Carrie Denise Lane v. The State of Texas--Appeal from 114th District Court of Smith County

NO. 12-05-00372-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CARRIE LANE, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Carrie Lane appeals her conviction for possession of methamphetamine. In six issues, she argues that the trial court erred when it did not conduct a hearing on her motion for new trial, that the State presented false testimony, and that the trial court should have granted her motion to suppress. We affirm.

Background

On April 18, 2005, Appellant and her boyfriend, Joseph Lopez, were traveling east on Interstate 20 in Smith County, Texas. Appellant was driving. Troopers Kenneth Richbourg and Jim Burkett were patrolling Interstate 20 when they observed Appellant s vehicle change lanes without signaling. The troopers stopped Appellant s vehicle. Upon approaching the vehicle, Trooper Richbourg noticed the smell of burnt marijuana. Trooper Burkett did not initially smell the burnt marijuana, but did smell it when he got closer to the vehicle. Based on the smell of marijuana, Trooper Richbourg searched the vehicle and discovered marijuana and 225 grams of methamphetamine. Appellant was arrested and later indicted for possession of more than 200 grams but less than 400 grams of methamphetamine.

Appellant filed a written motion to suppress the methamphetamine prior to trial. The trial court heard the motion during trial and denied Appellant s motion. The trial court found that Trooper Richbourg observed Appellant change lanes without signaling and that he smelled marijuana in the vehicle during the initial traffic stop. The trial court determined that the initial stop of Appellant s vehicle was justified due to the observation of the traffic offense and that the trooper had a reasonable basis to search the vehicle after he smelled the scent of burnt marijuana emanating from the vehicle.

The trial continued, and Appellant was found guilty as charged. During the punishment phase of the trial, DEA Special Agent Joe Downing testified on behalf of the State. Agent Downing testified that 225 grams of methamphetamine would be approximately 45,000 dosage units for someone who was not a drug user. He further testified that a dosage unit is the amount required to produce an effect or a high in the average person, although he could not say if the high would last for a second or an hour. The jury assessed punishment at imprisonment for life. Appellant filed a motion for new trial, which was overruled by operation of law, and this appeal followed.

Motion to Suppress

In her third, fourth, fifth, and sixth issues, Appellant contends that the trial court should have granted her motion to suppress the methamphetamine found in the vehicle. Specifically, Appellant argues that there was no justification for the stop of her vehicle. Because Appellant has briefed these issues together, we will address them together.

Standard of Review

In reviewing the trial court s ruling on a motion to suppress, we apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court s determination of historical facts, while conducting a de novo review of the trial court s application of the law to those facts. See id. The trial court is the exclusive finder of fact in a motion to suppress hearing and may choose to believe or disbelieve any or all of any witness s testimony. See Romero v. State, 800 S.W.2d 539, 544 (Tex. Crim. App. 1990). The trial court s ruling will be sustained if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

 Applicable Law and Analysis

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. Const. amend. IV. The Texas Constitution contains a similar prohibition. See Tex. Const. art. I, 9. A warrantless search is unreasonable unless it falls within certain specific exceptions. See Flippo v. West Virginia, 528 U.S. 11, 13, 120 S. Ct. 7, 8, 145 L. Ed. 2d 16 (1999); McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). One such exception is that the police may stop an automobile when the officer observes the driver of the vehicle commit a traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000) (citing Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 1772, 135 L. Ed. 2d 89 (1996)).

Trooper Richbourg testified that Appellant changed lanes without signaling. This is a traffic offense, and Appellant does not argue otherwise. See Tex. Transp. Code Ann. 545.104 (Vernon Supp. 2006). Instead, Appellant argues that Trooper Richbourg could not have witnessed the alleged traffic offense because she was too far ahead of him on the highway, there was traffic between them, and he saw her vehicle for only a matter of seconds. Therefore, according to Appellant, the initial stop of her vehicle was illegal. As previously stated, we give almost total deference to the trial court s determination of historical facts and conduct a de novo review of the trial court s application of the law to those facts. Carmouche, 10 S.W.3d at 327. Based upon our examination of the record and giving due deference to the factual findings of the trial court, we cannot conclude that the trial court s decision to believe the trooper s testimony was an abuse of discretion. Therefore, we hold that the initial stop of Appellant s vehicle was lawful. We overrule Appellant s third, fourth, fifth, and sixth issues.

