In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00385-CR ________________________
WILLIAM WALTER YOUNGSTROM, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR 12355; Honorable Ralph H. Walton, Jr., Presiding
June 9, 2014
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, William Walter Youngstrom, was convicted by a jury of the offense of
delivery of a controlled substance, methamphetamine, in an amount of more than four
grams but less than two hundred grams. He was sentenced to twenty-seven years
confinement and assessed a $2,500 fine.1 Appellant was also ordered to pay court
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (W EST 2010). An offense under this section is a first degree felony. costs of $2,730.35 which includes $2,294.35 in court-appointed attorney’s fees. By this
appeal, Appellant asserts (1) the trial court erred by denying his motion to suppress text
messages obtained by an illegal search of his cellphone and (2) his counsel was
ineffective for not objecting earlier and demanding a pretrial hearing on the admissibility
of the text messages. We modify the trial court’s judgment to delete the enhancement
findings as well as the order to pay $2,294.35 in court-appointed attorney’s fees and
affirm as modified.
BACKGROUND
In December 2012, an indictment was filed alleging that, on or about September
8, 2012, Appellant intentionally and knowingly delivered four grams or more but less
than two hundred grams including any adulterants and dilutants, of a controlled
substance, to-wit: methamphetamine, by actually transferring the drug to Ray Miller.
The indictment contained four enhancement paragraphs alleging four prior felony
convictions, i.e., two for possession of a controlled substance, one for theft and one for
evading detention. The indictment also included a second count alleging the offense of
possession of a controlled substance of less than one gram including adulterants and
dilutants. As to the enhancements, no plea was ever taken, the enhancements were
never presented to the jury, and no finding was ever made. As to the second count in
the indictment, following the assessment of sentence, it was voluntarily dismissed by
the State. Prior to trial, Appellant filed a Motion to Suppress [his] Written and Oral
Statements made while he was under arrest or following his request for an attorney.
There is no evidence or transcription of a pretrial suppression hearing in the record.
2 At trial, Ray Miller, a narcotics investigator for Hood County Sheriff’s Office,
testified that, in September 2012, he was told by an informant that he could purchase
drugs if he called Appellant’s telephone number. Miller texted Appellant’s number and
negotiated the price of a quarter ounce of methamphetamine—$550. Miller also
negotiated the transaction and arranged its location at a halfway point between the west
side of Fort Worth and Granbury—a Tiger Mart in Cresson. Appellant texted Miller that
he would arrive in a black 2010 Ford Taurus.
The transaction occurred as the parties had negotiated in their texts. Miller
arrived at the Tiger Mart and awaited the Ford Taurus. The Taurus arrived and pulled in
front of Miller’s car. Miller walked up to the Taurus and entered through the rear
passenger door. Two persons were in the front seat—the driver and Appellant.
Appellant identified himself as “Will” and almost in a continual motion, turned around
and displayed a baggie containing methamphetamine. Miller handed Appellant $550,
and Appellant handed him the baggie. Miller then gave a visual bust signal, officers
approached the Taurus, and Appellant was arrested.
After Appellant’s arrest, Miller located Appellant’s activated cellphone in the front
seat of the Taurus. On his way to the station, Miller accessed the cellphone’s text
messaging system and took pictures of the texting correspondence between himself
and Appellant. No passcode or password was necessary. The texts on Appellant’s
phone were the same as the texts on Miller’s phone. Both sets of texts were admitted
into evidence. Appellant’s attorney asserted the admission of Appellant’s text
messages was illegal because Miller’s search was warrantless. Miller testified it would
take approximately an hour and a half to obtain a warrant and he was concerned the
3 texts would be erased. The trial court overruled Appellant’s objection. William Watt, a
narcotics investigator who assisted Miller, corroborated Miller’s testimony.
At the conclusion of the State’s case, Appellant re-urged his motion to suppress
and was overruled. The jury found Appellant guilty of the charges in the indictment.
The trial court’s Judgment of Conviction by Jury sentenced Appellant to twenty-seven
years confinement, assessed a $2,500 fine and ordered Appellant to pay $2,294.35 in
court-appointed attorney’s fees as court costs. This appeal followed.
