Raymond Andrew Simmons v. The State of Texas--Appeal from 51st District Court of Tom Green County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00244-CR

Raymond Andrew Simmons, Appellant

 

v.

 

The State of Texas, Appellee

 

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. A-94-0040-S, HONORABLE DICK ALCALA, JUDGE PRESIDING

 

Appellant Raymond Andrew Simmons appeals from a jury verdict finding him guilty of possessing a prohibited weapon. See Tex. Penal Code Ann. 46.05(a)(3) (West Supp. 1997). (1) The jury assessed appellant's punishment as a repeat offender at seventy-five years of imprisonment and a $10,000 fine. Appellant complains that the trial court erred by failing to suppress evidence acquired through a search warrant, that trial counsel failed to render effective assistance of counsel, and that the evidence was legally and factually insufficient to sustain his conviction. We will affirm the trial court's judgment.

Sufficiency of Evidence

In points of error four and five, appellant challenges the legal and factual sufficiency of the evidence. Officers with the Rio Concho Drug Task Force entered and searched appellant's mobile home under the authority of a search warrant. The officers recovered methamphetamine, a 9mm pistol, a sawed-off shotgun, scales, a cassette tape case with burned edges, and corner bags. Appellant was subsequently tried and convicted of drug charges, (2) and in the instant cause, possession of a prohibited weapon. In two points of error, appellant challenges both the legal and factual sufficiency of the evidence supporting his conviction. Specifically, he contends that the State failed to prove that he exercised care, custody, control, or management of the weapon in question.

Martha Simmons, appellant's wife, testified that she was living at a local motel, the Dun Bar, because she and appellant had separated. Other witnesses corroborated her testimony. She stated that the sawed-off shotgun was hers and that she had asked her son, Walter Young, Jr., to shorten the barrel to make it easier for her to use it to kill snakes and "varmints." She testified that appellant was angry when he saw that the gun had been altered. Mrs. Simmons further stated that she kept the gun at her end of the closet in the bedroom she shared with the appellant.

Deputy Gene Fly of the Tom Green County Sheriff's Office testified to finding the shotgun in the closet in the east bedroom of the trailer house, not in the master bedroom closet where Mrs. Simmons said she stored the gun. This conflict suggests the gun had been moved after Mrs. Simmons moved from appellant's residence. Deputy Fly also conducted surveillance at the appellant's residence until 10:00 p.m. on the night before the search warrant was executed. He stated that when he left that night two cars were present at the home, a van and a Fiero. The Fiero was identified during the trial as Mrs. Simmons's car. Deputy Fly's surveillance started again at 7:00 a.m. the next morning and both cars were still present. According to Deputy Fly, Mrs. Simmons left the residence about 12:15 p.m. that day. Mrs. Simmons testified that she arrived at the residence around 12:30 p.m. and that she had been at the Dun Bar prior to that time. This is not the only inconsistency present in the testimony.

In his fourth point of error, appellant contends the evidence is legally insufficient. The critical inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether the evidence on record could reasonably support a finding of guilt beyond a reasonable doubt. This Court does not ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).

A person commits an offense if he intentionally or knowingly possesses a short-barrel firearm. See Penal Code 46.05(a)(3). Appellant acts knowingly "when he is aware of the nature of his conduct or that the circumstances exist." Tex. Penal Code Ann. 6.03(b) (West 1994) (emphasis added). "'Possession' means actual care, custody, control, or management." Tex. Penal Code Ann. 1.07(a)(39) (West 1994). The offense of possession of a prohibited weapon is complete when the weapon is placed in the defendant's possession. Hawkins v. State, 535 S.W.2d 359, 362 (Tex. Crim. App. 1976).

A rational trier of fact could conclude beyond a reasonable doubt that appellant was in possession of the firearm. The testimony appellant knew the gun had been altered is uncontroverted. Police found the gun in appellant's house in a location different from where Mrs. Simmons testified to storing it, indicating the gun had been moved after she left. Further, several witnesses testified that appellant and Mrs. Simmons were separated, thereby yielding exclusive possession of the shotgun to appellant. As appellant concedes, the jury has the exclusive power to weigh the evidence and believe or disbelieve witnesses. Given the above testimony, the evidence is legally sufficient to support the jury's verdict.

In point of error five, appellant challenges the factual sufficiency of the evidence. When a court of appeals conducts a factual-sufficiency review, it views all the evidence equally, including the testimony of defense witnesses and the existence of alternate hypotheses. The court does not view the evidence in the light most favorable to the prosecution as it does in a legal-sufficiency review. The court should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (adopting Stone test); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet. ref'd untimely filed).

