Jeffrie Anteries Daniel v. The State of Texas--Appeal from 399th Judicial District Court of Bexar County

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MEMORANDUM OPINION
No. 04-02-00484-CR
Jeffrie Anteries DANIEL,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court of Bexar County, Texas
Trial Court No. 2000-CR-1247
Honorable Juanita Vasquez-Gardner, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen A. Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 27, 2003

AFFIRMED

Jeffrie Anteries Daniel ("Daniel") appeals his forgery conviction. Daniel contends that the trial court erred by denying his motion to suppress, admitting evidence of extraneous offenses, and denying him the right to confront and cross-examine a witness. Daniel also contends that he was deprived of his right to effective assistance of counsel during the period for filing an amended motion for new trial. Because the issues in this appeal are settled by existing precedent, we affirm the trial court's order in this memorandum opinion. Tex. R. App. P. 47.4.

Motion to Suppress

In his third and fourth points of error, Daniel complains that the trial court erred in denying his motion to suppress because the affidavit supporting the search warrant was undated and because the evidence seized exceeded the scope of the warrant.

In reviewing the trial court's ruling on a motion to suppress, we afford deference to the trial court's determination of the historical facts, but we decide de novo whether the trial court erred by misapplying the law to the facts. See Guzman v. State, 955 S.W.2d 85, 87- 88 (Tex. Crim. App. 1997).

Undated Affidavit

Relying on Heredia v. State, 468 S.W.2d 833 (Tex. Crim. App. 1971), Daniel contends that the search warrant was invalid because the affidavit supporting it was undated. In Heredia, the Texas Court of Criminal Appeals held that an undated jurat on an affidavit "vitiates the complaint." 468 S.W.3d at 835.

In Forcha v. State, the Houston Court of Appeals addressed the continued viability of the holding in Heredia in view of article 38.23(b) of the Texas Code of Criminal Procedure. 894 S.W.2d 506, 510 (Tex. App.--Houston [1st Dist.] 1995, no pet.). The Forcha court noted that Heredia was decided before the enactment of article 38.23(b). Id. at 510 n.2. Article 38.23(b) provides:

It is an exception to the provisions of Subsection (a) of this article [providing for the exclusion of evidence obtained in violation of the provisions of this article] that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

Tex. Code Crim. Proc. Ann. art. 38.23(b) (Vernon Supp. 2003). Applying article 38.23(b), the Forcha court concluded that if the affidavit supporting the warrant established probable cause, the failure to date the affidavit did not negate a police officer's objective good faith reliance on the warrant, and evidence seized based on that good faith reliance was admissible. Id. The same analysis applies in this case. Daniel does not contend that the warrant did not establish probable cause, and, having reviewed the affidavit, we conclude that it does. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress because the failure to date the affidavit did not negate the police officers' objective good faith reliance on the warrant.

Daniel's third point of error is overruled.

Scope of Evidence Seized

In his fourth point of error, Daniel complains about the seizure of a number of items not specifically listed in the search warrant. "An officer may seize mere evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the perimeters of the search warrant." Bower v. State, 769 S.W.2d. 887, 906 (Tex. Crim. App. 1989), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); Young v. State, 8 S.W.3d 695, 699 (Tex. App. --Fort Worth 1999, no pet.).

The affidavit supporting the warrant stated that the affiant, Rudy Zarate, ". . . [had] reason to believe and [did] believe that instruments and instrumentalities used in the commission of the offense of forgery are located within 3711 Cherry Forest Drive, Houston, Harris County, Texas. The instruments that are sought are described as computers, printers, floppy disks, blank social security cards, and stolen drivers licenses." During their search, the officers discovered several incriminating items, including driver's license templates, laminating materials, laminating machines, papers with rectangular cut outs, and photographs of individual persons that were not specifically listed in the warrant. "It was reasonable for the officers to conclude that the additional items not listed in [the warrant] had a relationship to the crime being investigated." Bower v. State, 769 S.W.2d at 906.

Daniel's fourth point of error is overruled.

Extraneous Offense Testimony

In his first point of error, Daniel contends that the trial court erred in admitting testimonial evidence of extraneous offenses. Specifically, Daniel argues that the trial court improperly admitted evidence of several altered checks, three fake Alabama driver's licenses, driver's license templates, laminating materials, a laminating machine, and fourteen miniature photographs of Daniel.

The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App.1990). Accordingly, we review the trial court's admission of evidence under an abuse of discretion standard. Id. at 379-80.

At trial, Daniel's defensive theory was mistaken identity. During her opening statement, Daniel's attorney stated that the evidence would show that "my client is not the person that is identified as conducting the transaction." Daniel's attorney also vigorously cross-examined Motta, the Target cashier, about whether he was sure that Daniel was the one that handed him the forged check.