ISSUE ONE—MOTION TO SUPPRESS
Assuming, without deciding, the trial court erred in admitting Appellant’s text
messages, we find beyond a reasonable doubt that any error did not contribute to
Appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a). That is, any error was
harmless.
In applying the “harmless error” test, our primary question is whether there is a
“reasonable possibility” that the error might have contributed to the conviction. Mosley
v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526
U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Our analysis does not focus on the
propriety of the outcome of the trial; instead, we calculate as much as possible the
probable impact on the jury in light of the existence of other evidence. Westbrook v.
State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121
S.Ct. 1407, 149 L.Ed.2d 349 (2001). In our analysis, we evaluate the entire record in a
neutral, impartial and even-handed manner. Clay v. State, 240 S.W.3d 895, 904 (Tex.
4 Crim. App. 2007) (citing Neder v. U.S., 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d
35 (1999)). See Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
Appellant’s text messages aside, other evidence at trial, including Miller’s and
Watt’s testimony, establishes the circumstances leading up to and during Appellant’s
arrest. Moreover, the text messages on Miller’s cellphone are near mirror images of the
texts admitted from Appellant’s phone. Given the cumulative nature of Appellant’s texts
and the overwhelming evidence of Appellant’s guilt, we cannot say that a juror would
put much, if any, weight on Appellant’s text messages. See Snowden, 353 S.W.3d at
822 (quoting Delaware v. Van Arsdell, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d
674 (1986)). See also Davis v.
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-13-00385-CR ________________________
WILLIAM WALTER YOUNGSTROM, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR 12355; Honorable Ralph H. Walton, Jr., Presiding
June 9, 2014
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, William Walter Youngstrom, was convicted by a jury of the offense of
delivery of a controlled substance, methamphetamine, in an amount of more than four
grams but less than two hundred grams. He was sentenced to twenty-seven years
confinement and assessed a $2,500 fine.1 Appellant was also ordered to pay court
1 See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (W EST 2010). An offense under this section is a first degree felony. costs of $2,730.35 which includes $2,294.35 in court-appointed attorney’s fees. By this
appeal, Appellant asserts (1) the trial court erred by denying his motion to suppress text
messages obtained by an illegal search of his cellphone and (2) his counsel was
ineffective for not objecting earlier and demanding a pretrial hearing on the admissibility
of the text messages. We modify the trial court’s judgment to delete the enhancement
findings as well as the order to pay $2,294.35 in court-appointed attorney’s fees and
affirm as modified.
BACKGROUND
In December 2012, an indictment was filed alleging that, on or about September
8, 2012, Appellant intentionally and knowingly delivered four grams or more but less
than two hundred grams including any adulterants and dilutants, of a controlled
substance, to-wit: methamphetamine, by actually transferring the drug to Ray Miller.
The indictment contained four enhancement paragraphs alleging four prior felony
convictions, i.e., two for possession of a controlled substance, one for theft and one for
evading detention. The indictment also included a second count alleging the offense of
possession of a controlled substance of less than one gram including adulterants and
dilutants. As to the enhancements, no plea was ever taken, the enhancements were
never presented to the jury, and no finding was ever made. As to the second count in
the indictment, following the assessment of sentence, it was voluntarily dismissed by
the State. Prior to trial, Appellant filed a Motion to Suppress [his] Written and Oral
Statements made while he was under arrest or following his request for an attorney.
There is no evidence or transcription of a pretrial suppression hearing in the record.
2 At trial, Ray Miller, a narcotics investigator for Hood County Sheriff’s Office,
testified that, in September 2012, he was told by an informant that he could purchase
drugs if he called Appellant’s telephone number. Miller texted Appellant’s number and
negotiated the price of a quarter ounce of methamphetamine—$550. Miller also
negotiated the transaction and arranged its location at a halfway point between the west
side of Fort Worth and Granbury—a Tiger Mart in Cresson. Appellant texted Miller that
he would arrive in a black 2010 Ford Taurus.
