George Simmons v. State

• Court: Court of Appeals of Texas
• Decided: June 27, 2013
• Docket: 13-10-00576-CR
• Status: Published

Opinion

NUMBER 13-10-00576-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GEORGE SIMMONS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 148th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides Appellant, George Simmons, was convicted of unlawful possession of cocaine,

TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010), and sentenced to ten years’

imprisonment in the Texas Department of Criminal Justice—Institutional Division

(TDCJ). By five issues, which we renumber as three, Simmons argues the trial court erred in (1) not vitiating the warrant despite its failure to comply with statutory

requirements under the Code of Criminal Procedure, (2) admitting evidence during his

punishment hearing of two previous illegal arrests that were previously dismissed and,

(3) stacking Simmons’s current sentence consecutively to his previous sentence instead

of running them concurrently. We affirm as modifed.

I. BACKGROUND

On April 15, 2009, Simmons was arrested for unlawful possession of cocaine with

intent to deliver on Meandering Lane in Corpus Christi, Texas. Prior to his arrest,

Corpus Christi Police Department Officers Robert Perez obtained a search and arrest

warrant from a magistrate judge based on a tip from an unidentified informant.

Pursuant to the search of the home on Meandering Lane, the officers found an unknown

quantity of crack cocaine and a scale, which led to Simmons’s arrest. During a

pat-down following his arrest, officers found $1,460.00 in the pocket of Simmons’s

shorts. Officer Perez filed the return and inventory of the search and arrest warrant

approximately eight months after Simmons’s arrest.

Simmons complains of three alleged errors in the return warrant: (1) Officer

Perez failed to record the quantity of cocaine found, (2) Officer Perez failed to record the

scale in the inventory, and (3) Officer Perez erroneously listed a rifle in the inventory.

Simmons also argued in his motion to suppress that the search and arrest warrant was

void because it did not identify the specific municipal court judge as required by law.

See TEX. CODE CRIM. PROC. ANN. art. 15.02 (West 2005). The warrant only states,

“Judge Corpus Christi, Nueces County, Texas” under the signature line.

2 The trial court overruled Simmons’s motion to suppress and the proceedings

continued. The State charged Simmons with possession of a controlled substance with

intent to deliver, TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2010), which was

reduced to a possession of a controlled substance by the jury. See TEX. HEALTH &

SAFETY CODE ANN. § 481.115 (West 2010). During the punishment phase of the trial,

the trial court overruled Simmons’s objection requesting that the court ignore in the

sentencing determination two of Simmons’s previous arrests that were dismissed as

illegal arrests. Simmons was sentenced to ten years’ confinement in the TDCJ, to run

consecutive with another unrelated sentence Simmons was serving at the time of the

trial. This appeal followed.

II. CHALLENGE TO WARRANTS

Simmons argues the search and arrest warrant authorizing in Simmons’s arrest is

invalid because of the three errors in the return inventory listed above, the unexplained

delay between the execution and the return of the warrant, and the unclear identification

of the municipal court judge that granted the warrant.

A. Standard of Review and Applicable Law

We apply a bifurcated standard of review to a trial court’s ruling on a motion to

suppress, giving “almost total deference to a trial court's determination of historical facts”

and reviewing de novo the court's application of the law of search and seizure.

Guzman v. State, 955 S.W.2d 85, 88–89 (Tex. Crim. App. 1997).

Chapters 15 and 18 of the Texas Code of Criminal Procedure respectively set

forth the necessary requirements for arrest and search warrants. Chapter 15 provides

that: "It must be signed by the magistrate, and his office be named in the body of the

3 warrant, or in connection with his signature." TEX. CODE CRIM. PROC. ANN. art. 15.02

(West 2005). Article 18 provides that the search warrant must be “dated and signed by

the magistrate” to be valid. TEX. CODE CRIM. PROC. ANN. art. 18.04 (West 2005).

Article 18.06(A) requires that a peace officer to whom a search warrant is delivered shall

execute it without delay and forthwith return it to the proper magistrate. TEX. CODE

CRIM. PROC. ANN. art. 18.06(A) (West 2005).

A combination search and arrest warrant is valid under Texas law. Pecina v.

State, 516 S.W.2d 401, 403 (Tex. Crim. App. 1974). An arrest warrant

incorporated within a search warrant is no different than an arrest warrant issued

separate and independent of a search warrant. Id. Evidence observed during the

execution of a lawful search warrant may give the police probable cause to arrest and

search a suspect found in close proximity to the evidence. Gish v. State, 606 S.W.2d

883, 885 (Tex. Crim. App. 1980). Ministerial violations do not require suppression of

the seized evidence absent a showing of prejudice, such as a challenge to the

authenticity of the evidence seized or proof that such evidence was somehow changed.

