Jasmine Simms v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00119-CR
Jasmine SIMMS,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR10245
Honorable Jefferson Moore, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: March 28, 2018
AFFIRMED
Jasmine Simms appeals her conviction and sentence for trafficking a child and compelling
prostitution of a child. Simms raises a single issue on appeal, asserting the trial court abused its
discretion in failing to hold a hearing on her motion for new trial alleging her trial counsel rendered
ineffective assistance. We overrule Simms’s issue and affirm the trial court’s judgment.
BACKGROUND
Simms was initially arrested for a disturbance at a Shell gas station. K.D., a fourteen-year
old female, was with Simms and was also taken into custody. K.D. had run away from a shelter
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in New Braunfels and there was an outstanding missing child warrant. K.D. told police that she
first met Simms after she ran away and returned to the apartment complex across from her high
school in San Antonio. K.D. met a man with the nickname “Mickey” at a bus stop and he took her
to an apartment where “Black” lived. Simms was present at the apartment. After drinking two
alcoholic drinks, K.D. went into a back room where she had sex with “Mickey” and “Black.”
Afterwards, Mickey stated to Black and Simms that “they were going to make some money off of
[K.D.].” Mickey told Simms to “fix up” and “post” K.D., and instructed K.D. to “just ride with
Jasmine.”
Simms took K.D. to a Motel 6 room. Simms took photos of K.D. and created a web ad for
her on Back Page. K.D. testified that Simms received the phone calls and text messages that the
Back Page ad generated and arranged for the men to come to the Motel 6 room to have sex with
K.D. According to K.D., a total of four men came to the motel room in response to the Back Page
ad and two engaged in sex acts with her for money. K.D. testified these encounters first occurred
at the motel, “then the corner store, then the truck stop and then the car.” K.D. also testified that
it was Simms who explained to her that “escorting” meant having “sex for money.” Simms told
her the prices charged for various sexual services and explained the meaning of the sex acts.
Simms decided that K.D. would go by the nickname “Lady Fame” or “Famous.” K.D. explained
that Back Page is “basically a prostitution website and it has like pictures of people and the
number.” K.D. testified the phone number listed in the ad belonged to Simms. The cell phone
taken from Simms at the time of her arrest matched the phone number used in the Back Page ad.
In addition to K.D.’s testimony at trial, a report of the Cellbrite data extraction performed on
Simms’s phone was admitted into evidence and showed text messages between “Jazzy” and
“Mickey” about “posting her,” getting “a room,” and other explicit text messages between “Jazzy”
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and “Lady Famous” and individuals requesting various sexual services for money; K.D.’s real
name appears in some of the text messages to Mickey.
Simms was convicted on three counts of trafficking a child with intent that the child engage
in forced labor or services, and three counts of compelling prostitution of a child. See TEX. PENAL
CODE ANN. §§ 20A.02(a)(5), 43.05(a)(2) (West Supp. 2017). The trial court sentenced Simms to
30 years of imprisonment on each count, with the sentences to run concurrently.
Simms timely filed a verified motion for new trial asserting she received ineffective
assistance because her trial counsel failed to conduct an independent investigation of the facts,
seek out and interview potential witnesses, and move for a continuance during trial when the SANE
examiner was not called as a witness by the State. Specifically, Simms asserts her counsel should
have tracked down “Mickey” and the other individuals associated with the phone numbers and text
messages listed on the State’s cell phone extraction report, and should have interviewed those
individuals as well as the Motel 6 employees mentioned in the police reports and a friend of Simms
who was familiar with “her situation.” In addition, Simms states her trial counsel relied on the
State to call the SANE examiner as a witness, and should have moved for a continuance to obtain
the witness’s presence at trial because he would have testified to statements by K.D. that were
inconsistent with her trial testimony. Finally, Simms asserts her trial counsel was ineffective
during the punishment phase by failing to investigate and present mitigating evidence in the form
of Simms’s medical records and good character evidence from a family member. The motion for
new trial recites that trial counsel “has affirmed the same [ineffective assistance] and agreed to
make himself available to testify at hearing [sic] on the matter.” However, no affidavit from trial
counsel was attached to the motion.
