Opinion
No. 05-10-01624-CR No. 05-10-01625-CR
07-24-2012
SHAUN DAVID OVERTON, Appellant v. THE STATE, Appellee
AFFIRM as modified; Opinion issued July 24, 2012
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F09-41450-X; F09-41452-X
OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Bridges
Shaun David Overton appeals his convictions for possession with intent to deliver gamma-Hydroxybutyric acid (GHB) in an amount of 200 grams or more but less than 400 grams in cause number 05-10-01624-CR and methamphetamine in an amount of four grams or more but less than 200 grams in cause number 05-10-01625-CR. A jury convicted appellant in each case, and the trial court sentenced him to thirty years' confinement and a $500 fine in each case. In five points of error, appellant argues he received ineffective assistance of counsel, the evidence was insufficient to show he used or exhibited a deadly weapon during the commission of the offenses, two safes in the trunk of his car were searched in violation of his constitutional rights, and he has been denied a complete court reporter's record. In a single cross point, the State argues the judgment in cause number 05-10-01625-CR should be reformed to show a $500 fine was assessed. As reformed, we affirm the trial court's judgments.
On June 28, 2009, Mesquite police officer Aaron Shedd was assigned to patrol Town East Mall. Around 3:50 p.m., Shedd entered the mall in response to a call from Sears' loss prevention regarding a theft they believed was in progress. Another officer responded to the call but waited outside. Shedd went to a room in Sears where there was “a wall of TVs” monitoring surveillance cameras throughout the store. Loss prevention personnel were monitoring a white car that was circling the area out in the parking lot and a woman who was on the sales floor. The white car parked near a mall entrance, and the driver, appellant, got out, went inside, and met the woman who was under surveillance, later identified as Rebekah Roden.
Appellant and Roden began taking merchandise “off the racks and piling it up.” They took the merchandise to a cash register and purchased it using gift cards. Loss prevention personnel mentioned the store had been having some fraudulent gift card purchases at that time. They called down to the cash register clerk, who reported to Shedd that the gift card seemed legitimate, but appellant and Roden were “behaving very strangely.” Appellant and Roden went back on the sales floor, selected more merchandise, and went to a different register, which Shedd knew was “behavior consistent with theft.” Loss prevention personnel again called the clerk and asked about the transaction. The clerk reported appellant and Roden were using the same kind of gift card and “behaving oddly.” Watching appellant and Roden on the surveillance camera, Shedd thought they were “almost frantic,” and Roden “was grabbing stuff she wasn't even looking at and putting it in the basket.” They were “real fidgety, real active,” and Shedd, based on his training and experience, formed the opinion they were intoxicated on some kind of narcotic. After the second transaction, appellant and Roden left the store and approached the white car parked outside. Just as appellant was sitting down in the car, Shedd and other officers converged on the car. The officers removed appellant and Roden from the car and were getting their identification when Shedd “really noticed that they seemed to be under the influence of something.” Appellant was “sweating profusely, acting kind of paranoid, looking over his shoulder.” At that time, appellant and Roden were not under arrest but were “being detained just to make sure they weren't going to be driving off intoxicated.” Shedd and the other officers were still concerned that appellant and Roden were engaged in some kind of theft, and they asked for consent to search the vehicle. Appellant said the officers could search the vehicle.
At the same time, Shedd was talking to Roden, who admitted being high on speed. Shedd had seen people high on speed before, and Roden's and appellant's behavior was consistent with Roden's admission. Officers searched the car, and located a black case under the driver's seat. Inside the case was methamphetamine and some drug paraphernalia. At that point, Shedd determined there was probable cause that there would be other narcotics found in the car. Officers placed appellant and Roden in handcuffs, searched them for narcotics, and continued searching the vehicle. Inside the trunk, officers found a safe mounted behind the right taillight. The safe was bolted to the floor of the trunk, and it was unlocked when Shedd turned the handle to open it.
