Dorsey Nathaniel Carr III v. State

• Court: Court of Appeals of Texas
• Decided: March 1, 2016
• Docket: 01-15-00246-CR
• Status: Published

Opinion

Opinion issued March 1, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00246-CR ——————————— DORSEY NATHANIEL CARR III, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 74219

MEMORANDUM OPINION

A jury found Dorsey Carr guilty of driving while intoxicated as a third

offender, enhanced by a prior felony conviction, and it assessed his punishment at

ten years’ confinement. See TEX. PENAL CODE ANN. §§ 12.42, 49.04, 49.09(b)

(West 2011 & Supp. 2015). Carr contends on appeal that his counsel was ineffective because she did not move to suppress evidence obtained during his

investigative detention. He also contends, and the State concedes, that insufficient

evidence supported the trial court’s assessment of attorney’s fees against him. See

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2009 & Supp. 2015). We hold

that Carr has failed to meet his Strickland burden to demonstrate that his trial

counsel performed deficiently. We agree, however, that the trial court erred by

ordering Carr to pay attorney’s fees. We therefore modify the trial court’s

judgment to delete the order to pay attorney’s fees; we affirm as modified.

BACKGROUND

On July 20, 2014, at around 6:00 p.m., Jordan Brooks was driving to his

house in Angleton after a beach outing in Surfside with his family. As he drove

north on FM 523, an older red minivan, which Brooks identified as a 1990s-model

Chrysler, pulled up behind Brooks, almost rear-ending his car. The red van passed

Brooks and almost clipped Brooks’s car when it moved back into Brooks’s lane.

The red van then went off the road, swerved back onto the road and into oncoming

traffic, and finally reentered Brooks’s lane. Brooks watched the red van turn off

FM 523 onto Stratton Ridge Road, toward the town of Clute; it was traveling at

such a high rate of speed that it almost rolled over. Concerned for the safety of

other motorists, Brooks called 911. He reported that a driver of a red 1990s model

Chrysler minivan was driving recklessly and heading west toward Clute on

2 Stratton Ridge Road. In his 911 call, Brooks reported that the van was “all over

the road,” and that it was “riding in both lanes.” Brooks did not, however, identify

himself by name to the 911 operator during the call.

Between 6:00 and 6:30 p.m., Officer Edward Burnett with the Clute Police

Department was notified by dispatch of a drunk driver in a red minivan, who was

moving toward Clute on Stratton Ridge Road. Within Clute, Stratton Ridge Road

is known as Main Street. On Main Street, Officer Burnett saw two red minivans,

one parked in front of a convenience store and the other traveling west on Main

Street. Reasoning that the other van was moving toward the police station where

other officers could stop it, Officer Burnett approached the van at the convenience

store. After determining that the driver of this van was sober, Officer Burnett

drove west on Main Street, in the direction the other van had gone. After traveling

about two blocks, he saw the van pull into the parking lot of a bar. Officer Burnett

radioed his sergeant, Jessie Soley, who was nearby, and they pulled into the bar

parking lot in front of the red van.

As Officer Barnett and Sergeant Soley approached on foot, Carr was sitting

in the van’s driver’s seat with his door open. Barnett and Soley walked up to the

van and Carr climbed out. Soley asked Carr for his driver’s license and insurance,

and told Carr that he was being stopped because someone had reported that he was

“all over the road.” Soley noticed that Carr smelled strongly of alcohol, his

3 balance was unstable, his eyes were red and bloodshot, and his speech was slurred.

Carr either failed or did not complete field sobriety tests, whereupon the officers

arrested him and brought him to the police station. Officer Burnett later brought

Carr to Brazosport Hospital, where he consented to blood testing. According to the

test results, Carr had a blood-alcohol level of 0.255 at the time of the blood draw,

above the legal limit of 0.08. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West

2011).

Carr’s appointed counsel moved to suppress the blood test evidence, but did

not move to suppress the evidence gathered during his encounter with the police.

The trial court denied the motion, and the case proceeded to trial. Although the

trial court found Carr to be indigent, the judgment of conviction assessed Carr

$2,954.53 in attorney’s fees.

DISCUSSION

I. Ineffective Assistance and the Suppression Hearing

Carr contends that his trial counsel rendered ineffective assistance by failing

to move to suppress the evidence gathered from the officers’ encounter with him,

and the later investigative detention, on the ground that the officers had no

reasonable suspicion that a crime had been committed when they first approached

Carr.