Simms attached two affidavits to her motion for new trial. Both affidavits were made by
Simms’s investigator, Jerry Potter. In the affidavits, Potter summarizes his post-trial interviews
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with two potential defense witnesses. In the affidavit attached as Exhibit 4, Potter states that he
interviewed Charles Armentrout after identifying him using a phone number shown on the State’s
cell phone extraction report. Potter avers that Armentrout “admitted to using Backpage and having
met with Jasmine Simms in the past,” but stated he was “never propositioned by Jasmine Simms,
or anyone to have any sexual contact with an underage girl” and “would have ran [sic] away from
it.” Finally, Potter states that Armentrout denied meeting anyone named “K.D.” and stated he did
not remember Simms ever mentioning that name to him. In Potter’s affidavit describing his
interview with potential witness Jennifer Reeves (Exhibit 5), he recites that Reeves is a childhood
friend of Simms and also knows an individual named Mickey. Potter avers that Reeves “gave
information about the situation that was consistent with the story Jasmine gave to the police” and
would have testified to “information concerning Jasmine’s situation and character.” No details
were provided with respect to such “information.” In both affidavits, Potter avers that Armentrout
and Reeves stated they would have been willing and available to testify at Simms’s trial if asked,
and would have testified under oath to the information recited.
In addition to the two affidavits, Simms’s motion contained the following exhibits: (1) the
indictment; (2) trial court docket sheet; (3) excerpts from the State’s “Phone Examination Report
Properties” containing phone numbers and text messages, which was admitted at trial; (4) medical
records for Simms showing treatment for ADHD; (5) an article on ADHD; and (6) an email from
Simms’s uncle describing her good character. The trial court signed an order denying a hearing
on the motion for new trial, and signed a separate order denying the motion. Simms timely
appealed.
ANALYSIS
There is no absolute right to a hearing on a motion for new trial. Smith v. State, 286 S.W.3d
333, 338 (Tex. Crim. App. 2009). The purposes of a hearing on a motion for new trial are to decide
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whether the case should be retried and to “prepare a record for presenting issues on appeal in the
event the motion is denied.” Id. A hearing is only required when the motion raises matters which
cannot be determined from the record. Id. However, even a defendant who raises matters not
determinable from the record is not entitled to a hearing on his motion for new trial unless he also
“establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could be entitled to
relief.’” Id. at 339 (noting this requirement is imposed to avoid fishing expeditions at a motion for
new trial hearing). Therefore, the motion for new trial must be supported by an affidavit from the
defendant or another person specifically setting out the factual basis for the claim to be entitled to
a hearing. Id. The affidavit need not establish a prima facie case, or even “‘reflect every
component legally required to establish’ relief.” Id. (quoting Reyes v. State, 849 S.W.2d 812, 816
(Tex. Crim. App. 1993)). An affidavit is sufficient “if a fair reading of it gives rise to reasonable
grounds in support of the claim.” Id. An affidavit that is conclusory or that is unsupported by
facts is not sufficient and does not warrant a hearing on the motion for new trial. Smith, 286
S.W.3d at 339.
Standard of Review We apply an abuse of discretion standard in reviewing a trial court’s
denial of a hearing on a motion for new trial. Id. Our review for abuse of discretion is “limited to
the trial judge’s determination of whether the defendant has raised grounds that are both
undeterminable from the record and reasonable, meaning they could entitle the defendant to relief.”
Id. at 340. “This is because the trial judge’s discretion extends only to deciding whether these two
requirements are satisfied.” Id. Therefore, if a trial court concludes the defendant has met the two
criteria, it has no discretion to deny a hearing, and abuses its discretion by doing so. Id.; Hobbs v.
State, 298 S.W.3d 193, 200 (Tex. Crim. App. 2009).
