Dernarvice C. Mitchell v. State ( 2009 )

Affirmed and Memorandum Opinion filed August 20, 2009.

In The

Fourteenth Court of Appeals

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NOS. 14-08-00557-CR & 14-08-00558-CR

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DERNARVICE C. MITCHELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 1156526 & 1157494

M E M O R A N D U M   O P I N I O N

A jury convicted appellant Dernarvice C. Mitchell of assault on a public servant and possession of more than four grams and less than two hundred grams of cocaine.  The trial court sentenced him to concurrent thirty‑five year prison terms for each offense.  In three issues, appellant contends that the trial court erred in denying his motion to suppress and request for a jury instruction under article 38.23 of the Texas Code of Criminal Procedure and that he received ineffective assistance of counsel.  We affirm.

I.  Background

Late one night in December 2006, Officer Jeffrey Oliver and several other officers were patrolling a high‑crime area when they noticed a man suspiciously looking into vehicles.  When they approached him to investigate, the man fled through the parking lot, eventually evading the pursuing officers.

Less than one minute later, the officers saw a car coming from the same direction from which the man had fled. According to the officers, the car=s headlights were off.  Officer Oliver testified that he wanted to stop the car to dispel his suspicion that the driver was the suspect attempting to flee.  He stated that he tried to flag the car down with his flashlight from approximately thirty feet away but was unable to do so.  When the car did not stop, Officer Oliver radioed Sergeant L.E. Thomas, who was in a patrol car, for assistance.  After Sergeant Thomas stopped the car, Officer Oliver approached its front driver=s side window with his gun drawn.  Officer Oliver testified that he looked at the driver (appellant) and realized he was not the suspect, but then looked down and saw what he believed was a crack cocaine Acookie@ on the car=s front passenger‑side floorboard.  Sergeant Thomas testified that he peered into the passenger side of the vehicle with a flashlight at that time and also saw what he believed was a crack cocaine Acookie@ on the floorboard.  Officer Oliver told appellant to exit the vehicle at that point. According to Officer Oliver=s testimony, appellant stepped from the car, punched him in the face, and attempted to flee but was taken into custody by the other officers.

Appellant=s testimony differed from the officers=.  He stated that when he got into the car that night he did not see anything in it like the Acookie@ that both officers claimed to have observed.  He further stated that the car=s headlights were on as he drove through the parking lot, and he did not see any officers trying to stop him until the patrol car pulled him over.  Appellant testified that the officer in the patrol car never got out, nor was anyone standing on the passenger side of the car shining a light in during the stop.  He claimed that Officer Oliver approached the driver=s side window from behind and ordered appellant out of the car at gunpoint.  According to appellant, Officer Oliver could not see the car=s front passenger floorboard from where he was standing when he ordered appellant out of the car.  After appellant got out, Officer Oliver walked him to the back of the car at gunpoint and told him to put his hands on the car.  Appellant claimed that Officer Oliver asked if appellant knew someone named ADeeDee@ and then struck him in the face with a pistol.  Appellant attempted to run back to his apartment out of fear but was apprehended by the other officers.

The officers seized the Acookie@ along with other controlled substances found in an inventory search of the car after appellant was arrested. The trial court denied appellant=s motion to suppress the narcotics and overruled his objection to the lack of an article 38.23 instruction in the jury charge.  The jury convicted appellant of possession of cocaine and assault on a public servant.  This appeal followed.

II.  Motion to Suppress

In his first issue, appellant contends that the trial court abused its discretion in denying his motion to suppress the drugs found in the car.  To preserve this complaint for review, the record must show that appellant made a timely and specific request, objection, or motion and obtained a ruling from the trial court.  See Tex. R. App. P. 33.1(a); Garza v. State, 126 S.W.3d 79, 84B85 (Tex. Crim. App. 2004).  Generally, an overruled pretrial motion to suppress will preserve error as to the challenged evidence.  Garza, 126 S.W.3d at 84; Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986).  To preserve error without a pretrial hearing or ruling on the motion, the defendant must object or urge the motion as soon as the challenged evidence or testimony relating to it is offered.  See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980) (panel op.). We will excuse non‑compliance with this rule only where the trial judge states before trial that a ruling will be withheld until the jury hears the evidence and thereby clarifies that any attempt to object or obtain a ruling at the earliest opportunity would be futile.  See Garza, 126 S.W.3d at 84B85.

