searched and by whom. Duphorne is wrong, however, to claim her attorney failed to request such an instruction, because he did. (RR6: 136). No instruction was submitted solely because the trial judge disagreed that there was any evidence that the drug evidence had been obtained by the police except by reasonable means. This Court is not called upon to decide whether Judge Levario was right or wrong in her conclusion. No error is assigned in that regard. Yet, that is the only possible error reflected in the record. Duphorne s trial attorney did exactly what she asserts was not done, so her complaint makes no sense. Moreover, it must be kept in mind that a trial judge has a duty to submit, sua sponte, an article instruction that is raised by the evidence. Contreras v. State, 312 S.W.3d 566, 575 (Tex. Crim. App. 2010), cert. denied, 131 S.Ct. 427 (2010). Thus, nothing more was required of Duphorne s trial counsel to motivate the trial judge or hold her accountable on appeal. Because of the way the issue was presented to the trial judge, it appears she was correct in declining to submit an instruction under article Burgett v. State, 646 S.W.2d 615, 619 (Tex. App. Fort Worth 1983, pet. ref d) (no evidence except that officer conducted search pursuant to government inventory policy; admissibility of evidence could therefore be decided as a matter of law). See also Madden v. State, 242 S.W.3d 504, (Tex. Crim. App. 2007) (instruction not required except where there 8

13 is a material factual dispute as to how the evidence was obtained); Crunk v. State, 934 S.W.2d 788, 794 (Tex. App. Houston [14th Dist.] 1996, pet. ref d) (alternative basis for admission overrode need for instruction). The Court may still be tempted to ask whether Mr. Factor s failure to urge that his client had raised a material question of fact in her testimony (by placing the purse in her vehicle, rather than on her shoulder, at the critical time) means he fell below an objective standard of reasonableness. It is noted, however, that the Court of Criminal Appeals has imposed a specific obligation on appellate counsel when this type of error is asserted and that Mr. Kaye may not have done what is required. It is at least incumbent upon an appellant to explain to the appellate court what instruction he desired. Only then can the appellate court be expected to intelligently assess whether such an instruction was required, and if so, whether the defendant suffered harm, and if the instruction was not requested at trial, whether he was egregiously harmed. Contreras, 312 S.W.3d at 575; see also Tex. R. App. P. 38.1(i) ( The brief must contain a clear and concise argument for the contentions made.... ). Even if the Court were to undertake to answer the posed question, it will find that the record is silent concerning Mr. Factor s reasoning. Therefore, because Duphorne s claim is not firmly found in the record, it must be rejected. Lopez v. State, 343 S.W.3d 137, (Tex. Crim. App. 2011). Clearly, the record does not show the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 9

14 But, even without an explanation from Mr. Factor, it is clear that if the jury had believed Duphorne s denial that the police could have found a syringe loaded with methamphetamine in her purse (regardless of its location), then she would have had no need for an instruction about an illegal search. Duphorne s testimony negates any harm arising from the omission of the requested instruction. Had the jury found this part of her testimony credible, then they would have found reason to doubt all of the conclusions or inferences argued for by the prosecutor (and particularly that Duphorne knowingly exercised control over the methamphetamine). The record instead shows the jury rejected this testimony by Duphorne. Hence, there is no reason to suspect they would have doubted the officers testimony about how the methamphetamine was discovered (namely, through a reasonable search of the purse in accord with Carrasco). Had the court given the statutory instruction, no change in the outcome would be expected. Duphorne fails to meet the requirement of the second prong of Strickland, which denies any relief unless the result of the trial probably would have been different but for the attorney s defective performance. Conclusion The record fails to dispel the strong presumption that Duphorne s counsel acted reasonably, or followed a reasonable strategy, in how he represented her. In any event, the questions raised about his performance do not show how Duphorne was actually harmed or prejudiced. The outcome of the case was never destined to be influenced by 10

15 the clarification of New York v. Belton made in Gant because the only credible evidence showed the searches conducted by the police here were unlike the vehicle search involved in Gant. Any error in the jury charge was not attributable to Duphorne s counsel. PRAYER The State prays that the Court will deny the relief requested by Duphorne and affirm the judgment of the trial court. Respectfully submitted, CRAIG WATKINS MARTIN L. PETERSON CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO FRANK CROWLEY COURTS BLDG. 133 N. RIVERFRONT BLVD., LB-19 DALLAS, TEXAS (214) (214) fax CERTIFICATE OF SERVICE I certify that a true copy of the foregoing State s brief has been served by mail upon Mr. Bruce C. Kaye, Attorney for Appellant, at 2309 Boll St., Dallas, Texas and by to bruce@brucekaye.com on February 21, Martin L. Peterson 11