Simms asserts that to establish such an abuse of discretion by the trial court, she need only
show that her motion for new trial and affidavits “allege[d] sufficient facts that show reasonable
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grounds to demonstrate that [s]he could prevail,” and that her motion “need not plead a prima facie
case” of ineffective assistance. See Reyes, 849 S.W.2d at 816. Simms rejects the State’s argument
that her motion for new trial and affidavits must be sufficient to “establish that she [could] 1 have
been successful under both prongs of Strickland.” See Strickland v. Washington, 466 U.S. 668,
687 (1984) (stating the two-pronged test for ineffective assistance of counsel). Relying on Reyes,
Simms contends that the appellate court does not proceed to analyze the merits of her allegations
under the two Strickland prongs at this stage, but merely determines whether she has established
“reasonable grounds” showing she could be entitled to relief. See Reyes, 849 S.W.2d at 816 (“the
affidavit is not required to ‘reflect every component legally required to establish’ relief, but the
motion for new trial or affidavit must reflect that reasonable grounds exist for holding that such
relief could be granted”).
However, in Smith the court clarified that for a defendant to demonstrate “reasonable
grounds for relief” in a motion for new trial alleging ineffective assistance of counsel, he must
establish both prongs of the Strickland test. Smith, 286 S.W.3d at 335. The court reconfirmed that
the defendant “does not have to plead a prima facie case,” but stated that he must “at least allege
facts that show reasonable grounds to believe that he could prevail under both prongs of the test
for ineffective assistance of counsel under Strickland.” Id. at 338. The two prongs of Strickland
are that (1) trial counsel rendered deficient performance and (2) it prejudiced the defense. Smith,
286 S.W.3d at 340 (citing Strickland, 466 U.S. at 687). To establish deficiency, the defendant
must prove by a preponderance of the evidence that his attorney’s performance “objectively fell
below the standard of professional norms.” Id. (citing Strickland, 466 U.S. at 687). To prove
prejudice, the defendant must show “there is a reasonable probability that, but for his counsel’s
1
In its brief, the State mistakenly uses the word “would” instead of “could” in stating the applicable standard. See
Smith, 286 S.W.3d at 339; see also Reyes, 849 S.W.2d at 816.
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unprofessional errors, the result of the proceeding would have been different”. Id. (citing
Strickland, 466 U.S. at 694).
Therefore, in determining whether Simms was entitled to a hearing on her motion for new
trial, we must decide if Simms’s motion and affidavits raised a matter not determinable from the
record, and alleged “sufficient facts from which a trial court could reasonably conclude both that
counsel failed to act as a reasonably competent attorney and that, but for counsel’s failure, there is
a reasonable likelihood that the outcome of this trial would have been different.” Id. at 340-41.
Application
As listed above, Simms’s motion alleged ineffective assistance during the guilt-innocence
phase because her trial counsel failed to independently investigate the facts and interview potential
witnesses. Her motion lists three potential witnesses by name, a Back Page customer Charles
Armentrout, a childhood friend Jessica Reeves, and the SANE examiner Edward Russell, along
with unnamed employees from the Motel 6, and asserts that trial counsel could easily have tracked
them down, and interviewed and/or called them as potential witnesses. Simms also argues counsel
could have located other customers from the State’s report of text messages and/or calls received
by Simms. With respect to the punishment phase, Simms asserts that good character evidence and
medical evidence showing she has ADHD, Crohn’s disease, and depression should have been
presented as mitigating evidence.
(1) Matters not Determinable from the Record. In Smith, the court recognized that the
trial record will generally be insufficient to show counsel’s performance was deficient or to show
prejudice under Strickland, and held those matters were “not determinable from the record” in that
case. Smith, 286 S.W.3d at 341. Because Smith’s ineffective assistance grounds were not
determinable from the record, the court proceeded to the next step to determine whether Smith’s
motion and affidavit established “reasonable grounds” that could entitle him to relief by alleging
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facts in support of both Strickland prongs. Id. Here, Simms’s allegations of ineffective assistance
based on counsel’s failure to investigate and interview witnesses are similarly not determinable
from the trial record; therefore, we proceed to decide whether her motion and affidavits allege
“facts that would reasonably show that [her] counsel’s representation fell below the standard of
professional norms and that there is a reasonable probability that, but for [her] counsel’s conduct,
the result of the proceeding would have been different.” Id. (emphasis added).
