Elanda Kay Crawford v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00240-CR
Elanda Kay CRAWFORD,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-5546C
Honorable Sharon MacRae, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: March 28, 2007

 

AFFIRMED

Elanda Kay Crawford appeals her conviction for the offense of engaging in organized criminal activity, as a habitual offender. On appeal, Crawford argues that she received ineffective assistance of counsel and that her objection to the search warrant and photographs of items taken in the search of her home should have been sustained. We disagree and affirm the trial court's judgment.

Factual and Procedural Background

During the months of February and March 2005, Crawford and three other women engaged in a series of thefts. Their usual method of operation involved entering a store, distracting their victims, and stealing various items such as wallets, bank cards, credit cards, and checks. Using these stolen items, Crawford and the other three women then made unauthorized withdrawals from their victims' accounts, made unauthorized charges on their victims' credit cards, and cashed unauthorized checks belonging to their victims.

Crawford was indicted for the offenses of engaging in organized criminal activity and theft, $20,000 - $100,000, as a habitual offender. The enhancement paragraphs of the indictment alleged a 1998 conviction for aggravated assault of a public servant and a 2002 conviction for forgery. Crawford waived her right to a jury trial and pled not guilty. After hearing evidence and arguments, the trial court found Crawford guilty of engaging in organized criminal activity and the enhancement paragraphs true.

During the guilt/innocence phase of the trial, the State offered into evidence photographs of items that had been seized pursuant to a search warrant for Crawford's residence. Over Crawford's objection that the affidavit for the search warrant was insufficient in that it did not identify Crawford as being a party to an offense, the court admitted the search warrant and the photographs.

During the punishment phase of the trial, the State introduced the pen packets that pertained to the enhancement paragraphs. Although the first enhancement paragraph in the indictment alleged aggravated assault on a public servant, the evidence showed Crawford had been convicted only of assault on a public servant. Thus, Crawford's attorney objected to the enhancement because of a fatal variance between the indictment and the actual conviction. In response, the State argued that the variance was not fatal and cited Tenner v. State for support. See Tenner v. State, 850 S.W.2d 818, 820 (Tex. App.--El Paso 1993, no pet.) (explaining that when there is a variance in the enhancement paragraph of an indictment, courts require an accused to show that the variance resulted in surprise, to her prejudice). In response to the State's argument that Tenner controlled, Crawford's counsel acknowledged that while researching the issue, he had not found the Tenner case and that his research might not have been "in-depth enough." Thus, the trial court granted Crawford a recess to research further. Following the recess, Crawford's attorney argued that the Tenner case was merely persuasive authority. The trial court, however, apparently deciding to follow Tenner, found the enhancement allegation true.

The second enhancement paragraph in the indictment alleged that Crawford committed the felony offense of forgery. Her counsel, however, argued that because forgery is a state jail felony, it cannot be used for enhancement. In response, the State argued that forgery could be a third-degree felony or a state jail felony and that the case alleged for enhancement of Crawford's sentence was a third-degree felony. Agreeing with the State, the trial court found the enhancement allegation true.

Without the enhancements, Crawford's range of punishment was two to twenty years. Because of the enhancements, Crawford's offense was punishable by imprisonment for twenty-five to ninety-nine years.

Arguing on behalf of Crawford during sentencing, Crawford's counsel stated the following:

The reality of this incident - and I have to stand up here and accept some responsibility. Because in looking at the indictment that she was charged with, when it told me that she was enhanced because of an aggravated case that I knew was not aggravated, when it told me that she was enhanced because of a forgery that I knew was not a forgery because that's a state jail, I maybe misdirected the defense in the sense that I thought that this would be something that the enhancement counts would be eliminated and she would be sentenced to no more than what the law allowed under the engaging in organized criminal activity which would be the twenty years. And that was tenuous because of the amounts that were involved.

 

(emphasis added). The trial court then sentenced Crawford to forty-five years imprisonment and restitution in the amount of $60,021.60.

Ineffective Assistance of Counsel

In her first issue on appeal, Crawford argues that she received ineffective assistance of counsel when her trial attorney admitted that he had "misdirected the defense" by failing to appreciate that the enhancement paragraphs alleged in the indictment were legally valid to charge an offense with a minimum possible sentence of twenty-five years instead of a maximum sentence of twenty years.