Roberts v. State, 963 S.W.2d 894, 903 (Tex. App.—Texarkana 1998, no pet.). An

arresting officer’s erroneous return on a warrant to the magistrate, or even the failure to

make a return at all, will not vitiate the warrant. Id. at 904. A reviewing court should

disregard a non-constitutional error that does not affect the substantial rights of the

defendant. TEX. R. APP. P. 44.2. A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict. King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Searches of a person and the area

within his immediate control are excepted from the warrant requirement when incident to

4 lawful arrest. Rogers v. State, 774 S.W.2d 247, 264 (Tex. Crim. App. 1989). Where

an officer recklessly or knowingly includes false information in his application for a

warrant, the remedy is to strike the false portions. Spencer v. State, 672 S.W.2d 451,

453 (Tex. Crim. App. 1984). As long as the search warrant was valid, the defendant

must establish his standing before he can complain about search. State v. Brady, 763

S.W.2d 38, 42 (Tex. App.—Corpus Christi 1988, no pet.).

B. Discussion

Simmons first argues that the warrant is void because of the erroneous inventory

records in the return warrant. The errors made in the return and inventory of the

warrant do not vitiate the warrant as long as the errors did not come as a surprise to the

defendant. Roberts, 963 S.W.2d at 904. These particular errors were not

constitutional errors because they did not have injurious effect in determining the jury’s

verdict. See TEX. R. APP. P. 44.2; King, 953 S.W.2d at 271. The omission of the scale

and the amount of cocaine, if it had any effect at all, would have probably helped

Simmons in the jury verdict as the jury charged him with the lesser-included offense of

mere possession of controlled substances. TEX. HEALTH & SAFETY CODE ANN. §

481.115 (West 2010). The officers subsequently admitted their mistakes on the

erroneous entry of the rifle in the inventory during the witness testimony. The

non-constitutional errors in the inventory, therefore, could not have adversely affected

the defendant when the trial court acknowledged them prior to the jury verdict.

Simmons’s second argument is that the delay in return vitiates the warrant that

had already been executed. Although the statute states the warrant must be executed

within a certain period of time after it has been signed by the magistrate judge, there is

5 nothing in the statutory language that directs how soon the warrant must be returned.

See TEX. CODE CRIM. PROC. ANN. art. 18.06 (West 2005). The Court of Criminal

Appeals stated in Roberts that even a failure to return the warrant does not vitiate the

warrant, which implicitly removes any time limits on the return. Roberts, 963 S.W.2d at

903. Therefore, Simmons’s second argument is without merit.

Finally, Simmons argues that the warrant did not meet the statutory requirement

because the magistrate judge who issued the warrant could not be clearly identified from

it, in violation of Texas Code of Criminal Procedure article 15.02. See TEX. CODE CRIM.

PROC. ANN. art. 15.02 (West 2005). Based upon our review of the record, we conclude

that an inference can be made from the designation “Judge, Corpus Christi, Nueces

County, Texas” that the judge who signed the warrant was a municipal judge for the city

of Corpus Christi. The Court agrees with the State that appending the title of a city next

to the title “judge” clearly conveys that the judge’s office is connected to the city, and the

only logical and reasonable connection is that the judge is in fact a municipal judge of

that city. Regardless of the implication, however, the lack of clear identification vitiates

only the “arrest” part of the warrant, leaving the “search” portion valid because a type of

warrant incorporated within the other type of warrant is not different from a warrant

issued separately and independently. Pecina, 516 S.W.2d at 403. The search of the

Meandering Lane property, which yielded the cocaine seizure, was authorized

independently from the arrest warrant. According to Gish, evidence observed during

the execution of a lawful search warrant may give the police probable cause to arrest

and search a suspect found in close proximity to the evidence. Gish, 606 S.W.2d at

885. The only item produced following the actual arrest of Simmons was $1,460.00

6 from his pants pocket. Assuming without deciding the arrest portion of the warrant was

void, the money is inadmissible as evidence but the cocaine is admissible because it

was discovered during the initial search process. Officers could then rightfully arrest

Simmons based on the discovery of cocaine. See TEX. HEALTH & SAFETY CODE ANN. §

481.115 (West 2010). Accordingly, Simmons’s first issue is overruled.

III. CHALLENGE TO PUNISHMENT EVIDENCE

By his second issue, Simmons asserts that the trial court should not have

considered Simmons’s previous two illegal arrests during the punishment hearing.

The trial court acts as a fact finder in determining whether the extraneous offense

evidence was proved beyond a reasonable doubt, which a fact finder must determine

before it can properly consider that evidence in assessing punishment. Ortega v. State,

126 S.W.3d 618, 622 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). We review a

trial court’s decision to admit extraneous offense evidence during punishment for an

abuse of discretion. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).

The Texas Code of Criminal Procedure states:

Evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07 (West 2005). A reviewing court should disregard

a non-constitutional error that does not affect the substantial rights of the defendant.

