Clyde Lavoy Simms v. State ( 2002 )

                                   NUMBER 13-01-288-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

CLYDE LAVOY SIMMS,                                                         Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                        On appeal from the 377th District Court

                                  of Victoria County, Texas.

                                   O P I N I O N

          Before Chief Justice Valdez and Justices Yañez and Castillo

                                  Opinion by Justice Castillo

Appellant Clyde Lavoy Simms was convicted by a jury of the first degree offense of aggravated assault with a deadly weapon in retaliation against a person who reported the commission of a crime,^[1] found to be a habitual felony offender,^[2] and sentenced to life in prison.  Simms appeals his conviction and sentence, asserting in two issues that the trial court erred by: 1) denying his motion for new trial; and 2) allowing him to be tried with a large number of deputies in the courtroom.  We affirm.

Factual Background

On October 19, 1999, Amanda Simms filed a robbery complaint against appellant with the Victoria Police Department.  She had been married to appellant for approximately three years at the time and had had an affair during the marriage.   Earlier that year, appellant had been released from prison and in June had begun smoking crack cocaine and the marriage suffered.  On September 8,1999, appellant took her against her will up to Austin but she did not file charges against him because she was told she had to do so in Travis County.  Appellant had stayed in Austin but Amanda Simms had returned to Victoria with her daughter who went to pick her up.  Appellant kept his wife=s car in San Antonio.  Some time later^[3] appellant came back to Victoria and took her daughter=s car and on October 18, 1999, the San Antonio Police Department called and told her that the car had been impounded and had been severely wrecked.

Some time prior to this incident, in early October, appellant had overpowered her in her daughter=s car and had asked her for money.  When she told him she had none, he moved as to go into her jeans pocket. She pulled out six dollars and began bargaining with him.  He twisted her hand and took the money and the keys to the car.  Appellant kept calling her collect from out of town and she accepted the calls because he had earlier Apromised@ to kill her and her daughter.  During the calls he asked if she had filed a robbery charge against him and then told her that he had learned that she had.

Appellant was later arrested on the robbery charge.  On November 16, 1999, Amanda Roessler, then a deputy with the Victoria County Sheriff=s Department whose duties included escorting prisoners to and from doctor=s appointments, transported appellant to his doctor=s appointment near Regional Medical Center in Victoria.  She transported appellant without handcuffs or leg irons as he had a cast on his foot and needed free hands to manipulate his crutches.  After they entered the doctor=s office and Roessler noticed the large number of people in the waiting room, she asked the nurse if they could be placed in a room away from the public.  They were taken to a separate room.  Appellant left and returned twice, for an x-ray and to use the restroom.   While waiting in the room for further medical attention, appellant struck Roessler with something and she fell to the ground, striking her head.  She screamed and crawled to the door.  When she looked up, she saw appellant pointing her own gun at her face and demanding the keys to her car.  She gave him her keys and appellant then ran down the hall, without his crutches, in the opposite direction from which they had entered the building.  A medical assistant heard the scream, ran over and saw appellant with the gun, demanding the keys.  When appellant turned around, the medical assistant ran down the hallway and out the door.  Roessler later saw appellant exiting out the back door of the building, away from the parking lot which was in the front of the building.

Adrian Saenz, a lab technician at Victoria Regional Medical Center was carrying lab results from the lab to the emergency room when, through some glass exterior doors, he saw a person in Aorange jail scrubs@ run out of the Professional Building behind the medical center, cutting across the grass, with no deputy around.  After dropping off the lab results, Saenz proceeded toward another door with a window to see if the man was still running when he heard Afirecrackers@ and then, through the window in the door,  saw a glint of orange run by and saw smoke, at which point he realized he had heard gunshots in the clinic area.  Saenz took off running, still hearing gunshots, until he made it to the director=s office where he asked the director to call 911.  After the director and he made the call, they went to the front of the building and learned that the man had left the building, but a woman had been shot. The woman worked in the admitting area of the emergency room. The shooting had been witnessed by another woman, Deborah Branch, who also worked in the medical center.

