Ford v. State

Full title: ROBERT CHARLES FORD, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 22, 2006

No. 05-04-01819-CR (Tex. App. Mar. 22, 2006)

Opinion

No. 05-04-01819-CR

Opinion Filed March 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F04-51494-WJ. Affirmed.

Before Justices BRIDGES, FRANCIS, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

Robert Charles Ford appeals his conviction for possession of cocaine. In four issues, he argues (1) the trial court should have sua sponte conducted an informal inquiry into his competency to stand trial, (2) his trial counsel was ineffective for not requesting a competency hearing, (3) the evidence is legally and factually insufficient, and (4) the trial court erred by denying his motion to suppress evidence and by overruling his objections to the admission of certain evidence. We affirm.

Background

On April 28, 2004, the Dallas Police Department received a complaint about prostitution and drug activity at 517 East 12th Street. Drug task force officers Chris Wagner and Andrew Ortiz drove by the address, a two-story house converted into an apartment complex, but did not stop. A few hours later, the six members of the task force, in three marked squad cars, drove by the area. Wagner and Ortiz were in the lead car and saw activity consistent with a hand-to-hand drug transaction between two males at the gate in front of the complex. The officers drove past the complex, stopped quickly, and jumped out to question the suspects. Both suspects ran. Charles Henry ran into the apartment complex and locked the door; the other suspect escaped. Wagner and Ortiz pursued Henry into the apartment where they saw Henry and Ford, the owner of the apartment complex, exit a room on the downstairs level. Henry was placed in custody for evading arrest. Ortiz conducted a protective sweep of the area for the officers' safety and discovered in plain view 2.8 grams of cocaine packaged in 18 small ziplock bags. Ford said he owned the complex, was in the process of renovating it, and no one lived there but him. After finding the cocaine in plain view, the officers called for a canine unit and a search warrant for the rest of the complex. With warrant in hand, the officers began their search of the complex. They found 2.8 "net ounces" of marijuana packaged in 22 "dime bags" in a nearby downstairs room. Upstairs, in what was described as Ford's bedroom, the canine alerted to the odor of narcotics on a bag. Inside the bag officers found $3,797 in cash, mostly in one-dollar denominations. A nine millimeter handgun, a rifle, and a loaded .357 magnum revolver were also seized from Ford's upstairs apartment. Ford moved to suppress the cocaine seized in plain view and the marijuana, guns, and cash seized pursuant to the warrant. The trial court denied the motion to suppress the cocaine. The court initially granted the motion to suppress the marijuana, guns, and cash, but this evidence was later admitted in trial. Ford was convicted of unlawful possession of one gram or more but less than four grams of cocaine, a third-degree felony, and sentenced to three years' imprisonment. See Tex. Health Safety Code Ann. §§ 481.102 481.115(c) (Vernon 2003 Supp. 2005).

