Michael Antonio Jenkins v. State of Texas--Appeal from Criminal District Court No. 2 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Michael Antonio Jenkins

Appellant

Vs. No. 11-00-00343-CR B Appeal from Dallas County

State of Texas

Appellee

Appellant pleaded guilty to the third degree felony offense of unlawful possession of cocaine. The trial court convicted appellant and assessed his punishment at seven years and one month confinement and a fine of $500. We affirm.

Appellant presents three points of error. Appellant asserts: (1) that the delay in completing the appellate record deprived him of his due process rights; (2) that he was denied his right to effective assistance of counsel on appeal due to his retained counsel=s delay in securing the appellate record; and (3) that the trial court erred in denying his motion to suppress evidence.

We first address appellant=s complaint that the trial court abused its discretion in denying appellant=s motion to suppress. The trial court denied appellant=s motion based on a finding that appellant=s girlfriend, Monica Walters, consented to the search of the apartment that led to the discovery of the cocaine and appellant=s subsequent arrest. Appellant argues that Walters did not voluntarily consent to the search and, therefore, that the search was illegal.

The trial court is the finder of fact at a motion to suppress hearing and may choose to believe any or all of the witnesses= testimony. Johnson v. State, 803 S.W.2d 272, 287 (Tex.Cr.App.1990), cert. den=d, 501 U.S. 1259 (1991). In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85 (Tex.Cr.App.1997). We must afford the same amount of deference to the trial court=s rulings on Amixed questions of law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, supra at 89. Appellate courts, however, review de novo Amixed questions of law and fact@ not falling within the previous category. Guzman v. State, supra. When faced with a mixed question of law and fact, the critical question under Guzman is whether the ruling Aturns@ on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998). A question Aturns@ on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, supra. We must view the record in the light most favorable to the trial court s ruling and sustain the trial court s ruling if it is reasonably correct on any theory of law applicable to the case. Guzman v. State, supra.

To be valid, a consent to search must be positive and unequivocal and must not be the product of duress or coercion, either express or implied. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The State bears the burden of proving voluntary consent by clear and convincing evidence. State v. Ibarra, 953 S.W.2d 242, 245 (Tex.Cr.App.1997).

The trial court heard appellant=s motion to suppress on April 20, 2000. Officer A. M. Stokes of the Garland Police Department testified that, on June 25, 1999, at about 12:55 p.m., he responded to a family disturbance call at 4238 Duck Creek, Apartment No. 108. Officer Singleton arrived as backup at about the same time. Officer Stokes and Officer Singleton went to the front door of the apartment. Officer Stokes knocked on the door, and a boy answered. Officer Stokes asked the boy where his parents were, and the boy said that they were upstairs fighting. Officer Stokes testified that, when the boy opened the door, he could hear a male and a female screaming at each other from inside the apartment. Officer Stokes and Officer Singleton entered the apartment hoping to prevent any violence from occurring. They followed the sound of the screaming upstairs to the master bedroom. Officer Stokes testified that appellant was standing in the master bedroom and that Walters was standing in the hallway, about 10 feet away from appellant. Appellant and Walters were still screaming at each other when the officers got upstairs, and the officers had to calm them down. Officer Stokes testified that, once he and Officer Singleton got into the master bedroom, they could smell marihuana. The officers saw a tray containing marihuana stems and residue in the master bedroom.

Officer Stokes testified that Walters told him that appellant had assaulted her and threatened her. Officer Stokes said that there was enough evidence to charge appellant with Class C assault and possession of marihuana.

Officer Dave Weand arrived as additional backup. Officer Weand testified that, when he arrived at the scene, the other officers were upstairs. Officer Weand said that he smelled marihuana as soon as he walked upstairs into the hallway. Officer Stokes pointed out the tray with the marihuana stems on it. Officer Weand testified that he spoke with Walters in the hallway. The lease for the apartment was in Walters=s name. Officer Weand got a consent-to-search form covering the apartment, filled in the blanks on the form, and presented it to Walters for signature. Walters signed the consent to search. The consent to search was admitted as evidence and provided: AI have given this consent of my own free will and accord and without being subject to any threats, promises, compulsion, or persuasion of any kind.@

Officer Stokes testified that the officers found narcotics in a little metal tin on top of an entertainment center in the master bedroom.

Walters testified that the lease to the apartment was in her name. She lived in the apartment with appellant and her three children. Walters said that her 14-year-old daughter called the police because Walters and appellant were arguing. When the police arrived, Walters=s 10-year-old son answered the door. Walters testified that she and appellant had just finished smoking a blunt of marihuana and that the apartment smelled of marihuana. Walters said that she told the officers that appellant had threatened her.

Walters testified that she signed the consent to search because the officers told her that she would go to jail if she did not sign it. Officer Weand testified that he did not threaten to take Walters to jail if she did not sign the consent to search. Officer Stokes testified that Walters was not threatened that, if she did not sign the form, she would go to jail. Officer Stokes said that Officer Weand explained to Walters the problems that she would have being on Asection eight@housing and having narcotics in the apartment.

