Michael Ogbeide v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00146-CR
NO. 02-11-00147-CR
MICHAEL OGBEIDE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Pursuant to plea bargains, Appellant Michael Ogbeide pleaded guilty on
December 20, 2010, to two charges of “engaging in organized criminal activity,
to-wit: aggravated assault with a deadly weapon to-wit: his hand or foot.”2 The
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 71.02(a) (West Supp. 2012).
trial court deferred an adjudication of Appellant’s guilt and placed him on
community supervision for five years in each case. The State filed a petition to
proceed to adjudication in each case on January 13, 2011, alleging that
Appellant violated the terms of his community supervision by associating with
known gang members, by having contact with Eugene Ogbeide, and by violating
a 10 p.m. curfew, all occurring on January 1, 2011. Appellant pleaded not true to
the State’s allegations. After hearing testimony and argument from counsel, the
trial court found true the State’s allegations that Appellant contacted Eugene
Ogbeide and associated with known gang members. The trial court adjudicated
Appellant guilty in each case and sentenced him to five years’ confinement in
each case with the sentences running concurrently. Appellant contends in two
points that the trial court abused its discretion by finding the State’s allegations
true because certain terms and conditions of his community supervision were too
vague and ambiguous to be enforced and because insufficient evidence
supported the trial court’s findings. We affirm.
II. Background
At the revocation hearing, Officer Teresa Taylor of the Arlington Police
Department testified that she was on patrol on January 1, 2011, when she
noticed that a vehicle in front of her patrol car accelerated rapidly from a stop
light and made sudden lane changes without signaling. Officer Taylor initiated a
traffic stop of the vehicle and immediately recognized one of the back seat
passengers as Arias Reed, a person with whom she had interacted on several
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occasions. Deji Akinbote was driving, and Appellant and Eugene Ogbeide
(Eugene) were also passengers in the vehicle. Appellant and Eugene are
brothers.
Officer Taylor testified that she had “worked several calls with [Reed] in the
past [and] knew that he was a known gang member.” She also testified that
while she was checking the vehicle’s occupants for warrants as part of the traffic
stop, she notified the DWI unit (because she suspected that Akinbote was driving
under the influence) and the gang unit (because of Reed’s known gang
affiliation). Officer Taylor testified that she overheard Appellant speaking with the
gang unit officers about his probation status and that Appellant said “something
about a certain judge would be upset if [s]he knew that he was hanging out with
gang members.”
Detective Ray Mullikin of the Arlington Police Department Gang Unit
responded to Officer Taylor’s call. He testified that he is familiar with Appellant
because Appellant is a “member of a criminal street gang,” and Detective Mullikin
had “dealt with him numerous times because of that.” Detective Mullikin testified
that Eugene, Akinbote, and Reed are also gang members. Detective Mullikin
spoke with Appellant at the scene and testified that Appellant said he knew he
was on probation but said he was with the others because he needed a ride.
Appellant also asked Detective Mullikin to not inform the trial court, and Detective
Mullikin testified that Appellant seemed “pretty worried” about the trial court
finding out that he had been “hanging out with these other gang members.”
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On cross-examination, Detective Mullikin testified that the last time he
dealt with Appellant, Eugene, and Reed was April 2010 after a street fight that
led to aggravated assault charges against Appellant and Eugene. He denied
knowing that they had renounced their street gang memberships and testified
that Appellant said he was still a “Player After Cash” (PAC) but could not
remember exactly how Appellant phrased it during their conversation. Detective
Mullikin testified that the gang unit considers PAC to be a subset of the Lynch
Mob gang and that Appellant said he and Eugene were PAC members.
Detective Mullikin also answered a series of questions as to whether PAC and
Lynch Mob were different gangs or not, and he was questioned as to how he
would know that Appellant and Eugene were still gang members. On redirect,
Detective Mullikin testified unequivocally that Eugene, Akinbote, and Reed are
known gang members.
Rodney Knotts, a Tarrant County probation officer, testified that he met
with Appellant on January 13, 2011, and that Appellant “admitted knowing that
Arias Reed is a gang member.”
III. Standard of Review
Appellate review of an order revoking community supervision is limited to
determining whether the trial court abused its discretion. Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006); Miles v. State, 343 S.W.3d 908, 912
(Tex. App.—Fort Worth 2011, no pet.). The State must prove by a
preponderance of the evidence that the defendant violated the terms and
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conditions of community supervision. Rickels, 202 S.W.3d at 763. The State
satisfies this burden when the greater weight of the credible evidence before the
court creates a reasonable belief that it is more probable than not that the
defendant has violated a condition of his community supervision as alleged in the
State’s motion. Id. at 763–64; Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993). The trial court is the sole judge of the credibility of the witnesses and
the weight to be given their testimony, and we review the evidence in the light
most favorable to the trial court’s ruling. Miles, 343 S.W.3d at 912 (citing
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Allbright v. State,
13 S.W.3d 817, 819 (Tex. App.—Fort Worth 2000, pet. ref’d)). When there is
sufficient evidence to support a finding that the defendant violated a condition of
his community supervision, the trial court does not abuse its discretion by
revoking the supervision. See Cardona, 665 S.W.2d at 493–94; Wade v. State,
83 S.W.3d 835, 839–40 (Tex. App.—Texarkana 2002, no pet.).
IV. Clarity of Community Supervision Conditions
Appellant contends that the trial court abused its discretion by revoking his
community supervision because certain terms and conditions of his community
supervision were too vague and ambiguous to be enforced.3 More specifically,
Appellant contends that the conditions requiring that he not associate with
“known gang members” and “have no contact” with Eugene Ogbeide are vague
3
Appellant raises two points of error but argues them together. Parts of
each point of error challenge the clarity of his community supervision conditions.