We follow the Strickland test for determining the ineffective assistance of counsel issue. See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying test pursuant to Strickland v. Washington, 466 U.S. 668 (1984)). To show ineffective assistance of counsel, the defendant must (1) show that her trial counsel's performance was deficient, in that counsel made such serious errors he was not functioning effectively as counsel; and (2) show that the deficient performance prejudiced the defense to such a degree that the defendant was deprived of a fair trial.Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690; Thompson, 9 S.W.3d at 813. Counsel is presumed to have rendered adequate assistance, and it is incumbent on the defendant to identify those acts or omissions which do not amount to reasonable professional judgment and are outside the "range of professionally competent assistance." Strickland, 466 U.S. at 690. To show prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Crawford's argument regarding ineffective assistance of counsel focuses on her trial counsel's mistaken belief that the enhancement paragraphs were not valid, which in turn caused him to mistakenly believe that Crawford faced a punishment range of two to twenty years rather than a punishment range of twenty-five to ninety-nine years. Crawford bases her argument on her trial counsel's admission that his research was not "in-depth enough," which resulted in his missing the Tenner case. According to Crawford, had her trial attorney found the Tenner case, he would have realized that the State was correct in its contention that any variance between the indictment and the evidence was not material. Crawford further argues that she was prejudiced by her trial counsel's mistaken beliefs, pointing to counsel's statement to the court that he "maybe misdirected the defense."

However, it is unnecessary to determine whether trial counsel's performance was deficient here, because Crawford has not met the second prong of the Strickland test: that is, absent the alleged error, the outcome of the trial would have been different. (1) According to Crawford, because of trial counsel's error, "the defense was misguided from the beginning." Yet, Crawford fails to demonstrate how her defense counsel's mistaken belief regarding the range of punishment affected the defense of the case. Crawford states that her counsel's error "undoubtedly affected [her] decision not to enter into a plea bargain." Crawford, however, fails to point to any evidence in the record pertaining to whether a plea bargain was even offered or whether her counsel's mistaken belief affected any decisions regarding a plea bargain. Instead, Crawford argues that her counsel failed to properly prepare a defense with regard to both enhancement allegations and that his inadequate research impacted both enhancement counts. Again, however, Crawford fails to articulate how she was prejudiced by her counsel's alleged deficient performance. Thus, Crawford has not met her burden of proving by a preponderance of the evidence that she was prejudiced by trial counsel's alleged error. We overrule Crawford's first issue on appeal.

Search Warrant

In Crawford's second and third issues on appeal, she claims that the trial court erred in overruling her objection to the search warrants and photographs of items taken in the search of her home because the affidavit for the search warrant did not identify Crawford as being a party to an offense in violation of the U.S. and Texas Constitutions.

We review a magistrate's determination to issue a search warrant under a deferential standard of review. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). "Granting great deference to the issuing magistrate's determination, we will sustain the issuance of the warrant if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing." Elardo v. State, 163 S.W.3d 760, 765 (Tex. App.--Texarkana 2005, pet. ref'd) (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)). And, we interpret affidavits in a common-sense and realistic manner. Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991). Further, the magistrate may draw reasonable inferences from the facts contained in the affidavit. Id.

A search warrant may not be issued unless a sworn affidavit sets forth sufficient facts to establish probable cause:

(1) that a specific offense has been committed;

 

(2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense; and

 

(3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

 

Tex. Code Crim. Proc. Ann. art. 18.01(c) (Vernon 2005).

 

Crawford argues that although the supporting affidavit is "extremely detailed," it does not indicate that a specific offense was committed. In other words, according to Crawford, the affidavit was required to state that theft or engaging in organized criminal activity had been committed.

The affidavit, which was executed by a police officer, describes in detail the residence to be searched. The affidavit states that the residence was "in the charge of and controlled by . . . Elanda Crawford . . . ." The affidavit refers to her as a "suspected party." The officer affirms in the affidavit that he believed that Crawford had possession of and was concealing evidence of the offense:

It is the belief of affiant that said suspected party has possession of and is concealing at said suspected place the following property described in the attached Exhibit B, which is to be considered as part of this affidavit as if written herein. Said property constitutes evidence that the offense described in Paragraph 4, below, was committed.