Appellant relies on Walters=s testimony to support his argument that the officers coerced Walters into signing the consent to search by telling her that she would go to jail if she did not sign it. However, the consent to search provides that Walters gave her consent of her own free will and accord and without being subject to any threats, promises, compulsion, or persuasion of any kind ; and Officer Stokes and Officer Weand both contradicted Walters s testimony. As the finder of fact, the trial court was the sole judge of the credibility of the witnesses and was free to disbelieve Walters s testimony. Johnson v. State, supra at 287. Based on the evidence, the trial court did not abuse its discretion in finding that Walters voluntarily consented to the search. Appellant s third point of error is overruled.

In his first point of error, appellant complains of the delay of over two years in completing the appellate record. TEX.R.APP.P. 35.2 governs the filing of the appellate record in criminal cases. Rule 35.2(b) applies to cases in which a timely motion for new trial has been filed and denied. Rule 35.2(b) provides that the appellate record must be filed within 120 days after the sentence is imposed or suspended in open court. The trial court imposed the sentence on August 25, 2000. Appellant filed a timely motion for new trial which the trial court denied. Thus, the appellate record was due to be filed within 120 days after August 25, 2000. However, the court reporter=s record from the hearing on appellant=s motion to suppress was not filed until February 19, 2003, more than two years after the deadline.

The courts have held that a substantial delay in processing an appeal may constitute a denial of due process under U.S. CONST. amend XIV. Colunga v. State, 527 S.W.2d 285, 288 (Tex.Cr.App.1975); Reese v. State, 481 S.W.2d 841, 842-43 (Tex.Cr.App.1972). In determining whether a delay in processing a defendant=s appeal constitutes a denial of due process, the courts consider four factors: (1) the length of the delay, (2) the reason or justification for the delay, (3) whether and to what extent the defendant demanded a more rapid appeal, and (4) any prejudice resulting to the defendant by the delay (such as post-trial confinement, worry, and the desire to limit the possibility that the defendant=s appeal will be impaired). Sparkman v. State, 634 S.W.2d 82, 84 (Tex.App. B Tyler 1982, no writ)(citing Rheuark v. Shaw, 477 F. Supp. 897, 908-09 (N. D. Tex. 1979), aff=d in part and rev=d in part, 628 F.2d 297 (5th Cir. 1980), cert. den=d, 450 U.S. 931 (1981)). The Aprejudice@ inquiry is the most important factor because Aa due process violation cannot be established absent a showing of prejudice to the appellant.@ United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. den=d, 498 U.S. 963 (1990). In evaluating the Aprejudice@ factor, courts focus on three types of potential prejudice from appellate delay: (1) oppressive incarceration pending appeal, (2) anxiety and concern of the convicted party awaiting the outcome of the appeal, and (3) impairment of the convicted person=s grounds for appeal or of the viability of his defense in case of retrial. United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994)(citing United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993)(en banc), cert. den=d, 510 U.S. 1182 (1994) and Rheuark v. Shaw, 628 F.2d at 303).

In this case, the length of the delay in filing the reporter=s record exceeded two years, and the record does not demonstrate any justification or reason for the delay. However, the record also does not demonstrate that appellant demanded a more rapid appeal.

As to the first type of potential prejudice, if a defendant=s conviction was proper, Athere has been no oppressive confinement; he has merely been serving his sentence as mandated by law.@ United States v. Tucker, supra at 676 (citing United States v. Antoine, supra at 1382). In this case, we have held that the trial court did not err in denying appellant=s motion to suppress. Thus, appellant=s conviction was proper, and his incarceration was not oppressive. As to the second type of prejudice, appellant has experienced anxiety and concern during this appeal, but he has not demonstrated that it was to such a degree as Awould distinguish his case from that of any other prisoner awaiting the outcome of an appeal.@ United States v. Tucker, supra at 676 (quoting United States v. Antoine, supra at 1383). As to the third type of prejudice, the delay did not impair the ground for his appeal. The reporter=s record is a complete record of the hearing on appellant=s motion to suppress. The record enabled appellant to fully present his ground for appeal. Had the record been filed two years earlier, appellant still would not have succeeded on his appeal. Appellant has not been prejudiced by the delay in the filing of the record. We cannot say that the delay constituted a denial of due process. See Colunga v. State, supra. Appellant=s first point of error is overruled.

In his second point of error, appellant asserts that he was denied his right to effective assistance of counsel on appeal due to his retained counsel=s delay in securing the appellate record. Appellant=s retained counsel represented him at the hearing on the motion to suppress and filed the notice of appeal. Appellant=s retained counsel was appellant=s attorney of record on appeal until the trial court declared appellant indigent and appointed new counsel for appellant on September 7, 2001.

A defendant is entitled to receive effective assistance of counsel on appeal. See Ex parte Coy, 909 S.W.2d 927, 928 (Tex.Cr.App.1995); Ex parte Dietzman, 790 S.W.2d 305, 306-07 (Tex.Cr.App.1990). If a defendant demonstrates that he was denied reasonably effective assistance of counsel on appeal, the defendant is entitled to habeas corpus relief in the form of a new appeal or an out-of-time appeal. Ex parte Coy, supra at 928; Ex parte Dietzman, supra at 306-07. The purpose of the remedy is to provide the defendant an opportunity for meaningful appellate review. Ex parte Coy, supra. In this case, the conduct of appellant=s retained counsel did not prevent a meaningful appellate review of appellant=s claims. The appellate record is now complete, and appellant has received a meaningful appellate review in this appeal. Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

August 29, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.