Here, the record does not contain a written motion to suppress the drugs.  By the time such a motion was mentioned in the record, the jury had already heard the following unobjected‑to testimony:  Officer Oliver and Sergeant Thomas saw what they believed, based on their training and experience, to be a crack cocaine Acookie@ on the floorboard prior to ordering appellant out of the car; a search incident to arrest uncovered what appeared to be more crack rocks; two other officers saw what they believed was a crack cocaine Acookie@ on the floorboard after appellant was in custody; and Officer Oliver identified the State=s pre‑marked exhibits as the seized drugs and testified regarding their weight.  The trial judge made no pretrial comments suggesting that the objection requirement was excused.  Cf. id.  Therefore, appellant waived this complaint by not objecting or urging his motion to suppress when the State offered the above testimony.  See id.; Marini, 593 S.W.2d at 714; Turner v. State, 642 S.W.2d 216, 217 (Tex. App.CHouston [14th Dist.] 1982, no pet.).

Moreover, even if we assume that appellant preserved this complaint, we conclude that it is without merit.  We review the denial of a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court=s findings of historical fact supported by the record and reviewing de novo the trial court=s application of search and seizure law.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  Here, the trial court did not make explicit fact findings, so we review the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit fact findings supporting its ruling as long as such findings are supported by the record.  Carmouche, 10 S.W.3d at 327B28.  As the sole arbiter of credibility at a suppression hearing, the trial court may choose to believe or disbelieve all or any part of a witness=s testimony.  See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

We examine the reasonableness of a temporary detention in light of the totality of the circumstances, including the detaining officer=s knowledge and experience.  Woods v. State, 956 S.W.2d 33, 37B38 (Tex. Crim. App. 1997).  Viewed through that lens, a temporary detention is justified when specific articulable facts and reasonable inferences therefrom lead the detaining officer to reasonably suspect that the prospective detainee actually is, has been, or soon will be engaged in criminal activity.  Id. at 38.  Under the circumstances, Officer Oliver could have reasonably suspected that the fleeing suspect who had been looking into vehicles was preparing to burglarize a car and that appellant was the fleeing suspect given that the car he was driving came from that direction. His temporary detention of appellant to address that suspicion was therefore justified.  See id.  As a result, Sergeant Thomas=s stop of appellant pursuant to Officer Oliver=s request was also justified.  See Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987) (stating that cumulative information known to cooperating officers at time of stop must be considered in determining whether reasonable suspicion justified stop); see also State v. Jennings, 958 S.W.2d 930, 933 (Tex. App.CAmarillo 1997, no pet.) (stating that for purposes of determining whether probable cause existed, operative circumstances include those known to officer making stop and those collectively known by officers cooperating together at time of detention).

The detention based on that suspicion had to be temporary, last no longer than reasonably necessary to determine whether appellant was the fleeing suspect, and involve the least intrusive means necessary to quickly verify or dispel the officer=s suspicion.  See Davis v. State, 947 S.W.2d 240, 243B45 (Tex. Crim. App. 1997).  Though Officer Oliver dispelled his initial suspicion when he looked at appellant and realized he was not the suspect, he testified that he looked down at that moment and saw the Acookie@ on the passenger floorboard.  Thus, at that point, he and Sergeant Thomas had probable cause to arrest appellant and seize the drugs.  See Walter v. State, 28 S.W.3d 538, 544 (Tex. Crim. App. 2000); Hillsman v. State, 999 S.W.2d 157, 161B62 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  Accordingly, even if appellant had preserved his first issue for review, the trial court did not err in overruling his motion to suppress.  We overrule appellant=s first issue.

III. Request for an Article 38.23 Instruction

In his second issue, appellant asserts that the trial court erred by refusing to instruct the jury under article 38.23 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).  We interpret appellant=s specific contention to be that the trial court should have instructed the jury to resolve factual disputes in the evidence regarding the legality of his detention and then disregard the drugs seized as a result of that detention if the jury resolved those disputes in appellant=s favor.  A defendant must meet three requirements to trigger an article 38.23 instruction (1) the evidence heard by the jury must raise an issue of fact, (2) the evidence on that fact must be affirmatively contested, and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.  Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). If these requirements are met, a material fact issue is raised and the trial court must include an article 38.23 instruction in the charge.  See id.; see also Oursbourn v. State, 259 S.W.3d 159, 181 n.85 (Tex. Crim. App. 2008).  The only question is whether the evidence raises an issue requiring the instruction.  Madden, 242 S.W.3d at 510.  When no genuine dispute about a material fact is raised by the evidence, the trial court determines the challenged conduct=s legality as a matter of law.  Id.  And if other undisputed facts are sufficient to support the challenged conduct=s lawfulness, then no jury instruction is required on the factual dispute because it is immaterial to the ultimate admissibility of the evidence.  Id.  Error preservation is relevant in this context only in determining the applicable harm standard if we first determine that the trial court erred.  See Oursbourn v. State, 259 S.W.3d at 181 n.85; Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005).