Competency to Stand Trial

In his first and second issues, Ford argues the trial court should have conducted an informal inquiry into his competency to stand trial and that his counsel was ineffective for not requesting an inquiry. We review a trial court's decision not to conduct a competency inquiry for an abuse of discretion. See Moore v. State, 999 S.W.2d 385, 393 (Tex.Crim.App. 1999), cert. denied, 530 U.S. 1216 (2000). A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding, or (2) a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1) (2) (Vernon Supp. 2005). If evidence suggesting a person may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall conduct an informal inquiry into whether "there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Id. art. 46B.004(b) (c).¹ Ford argues that evidence suggesting he may have been incompetent to stand trial came to the court's attention on three occasions: prior to trial, during the guilt/innocence phase, and during the punishment phase. 1. Prior to trial Before the trial began, Ford complained to the court about his appointed attorney and asked the court to declare the attorney ineffective. Ford said his attorney was "radical" and "hostile" and did not have his best interest at heart because his attorney tried to coerce him to take a plea offer for deferred adjudication. Ford interpreted the plea offer as an attempt to cover up the facts, and he wanted a jury trial to make sure the truth was told. On appeal, Ford contends this demonstrated an inability to communicate and cooperate with his attorney and should have caused the court to conduct an informal inquiry into his competency to stand trial. Although Ford did not articulate his complaint well, from our review of the record, Ford understood what was happening. He said he was the one who had to do the time (if convicted), and he should have the right to a fair trial. When the court advised Ford that no one could make him plead guilty, Ford responded, "That's what I am saying . . . The use of force is what I'm stressing." And the record demonstrates that Ford was able to communicate with his attorney, although he disagreed with and disregarded his attorney's advice at times. See Reed v. State, 112 S.W.3d 706, 711 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (conflicts with counsel do not necessarily constitute incompetency); Burks v. State, 792 S.W.2d 835, 840 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd) (appellant's courtroom demeanor, failure to communicate or cooperate with counsel, and abuse of counsel not probative of incompetence to stand trial). 2. During guilt/innocence Ford did not follow his attorney's advice not to testify in the guilt/innocence phase of trial. His attorney advised him that evidence of several prior convictions would be admissible to impeach him if he took the witness stand. Ford said he understood but insisted on testifying to "clarify some of what they are telling you that is totally wrong." During his testimony, Ford appeared to understand the questions and answered them responsively. He even corrected the attorneys at times when he thought they were confused about the way things happened. However, now Ford contends he "exhibited bazaar [sic] and delusional behavior" during his testimony when he testified that the police planted the drugs in his apartment, that he had seen the prosecutor at his apartment spying on him, and that he kept the bag of cash because he was a "registered gambler." Ford's decision not to follow his attorney's advice could as easily support a conclusion that he was competent as that he was incompetent. Arnold v. State, 873 S.W.2d 27, 36-37 (Tex.Crim.App. 1993), cert. denied, 513 U.S. 830 (1994). And although his testimony may not have been credible, it did not indicate Ford was incompetent as that term is defined under article 46B.003. See Eddie v. State, 100 S.W.3d 437, 444 (Tex.App.-Texarkana 2003, pet. ref'd) (arguably paranoid behavior not evidence of inability to confer with attorney or lack of rational or factual understanding of charges). 3. During punishment phase In the punishment phase of trial, Ford's daughter and sister testified that Ford was diagnosed with schizophrenia about seven or eight years earlier. His daughter testified she takes him to the "MHMR" regularly and that Ford takes two medications, a sleeping pill and Celexon, which she testified is also a sleeping pill. She said Ford had not taken his medications during the trial. And she asked the jury to be lenient so that Ford could get psychological help. But there was no evidence that any of the medications Ford was taking were "powerful mood and mind altering medications, given only to those who are most seriously ill and given by only a doctor or psychiatrist," as Ford now claims.² And evidence of mental impairment alone is insufficient to constitute incompetency. Moore, 999 S.W.2d at 395-96 (citing Lingerfelt v. State, 629 S.W.2d 216, 217 (Tex.App.-Dallas 1982, pet. ref'd) (testimony from psychiatrist that defendant suffered from schizophrenia did not warrant competency hearing because no testimony that defendant unable to consult with attorney with reasonable degree of rationality)); Grider v. State, 69 S.W.3d 681, 684 (Tex.App.-Texarkana 2002, no pet.) (no evidence of incompetency even though defendant diagnosed with paranoid schizophrenia five years earlier, still on medications, and testified to hearing voices and seeing visions). After a thorough review of the record, we found no evidence of recent severe mental illness, moderate retardation, or bizarre acts such that would require the trial court, sua sponte, to conduct an informal inquiry into Ford's competency. See McDaniel v. State, 98 S.W.3d 704, 710 (Tex.Crim.App. 2003) (no competency inquiry required unless evidence raises bona fide doubt in trial judge's mind about defendant's competency). We overrule Ford's first issue. As a result, we cannot conclude that Ford's attorney was ineffective for failing to request a competency hearing. Wilkerson v. State, 726 S.W.2d 542, 551 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940 (1987); see Strickland v. Washington, 466 U.S. 668 (1984). We overrule Ford's second issue.