False Testimony

In her first issue, Appellant argues that the trial court should have held a hearing on her motion for new trial in which she asserted that the State used false testimony at trial and that she received ineffective assistance of counsel. In her second issue, she argues that the admission of false and misleading testimony from a witness for the State violated her federal and state constitutional rights to a fair trial and to due process and due course of law. Specifically, Appellant contends that the testimony by Special Agent Downing that the 225 grams of methamphetamine possessed by Appellant could get 45,000 people high was false and violated her constitutional rights and that a hearing should have been held on her motion for new trial on those grounds. In this section, we address Appellant s second issue and the portion of her first issue relating to false testimony. We address the portion of her first issue relating to ineffective assistance of counsel in the following section.

Applicable Law Motion for New Trial

  A motion for new trial must be filed no later than thirty days after the date when the trial court imposes or suspends sentence in open court. Tex. R. App. P. 21.4(a). An amended motion for new trial also must be filed within thirty days after the date when the trial court imposes or suspends sentence in open court. Tex. R. App. P. 21.4(b).

In reviewing a trial court s failure to conduct a hearing on a motion for new trial, the appellate court must ask whether, on this record, the trial court could have reasonably denied Appellant a hearing on his motion for new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). A hearing is not required when the matters raised in the motion for new trial are subject to being determined from the record. Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). Further, to avoid fishing expeditions, a prerequisite to a hearing on a motion for new trial is that the motion must be supported by an affidavit showing the truth of the grounds of attack. Id. If affidavits attached to the motion for new trial place the trial court on notice that reasonable grounds exist for a new trial, the trial court abuses its discretion if it does not conduct a hearing on the motion. See Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002). But the trial court does not abuse its discretion when it overrules the motion without a hearing if the motion and accompanying affidavits do not show that the movant could be entitled to relief. See Wallace, 106 S.W.3d at 108. Conclusory affidavits are insufficient to put the trial court on notice that a hearing on the motion for new trial is required. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).

Applicable Law False Testimony

The presentation of false testimony to secure a conviction in a criminal case is a serious matter, and deliberate deception by the presentation of known false evidence violates due process. Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177, 3 L. Ed. 2d 1217 (1959). Even if the State does not solicit false testimony, due process may be violated if false testimony from a State s witness is uncorrected. See Giglio, 405 U.S. at 153, 92 S. Ct. at 766. Furthermore, false testimony offered by a police officer violates due process because the officer s knowledge is imputed to the government prosecutor. Ex parte Adams, 768 S.W.2d 281, 292 (Tex. Crim. App. 1989). The use of false testimony may violate due process whether it comes in the punishment phase of trial or in the guilt/innocence phase of a trial. See Banks v. Dretke, 540 U.S. 668, 690 91, 124 S. Ct. 1256, 1271, 157 L. Ed. 2d 1166 (2004) (applying due process requirement of disclosure of exculpatory evidence to the penalty phase of a trial). The due process problems raised by false testimony have been recognized by Texas courts. See Granger v. State, 683 S.W.2d 387, 391 (Tex. Crim. App. 1984). Appellant does not argue that the Texas Constitution offers a greater or a different level of due process protection in this context. See Mitschke v. State, 129 S.W.3d 130, 132 (Tex. Crim. App. 2004); see also Ex parte Adams, 768 S.W.2d at 293 (Making no distinction between federal and state protections against false testimony.). Therefore, we will consider only Appellant s federal constitutional claim.

Analysis

  In this case, Appellant did not attach any affidavits to her motion for new trial. Although she swore that all facts contained in the motion were true, the allegations in the motion were conclusory.

In relevant part, Appellant s motion reads as follows:

Defendant s conviction and sentence was based in part on false testimony from [p]rosecution witnesses. For instance, DEA agent Downing testified that [the] amount of methamphetamine Defendant[s] were caught with was enough to get 45,000 people high. The [j]ury used this information to assess a life punishment for Defendant. This testimony is false and is thus violates [sic] Defendant s due process rights demanding a new trial for Defendant.