Considering all of the evidence equally, the verdict is supported by sufficient evidence. Although witnesses testified that they had never seen appellant use the gun, this does not mean appellant was not in possession of the shotgun. Appellant's witness, Martha Simmons, established that appellant knew the shotgun had been altered. Appellant's witnesses further testified that appellant was in sole control of the residence at the time the search warrant was executed. Several of the witnesses offered by appellant were contradicted either by other defense witnesses or witnesses for the prosecution. The verdict is not so contrary to the overwhelming weight of the evidence as to be unjust. Therefore, we hold the evidence factually sufficient to support appellant's conviction of possession of an illegal firearm. Having held the evidence both legally and factually sufficient to support appellant's conviction, we overrule appellant's fourth and fifth points of error.

 

Search Warrant

Appellant contends in his second and third points of error that the trial court erred by failing to grant his motion to suppress. Appellant contends the warrant violates the Fourth Amendment of the United States Constitution and article 1, section 9 of the Texas Constitution.

Deputy Fly was the affiant for the search warrant. Deputy Fly relied on information given to him by a confidential informant to secure the warrant. Appellant and his wife, Martha Simmons, were present during the execution of the search warrant. Before trial, appellant moved to suppress evidence acquired through the search warrant, claiming the warrant was deficient. Appellant contends that the description within the warrant was inadequate because of the reference to the house being located "on the second dirt road." Appellant offered testimony that the dwelling was actually located on the seventh dirt road. The trial court overruled appellant's motion.

The search warrant reads as follows:

 

A mobile home residence described as having brown and beige colored siding and a silver colored roof. The residence is located east of the city of San Angelo approximately 1.9 miles east of the intersection of Loop 306 and Farm to Market Road 380. The residence is located approximately two tenths of a mile south of Farm to Market Road 380 on the second dirt road on the south side of Farm to Market Road 380 east of Loop 306.

 

The record indicates a dispute as to the number of dirt roads or driveways between the turnoff and the entrance to appellant's residence. However, the two-tenths of a mile measurement was shown to be correct. The Supreme Court has stated that a description in a warrant is sufficient if an officer with the warrant "can, with reasonable effort ascertain and identify that place intended." Steele v. United States, 267 U.S. 498, 503 (1925). Detective Mickey Jones, who was not involved in the search of appellant's home and had never been to the appellant's residence before, was directed to follow the instructions contained in the search warrant to determine whether he could find the premises from the warrant's specifications alone. Detective Jones testified at the suppression hearing that he had no trouble locating the dwelling from the search warrant's description.

We hold the description contained within the search warrant was sufficient. The officers executing the warrant were able to locate the correct house. Further, the description was adequate to provide instruction to an officer unfamiliar with the house to locate it without incident. There is no constitutional violation present. We overrule appellant's second and third points of error.

 

Ineffective Assistance of Counsel

Appellant's first point of error asserts he was denied effective assistance counsel at the trial. To prove ineffective assistance of counsel, two elements must be met. First, counsel must be shown to have performed in a deficient manner, in that counsel made errors so egregious that the counsel was not functioning as counsel that is guaranteed by the Sixth Amendment of the United States Constitution. Strickland v. Washington, 446 U.S. 668, 687 (1984). This means that the defendant must prove the "counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms." Ex Parte Owens, 860 S.W.2d 727, 729 (Tex. App.--Austin 1993, pet. ref'd), cert. denied, 114 S. Ct. 2162 (1994). Second, appellant must show that there is a reasonable probability that these errors altered the result of the trial, such that appellant was denied a fair trial. Strickland, 446 U.S. at 687; Shaw v. State, 874 S.W.2d 115, 119 (Tex. App.--Austin 1994, pet. ref'd) ("[T]he defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.").

A reasonable probability is one that is sufficient to undermine confidence in the outcome. Shaw, 874 S.W.2d at 119. Appellant holds the burden of proof by a preponderance of the evidence to prove that counsel was ineffective. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985). The Strickland standard does not mean that defendants are entitled to perfect or errorless performance from counsel. Owens, 860 S.W.2d at 729; McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), cert. denied, 113 S. Ct. 2937 (1993).

Appellant complains of two basic errors of trial counsel. First, he argues that his counsel should have made an additional attack on the search warrant on the grounds that it was based on a false affidavit. Second, he argues that counsel should have requested a jury issue on the legality of the search itself.