Ray Alexander, a field security officer for the Texas Department of Corrections,  was in one of the exam rooms of the emergency room at the time accompanying his wife. He was in full uniform except for his gun.  While there, he heard a noise which others described as firecrackers but he disagreed and went to investigate.  In the entrance area of the emergency room he saw a man, whom he identified as appellant, in an orange uniform pointing a pistol down at someone and recognized him as an inmate. Appellant turned and exited the building toward the parking area and Alexander chased after him.  At one point appellant turned and pointed the pistol at the officer and the officer stopped, put up his hands, and gave up the chase, recognizing that he had only heard four or five shots and so appellant might still have ammunition. Appellant got into a sheriff=s department vehicle, put it into reverse, ran  over some bricks or blocks, and then drove by the officer, waving to him.  Alexander ran back inside and made sure law enforcement had been contacted, preserved the crime scene, and checked on the medical treatment of the woman who had been shot.

Milton Hobbs was just leaving a gas station across from the medical center when he saw a sheriff=s car turning so fast that it was almost on two wheels, being driven by a man in an orange suit.  Since this seemed wrong to him, he started following the man who proceeded out to the highway, but by the time he caught up to him, the man had wrecked the car and run it into a ditch, apparently while attempting to make a turn.  Hobbs called 911 on his cell phone and tried to flag down a car.  Appellant flagged down another car and made the man get out at gunpoint and the man headed over to Hobbs=s car.   When appellant took off in the hijacked vehicle, Hobbs followed him but lost him near a grocery store.  Hobbs was describing everything to the 911 operator on his cell phone.

A police officer saw a car matching the description sent out by the dispatcher and then noticed appellant driving the vehicle, wearing an orange jumpsuit.  After chasing him for some time, appellant stopped.   Appellant stuck his hand out the window and dropped the gun onto the ground before he exited the vehicle and dropped to the ground, all in response to another officer=s commands.  He was then taken into custody by deputies from the sheriff=s department. 

On the way back to the sheriff=s department, appellant spontaneously asked, ADid I hurt her?@ The transporting deputy, Robert Ontiveros, told appellant to wait a minute and then administered the Miranda^[4] warnings.  The deputy then told appellant that, as far as he knew, appellant had not done anything to cause harm to the officer (Amanda Roessler) to which appellant responded, AI=m talking about my [expletive] wife. I know I had to have hit her.@  The deputy did not know what appellant was talking about and asked appellant to clarify, to which appellant said, AI busted her in her collard green eating [expletive] four times and I know I had to have hit her.@ Still confused, the deputy asked appellant what he was talking about and appellant told him, AI was a U.S. Marine Corps recon sniper and I could shoot, so I know I had to have hit her in her big, black [expletive].@  The deputy then asked him where that happened and appellant said that she had been working in the emergency room at the hospital and that was where he had gone immediately after taking the gun from Deputy Roessler and that he had fired the shots.  Appellant told Ontiveros that he knew he was going up to the medical center for a doctor to check his leg, and knew that Athat  [expletive] sat there,@ so that when he got the chance, he took the Alady cop=s@ gun from her holster and said, AThis ain=t for you, this is for that [expletive].@ Appellant had explained that he had been arrested in San Antonio for unauthorized use of a motor vehicle and robbery of Amanda Simms and was upset because she had filed a report against him, stating, AIf I=m going to prison, I=m going for something I did, not for a [expletive] lie.@  When the deputy asked appellant why he had hurt his wife, he stated, ABecause she=s a lying [expletive]@ and then explained about San Antonio, declaring, AIt was all a lie.@  Appearing happy and proud of what he had done, appellant boasted to the deputy and told him that he had intended to go back to the home where Amanda and he had lived, Ause the last bullet,@ and leave a note telling her AThis is what you have caused.@  It sounded to the deputy that appellant had the whole scheme planned ahead of time out of revenge because appellant felt his wife had made a false report against him which caused him to be arrested.

Appellant also gave a videotaped confession to another deputy sheriff in which he repeatedly stated that his wife was lying and he had been arrested because of her lie.  He also stated repeatedly that he did not intend to kill her or hurt anyone else and was only trying to hit his wife in the leg and buttocks.  As a result of the shooting, Amanda Simms was rendered a paraplegic with no movement or sensitivity in her lower extremities.^[5]

 The Motion for New Trial/Brady violations

Appellant=s first issue complains of the trial court=s denial of a new trial urged by the defense on the ground that the State, in violation of Brady v. Maryland, 373 U.S. 83 (1963), failed to produce to the defense a dismissed complaint against Amanda Simms for the filing of a false report.^[6]

A prosecutor has the affirmative duty to disclose all material evidence that is favorable to the accused. Brady, 373 U.S. at 87-88. Failure to do so results in a violation of the due process clause of the Fourteenth Amendment.   Id. at 87.  The test that is used in determining whether such a violation has occurred is Awhether the prosecutor: (1) failed to disclose evidence; (2) favorable to the accused; and (3) the evidence is material, meaning there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.@ Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).