(2) Reasonable Grounds Showing Simms Could Prevail on Both Strickland Prongs.
We may assume, without deciding, that Simms established reasonable grounds to show her
trial counsel’s omissions amounted to deficient performance, and proceed to an analysis of
prejudice under Strickland. See id. at 342 (court assumed existence of deficiencies, and focused
on prejudice prong in determining right to a hearing). In doing so, we examine Simms’s motion
and supporting affidavits to determine whether she alleged sufficient facts to establish reasonable
grounds showing she could prevail on the prejudice prong of Strickland, i.e., that there is a
reasonable probability that, but for counsel’s conduct, the outcome of her trial would have been
different. See id. at 341.
As noted, Simms supported her motion for new trial with two affidavits by her defense
investigator describing his post-trial interviews with potential witnesses Armentrout and Reeves.
Neither witness provided their own affidavit. The investigator states in the first affidavit (Exhibit
4) that he located Armentrout through a phone number listed on the cell phone report generated by
the State. The affidavit states Armentrout admitted using the Back Page ad and meeting with
Simms, 2 but stated that Simms never proposed that he engage in sexual contact with an underage
girl and he did not meet an underage girl with K.D.’s name. Simms argues that this testimony by
2
In her motion for new trial, Simms asserts the affidavit states that Armentrout told the investigator “he did not
remember Jasmine,” but the affidavit does not contain such a statement.
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Armentrout would have directly rebutted the State’s theory that Simms was using the phone
number listed in the posting and the text messages to compel prostitution of a minor. Simms also
states in her motion that “[f]inding one individual who rebuts the State’s theory creates a
reasonable probability there are more individuals like Charles [Armentrout].” Simms asserts that
such testimony by Armentrout and potentially by other Back Page customers presents a reasonable
probability the outcome of her trial would have been different.
We disagree. Armentrout’s phone number was only one of several phone numbers that
sent text messages or calls to Simms’s phone soliciting sex for money in response to the Back Page
posting. His statement to the investigator that he did not meet an underage girl or anyone named
“K.D.,” even if taken at face value, does not prove that another customer did not meet with and/or
engage in sexual contact with an underage girl, namely K.D. In addition, if Armentrout had
testified at trial, the jury would have assessed the credibility of his testimony and weighed it against
K.D.’s testimony and the rest of the State’s evidence. Simms’s assertion that other customers
would probably have testified the same as Armentrout is not based on any facts and is speculative
and conclusory. The investigator does not aver that he located and contacted any other customer
who sent a text message to Simms’s phone. The affidavit summarizing the information
Armentrout would have provided fails to establish reasonable grounds to show Simms could have
shown prejudice from counsel’s failure to locate him and call him as a defense witness at trial. See
id.
The second affidavit made by Simms’s investigator (Exhibit 5) briefly summarizes his
interview with potential witness Jennifer Reeves, a friend of Simms. The affidavit states that
Reeves and Simms are childhood friends, Reeves also knows Mickey, and that Reeves had
“information concerning Jasmine’s situation and character.” However, the affidavit does not
specify the nature of the “information” or the “situation.” The affidavit goes on to state the
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investigator’s opinion that Reeves’s testimony would have been “consistent” with the story Simms
told the police, but fails to include any particular facts or details showing the content of Reeves’s
testimony or in what manner it would have been consistent with Simms’s statements to police.
This affidavit fails to provide any specific facts and is conclusory; therefore, it does not establish
reasonable grounds to show Simms could have shown prejudice from counsel’s failure to call
Reeves as a witness at trial. See id.