Sufficiency of the Evidence

In his third issue, Ford complains the evidence is legally and factually insufficient to support the verdict.³ When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Under either review, the jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). We defer to the fact finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). In a possession of a controlled substance case, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband. Tex. Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2005); Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The State does not have to prove the accused had exclusive possession of the contraband; joint possession is sufficient to sustain a conviction. See Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). When there is no evidence the appellant was in exclusive control of the place where the contraband was found, the State must offer additional, independent facts and circumstances affirmatively linking him to the contraband.⁴ See Poindexter, 153 S.W.3d at406; Grantham v. State, 116 S.W.3d 136, 143 (Tex.App.-Tyler 2003, pet. ref'd); Davis v. State, 93 S.W.3d 664, 667 (Tex.App.-Texarkana 2002, pet. ref'd); Stubblefield v. State, 79 S.W.3d 171 (Tex.App.-Texarkana 2002, pet. ref'd). The purpose of affirmatively linking the accused to the contraband is to protect innocent bystanders from conviction based solely on their fortuitous proximity to the contraband. See Poindexter, 153 S.W.3d at 406. The factors we review in determining whether sufficient affirmative links exist include whether the contraband was in plain view, whether appellant owned the residence where the contraband was found, whether he was in close proximity to the contraband and had ready access to it, whether contraband was found on appellant, whether he attempted to flee, whether his conduct indicated a consciousness of guilt, whether he had a special connection to the contraband, whether it was found in an enclosed space, and whether he made incriminating statements. See Deshong v. State, 625 S.W.2d 327, 329 (Tex.Crim.App. 1981); see also Poindexter v. State, 115 S.W.3d 295, 299 (Tex.App.-Corpus Christi 2003), rev'd on other grounds, 153 S.W.3d 402 (2005). No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). As we have said before, it is the "logical force" of the factors, not the number of factors present, that determines whether the elements of the offense have been established. Id.; Hawkins v. State, 89 S.W.3d 674, 677 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). The evidence linking Ford to the contraband showed (1) he was present in the complex during the search; (2) he owned and controlled the complex in which the cocaine was found; (3) the cocaine was in plain view in a room that also contained mail addressed to Ford; (4) he had just exited the room where the cocaine was found; (5) marijuana was found in a nearby room to which Ford had access and control; (6) the cocaine and marijuana were packaged for sale; (7) a large amount of cash was found in a bag that smelled of narcotics in Ford's upstairs apartment; (8) Ford admitted the cash was his; (9) firearms were found in plain view in Ford's upstairs apartment; (10) Ford admitted the firearms were his; (11) Ford told police no one else lived in the building because he was renovating it; (12) only one apartment had a bed, corroborating Ford's statement that only he lived there; and (13) Ford had a key to every room in the complex. We conclude the evidence links Ford to the cocaine and is legally sufficient to support the conviction. See Frierson v. State, 839 S.W.2d 841, 848-49 (Tex.App.-Dallas 1992, pet. ref'd); Stubblefield, 79 S.W.3d at 174-75. Ford also complains the evidence is factually insufficient. The evidence contrary to the verdict showed (1) Henry, not Ford, was the person officers saw conducting the hand-to-hand drug transaction, (2) Henry was also seen exiting the room where the cocaine was found, (3) Ford was cooperative, (4) Ford did not attempt to flee, (5) Ford did not make furtive gestures, (6) no fingerprints were taken, (7) no drugs were found on Ford, (8) Ford did not appear to be under the influence of narcotics, and (9) Ford denied telling police no one else lived in the apartments. Giving due deference to the fact finder's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the evidence is not too weak to support the finding of guilt beyond a reasonable doubt and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. As a result, we conclude the evidence is factually sufficient to support the conviction. We overrule Ford's third issue.