Inside the safe was a smaller safe, two sport drink bottles, a water bottle, and a digital scale that appeared to have methamphetamine residue on it. Also in the trunk was a large number of small plastic baggies, pipes to smoke methamphetamine, prescription pills, ammunition, a holster, and a laptop bag. As the officers were pulling things out of the trunk, Roden said everything was hers, so they asked Roden for access to the smaller safe. Roden told police the key was in the laptop bag. Using the key, officers were able to open the small safe. Inside the small safe was $3806 in cash, a nine millimeter semi-automatic pistol, and a loaded Smith & Wesson .40 caliber semi-automatic pistol. At first, Shedd thought the bottles he found contained water, and Roden asked for a drink from one of the bottles. However, as Shedd was moving the bottles, they “sudsed up” and he noticed the liquid moved “kind of slow” and not as “free” as water. When Shedd shook a bottle, it “really sudsed up kind of like soapy water.” Shedd knew that the liquid was behaving in a manner consistent with GHB, a narcotic. Appellant was charged with possession with intent to deliver methamphetamine and GHB.
At trial, the parties stipulated that, if Mick Grizzle were called as a witness for the State, he would testify that he is employed as a forensic scientist with the Texas Department of Public Safety Garland Crime Laboratory, and he tested the drug evidence in this case. According to Grizzle's report, the methamphetamine tested weighed 53.58 grams, and the weight of the GHB was over 200 grams but less than 400 grams. Shedd testified that it is common to find drugs with guns because drug dealers operate outside the law and, when “they have business dealings and they got to take care of themselves,” they usually do that with a gun. The jury convicted appellant in each case and found that appellant used or exhibited a deadly weapon in each case. These appeals followed.
In his first point of error, appellant argues he received ineffective assistance of counsel. Specifically, appellant argues his counsel conceded guilt in each case and did not request a jury instruction regarding accomplice witness testimony. In making this argument, appellant cites the following statements by his trial counsel during closing argument:
I have a very brief summary, summation with regard to this case. As I mentioned to you in voir dire, the issue is very narrow again from our perspective in this case. You probably figured that out based upon the very limited amount of questioning that I did. The only thing we're asking you to do is take a look at this special issue. That's the only issue that we framed in this case. It's the only issue that we feel like you should spend any amount of time on.A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness
Now that being said, the only way we can get here, as I mentioned in voir dire, is to plead not guilty. We can't -- the criminal law doesn't allow us to say, Well, we agree to X, Y, Z, but we want to contest this A. It doesn't -- it doesn't work that way. Mr. Overton's required to plead not guilty. We're required to have a trial with regard to the entire case so that we can contest this one issue. And that's the issue that we are asking you to focus on because -- that being said, it doesn't mean that it's not important. It doesn't mean that it's -- that it's not something that we have to rely on your decision on. And it's -- it's just the way the law is structured. We have to plead not guilty to ever get to this point. And as you know, we're 15 months getting to this very narrow issue. We talked about on voir dire you're looking at this solely as a purely objectiveness, purely an objectiveness determination as to whether or not the weapons were used or exhibited in the commission of the case.
That's the way the law is framed, used or exhibited. I think the State has already or the State will concede because their officer has already testified that there was no exhibition, so now we're down to use. Purely an objective determination whether or not you think that the weapon was used, as the State alleges in this case.
And, you know, the State wants to have you frame this issue in terms of, Well, it's used because it's a tool of the trade. Well, that's not what the law says. The law -- our Legislature can say that if they want to. The Legislature has chosen not to say that, and so that's not what we're talking about. You read the charge. You read what Judge McDowell has told you in the special issue submission. It doesn't say if it's a tool of the trade, then find the special issue true. That's not what we're talking about. It's very, very specific. It says if the possession facilitates the associated felony offense.
and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as “ineffective.” Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is “simply undeveloped and cannot adequately reflect the failings of trial counsel.” Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). The record is silent as to why appellant's trial counsel focused in his argument almost exclusively on the deadly weapon issue. Therefore, appellant has failed to rebut the presumption that counsel's decisions were reasonable, and we overrule appellant's first point of error. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14.
In his second point of error, appellant argues the evidence is insufficient to show beyond a reasonable doubt that appellant used or exhibited a deadly weapon, specifically a firearm, during the commission of the underlying offenses. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
A deadly weapon finding is warranted when there is evidence that a person “used or exhibited” a “deadly weapon” “during commission of a felony offense.” Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (West Supp. 2011). § 3g(a)(2) (West Supp.2011); Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004). “Use” is defined to mean “any employment of a deadly weapon,” including “even simple possession [of the weapon], if such possession facilitates the associated felony.” Coleman, 145 S.W.3d at 652 (quoting Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989).