7 TEX. R. APP. P. 44.2(b). A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal conviction should not be

overturned for non-constitutional error if the appellate court, after examining the record

as whole, has fair assurance that the error did not influence the jury, or had but a slight

effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The Texas Code of Criminal Procedure clearly provides the trial court the

authority to hear the previous illegal arrest records as long as it can be shown beyond a

reasonable doubt that the crime or bad act has been committed by the defendant. See

TEX. CODE CRIM. PROC. ANN. art. 37.07 (West 2005). Even though a trial court can

admit previous arrests, the State failed to prove beyond a reasonable doubt that the

crimes had been actually committed by Simmons in the two arrests. The trial court,

therefore, should not have considered these two arrests in Simmons’s sentence.

Although they were considered erroneously, Simmons must still prove this

non-constitutional error significantly influenced the jury’s verdict. See TEX. R. APP. P.

44.2. Error of admitting case summaries of prior offenses and disciplinary records is

harmless and non-constitutional. King, 953 S.W.2d at 271. Likewise, the two arrest

records out of Simmons’s previous thirty-five arrest records filed under Texas Rules of

Evidence 404(b) would only have a slight, if any, effect on jury’s verdict. Despite the

erroneous admission of the two previous illegal arrest records, we decline to reverse the

trial court’s ruling because it was a harmless error. Accordingly, Simmons’s second

issue is overruled.

8 IV. CHALLENGE TO STACKING THE SENTENCES

By his third issue, Simmons argues that the trial court judge’s oral cumulation

order was ambiguous and thus must be void. Whereas the trial court judge orally

ordered the sentence to run consecutively with another unspecific sentence, the written

judgment has the two sentences running concurrently.

The oral pronouncement of sentence controls if it conflicts with the written

judgment. TEX. CODE CRIM. PROC. ANN. art. 42.01 (West 2005). Therefore, the written

sentence should be reformed to reflect the record of the proceedings in the event of

discrepancy. Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986). The Court

of Appeals has authority to reform and correct the judgment or may enter any other

appropriate order, as the law and nature of the case may require. Id. A proper

cumulation order must have the following: (1) the trial court number of the prior

conviction; (2) the correct name of the court where the prior conviction was held; (3) the

date of the prior conviction; (4) the term of years of the prior conviction; and (5) the

nature of the prior conviction. Id. at 461. A valid cumulation order specifically

describes the previous conviction(s) and the order in which the sentences are to be

served. Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App. 1998). An

appellate court uses a common sense interpretation of the order. Stokes v. State, 688

S.W.2d 539, 541–42 (Tex. Crim. App. 1985). The Texas Rules of Appellate Procedure

allow this Court to modify judgments sua sponte to correct typographical errors and

make the record speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d

607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex.

9 App.—Texarkana 2009, no pet.); Gray v. State, 628 S.W.2d 228, 233 (Tex.

App.—Corpus Christi 1982, pet. ref'd).

Even though Simmons concedes that the Texas Code of Criminal Procedure

article 42.01 states that the oral pronouncement controls when it varies from the

sentences given in the written judgment, he argues that the oral pronouncement fails in

this case because the trial court’s articulation of sentencing was ambiguous and unclear

with respect to which sentence would run consecutively with the present case.

Although orders containing less than the recommended elements of a cumulation

order can be upheld, see Banks, 708 S.W.2d at 461, it must be clear which previous

sentence the trial court was referring to in its order. See San Migel, 973 S.W.2d at 311.

During the punishment phase, the trial court made an oral pronouncement to run the

sentences consecutively but failed to specify the second case:

After taking into consideration your past history and… all the evidence in this case, I’m gonna sentence you to ten years in the penitentiary. And these ten years are not gonna go concurrent… They’re gonna run consecutive. So whatever you got on the other one is gonna be – I’m gonna add this ten to that. You’re gonna have to serve that time, plus these ten.

The record shows, however, that the trial court was referring to cause No.

06-CR-3139-E, which involves a revocation of community supervision and subsequent

sentencing for possession of a firearm by a felon. This judgment was admitted into

evidence at Simmons’s punishment hearing. Simmons was serving the two years of

sentence from that previous case at the time of trial in this case. Therefore, we

conclude that the trial court’s written judgment improperly ordered Simmons’s sentence

to run concurrently with his possession of a firearm conviction. The Texas Rules of

10 Appellate Procedure allow this Court to modify judgments sua sponte to correct

typographical errors and make the record speak the truth. TEX. R. APP. P. 43.2(b);

French, 830 S.W.2d at 609; Rhoten, 299 S.W.3d at 356; Gray, 628 S.W.2d at

233. Thus, we modify the judgment to correctly reflect the trial court’s judgment to run

the sentence consecutively with that from cause No. 06-CR-3139-E. We overrule

Simmons’s third issue.

V. CONCLUSION

We affirm the trial court’s judgment as modified.

__________________________ GINA M. BENAVIDES, Justice

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

Delivered and filed the 27th day of June, 2013.