Motion to Suppress

In his fourth issue, Ford argues the trial court erred by denying his motion to suppress the cocaine seized in plain view.⁵ In reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). We give almost total deference to a trial court's determination of historical facts and apply a de novo review of the trial court's application of the law to the facts. Walter, 28 S.W.3d at 540; Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.). When the trial court does not file findings of fact, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implied findings of fact to support its ruling, provided those findings are supported by the record. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005) (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000)). We will uphold the trial court's ruling on a motion to suppress if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id.; State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App. 2002). In this issue, Ford appears to argue that the warrantless entry into Ford's apartment complex was not justified because the officers did not have probable cause to believe Henry had committed a crime in their presence. We disagree. An officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). Probable cause exists where an officer has reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. Guzman, 955 S.W.2d at 87. Probable cause for a warrantless arrest may be based on prior knowledge and personal observations. Beverly v. State, 792 S.W.2d 103, 105 (Tex.Crim.App. 1990). Those observations need not be of behavior that is overtly criminal if the observations, coupled with the prior knowledge, are sufficient to establish probable cause that an offense was committed. Id.; Stull v. State, 772 S.W.2d 449, 452 (Tex.Crim.App. 1989). However, to enter a residence to make a warrantless arrest, an officer must have consent of a person who resides there or exigent circumstances must exist. Tex. Code Crim. Proc. Ann. art. 14.05 (Vernon 2005). Exigent circumstances include an increased likelihood of apprehending a suspect, possible destruction of evidence or contraband, and hot or continuous pursuit. Randolph, 152 S.W.3d at 771; see Estrada, 154 S.W.3d at 610 (preventing destruction of evidence justifies warrantless entry); McNairy v. State, 835 S.W.2d 101, 106-07 (Tex.Crim.App. 1991) (same); Curry v. State, 831 S.W.2d 485, 488 (Tex.App.-Houston [14th Dist.] 1992, pet. ref'd) (hot pursuit is exigent circumstance justifying warrantless entry). Here, Ortiz testified he was in the area investigating a complaint received that same day about prostitution and drug activity at Ford's apartment complex. He observed Henry engaging in behavior he believed, based on his experience, to be consistent with a hand-to-hand drug transaction. Although Ortiz did not testify about every detail of what he saw, he knew this was a known drug location and that many arrests had been made from this address. When he approached Henry to talk to him, Henry ran into the apartment in an effort to evade police. And Ortiz thought Henry would destroy evidence. When Henry attempted to evade police, the officers were justified in entering the residence without a warrant to arrest Henry and to prevent the destruction of evidence. See Tex. Pen. Code Ann. § 38.04 (Vernon 2003); Randolph, 152 S.W.3d at 771; Waugh v. State, 51 S.W.3d 714, 717-18 (Tex.App.-Eastland 2001, no pet.); LaHaye v. State, 1 S.W.3d 149, 152 (Tex.App.-Texarkana 1999, pet. ref'd). Once inside, the officers were authorized to conduct a protective sweep for their safety. See Reasor v. State, 12 S.W.3d 813, 815-16 (Tex.Crim.App. 2000). It was during this protective sweep that the officers discovered the cocaine in plain view. An officer may seize contraband found in plain view. Walter, 28 S.W.3d at 541. We conclude the trial court did not err by denying Ford's motion to suppress the cocaine found in plain view, and we overrule this subpart of Ford's fourth issue.

Evidentiary Rulings

In a subpart of his fourth issue, Ford argues the trial court erred by admitting over his objections the marijuana, guns, and cash seized after the search warrant was obtained. He appears to argue that his objections to the admission of the marijuana, guns, and cash should have been sustained because the officers did not have probable cause to make a warrantless entry into his apartment complex. The entire text of Ford's argument on this point is:

The trial court not only erred in failing to grant Appellant's Motion to Suppress Evidence, it erred in the trial by allowing the admission of evidence seized pursuant to the warrant (the marijuana[,] the guns and the money) into evidence over Appellant's objection.

Ford cites no authority and makes no argument to support his contention the trial court erred by admitting the marijuana, guns, and money. We may consider an issue on appeal, even if it is not properly briefed, if appellant directs our attention to a specific complaint about the trial court's action contained in the record. See $4,310 In U.S. Currency v. State, 133 S.W.3d 828, 829 (Tex.App.-Dallas 2004, no pet.); Turner v. State, 4 S.W.3d 74, 81 (Tex.App.-Waco 1999, no pet.). But Ford's brief does not point to anything specific in the record, such as the offer of evidence, his objections, or the trial court's rulings. Consequently, this issue presents nothing for our review. Tex.R.App.P. 38.1(h); see McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.), cert. denied, 522 U.S. 844 (1997). Nevertheless, we previously concluded that the officers' entry into the house was lawful. Once inside, the discovery of the cocaine in plain view constituted probable cause to seek a search warrant for the remainder of the complex. See Olivarez v. State, 171 S.W.3d 283, 288-89 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Waugh, 51 S.W.3d at 717. Accordingly, we conclude the trial court did not abuse its discretion by admitting the evidence. Having overruled all of Ford's issues, we affirm the judgment of the trial court.