Donivan Ray Perkins v. State ( 1998 )

Heading for abatement

  IN THE

TENTH COURT OF APPEALS

No. 10-97-083-CR

     DONIVAN RAY PERKINS,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the Criminal District Court No. 5

Dallas County, Texas

Trial Court # F96-44793-QL

MEMORANDUM OPINION

      The appellant, Donivan Ray Perkins, pled guilty to the offense of possession of less than four grams of cocaine, and the trial court assessed an enhanced punishment of five years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Health & Safety Code Ann. § 481.115(c) (Vernon Supp. 1998).

      Alleging that an appeal from Perkins’ conviction would be frivolous, Perkins’ attorney filed an Anders brief and a motion to withdraw on November 3, 1997. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). In accordance with this court’s recent opinion in Wilson v. State, we notified Perkins on November 12, 1997, that he had thirty days in which to file a pro-se response stating why his appeal is meritorious. No. 10-97-090-CR, slip op. at 4, 1997 WL 700877, at * 4 (Tex. App.— Waco November 12, 1997, no pet.). Those thirty days have passed and Perkins has not filed any response. It is therefore our duty to conduct an independent review of the record to determine if Perkins’ appeal is without merit and to assess whether Perkins’ attorney complied with the requisite procedures as articulated in Anders, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400.

      Because Perkins pled guilty to the offense of possession of cocaine, he is limited as to the issues he may complain about on appeal. See Tex. R. App. P. 25.2(b)(3). Upon review of the record, we agree with Perkins’ attorney that the only potentially arguable point on appeal is the legality of the seizure of the crack cocaine at the time of Perkins’ arrest. However, we conclude that the trial court did not err in finding that the seizure of the cocaine was legal and denying Perkins’ motion to suppress.

      Perkins was arrested on March 25, 1996 for possession of less than four grams of crack cocaine. See Tex. Health & Safety Code Ann. § 481.115(c). Perkins’ vehicle was parked on an “unapproved surface” along a road in Dallas when a Dallas police officer stopped to investigate. When the officer spotlighted Perkins’ vehicle, Perkins emerged and proceeded to “nonchalantly” drop a white object. The officer approached Perkins and the vehicle, and when he looked inside the vehicle, he saw a razor blade with white residue. The officer then proceeded to pick up the white container Perkins had dropped and found cocaine inside. The officer arrested Perkins.

      Prior to trial, Perkins’ attorney filed a motion to suppress any evidence obtained as a result of Perkins’ arrest. After a hearing, the trial judge denied the motion. Perkins then pled guilty to the charged offense and “true” to an enhancement paragraph.

      The record reflects that the crack cocaine was in plain view of the officer when he approached the vehicle. The plain view doctrine requires: (1) the seizing law enforcement officer to be lawfully in the place where he observes the contraband, and (2) the item seized must appear to be evidence associated with a crime. Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996), cert. denied, — U.S. —, 117 S. Ct. 1556 (1997); State v. Haley, 811 S.W.2d 597, 599 (Tex. Crim. App. 1991). The arresting officer testified that Perkins’ vehicle was already parked when the officer stopped to investigate. When Perkins exited the vehicle, the officer witnessed him drop a white object which the officer later discovered contained cocaine. The officer also saw a razor blade with white residue on it located in the driver’s seat and, based on his experience as a police officer, he believed the residue to be cocaine.

      Based on the facts adduced during the suppression hearing, it is apparent that Perkins was not detained by the officer, but was voluntarily, albeit illegally, parked on the side of the road when the officer approached him. Consequently, we cannot conclude that the trial court abused its discretion by denying Perkins’ motion to suppress when the officer made no intrusion upon Perkins but merely stopped to investigate an illegally parked vehicle. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

      Having so determined and concluding that Perkins’ attorney has fulfilled her duties under Anders, we will grant her motion to withdraw as Perkins’ attorney and affirm Perkins’ conviction. Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref’d).

      The judgment is affirmed.

                                                                               BOBBY L. CUMMINGS

                                                                               Justice

Before Chief Justice Davis,

           Justice Cummings, and

           Justice Vance

Affirmed; motion to withdraw granted

Opinion issued and filed January 21, 1998

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ntional, he would not have fled to California in a careful manner so as not to get stopped by the police, as he testified.