The transaction occurred as the parties had negotiated in their texts. Miller
arrived at the Tiger Mart and awaited the Ford Taurus. The Taurus arrived and pulled in
front of Miller’s car. Miller walked up to the Taurus and entered through the rear
passenger door. Two persons were in the front seat—the driver and Appellant.
Appellant identified himself as “Will” and almost in a continual motion, turned around
and displayed a baggie containing methamphetamine. Miller handed Appellant $550,
and Appellant handed him the baggie. Miller then gave a visual bust signal, officers
approached the Taurus, and Appellant was arrested.
After Appellant’s arrest, Miller located Appellant’s activated cellphone in the front
seat of the Taurus. On his way to the station, Miller accessed the cellphone’s text
messaging system and took pictures of the texting correspondence between himself
and Appellant. No passcode or password was necessary. The texts on Appellant’s
phone were the same as the texts on Miller’s phone. Both sets of texts were admitted
into evidence. Appellant’s attorney asserted the admission of Appellant’s text
messages was illegal because Miller’s search was warrantless. Miller testified it would
take approximately an hour and a half to obtain a warrant and he was concerned the
3 texts would be erased. The trial court overruled Appellant’s objection. William Watt, a
narcotics investigator who assisted Miller, corroborated Miller’s testimony.
At the conclusion of the State’s case, Appellant re-urged his motion to suppress
and was overruled. The jury found Appellant guilty of the charges in the indictment.
The trial court’s Judgment of Conviction by Jury sentenced Appellant to twenty-seven
years confinement, assessed a $2,500 fine and ordered Appellant to pay $2,294.35 in
court-appointed attorney’s fees as court costs. This appeal followed.
ISSUE ONE—MOTION TO SUPPRESS
Assuming, without deciding, the trial court erred in admitting Appellant’s text
messages, we find beyond a reasonable doubt that any error did not contribute to
Appellant’s conviction or punishment. TEX. R. APP. P. 44.2(a). That is, any error was
harmless.
In applying the “harmless error” test, our primary question is whether there is a
“reasonable possibility” that the error might have contributed to the conviction. Mosley
v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526
U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Our analysis does not focus on the
propriety of the outcome of the trial; instead, we calculate as much as possible the
probable impact on the jury in light of the existence of other evidence. Westbrook v.
State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121
S.Ct. 1407, 149 L.Ed.2d 349 (2001). In our analysis, we evaluate the entire record in a
neutral, impartial and even-handed manner. Clay v. State, 240 S.W.3d 895, 904 (Tex.
4 Crim. App. 2007) (citing Neder v. U.S., 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d
35 (1999)). See Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
Appellant’s text messages aside, other evidence at trial, including Miller’s and
Watt’s testimony, establishes the circumstances leading up to and during Appellant’s
arrest. Moreover, the text messages on Miller’s cellphone are near mirror images of the
texts admitted from Appellant’s phone. Given the cumulative nature of Appellant’s texts
and the overwhelming evidence of Appellant’s guilt, we cannot say that a juror would
put much, if any, weight on Appellant’s text messages. See Snowden, 353 S.W.3d at
822 (quoting Delaware v. Van Arsdell, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d
674 (1986)). See also Davis v. State, 203 S.W.3d 845, 849-50 (Tex. Crim. App. 2006);
Renfro v. State, 958 S.W.2d 880, 889 (Tex. App.—Texarkana 1997, pet. ref’d).
Accordingly, it was unlikely the admission of Appellant’s text messages greatly affected
the jury after Miller testified, and his text messages recounting the negotiations and
arrangements undertaken to complete the drug transaction were entered into evidence.
We find the admission of Appellant’s text messages harmless error, if there was error at
all. Appellant’s first issue is overruled.