We will consider first the last of these requirements.  The complained-of evidence consisted of a complaint charging Amanda Simms with the making of a false report for the theft of a vehicle on October 31, 1999 when in fact she had lent the vehicle to a friend who had not returned it to her.^[7]  The complaint was filed in November of 1999 and dismissed a week later.  Appellant argues that it is material by Avirtue of going to Appellant=s ex-wife=s dastardly motives for getting Appellant into trouble with the law@ and argues that it Acasts material light on Appellant=s motives, state of mind and knowledge and intent.@ 

We are not convinced that the disclosure of this evidence would, in all reasonable probability, have caused the outcome of this cause to be different.  We disagree that such evidence provides any material light on Amanda Simms=s motives^[8] for filing the report against appellant. Nor do we think that it provides any material evidence as to appellant=s actions.  A complaint of which appellant was unaware could not possibly have affected his motives, state of mind, knowledge or intent.  

Appellant also argues that the evidence of the false report would have shown that appellant was correct in his complaint that the robbery accusation was false because it would have demonstrated that Simms had a tendency to lie and file false reports against men.^[9]  Accepting appellant=s arguments, this evidence actually reinforces the State=s case, as it supports appellant=s statements, admitted at trial, that his shooting of Amanda Simms was an intentional act of revenge in retaliation for her lying about him. 

In sum, we do not find that the complained-of evidence was material for Brady purposes.  The jury was well aware that it was appellant=s contention that Amanda Simms had lied about the report against him for robbery and that, because of her making a false report, appellant felt justified in his actions.  There is no question of appellant=s motives, state of mind, knowledge or intent and the evidence is overwhelming that he knowingly and intentionally shot Amanda Simms in retaliation for filing a criminal complaint against him.  As appellant has failed to prove that disclosure of the complained-of evidence to the defense would have caused the outcome of the case to be different, the trial court did not err in failing to grant a new trial based on Brady violations.  We overrule appellant=s first issue.

The Deputies

Appellant=s second complaint is that the trial court erred in allowing him to be tried with a large number of deputies surrounding him during the trial. Appellant cites us to a portion of the record in which defense counsel asks a defense witness about the large number of deputies in close proximity to the defendant^[10]  and argues that the Acloud of deputies@ placed him in an unfair and prejudicial light.  For legal authority, appellant cites Gammage v. State, 630 S.W.2d 309, 320 (Tex. App.BSan Antonio 1982, pet. ref=d)(error for defendant to be handcuffed and shackled at trial unless there were shown to be exceptional circumstances or manifest need) and Hernandez v. Beto, 443 F.2d 634, 636 (5th Cir. 1971)(error for defendant to be tried in jail clothes).

The State responds that the presence of armed guards is not inherently prejudicial and so appellant must show actual prejudice, citing Sterling v. State, 830 S.W.2d 114, 117-18 (Tex. Crim. App. 1992), which, the State argues, appellant has failed to do. The State also argues that appellant did not preserve error.               We agree with the State=s latter contention and find that appellant has not preserved error, if any, in the trial court=s action.  Appellant has not pointed out anywhere in the record where he made any objection to the presence of the deputies, however many there were, nor have we found any such objection, either at the  guilt/innocence or the punishment phase.  We find, therefore, that appellant  has not preserved this issue for our review.  Tex. R. App. P. 33.1(a).        

Furthermore, unlike the shackling and handcuffing of a defendant at trial in Gammage, or the trying of a defendant in prison garb in Hernandez,^[11] the presence of armed guards during a trial is not inherently prejudicial and thus a defendant who wishes to assert error in the trial court must demonstrate actual prejudice.  Holbrook v. Flynn, 475 U.S. 560, 569 (1986); Sterling, 830 S.W.2d at 118.   In the present case, even if the issue had been preserved, appellant has failed to demonstrate any actual prejudice, or any lack of due process, arising from the presence of law enforcement officers at the trial and so has not demonstrated any error.  Sterling, 830 S.W.2d at 118.  Appellant=s second issue is overruled.

