Lee Roger Simpson, Jr. v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-93-097-CR

LEE ROGER SIMPSON, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Falls County, Texas

Trial Court # 6419

OPINION

Lee Roger Simpson was charged by an indictment that alleged the offense of unlawful possession of cocaine, a controlled substance, in an amount less than 28 ounces, a prior conviction for possession of a controlled substance with intent to deliver, and a prior conviction for theft of property of the value of $750 or more. He was found guilty by a jury. After finding the enhancement counts "not true," the jury assessed a prison term of twenty years and a $5,000 fine. Simpson was sentenced on May 19, 1993, and gave notice of appeal on June 23.

On September 1, we abated the appeal and directed the trial court to conduct a hearing to determine whether Simpson desired to proceed with his appeal and, if so, whether he remains indigent. We also directed the court to determine, if Simpson is indigent, whether appointed counsel can render effective assistance or, in the alternative, whether Simpson desired to waive his right to counsel and proceed pro se. The court, having held the hearing on October 11, made the necessary findings.

At the hearing, Visiting Judge Charles E. Lance determined that Simpson desired to discharge his appointed attorney on appeal and proceed pro se. After inquiring into his background, age, education, and experience, the court determined that he has the ability and capacity to knowingly and intelligently waive his right to counsel, that he has the mental capacity to waive his right to counsel, and that he appreciates the dangers and practical disadvantages of self-representation. The court admonished Simpson that the right to self-representation carries with it certain obligations, including the requirement that he comply with the "technically complex" rules in appellate litigation, and that he would not be granted any special consideration because of his lack of formal legal training.

Simpson had filed a "Motion to Dismiss Court Appointed Appeal Counsel." After reinstating the appeal, we granted the motion based on the trial court's findings and admonishments and dismissed all attorneys who had previously been appointed to represent Simpson in the appeal of this cause.

The statement of facts was filed while the appeal was abated. Simpson's pro-se brief was filed in this court on November 29. On December 9, he filed a motion to file a supplemental brief, which was accompanied by the proposed supplement. The motion having been granted, the supplemental brief filed as of December 9 will be considered in the disposition of the appeal. The State has not filed a brief.

Simpson's initial brief raises five "Constitutional Errors Committed by the Prosecutor." They can be summarized as: (1) the introduction and urging of false evidence State's Exhibits Six and Sixteen with knowledge of their falsity; (2) tampering with State's Exhibit Six; (3) use of false testimony about the location of State's Exhibit Six when it was taken into custody; (4) use of false testimony about State's Exhibit Sixteen photocopies of the contents of a billfold that was not listed in the "inventory" that resulted from a search warrant; and (5) failing to correct false testimony of witness David E. Moore about Exhibits Six and Sixteen when the prosecutor knew that it was false. His supplemental brief asserts a sixth "Constitutional Error Committed by the Prosecutor at Trial," i.e., (6) knowing and intentional concealment of exculpatory evidence State's Exhibit 1 from the October 16, 1992, pretrial and renumbering Exhibits 2-5 from the pretrial as Exhibits 1-4 for the trial on the merits. In support of his position on points one through five, Simpson cites Brown v. Borg, 951 F.2d 1011, 1017 (9th Cir. 1991). His sixth point is supported by citations to "VTCA 37.10," the 14th Amendment to the United States Constitution, and Brown.

Brown v. Borg involved the use of evidence that the prosecutor admitted was false the testimony of a wallet and gold chains as missing from the body of a murder victim to prove an alleged robbery when they were in fact returned to the victim's family by hospital staff and known by her to be false before trial. Id. at 1012. On appeal from the denial of a writ of habeas corpus, the Ninth Circuit, after noting that "the state does not challenge the trial court's ruling that the prosecutor acted improperly," determined that the prosecutor violated the duty to inform the defense of exculpatory evidence, the duty to correct false evidence when offered, and the duty not to argue false or inadmissible evidence to the jury. Id. at 1014-15. Quoting Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), the Court recognized:

[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.

The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, [is] implicit in any concept of ordered liberty.

Thus, "A new trial is required `if there is any reasonable likelihood that the false [evidence] could have affected the judgment of the jury.'" // Brown, 951 F.2d at 1015.

No motion for new trial was filed; the record before us contains one volume of statement of facts and an exhibits volume from the pretrial hearing held October 16, 1992, and five volumes // from the trial on the merits held May 18-19, 1993. We are bound by the record, which consists of the transcript and, where necessary to the appeal, a statement of facts. See Tex. R. App. P. 50(a). Mere assertions in a brief not supported by evidence in the record will not be considered on appeal. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1238, 89 L. Ed. 2d 346 (1986).

The exhibits around which Simpson's complaints center are:

" Exhibit One from the pretrial hearing, which is the "Affidavit for Search and Arrest Warrant" and "Search Warrant" authorizing a search of the "Hudson Street Apartments, No. 8034, in the 1000 block of Pecan Street, in the City of Marlin, Texas," which includes an "inventory" of the property seized;

" Exhibit Six from the trial is a "baggie containing one vial of cocaine"; and

" Exhibit Sixteen from the trial is "billfold contents."