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and ambiguous and that he could not have known what was required in order to
comply.
The appellate record does not contain any indication that Appellant
objected to or otherwise complained about the conditions of his community
supervision when the conditions were imposed in December 2010. Indeed, there
is affirmative evidence that Appellant did not object, and Appellant acknowledges
as much in his brief. See Speth v. State, 6 S.W.3d 530, 535 (Tex. Crim. App.
1999) (holding complaint concerning community supervision conditions may not
be raised for first time on appeal), cert. denied, 529 U.S. 1088 (2000); Camacho
v. State, No. 02-03-00032-CR, 2004 WL 362376, at *1 (Tex. App.—Fort Worth
Feb. 26, 2004, no pet.) (per curiam) (mem. op., not designated for publication)
(holding vague and ambiguous challenge to community supervision condition not
preserved because not raised by direct appeal following imposition of community
supervision). Appellant has therefore not preserved this complaint for appellate
review, and we overrule the portions of his first and second points that complain
of the alleged vagueness and ambiguity of his community supervision conditions.
V. Violation of Community Supervision Conditions
Appellant also contends that the trial court abused its discretion by
adjudicating his guilt and revoking his community supervision because
insufficient evidence supported the trial court’s findings that he violated the
conditions of his community supervision.
The relevant conditions of Appellant’s community supervision state:
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Do not associate with person[s] who are known gang members and
stay away from places where such persons congregate.
Do not contact EUGENE OBGEIDE OR NIGEL BALY in any
manner.
Appellant argues, “Admittedly, the individuals in the vehicle with Appellant
were gang members at one time. However, there was no evidence that these
individuals were, at the time the vehicle was stopped, still gang members.” He
further argues, “The State did not prove that Appellant contacted Eugene
Ogbeide. The State merely proved Appellant’s presence in a vehicle with
Eugene Ogbeide.” He cites Prince v. State, 477 S.W.2d 542, 543 (Tex. Crim.
App. 1972), a case in which Prince had been ordered as a condition of his
probation to “avoid persons or places of disreputable or harmful character.” Id.
The court of criminal appeals held that the trial court abused its discretion by
finding that Prince violated the terms of his probation because the State had not
shown that Prince “knew of the disreputable and harmful character of the
persons” and “was more than merely in their presence.” Id. Specifically, the
evidence revealed that Prince had gone to school with two of the three
individuals seven years earlier, that he “did not personally know them and was
never associated with them prior to the date in question,” and that he had “never
before seen” the third individual. Id.
Here, the evidence shows not only that Eugene, Reed, and Akinbote were
known to the Arlington Police Department as gang members but that Appellant
admitted to the probation officer that he knew Reed was a gang member. Also,
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Appellant, Reed, and Eugene were each involved in a street fight in April 2010
that led to Appellant’s underlying aggravated assault charges in these cases.
Moreover, Eugene is Appellant’s brother. Thus, the evidence is clearly
distinguishable from that presented by the State in Prince.
The evidence is, instead, similar to that which we found sufficient in Cantu
v. State, 339 S.W.3d 688, 692 (Tex. App.—Fort Worth 2011, no pet.) (mem. op.).
In that case, officers responded to a report of shots fired at a bar and stopped the
truck that the defendant was driving. Id. at 689. “Riding in the bed of the truck
was [a] self-reported gang member.” Id. The officers also found a loaded
weapon near where the self-reported gang member had been riding in the truck
bed. Id. The State petitioned to adjudicate Cantu’s guilt, alleging that Cantu
violated the conditions of his community supervision by “associating with a
person of harmful or disreputable character and remaining in a vehicle with a
firearm.” Id. Holding that the evidence was sufficient to support the trial court’s
findings, we stated,
Viewed in the light most favorable to the judgment, the
evidence shows that . . . [w]ithin six inches of where Garza, a self-
admitted gang member, was riding in the bed of the truck at the time
it was stopped, officers found a loaded nine-millimeter handgun
hidden under a bandana. It is undisputed that Appellant and Garza
appeared to know each other. From this evidence, it is not outside
the zone of reasonable disagreement for the trial court to have
believed and found that it was more than likely that Appellant had
known that Garza was a person of harmful or disreputable character
or that Appellant had remained in a vehicle with a weapon. Either of
these findings would support the trial court’s order adjudicating
Appellant’s guilt and revoking his community supervision.
8
Id. at 692. We reach a similar conclusion. Viewed in the light most favorable to
the trial court’s ruling, the greater weight of the credible evidence before the trial
court was sufficient for it to have reasonably believed that it is more probable
than not that Appellant violated the conditions of his community supervision
requiring that he not contact Eugene Ogbeide or associate with known gang
members. We thus overrule the remainder of Appellant’s first and second points.
VI. Conclusion
Having overruled each of Appellant’s two points, we affirm the trial court’s
judgments.
PER CURIAM
PANEL: GARDNER, J.; LIVINGSTON, C.J.; and MEIER, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 30, 2012
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