      Rebecca Swindler-Smith contacted the police after Appellant's arrest. She testified that she saw Appellant at the scene off Haymarket earlier that day. He had items in the vehicle that were later found in the red Corsica upon its seizure in California. During her conversation with Appellant, he said his wife had left him three days earlier. He said, "I just killed the bitch, or I'm going to kill the bitch," and he told her he was going to California in a couple of weeks.

      In summary, the totality of the evidence is consistent with Appellant intentionally or knowingly causing his wife's death and is inconsistent with his version of the shooting. Accordingly, we hold that the evidence was amply sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Appellant intentionally or knowingly caused the death of his wife. In other words, the test required by Jackson v. Virginia in this regard has been met.

      As hereinabove pointed out, in Appellant's first and second points, he urges this court to review the "factual sufficiency of the evidence" as appellate courts do in civil cases. Our intermediate courts are divided about whether we have a duty to review the factual sufficiency of the evidence to support the elements of an offense upon which the State bears the burden of proof beyond a reasonable doubt. Compare Crouch v. State, 858 S.W.2d 599, 601 (Tex. App.—Fort Worth, pet. ref'd) (no factual sufficiency review in criminal cases) with Wells v. State, 880 S.W.2d 185, 188 (Tex. App.—Texarkana 1994, no pet.) ("The courts of appeals have the power and duty to review the factual sufficiency of the evidence relative to the proof of the elements of an offense"). Also see Texas Bar Journal, Vol. 58, Number 5, page 434 (May 1995). 

      Assuming, without deciding, that we are required to conduct such a review of all of the evidence to determine if the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, we have carefully reviewed all of the evidence and find that it is factually sufficient to support the judge's finding that Appellant knowingly and intentionally acted with the intent to kill Carolyn Behling (his wife), and thereby committed the offense of murder. See Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin 1991, pet. ref'd, untimely filed). Appellant's first and second points of error are overruled.

      In Appellant's third point of error he asserts the trial court erred when, at the close of the State's case-in-chief, the court refused Appellant's motion for an instructed verdict of not guilty since the evidence then before the court was insufficient to prove that the deceased died as a result of being shot by Appellant.

      We have, hereinbefore, discussed the reasons why this contention is without merit. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954, 111 S. Ct. 1432, 113 L. Ed. 2d 483 (1991); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Appellant's third point of error is overruled.

      By Appellant's fourth and final point of error he contends that Appellant was denied the effective assistance of counsel at the guilt-innocence phase of his trial.

      As stated, Appellant waived a jury and was tried before the trial court who had had about twenty years experience in criminal law. When the trial judge appointed this particular attorney as Appellant's trial counsel, he (the judge) remarked that this particular lawyer was "a certified criminal law specialist with a wealth of experience in the criminal justice system, not only as a prosecutor but also as a defense counsel." The judge also said that the attorneys on both sides had been "extremely professional." The truth of those remarks was borne out by the record which showed that Appellant's lawyer called several witnesses and provided expert testimony to support the defense theory that Appellant had not intentionally or knowingly killed his wife.

      Appellant pointed out several different situations to support his contention that his counsel was ineffective. We have carefully considered each assertion made by Appellant and have concluded that none of these instances affected the outcome of the case.

      Texas courts have adopted the federal constitutional standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).

      Strickland sets out a two-pronged analysis: (1) did the attorney's performance fail to constitute "reasonably effective assistance," that is to say, did the defense attorney's representation fall below an objective standard of reasonableness under prevailing professional norms, and (2) if so, was there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different?

      Assuming for the sake of argument that Appellant has satisfied the first prong of the analysis (that the attorney's performance failed to constitute "reasonably effective assistance"), Appellant has wholly failed to satisfy the second prong of the analysis (that the deficient performance prejudiced Appellant's defense). We do not believe that Appellant satisfied the first prong, but in any event Appellant has wholly failed to satisfy the second prong. We therefore overrule Appellant's fourth and final point of error.

      Judgment of the trial court is affirmed.

                                                                               JOHN A. JAMES, JR.

                                                                               Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Justice James (Retired)

Affirmed

Opinion delivered and filed May 24, 1995

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