The search warrant was based on an affidavit from Deputy Fly. Deputy Fly's information came from a confidential informant who reported to Fly that Martha Simmons told the informant that she and appellant were in possession of a quantity of methamphetamine at appellant's mobile home. During the trial, Martha Simmons denied ever making such a statement. Appellant cites Ramsey v. State, 579 S.W.2d 920 (Tex. Crim. App. 1979), for the proposition that a question on the truth of the informant's statement should have gone to the jury.

In Ramsey, Officer Donald Walker was the affiant for a search warrant, stating that a trustworthy source had provided him with information. This source was later revealed to be Kenneth Vaden. The defense sought to call Vaden to testify that he did not provide Officer Walker with the claimed information. The court held that an evidentiary hearing should have been allowed on the appellant's allegations that the affiant was lying.

The Supreme Court has held:

 

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

 

Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Relying on Franks, Ramsey holds that an allegation that an affiant lied in the search warrant can be litigated; however, Ramsey does not hold that an allegation that an informant lied to the affiant can be litigated. Ramsey, 579 S.W.2d at 922-23. As this court noted recently, "[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant." Hackleman v. State, 919 S.W.2d 440, 448 (Tex. App.--Austin 1996 pet. ref'd untimely filed) (citing Franks, 438 U.S. at 171) (emphasis added).

In the instant cause, appellant does not contend that Deputy Fly lied in his affidavit. Rather, any indication of falsity is directed toward the confidential informant. Trial counsel could not have raised this issue because his attack would have been on the veracity of the informant, not the affiant. Therefore, counsel's representation was not ineffective in this regard.

Appellant's second ineffective assistance of counsel argument is that trial counsel failed to request a jury issue as to the legality of the search. A jury can settle factual disputes when a search has been challenged, Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 1997); however, it may do so only when "an issue of fact is created by the evidence concerning the validity of the search . . . ." Finney v. State, 672 S.W.2d 559, 569 (Tex. App.--Austin, 1984, no pet.). No such fact question exists in this case. Deputy Fly is not accused of making false statements and Martha Simmons's testimony cannot serve as the basis for an attack on the affidavit supporting the search warrant. Therefore, there is no factual dispute that defense counsel could have submitted to the jury. Trial counsel's performance was not deficient for failing to pursue a jury issue.

Appellant bears the burden of proof by a preponderance of the evidence to prove ineffective assistance of counsel. Appellant has failed to meet that burden because he has not met the first prong of the Strickland standard by showing trial counsel's performance to be deficient. Thus, we overrule appellant's first point of error.

 
CONCLUSION

The evidence is both legally and factually sufficient to sustain the verdict. The search warrant's description meets the Steele standard. Further, trial counsel was not shown by appellant to be deficient in his duties. Accordingly, we overrule the appellant's points of error and affirm the judgment of the trial court.

 

Mack Kidd, Justice

Before Justices Powers, Jones and Kidd

Affirmed

Filed: July 3, 1997

Do Not Publish

1. The statute was amended and renumbered after this offense was committed. The amendments are irrelevant to this appeal.

2. See Simmons v. State, 03-96-243-CR (Tex. App.--Austin July 3, 1997) (not designated for publication).

for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Relying on Franks, Ramsey holds that an allegation that an affiant lied in the search warrant can be litigated; however, Ramsey does not hold that an allegation that an informant lied to the affiant can be litigated. Ramsey, 579 S.W.2d at 922-23. As this court noted recently, "[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant." Hackleman v. State, 919 S.W.2d 440, 448 (Tex. App.--Austin 1996 pet. ref'd untimely filed) (citing Franks, 438 U.S. at 171) (emphasis added).

In the instant cause, appellant does not contend that Deputy Fly lied in his affidavit. Rather, any indication of falsity is directed toward the confidential informant. Trial counsel could not have raised this issue because his attack would have been on the veracity of the informant, not the affiant. Therefore, counsel's representation was not ineffective in this regard.

Appellant's second ineffective assistance of counsel argument is that trial counsel failed to request a jury issue as to the legality of the search. A jury can settle factual disputes when a search has been challenged, Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 1997); however, it may do so only when "an issue of fact is created by the evidence concerning the validity of the search . . . ." Finney v. State, 672 S.W.2d 559, 569 (Tex. App.--Austin, 1984, no pet.). No such fact question exists in this case. Deputy Fly is not accused of making false statements and Martha Simmons's testimony cannot serve as the basis for an attack on the affidavit supporting the search warrant. Therefore, there is no factual dispute that defense counsel could have submitted to the jury. Trial counsel's performance was not deficient for failing to pursue a jury issue.

Appellant bears the burden of proof by a preponderance of the evid