ISSUE TWO—INEFFECTIVE ASSISTANCE
Appellant asserts his counsel was ineffective because he did not request a
pretrial determination whether Appellant’s text messages should have been
suppressed. During trial, the trial court had the authority to admit or exclude Appellant’s
text messages. See Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988) (a
trial court may consider a motion to suppress before trial or elect to determine its merits
5 during trial when the evidence is offered). Moreover, a defendant’s counsel may either
file a pretrial motion to suppress evidence or wait until trial on the merits and object
when the alleged unlawfully obtained evidence is offered. See Johnson v. State, 743
S.W.2d 307, 309-10 (Tex. App.—San Antonio 1987, pet. ref’d) (citing Roberts v. State,
545 S.W.2d 157, 158 (Tex. Crim. App. 1977)). Accordingly, that Appellant’s attorney
chose the latter approach does not make his representation ineffective, but even if he
were, we find no harm because he objected to the admission of Appellant’s text
messages when the trial court had authority to exclude the evidence and admonish the
jury not to consider it. Issue two is overruled.
MODIFICATION OF THE JUDGMENT
In reviewing the record, it has come to this Court's attention that the trial court's
written Judgment contained in the clerk's record includes clerical errors. This Court has
the power to modify the judgment of the court below to make the record speak the truth
when we have the necessary information to do so. TEX. R. APP. P. 43.2(b). Bigley v.
State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Appellate courts have the power to
reform whatever the trial court could have corrected by a judgment nunc pro tunc where
the evidence necessary to correct the judgment appears in the record. Ashberry v.
State, 813 S.W.2d 526, 529 (Tex.App.—Dallas 1991, pet. ref'd). The power to reform a
judgment is "not dependent upon the request of any party, nor does it turn on the
question of whether a party has or has not objected in the trial court." Id. at 529-30.
6 1. ENHANCEMENTS—The summary portion of the Judgment reflects that Appellant
entered a plea of “True” to the first and second enhancement paragraphs of the
indictment, while the reporter's record clearly shows no plea was ever entered.
Additionally, the Judgment reflects a finding of “True” as to both enhancements, when
the Court’s Charge on Punishment clearly shows the issue was never presented to the
jury and no such finding was ever made. Thus, we modify the Judgment to delete the
word “TRUE” from both the plea and findings as to the 1st and 2nd Enhancements.
2. COURT-APPOINTED ATTORNEY’S FEES—Furthermore, the written Judgment and
Bill of Costs reflect an assessment of court-appointed attorney’s fees totaling $2,294.35,
while the record does not reflect a finding of ability to pay. In order to assess court-
appointed attorney’s fees as court costs, a trial court must determine the defendant has
financial resources sufficient to offset in part, or in whole, the costs of the legal services
provided. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2013); Mayer v. State, 309
S.W.3d 552, 555-56 (Tex. 2010). Once a defendant has been found indigent, he or she
is presumed to remain indigent for the remainder of the proceedings unless a material
change in financial resources occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
Supp. 2013); Mayer, 309 S.W.3d at 557. Therefore, because the record demonstrates
Appellant was found indigent and qualified for court-appointed counsel, we presume his
financial status had not changed, i.e., he was indigent at the time the trial court entered
judgment.
Furthermore, the record must reflect some factual basis to support the
determination that the defendant is capable of paying court-appointed attorney’s fees.
See Perez v. State, 323 S.W.3d 298, 307 (Tex. App.—Amarillo 2010, pet. ref’d). See
7 also Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.). We
note the record does not contain a pronouncement, determination or finding that
Appellant had financial resources sufficient for him to pay all, or any part of, the fees
paid his court-appointed counsel, and we are unable to find any evidence to support
such a determination. Accordingly, we conclude the order to pay attorney’s fees was
improper because the evidence was legally insufficient to support a finding Appellant
had the financial resources to pay attorney’s fees. See Mayer, 309 S.W.3d at 556-57.
Accordingly, we modify the Bill of Costs incorporated in the Judgment in Cause No. CR
12355 to delete the requirement that Appellant pay $2,294.35 in court-appointed
attorney’s fees. See Wolfe v. State, 377 S.W.3d 141, 146 (Tex. App.—Amarillo 2012,
no pet.). As modified, the trial court's judgment is affirmed.
CONCLUSION
We modify the trial court’s Judgment to delete the word “TRUE” from both the
plea and findings as to the 1st and 2nd Enhancements, and we delete the order to pay
$2,294.35 in court-appointed attorney’s fees. As modified, the judgment is affirmed.
Patrick A. Pirtle Justice
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