This is a conclusory statement alleging that false testimony was presented. Appellant s motion did no more than recite that false testimony was used without providing evidence that contradicted the alleged false testimony or even a reason to believe the testimony was false. Appellant filed affidavits and other documents after the expiration of the thirty day time period for filing a motion for new trial or amendment thereto. These affidavits, which were attached to a written request for a hearing and a written bill of review, were filed well after the thirty days following the imposition of the sentence. Even if these documents were construed as an amendment to the motion for new trial, they were untimely and the trial court was not required to consider them. See Tex. R. App. P. 21.4(b); Webb v. State, 109 S.W.3d 580, 581 (Tex. App. Fort Worth 2003, no pet.). As such, the trial court did not err by failing to conduct a hearing on Appellant s motion for new trial.

With respect to Appellant s second argument that her sentence was influenced by false testimony during the punishment phase of the trial, the only competent information she presented on this issue is the conclusory statements contained in her motion for new trial. The affidavits she filed later are not properly before us. See, e.g., Rangel v. State, 972 S.W.2d 827, 838 (Tex. App. Corpus Christi 1998, pet. ref d)( Even where the original motion for new trial is timely, an untimely amended motion for new trial is a nullity and cannot form the basis for points of error on appeal. ). On this record, we cannot conclude that Agent Dowling s opinion as to how many dosage units could be obtained from 225 grams of methamphetamine was false.

We overrule Appellant s second issue and the portion of her first issue that relates to allegations of false testimony.

Ineffective Assistance of Counsel

As part of her first issue, Appellant argues that the trial record does not permit an effective appellate review of her ineffective assistance claim. Therefore, she contends, the trial court erred in not holding a hearing on her motion for new trial. In her motion for new trial, Appellant pleaded as follows:

There were several instances in and of themselves that demonstrated ineffective assistance of counsel on the part of Defendant s trial [c]ounsel. Defendant s trial counsel s performance taken as a whole definitely represented ineffective assistance of counsel. There were several occasions where Defendant s trial counsel[ ]s actions appear to be ineffective assistance of counsel. While Defendant cannot see a reasonable trial strategy for any of the complained of actions or omissions, a hearing is necessary so as to allow trial counsel a chance to attempt to demonstrate any legitimate trial strategies.

  Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The first step requires the Appellant to demonstrate that trial counsel s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). We review counsel s representation on the basis of the totality of the representation and not for isolated or incidental deviations from professional norms. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

The second step requires the Appellant to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must show that there is a reasonable probability that the result of the proceeding would have been different but for counsel s deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Appellant s motion is insufficient to put the trial court on notice that a hearing was required on this issue. Her motion merely recites that she received ineffective assistance of counsel but fails to enumerate, or even suggest, where counsel s representation may have fallen short of professional norms. Furthermore, there is no assertion of any prejudice to her as a result of counsel s unmentioned errors. Appellant is correct when she asserts that the record of a trial is generally insufficient to prove ineffective assistance of counsel. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). But there must be some specific allegation of ineffective assistance of counsel to require a hearing, and there is none in this case.

In Jordan v. State, 883 S.W.2d 664 (Tex. Crim. App. 1994), the court of criminal appeals considered a case where the appellant alleged that he received ineffective assistance of counsel because his attorney did not call certain witnesses. The court concluded that his motion for new trial was insufficient to require a hearing because it did not explain how counsel s investigation was inadequate or what the witnesses would have said. Id. at 665. The allegation in this case is even less specific that the one in Jordan. In Jordan the motion pointed to an area where counsel had failed to do something, call a specific witness, that could have been a deviation from professional norms. In this case, Appellant s motion does not identify an area of deficient performance, nor does it allege any prejudice to Appellant as a result of any deficient performance by her attorney.

We have upheld the decision not to hold a hearing on a motion for new trial where there was no allegation of prejudice resulting from alleged inefficacy of counsel. See Robinson v. State, No. 12-04-00289-CR, 2005 Tex. App. LEXIS 10707, at *5 6 (Tex. App. Tyler 2005, pet. ref d) (mem. op., not designated for publication). The motion here fails to allege either a specific instance of deficient performance or any resulting prejudice. To require a hearing on the bare assertion of inefficacy of counsel advanced by Appellant would require a hearing every time that allegation is raised. The law requires a hearing on a motion for a new trial only when the movant alleges sufficient facts for the trial court to conclude that reasonable grounds exist for holding that such relief could be granted. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Appellant s bare assertion does not meet this standard, and we overrule this part of Appellant s first issue.

Disposition

Having overruled Appellant s six issues, we affirm the judgment of the trial court.

BRIAN HOYLE

Justice

Opinion delivered December 20, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)