Extraneous offense evidence is admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b). The evidence Daniel contends should have been excluded tended to show that Daniel had a plan and scheme to present forged checks and tended to identify him as the perpetrator of the offense. Accordingly, the trial court did not abuse its discretion in admitting the extraneous offense testimony as proof of plan or identity.

Daniel's first point of error is overruled.

Confrontation and Cross-Examination of Witness

In his second point of error, Daniel complains that the trial court erred in limiting his cross-examination of Motta regarding an inconsistent statement that Motta made during a pretrial hearing. Specifically, Daniel argues that Motta stated during the pre-trial hearing that he never spoke to anyone about the forged check transaction prior to meeting with Investigator Isaac Lee; however, during trial, Motta stated that he spoke with Target security after he received the forged check and that he gave a written statement giving details about what he remembered about the transaction. Daniel asserts that he should have been permitted to cross-examine Motta because the inconsistency called into question Motta's credibility. Daniel contends that by limiting his right to cross-examine Motta, the trial court deprived him of his federal and state constitutional right to confrontation.

Any error that improperly limits the right to confrontation, including the constitutional right to cross-examination, is subject to a harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); Young v. State, 891 S.W.2d 945, 948 (Tex. Crim. App. 1994). In performing a harmless error analysis, the reviewing court must review the entire record and apply a three- prong test. Young v. State, 891 S.W.2d at 948. Under the first prong, the reviewing court must "assum[e] that the damaging potential of the cross-examination [was] fully realized." Delaware, 475 U.S. at 684; see also Young, 891 S.W.2d at 948. The court then must review the error in consideration of the following five factors: (1) the importance of the witness's testimony; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. Delaware, 475 U.S. at 684; Young, 891 S.W.2d at 948. Finally, keeping the first two prongs in mind, the reviewing court must reverse a conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex. R. App. P. 44.2(a).

Assuming, without deciding, that error was properly preserved and that limiting the cross-examination violated Daniel's right to confrontation, we conclude that any error was harmless. Other than not being able to ask Motta who he talked to before identifying Daniel, defense counsel was not restricted in his cross-examination. Daniel's attorney vigorously questioned Motta about whether he was certain that Daniel was the individual who passed him the forged check. In addition to Motta's identification, Bell also identified Daniel as the person who passed the forged check and testified regarding his discovery of Daniel's forgery activities during his investigation. Finally, the State was permitted to present other extraneous evidence that proved Daniel's identity as the perpetrator. Accordingly, any error in refusing to permit Daniel to cross-examine Motta regarding which persons he spoke with prior to identifying Daniel was harmless. Tex. R. App. P. 44.2; see also Motilla v. State, 78 S.W.3d 352, 356-58 (Tex. Crim. App. 2002) (overwhelming evidence of guilt is factor to be considered in harm analysis).

Motion For New Trial

In his fifth point of error, Daniel argues that the trial court violated his constitutional rights by failing to appoint counsel within thirty days of the date his sentence was imposed. This failure, Daniel alleges, violated his constitutional rights because he was deprived of effective assistance of counsel and lost the ability to file a timely amended motion for new trial without leave of court. Daniel further alleges that the trial court erred by denying his motion for leave to file his first amended motion for new trial since the trial court did not appoint counsel until after the deadline expired for Daniel to file his amended motion.

A defendant is constitutionally entitled to effective assistance of counsel at each critical stage of a criminal prosecution. See Upton v. State, 853 S.W.2d 548, 553 (Tex. Crim. App. 1993); U.S. Const. amend. VI; Tex. Const. art. I, 10. The period Daniel had to file and present a motion for new trial is a critical stage of a criminal prosecution. Price v. State, No. 04-02-00299-CR, 2003 WL 21697409, at *2 (Tex. App.--San Antonio Jul. 23, 2003, no pet. h.) (not designated for publication).

Assuming Daniel was deprived of effective assistance of counsel for purposes of filing and presenting his motion for new trial and amended motion for new trial, the error was harmless. In his amended motion for new trial, Daniel sought to convince the court that he was entitled to a hearing on whether the trial court improperly admitted evidence because the affidavit supporting the search warrant was undated. Since we previously determined that the trial court did not err in admitting evidence due to the undated affidavit, Daniel cannot show that the trial court's failure to conduct a hearing and consider this contention resulted in harm. Tex. R. App. P. 44.2(a); Massingill v. State, 8 S.W.3d 733, 737 (Tex. App.--Austin 1990. no pet.).

Daniel's fifth point of error is overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

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