 

The affidavit then details numerous events involving Crawford and her co-defendants:

On February 22, 2005, an individual employed at Lee Lee's Shoe Store in Olmos Park, by the name of Nancy Landreth, contacted the Olmos Park Police Department to report that her wallet had been stolen. Landreth stated three black females had entered the store between 1:30 PM and 2:15 PM and walked through the store. Landreth saw one of the black females walk behind the register counter in the area [where] Landreth's purse and wallet had been sitting. All three females left Lee Lee's Shoe Store without purchasing any items. Shortly thereafter Landreth discovered her wallet (which contained her Texas Driver's License, Social Security Card, check book, credit cards, and her husband's name and Social Security) had been taken out of her purse. At this time Landreth reported the theft to the Olmos Park Police Department.

 

On March 2, 2005, Landreth contacted your affiant regarding an unauthorized transaction on her American Express Credit Card, and an unauthorized cash withdrawal from her personal bank account.

 

On March 4, 2005, your affiant was contacted by Ace Cash Express #531 regarding two checks cashed in the amount of $11,800. Your affiant learned these two checks were made payable to Ronald Landreth, who is Nancy Landreth's husband. These two checks were cashed simultaneously with two other checks made payable to an individual named Amy Freund which totaled $13,560. The Ace Cash Express sales clerk indicated all four checks were cashed by a black male and female who identified themselves as Ronald Landreth and Amy Freund.

 
***

Your affiant subsequently contacted Amy Freund who indicated her wallet had also been stolen out of her purse on February 22, 2005, while she shopped at Boyd Electric Company in San Antonio. Amy Freund further advised your affiant that she had reported her stolen wallet to the San Antonio Police Department. Your affiant later obtained information from the San Antonio Police Department's Forgery Unit regarding a black female suspect known as Elanda Crawford. Your affiant subsequently obtained a photo line up of suspected party and Landreth positively identified suspected party as one of the black females that had come into Lee Lee's Shoe Store on February 22, 2005.

 

Your affiant learned Landreth's unauthorized American Express Credit Card purchase made on 02-22-2005 was in the amount of $2321.48. Additionally, your affiant learned this transaction was made at the Northstar Mall Macy's location. Suspected party was positively identified by Macy's store clerk personnel as the individual that made the $2321.48 transactions on 02-22-2005 with Landreth's American Express Credit Card. Suspected party is also depicted on the stores surveillance system as the individual making this transaction.

 
***

Your affiant also learned a new charge account had been opened in Landreth's name at the Rolling Oak Sears location, and two transactions totaling $3059.78 were made on this account on 03-01-2005. Your affiant obtained a Sears surveillance video which shows suspected party making these transactions. The items purchased from this transaction are detailed in Exhibit B under subheading 2.

 

Your affiant further learned Amy Freund's personal check #2657 had been written at Traditions Store in San Antonio for $310.38 on 02-26-2005. The Traditions store clerk [who] conducted the transaction positively identified suspected party as the individual [who] passed this check, and stated suspected party produced a Texas Driver's License and Credit Card as proof of her identify as "Amy Freund."

 

Additionally, your affiant learned Amy Freund's personal check #2665 had been written at a San Antonio area Home Depot for $297.07 on 03-02-2005. Your affiant obtained surveillance video footage of this transaction, which also shows suspected party as the individual who made this purchase.

 

Your affiant further learned Amy Freund's personal check #2667 had been written at a San Antonio area Best Buy for $420.21 on 03-01-2005. Your affiant obtained surveillance video footage of this transaction, which also shows suspected party as the individual who made this purchase.

 

Your affiant further learned Amy Freund's personal check #2668 had been written at a San Antonio Bed Bath and Beyond for $643.82 on 03-01-2005. Your affiant obtained surveillance video footage of this transaction, which also shows suspected party as the individual who made this purchase.

 

The affidavit continues for several more paragraphs describing, in a similar manner, how Crawford participated in unauthorized transactions using stolen credit cards and checks. Applying the deferential standard of review, we find that the affidavit was sufficient to meet the requirements of article 18.01(c). We overrule Crawford's second and third issues on appeal.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. According to Strickland, 466 U.S. at 697, we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."