At the pretrial hearing on a motion to suppress the evidence obtained under the search warrant, David Moore, a Sergeant with the Narcotics Division of the Limestone County Sheriff's Department, testified that he secured the warrant based on an informant's purchase of a rock of crack cocaine from Simpson at the apartment. He said that the officers executing the warrant forced their way into the apartment and found Simpson and other persons present. Moore said that the officers found: $60 in cash, including a marked $20 bill that the informant had used to purchase the cocaine; residue of crack cocaine on an entertainment center and inside an army field jacket hanging in a closet; Simpson's drivers license, billfold and a number of small, empty baggies, all in the field jacket; two razor blades; phone records; 500 to 600 other empty baggies; and a matchbox with some white residue in it.

Moore was cross-examined by Simpson's attorney about whether the address on the search warrant matched the actual address of the residence, the truth of the allegations of probable cause stated in the affidavit, and the time periods involved. Although the billfold and driver's license are not listed among the items enumerated in the "inventory," Moore was not questioned about them and no argument was made to the court that there was a discrepancy between the inventory and his testimony. The court denied the motion to suppress.

At trial the affidavit and search warrant were not offered or admitted into evidence. Sergeant Moore testified about the search and identified State's Exhibit Six as a vial containing the residue that the officers retrieved from a pocket of the army field jacket and Exhibit Sixteen as photocopies of "a driver's license, a Texas driver's license belonging to Mr. Simpson, a Centennial VISA card with the name of Lee R. Simpson, and then a Cash America Pawn ticket with Lee R. Simpson's name on it. . . . [and] a check from Brenda K. Maxwell in Marlin, Texas, to Lee Simpson for twenty dollars." He said they were "some of the materials" that were in the billfold, which was later returned to Simpson.

Moore was cross-examined about testimony concerning the use of beepers by drug dealers, whether they and other items seized under the warrant necessarily indicate drug dealing, how the warrant was executed, the residue that he found in the army field jacket, whether he knew to whom the jacket belonged or how long it had been hanging there, whether he knew who put the billfold in the field jacket, where Simpson and the others were physically located when officers entered the apartment, whether the address in the warrant was correct, whether he had properly handled the seized items after the warrant was executed, and whether some other person was the actual occupant of the apartment.

Defense counsel argued to the jury that Simpson was not in "possession" of the cocaine as the term was defined in the court's charge, that he did not resist the officers in any way, that their search of Simpson's person revealed no money, key to the apartment, or cocaine, that the evidence showed that another person, Simpson's girlfriend, had leased the apartment and paid the utility bills, and that there was no evidence tying Simpson to the cocaine. He argued that Simpson could have given the field jacket to his girlfriend "to wear home" and left his billfold in it "months before." His argument was essentially that there was not sufficient evidence for the jury to find possession of cocaine beyond a reasonable doubt.

We interpret Simpson's points of error as asserting that the prosecutor solicited, condoned, and argued false testimony about Exhibits Six and Sixteen, that the prosecutor knew that it was false because the inventory returned with the search warrant did not list those items, and that his failure to introduce the affidavit and warrant at the trial evidences his intent to promote the false testimony as truthful. We note initially that the prosecutor did not conceal the affidavit, search warrant, and inventory from the defense; indeed, it was introduced at the pretrial hearing. We reject Simpson's argument about Exhibit Six because Moore's testimony at trial describing the contents of the vial "little small crumbs" was consistent with the description in the inventory "pieces of crack cocaine." His argument about the billfold and its contents breaks down because he has not brought forward a record that supports his assertion that Moore's testimony concerning the location of the billfold or its contents is false, i.e. a record requiring reversal. See Tex. R. App. P. 50(d). Because neither Simpson's counsel at pre-trial nor his counsel at trial made an issue about the discrepancy between Moore's testimony and the search-warrant inventory, the record does not reveal whether the inventory was correct and the testimony at trial was false or whether the billfold was inadvertently omitted from the inventory.

During deliberations at the guilt-innocence stage, the jury sent two notes to the judge. The first note simply read "Copy of contents of wallet." The court told the jury that they already had Exhibit Sixteen. The second note asked for a copy of Officer Moore's testimony about "where he found all of the little baggies. Especially about where he found them in the coat or in the wallet." The court replied that the jury must certify their disagreement about a specific point in dispute. Nothing further is reflected in the record. In a separate motion, Simpson asks us to consider the jury's notes as support for his position that the testimony about the billfold being found in the apartment was false. Given the testimony in the trial record and the fact that no issue was made about the location of the billfold, we decline to give the notes such a construction.

From the record before us we cannot say that the prosecutor violated the duty not to solicit false evidence, the duty to correct false evidence when offered, or the duty not to argue false or inadmissible evidence to the jury. See Brown, 951 F.2d at 1015.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 2, 1994

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