4 A. Standard of Review and Applicable Law

To prevail on his ineffective-assistance-of-counsel claim, Carr must show

that (1) his counsel’s performance was deficient and (2) a reasonable probability

exists that the result of the proceeding would have been different. See Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065 (1984); Andrews v. State,

159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A defendant has the burden to

establish both prongs by a preponderance of the evidence; failure to make either

showing defeats his ineffectiveness claim. Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002). The first prong of this test requires the defendant to show

that counsel’s performance fell below an objective standard of reasonableness, in

that counsel made such errors that he was not functioning effectively as counsel.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2065; Lopez v. State, 343 S.W.3d 137,

142 (Tex. Crim. App. 2011). We apply a strong presumption that trial counsel was

competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We

presume trial counsel’s actions were reasonably professional and motivated by

sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994); Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004,

pet. ref’d). Furthermore, a claim of ineffective assistance must be firmly supported

in the record. Thompson, 9 S.W.3d at 813. Where the record does not offer an

explanation for trial counsel’s actions, we must presume that counsel made all

5 significant decisions in the exercise of reasonable professional judgment. Jackson,

877 S.W.2d at 771; Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref’d) (en banc). However, “when no reasonable trial strategy

could justify the trial counsel’s conduct, counsel’s performance falls below an

objective standard of reasonableness as a matter of law, regardless of whether the

record adequately reflects the trial counsel’s subjective reasons for acting as she

did.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); see also

Oldham v. State, 977 S.W.2d 354, 360 (Tex. Crim. App. 1998) (“[A] claim on

direct appeal of denial of counsel should be entertained and upheld if supported by

the record.”).

The second prong requires the defendant to show a reasonable probability

that, if not for counsel’s errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at

1442. A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Thompson, 9 S.W.3d at 812 (citing Hernandez v.

State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986)).

When an ineffective assistance claim alleges that counsel was deficient in

failing to move to suppress or to object to the admission of evidence, the defendant

must show, as part of his claim, that the evidence was inadmissible and that the

motion to suppress or the objection would have been granted. Ortiz v. State, 93

6 S.W.3d 79, 93 (Tex. Crim. App. 2002); Jackson v. State, 973 S.W.2d 954, 957

(Tex. Crim. App. 1998). A police officer may temporarily detain a person for

investigative purposes if the officer reasonably suspects that the detained person is

connected with a crime. Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct. 1868, 1880

(1968); Wade v. State, 422 S.W.3d 661, 668–69 (Tex. Crim. App. 2013).

Reasonable suspicion exists when a police officer has “a particularized and

objective basis for suspecting the particular person stopped of criminal activity.”

Navarette v. California, 134 S. Ct. 1683, 1687 (2014). Courts determine if

reasonable suspicion exists by objectively viewing the totality of the

circumstances. Id.

Whether a reasonable suspicion exists “is dependent upon both the content

of information possessed by police and its degree of reliability.” Id. (quoting

Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). The

detaining officer need not personally be aware of every fact that supports a

reasonable suspicion to detain; rather, “the cumulative information known to the

cooperating officers at the time of the stop is to be considered in determining

whether reasonable suspicion exists.” Derichsweiler v. State, 348 S.W.3d 906, 914

(Tex. Crim. App. 2011) (quoting Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim.

App. 1987)).

7 A police officer need not personally observe the facts giving rise to

reasonable suspicion for a traffic stop. See Navarette, 134 S. Ct. at 1687–88; see

also Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (“The factual

basis for stopping [an individual] need not arise from the officer’s personal

observation, but may be supplied by information acquired from another person.”).

Rather, a stop may be justified if the facts underlying the traffic stop are observed

by a civilian informant. See Navarette, 134 S. Ct. at 1688. An anonymous tip

alone is rarely enough to justify a traffic stop. See id. (quoting White, 496 U.S. at

329, 110 S. Ct. at 2415). However, when an anonymous tip is supported by

“sufficient indicia of reliability,” it may justify a stop. Id.

Courts have identified several indicia of reliability with respect to tips from

a citizen informant. An informant may be treated as more reliable if he provides a

firsthand account and a detailed description of wrongdoing. Hawes v. State, 125

S.W.3d 535, 539 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also

Navarette, 134 S. Ct. at 1689 (observing that contemporaneous eyewitness reports

of suspected criminal activity have “long been treated as especially reliable”).

Courts consider an informant who is not connected with the police inherently

trustworthy when advising the police of suspected criminal activity. Taflinger v.

State, 414 S.W.3d 881, 885 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

Further, the Supreme Court has recognized that because the 911 system “has some

8 features that allow for identifying and tracing callers,” tips from 911 callers should

be considered more reliable. Navarette, 134 S. Ct. at 1689–90.