In addition, Simms made other allegations in her verified motion for new trial which are
not supported by accompanying affidavits. Simms alleges that her trial counsel was deficient in
failing to interview and call as witnesses the unnamed Motel 6 employees mentioned in the police
reports. However, Simms also acknowledges that, during cross-examination by her counsel, a
State’s witness testified that he interviewed the Motel 6 employees and they did not recognize
Simms but did recognize “Mickey” and “Black.” Thus, the jury heard and considered that
testimony. Simms’s motion does not state any facts detailing what additional evidence, if any, the
Motel 6 employees would have provided and how it would have been beneficial to her defense or
changed the outcome of her trial.
Simms’s motion also states that she was prejudiced by her counsel’s failure to subpoena
Edward Russell, the forensic nurse who performed the SANE exam, as a defense witness, and
failure to move for a continuance when the State elected not to call Russell as a witness. Simms
contends Russell’s testimony would have been beneficial because he documented statements by
K.D. that were “inconsistent” with her trial testimony, thereby creating “credibility issues” for
K.D. However, Simms does not provide any factual details about the statements K.D. made to
Russell or explain how the statements were inconsistent with her trial testimony. No affidavit
from Russell was attached in support of this allegation. In addition, the SANE report was
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introduced into evidence by defense counsel, so the jury was able to compare the documented
statements to K.D.’s trial testimony. 3
Finally, Simms’s motion asserts her trial counsel was deficient during the punishment
phase by failing to investigate and present mitigating evidence in the form of Simms’s medical
records and testimony by a family member as to her good character. Simms attached only a copy
of an email (Exhibit 8) from the family member, not a sworn statement. With respect to the
medical evidence, Simms attached a copy of her medical records (Exhibit 6) showing she suffers
from ADHD, Crohn’s disease and depression, and an article discussing the effects of ADHD
(Exhibit 7). No affidavit from a medical doctor or other healthcare professional was included.
Simms’s motion does not describe how or why her medical conditions would have mitigated her
punishment on these particular offenses. Simms merely makes a conclusory statement that the
medical evidence and good character testimony from a family member would have caused a
different outcome at punishment, i.e., a lesser sentence.
At sentencing, the trial court explained its reasons for sentencing Simms to more years than
the State requested by stating,
[t]he evidence in my opinion was also very clear that you were involved in all this
. . . the reason that I’ve given you a 30-year sentence is that at some point you’re
going to parole out. I want you in some sort of institutionalized supervision until
you’re almost 60 years old. I - - just the - - the evidence - - and the occurrences
that happened in this case are very disturbing and you’ve got your own young
children, I took that into consideration, too. But I’m afraid for those children
because you had a child that you got involved with, you did horrible things to this
young lady, and I can’t get those images and such out of my brain of what was
going on in that case. And you, in my opinion, were totally involved in this entire
episode of what was going on.
3
In her briefing, Simms also discusses defense counsel’s failure to obtain an investigator earlier in the process and
failure to identify and interview her co-actors “Mickey” and “Black” as additional instances of deficient performance.
However, those omissions by counsel were not raised in Simms’s motion for new trial and therefore cannot form part
of the analysis of whether she was entitled to a hearing on her motion for new trial.
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In addition, the trial court made handwritten notations on Simms’s motion for new trial stating that
her three medical conditions were listed in the presentence report and considered by the court. The
court’s notes marked next to Simms’s discussion of her family member’s good character evidence
state that she had aggravated assault charges in Bexar and Nueces counties. Based on the trial
court’s comments and notations contained in the record, Simms’s allegations of her counsel’s
deficient performance at the punishment phase do not suffice to raise reasonable grounds that she
could have proven prejudice under Strickland.
CONCLUSION
We conclude that, even assuming that Simms presented sufficient facts establishing
reasonable grounds that her trial counsel’s performance was deficient in the above respects,
Simms’s motion and supporting affidavits fail to allege sufficient facts to provide reasonable
grounds to believe she could satisfy the prejudice prong of Strickland. See Smith, 286 S.W.3d at
342, 345. Therefore, the trial court did not abuse its discretion in failing to hold a hearing on
Simms’s motion for new trial. We therefore overrule Simms’s issue on appeal and affirm the trial
court’s judgment.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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