Conclusion

          Having overruled both of appellant=s issues, we affirm the judgment of

conviction.                                                           

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 8th day of August, 2002.

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^[1] Tex. Pen. Code Ann. '' 22.02(a)(2),(b)(3)(Vernon1994).

^[2] Tex. Pen. Code Ann. ' 12.42(d)(Vernon Supp. 2002).

^[3] Amanda Simms testified that this occurred sometime in early September of 1999, although this was inconsistent with later testimony given.

^[4] Miranda v. Arizona, 384 U.S. 436 (1966). 

^[5] The defense presented no witnesses or evidence at the guilt/innocence phase.

^[6] Appellant also submits, under the argument in his first issue, in a single sentence and without citing any authority, that the withholding of the documents complained of Aviolated his due process rights pursuant to Appellant=s motives, state of mind and knowledge and intent, all key elements in Appellant=s trial defense.@  We do not find this to adequately raise an issue, distinct from that already raised in the Brady claim, which we can review and so do not address it as a separate issue. See Tex. R. App. P. 38.1(h)(brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).

We also do not find another argument mentioned in this issue relating to the effective assistance of counsel to be raised as a claim separate from the Brady claim. Appellant cites no case law, not even case law setting out the standard for reviewing ineffective assistance of counsel, nor does he cite to any portion of the record. He merely complains about the State=s alleged violation of Brady which he argues Aprohibited@ his counsel from effectively assisting him, as counsel did not have an opportunity to evaluate, assimilate or use the evidence.  He does not, however, raise any complaint about any specific action or inaction on the part of his counsel which he claims was ineffective.  We take this passing reference then to be part of appellant=s argument that the State=s alleged violation harmed him, rather than a separate claim for ineffective assistance of counsel.  Tex. R. App. P. 38.1(h).

^[7] According to the attached statement of Amanda Simms, she had rented a vehicle for a friend to take his mother to Houston. He was supposed to return the vehicle to her the next day and she was going to drive it the rest of the week. When he did not return it to her, she went looking for him and when she ultimately found him, and demanded the car, he told her he did not know where the car was and suggested that she report it stolen, which she did, Abecause [she] was scared@ that she might get into trouble if it was in fact stolen. Later, the friend told her that he had wrecked the car and told her where it was.  After she located it, she called 911 and reported that she had found the car.

^[8]  This is assuming, for the sake of argument, that such motives would even be relevant at all.

^[9] We note that at trial, despite the defense strategy of showing that appellant was upset, not thinking straight, and felt Ajustified@ in shooting Amanda Simms because Ashe lied on him,@ defense counsel made no attempt during the cross-examination of Amanda Simms to challenge the veracity of the robbery complaint,  or the credibility of the witness herself, other than to ask if the six dollars taken wasn=t actually community property and to ask how many times she had been to prison.  On appeal, appellant does not argue that the evidence could have been used to challenge her general credibility as a witness but instead argues that it could have been used to show her @motive@ for filing a false report against him and to show his motives, state of mind, knowledge and intent in shooting her.

^[10] The reference occurred during the punishment hearing in the direct examination of a Victoria County Deputy Sheriff called by the defense to testify that appellant was not a discipline problem in the jail.  The relevant portion of the exchange is as follows:

Defense Counsel:   I notice we have a lot of people here from the Sheriff=s Department and we=ve had them throughout the trial?

Witness:                 Yes, sir.

Defense Counsel:   So, for some reason, there=s been a large number of deputies within three feet of him all the time.

Witness:                 Yes, sir.

Defense Counsel:   And yet, this is a person that hasn=t done anything except for the underlying charge, by escaping from one of the Sheriff=s deputies?

Witness:                                 Right.  In the - - Right.  In his case, his actual charge, we take extra precautions at times.

^[11] However, a defendant must object to being tried in prison or jail garb below before he can claim error on appeal.  Estelle v. Williams, 425 U.S. 501, 512-13 (1976); Mitchell v. State, 989 S.W.2d 747, 749 (Tex. Crim. App. 1999).