B. Analysis

Carr argues that his trial counsel should have objected to the admission of

the evidence gathered by the investigating officers because their detention of Carr

was not justified by a reasonable suspicion. He reasons that the police officers’

identification of Carr’s vehicle as matching Brooks’s description is not itself

enough to corroborate Brooks’s tip.

We note that the officers approached Carr in a parking lot after seeing him

parked there; they did not institute a traffic stop. During their encounter with Carr,

they personally observed evidence that Carr was impaired. Even if their actions

constituted a traffic stop, the Supreme Court has held that a traffic stop was

justified by reasonable suspicion under similar circumstances. See Navarette, 134

S. Ct. at 1692. In Navarette, the highway patrol received a report from an

anonymous 911 caller that a silver Ford F-150 pickup traveling southbound on the

highway had run him off the road. Id. at 1686–87. A few minutes later, a highway

patrolman encountered a truck matching the one described by the caller traveling

in the direction reported. Id. at 1687. Though the record contained no indication

that the patrolman himself observed the silver pickup driving erratically, the Court

held that the caller’s tip contained adequate indicia of reliability to support a

9 reasonable suspicion for a stop, given that it was based on eyewitness knowledge,

was contemporaneously made, and was made to the 911 emergency system. Id. at

1686–87, 1692. The Court also found it persuasive that the caller reported conduct

resembling “paradigmatic manifestations of drunk driving.” Id. at 1691.

The present facts echo those in Navarette. Brooks reported that the red van

had swerved “all over the road,” and was “riding in both lanes,” behavior that is

consistent with the “lane positioning problems” and “impaired judgment” that

Navarette recognized as indicators of drunk driving. Id. at 1691. Brooks reported

that the van he saw was a red 1990s Chrysler style minivan. Carr was driving a red

1994 Plymouth minivan. Brooks reported Carr’s dangerous driving via the 911

system. Like the 911 call in Navarette, Brooks’s 911 call makes it clear that he

reported Carr’s driving immediately after personally witnessing it. Taken together,

these factors establish that Brooks’s anonymous tip provided the police with a

“particularized and objective basis” to justify a traffic stop. See Navarette, 134 S.

Ct. at 1687 (quoting United States v. Cortez, 449 U.S. 411, 417–18, 101 S. Ct. 690,

695 (1981)); Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.—Houston [14th

Dist.] 2010, pet. ref’d) (holding traffic stop justified when vehicle’s make, type,

and color, combined with its location and direction of travel, were consistent with

the report).

10 II. Ineffective Assistance and Assessment of Attorney’s Fees

Carr next contends that the trial court erred in ordering him to repay fees for

his court-appointed attorney because the record contains no evidence that he had

the ability to pay, as required by Article 26.05(g) of the Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2009 & Supp.

2015) (requiring trial court to order defendant to pay for appointed counsel if

“defendant has financial resources that enable [him] to offset . . . the costs of the

legal services provided . . .”).

We review the assessment of court costs, including court-appointed

attorney’s fees, to determine if a basis exists for the award. See Johnson v. State,

423 S.W.3d 385, 389–90 (Tex. Crim. App. 2014). If there is no basis in the record

to support assessment of court-appointed attorney’s fees, the proper remedy is to

reform the judgment by striking the court-appointed attorney’s fees. Gates v.

State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013).

An indigent defendant is entitled to have an attorney appointed to represent

him in criminal proceedings at no cost. TEX. CODE CRIM. PROC. ANN. art. 1.051(c)

(West 2005 & Supp. 2015). Once the court determines that a defendant is indigent,

the defendant is presumed to remain indigent for the duration of the proceedings.

TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Gates, 402 S.W.3d at 251–52. A

material change in the defendant’s financial circumstances must occur to overcome

11 this presumption. TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Gates, 402 S.W.3d

at 251–52. If the trial court later finds that the defendant has resources to pay the

court-appointed attorney’s fees, the court may order him to do so. TEX. CODE

CRIM. PROC. ANN. art. 26.05(g).

The trial court found that Carr was indigent and appointed counsel to

represent him. The State concedes, and we agree, that the record contains no

evidence that would support a finding that Carr could pay his attorney’s fees.

Accordingly, we reform the judgment and strike the portion ordering Carr to repay

the fees for his court-appointed attorney. See TEX. CODE CRIM. PROC. ANN. art.

26.05(g); Johnson, 423 S.W.3d at 389–90; Gates, 402 S.W.3d at 251–52.

CONCLUSION

We modify the judgment to delete the portion ordering payment of

attorney’s fees. We affirm the judgment of the trial court, as modified.

Jane Bland Justice

Panel consists of Justices Bland, Brown, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).