In this case, Officer Oliver admittedly stopped appellant for the sole reason of determining if appellant was the fleeing suspect.  Although Officer Oliver dispelled his suspicion the moment he arrived at the driver=s window and looked at appellant, as we discussed above, his contemporaneous observation of cocaine on the floorboard provided probable cause to arrest appellant.  See Davis, 947 S.W.2d at 243B45; see also Walter, 28 S.W.3d at 544; Hillsman, 999 S.W.2d at 161B62.  However, appellant raised a factual dispute as to that justification through his testimony that Officer Oliver could not see the floorboard from where he was standing when he ordered appellant out of the car.  Though Sergeant Thomas also testified to seeing the Acookie@ on the floorboard at that time, appellant raised a fact issue as to that evidence as well by asserting that Sergeant Thomas never left the patrol car, and that no one was standing on the passenger side of the vehicle.  There are no undisputed facts that otherwise render the above factual disputes immaterial to the admissibility of the challenged evidence.  Cf. Madden, 242 S.W.3d at 516B17.  We therefore hold that the trial court erred by not instructing the jury under article 38.23 to disregard the evidence if it resolved those factual disputes in appellant=s favor.

Having determined that the trial court erred by not including an article 38.23 instruction in the jury charge, we must now determine whether that error caused appellant harm.  Though appellant never presented a proposed jury instruction, he preserved error by (1) requesting an article 38.23 instruction regarding whether Officer Oliver was in a position to see the passenger side floorboard when he realized appellant was not the suspect, and (2) objecting at the charge conference to the trial court=s refusal to include an article 38.23 instruction in the charge.  See Oursbourn, 259 S.W.3d at 174 (stating that the defendant must present a proposed jury instruction or object to the lack of one to preserve error); Madden, 242 S.W.3d  at 511 (stating that the defendant must request an instruction on a specific historical fact or facts).  Therefore, reversal is mandated if Asome harm@ resulted from the trial court=s error.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).  To determine whether some harm resulted from the trial court=s error, the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information revealed by the trial record as a whole.  Id.; see also Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996).  However, appellant is entitled to reversal only if he suffered some actual, rather than merely theoretical, harm from the error.  Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Hill v. State, 265 S.W.3d 539, 543 (Tex. App.CHouston [1st Dist.] 2008, pet. ref=d).

In addition to possession of a controlled substance, the jury also convicted appellant of assault on a public servant. The jury was instructed to convict appellant of that offense if it found beyond a reasonable doubt that, inter alia, appellant hit Officer Oliver while he was Alawfully discharging an official duty, to wit: detaining the defendant for possession of a controlled substance.@  In other words, the jury was instructed that to convict appellant of assault on a public servant, it had to find beyond a reasonable doubt that Officer Oliver was lawfully detaining appellant for possession of a controlled substance at the time of the assault.  Cf. Hoitt v. State, 28 S.W.3d 162, 167B68 (Tex. App.CTexarkana 2000, pet. dism=d as improvidently granted) (analyzing whether jury could have properly found appellant=s arrest lawful in assault on a public servant prosecution involving a similar jury charge to the one presented here).  We must assume that the jury followed the instructions as set forth in the jury charge.  See Miles v. State, 204 S.W.3d 822, 827B28 (Tex. Crim. App. 2006).  Therefore, the jury=s conviction of appellant for assault shows that the jurors must have believed that Officer Oliver saw the Acookie@ on the passenger side floorboard, given his testimony that he then ordered appellant out of the car, stated that appellant was under arrest for cocaine possession, and was promptly hit in the face.  Cf. Porter v. State, 255 S.W.3d 234, 241B43 (Tex. App.CWaco 2008, pet. ref=d) (holding that error in denying article 38.23 instruction did not cause defendant Asome harm@ where the jury=s conviction of appellant for evading arrest or detention showed that the jury necessarily found the defendant=s arrest or detention lawful); Wilkerson v. State, 933 S.W.2d 276, 281 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d) (holding that where the jury must have rejected the defendant=s testimony to convict him the erroneous omission of an article 38.23 charge regarding a factual dispute raised by that testimony did not cause Asome actual harm,@ and stating that there was no reason to believe that the mere presence of an article 38.23 charge would have caused the jury to give more credence to the defendant=s testimony).  Thus, our review of the jury charge as a whole suggests that any harm resulting from the trial court=s error was merely theoretical, rather than actual.^[1] See Porter, 255 S.W.3d at 241B43; Wilkerson, 933 S.W.2d at 281.

Next, we review the state of the evidence, including the contested issues and weight of the probative evidence, for any actual harm.  See Almanza, 686 S.W.2d at 171.  The contested issues in this case were whether the officers could see the passenger side floorboard when Officer Oliver ordered appellant out of the car, whether appellant had the intent required to be guilty of cocaine possession, and whether appellant struck Officer Oliver.