Here, the loaded handgun was found with the drugs in a safe in the car appellant was driving. Although the safe was locked, the key was also in the trunk of the car in a laptop bag. Roden testified the white car belonged to appellant, and the guns belonged to appellant. Roden testified appellant “sold to some people in the parking lot” on the day of the arrest, though Roden did not know what appellant sold. Appellant had the safe installed in the car because appellant had been “jacked previously,” meaning someone took everything that he had. The weapons in the trunk, according to Roden, were kept for “protection” to keep from being “jacked” again. We conclude this evidence is sufficient to show appellant “used” the loaded handgun, and the gun facilitated the associated felony of possession with intent to deliver methamphetamine and GBH. See Coleman, 145 S.W.3d at 652. We overrule appellant's second point of error.
In his third and fourth points of error, appellant argues the safe and the small locked safe were searched in violation of his rights under the Texas and federal constitutions. A search conducted without a warrant issued upon probable cause is “per se unreasonable,” subject only to specifically established and well-delineated exceptions, one of which is a search conducted with voluntary consent. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of “objective” reasonableness, i.e., what the typical reasonable person could have understood by the exchange between the officer and the suspect. Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.-Houston [14 Dist.] 2000, pet. ref'd); see Florida v. Jimeno, 500 U.S. 248, 251 (1991).
Dist.] 2005, pet. ref'd). When an officer asks a suspect for permission to search a vehicle for illegal contraband and the suspect agrees, a reasonable person would construe the consent to extend to any area of the vehicle where such objects could be concealed. Id. at 657-58.
The scope of the search is generally defined by its expressed object, and a suspect may limit the scope of the search if he chooses to do so. Simpson, 29 S.W.3d at 330; see Jimeno, 500 U.S. at 251. “Absent an officer's request or a suspect's consent limiting a search to a particular area of a vehicle, such as the trunk or passenger compartment, a request to search 'the car' reasonably includes all areas of the vehicle and excludes none.” State v. Garrett, 177 S.W.3d 652, 657 (Tex. App.-Houston [1
Here, Shedd testified appellant gave consent to search the vehicle. When officers encountered the locked safe, Roden told officers where to find the key. We conclude a typical reasonable person could have understood appellant's consent to the search of his car to be his consent to search any area of his vehicle. See Montanez, 211 S.W.3d at 416 (concluding defendant's unlimited consent to search vehicle authorized removal of gas tank, which revealed hidden compartment containing drugs); Garrett, 177 S.W.3d at 658 (explaining appellant's voluntary consent to search of his vehicle for illegal contraband authorized search of truck's door panels, in which drugs were found). Because the two safes were searched with appellant's consent, no violation of appellant's rights under either the Texas or federal constitution occurred. See Rayford v. State, 125 S.W.3d at 528. We overrule appellant's third and fourth points of error. In his fifth point of error, appellant complains he has been denied a complete court reporter's record. Specifically, appellant argues he has taken all appropriate steps to acquire a complete record, but he has been unable to obtain a record of the trial court's hearing on his motion to suppress. However, subsequent to the filing of appellant's briefs, the record in this case was supplemented with a reporter's record of the hearing on appellant's motion to suppress. Accordingly, we will not further address this point of error.
In a single cross-point, the State argues the judgment in cause number 05-10-01625-CR should be reformed to show a $500 fine was assessed. The record shows the trial court orally imposed a $500 fine in each case. However, the judgment contained in the clerk's record in cause number 05-10-01625-CR shows a fine of “$-0-.” When there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). This Court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd). We reform the judgment in cause number 05-10-01625-CR to reflect the imposition of a $500 fine.
As reformed, we affirm the trial court's judgments.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101624F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHAUN DAVID OVERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01624-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F09- 41450-X).
Opinion delivered by Justice Bridges, Justices FitzGerald and Lang participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 2012.
DAVID L. BRIDGES
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SHAUN DAVID OVERTON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01625-CR
Appeal from the Criminal District Court No. 6 of Dallas County, Texas. (Tr.Ct.No. F09- 41452-X).
Opinion delivered by Justice Bridges, Justices FitzGerald and Lang participating.
Based on the Court's opinion of this date, the trial court's judgment is REFORMED to reflect the trial court's imposition of a $500 fine. As reformed, the judgment of the trial court is AFFIRMED.
Judgment entered July 24, 2012.
DAVID L. BRIDGES
JUSTICE