Appellant=s account conflicted with the accounts of Officer Oliver and Sergeant Thomas as to whether a crack cocaine Acookie@ was visible on the car=s floorboard when Officer Oliver approached appellant=s car.  Regarding appellant=s intent, appellant repeatedly testified that he did not see anything like the crack cocaine Acookie@ on the floorboard when he got into the car that evening.  He also asserted that he never hit Officer Oliver, but that Officer Oliver had actually struck him.  Although the parties contested Officer Oliver=s ability to see the passenger side floorboard, it does not follow that the lack of an article 38.23 instruction on that issue actually harmed appellant in this case because the jury=s guilty verdict on the assault offense rendered any harm resulting from the charge error merely theoretical, as discussed above.  See Porter, 255 S.W.3d at 241B43; Wilkerson, 933 S.W.2d at 281.

Third, we must review counsel=s arguments.  See Almanza, 686 S.W.2d at 171.  In closing arguments, appellant=s trial counsel emphasized Officer Oliver=s admission that appellant was not the suspect initially pursued by the officers.  Defense counsel also attacked the credibility of the officer‑witnesses; pointed out the factual disputes on where Officer Oliver was standing and whether he could see the passenger side floorboard from that position; and then asserted that the jury would conclude that Officer Oliver could not see the floorboard from where he was standing. The above arguments were only relevant for the purpose of urging the jury to find that Officer Oliver was not lawfully detaining appellant for possession of a controlled substance at the time appellant struck him.  Those arguments are substantively similar to the arguments defense counsel could have used had the article 38.23 instruction been included in the charge.  Therefore, defense counsel=s closing arguments reveal no apparent actual harm resulting from the charge error.  See, e.g., Hill, 265 S.W.3d at 544B45.  Likewise, the prosecutor responded to the above arguments by defending the officers= credibility, contending that they acted reasonably and did the right thing under the circumstances, and suggesting that Officer Oliver would not just Apull [appellant] out of the car and . . . start pistol‑whipping him@ for no reason. Counsels= arguments do not suggest that any harm resulted from the trial court=s error.

Finally, we must review any other relevant information revealed by the record as a whole.  See Almanza, 686 S.W.2d at 171.  Although the jury requested the rereading of the officers= and appellant=s testimonies, when the court asked the jury to specify which parts of the testimony they desired to have reread, they focused on what happened after appellant=s car door opened, i.e. after Officer Oliver purportedly saw the Acookie@ on the floorboard and ordered appellant out.  Thus, the jury=s notes do not show that any actual harm resulted from the error, and we conclude that there is no information in the record demonstrating such harm otherwise.

We recognize that under most circumstances the omission of an article 38.23 instruction regarding the admissibility of the controlled substances at issue in a possession of controlled substances case will result in some, and even egregious, harm.  See, e.g., Holmes v. State, 223 S.W.3d 728, 731B32 (Tex. App.CHouston [14th Dist.] 2007), aff=d, 248 S.W.3d 194 (Tex. Crim. App. 2008).  However, under the circumstances presented in this particular case, we hold that the erroneous omission of an article 38.23 instruction from the jury charge did not result in any actual harm to appellant.  We overrule appellant=s second issue.

IV.  Ineffective Assistance of Counsel

In his third issue, appellant complains that his counsel provided ineffective assistance by conceding that probable cause existed for the initial stop of appellant and by failing to preserve the trial court=s error in refusing to include an article 38.23 instruction in the jury charge.  To prove ineffective assistance of counsel, appellant must show, by a preponderance of the evidence, that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 688B92 (1984); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).  We presume that trial counsel was competent, Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999), and will hold counsel ineffective on a silent record such as the one presented here only if the challenged conduct is so outrageous that no competent attorney would have engaged in it.  See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Both of appellant=s complaints under this issue center around his trial attorney=s alleged failure to trigger the trial court=s statutory duty to include the article 38.23 instruction in the jury charge.  Having held that appellant triggered that duty and properly preserved his second issue for our review, we disagree with his contention that trial counsel performed deficiently in that regard.  See Strickland, 466 U.S. at 688B92.  We therefore overrule appellant=s third issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/        Leslie B. Yates

Justice

Panel consists of Justices Yates, Guzman, and Sullivan.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We note, as well, that while article 38.23 instructions normally include an abstract instruction on the law of search and seizure as well as an application paragraph, a defendant is not entitled to an abstract instruction where, as here, the jury is asked to resolve a simple factual dispute, as opposed to a situation where jurors must assess an officer=s reliance on a multitude of factors in making an arrest.  See Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003).