### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 ON MOTION F OR REHEARING

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 NO. 03-09-00668- CR NO. 03-09-00669- CR

Sam m ie Lee F ord Jr., Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT NOS . CR22,2 96 & CR22,2 97, H ONO RAB LE ED MAGRE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Sammie L ee For d, J r. filed a motion for rehe aring complaining that we had misconstrued one of hi s arguments, that we did not addre ss one of his points of error, and that we should ha ve held that he rec eived ineffe ctive assistance of counsel. We w ithdraw our opinion a nd judgme nts dated April 21, 2011, and substitut e the following opinion and judgme nts in their place

.

A jury convict ed Fo rd of ag g rava ted robber

y (ca use number 03-09-00668- CR) and possession of more than 400 g ram s o f a controll ed substance with intent to deliver (ca use number 03-09-00669- CR). See Tex. Penal Co d e Ann. §§ 29.02(a) , .03(a) (West 2003) (robbe ry and ag g ravated robber y ); Tex. Hea lth & Safety Code An n . § 481.112 (f) (West 2010) (drug p o s s es s i o n). The trial court sentenc ed For d to forty y ear s’ imprisonment for eac h offe nse,providing that the sentenc es should run concur rently

. S

ee T ex. Penal Code Ann. § 12.32 (West Supp. 2009) (punishment r ang es for first-deg ree felonies)

. For d’s appe llate attorne y filed a brief asser

ting that the appea l is frivolous and without merit and a motion seeking leave to withdraw

as counsel. See Anders v. Calif ornia , 386 U.S. 738, 744 (1967); Jack son v. State , 485 S.W .2d 553, 553 (Tex. Crim. App. 1972). I n response , For d filed a pro se brief asser ting fiftee n points of err or. We affir m the trial court’ s judgme nts of conviction.

Summ ary of the Evid ence Maria Gamino testified t hat at about m idnight on Aug ust 26, 2008, she was aslee p in her bedroom in Cameron, Texas, with her three -y ear -old son. J ose L lanas, her then-fia ncé, from whom she has since separ ated, was in the living room. Acc ording to G amino, she woke to y elling and saw two men push L lanas into the bedroom. The men pushed L lanas to the g round and tied his hands with black plastic “zip-ties.” Both men wer e Afric an-A merica n and wer e arme d and dresse d in dark clothing, with t-shirts wra pped around their fac es. The taller man did most of the talking and

wore black and red Air J ordan shoes. Gamino testified that she hear d the taller man’s voice clea rly , saying, “I t was unique beca use it was so deep, very masculine.” Gamino fea red the men wer e g oing
to kill her and her son, but instead they ransa cked the house and stole two cell phones, a camc order , about $1,800 in cash, her son’s piggy -ba n k , an d t he key s to a Ford t ruck. After the i ntruders left, Gamino cut the ties from L lanas’s hands and ran to the house of a trooper who lived down the street.

Ga m ino testified t hat t he nex t day , two people she did not know t old L l an as t h at a

man named Sa m m i e Fo rd had robbed them and that he was stay ing at a Be st Western Motel in Rockdale and had tried to sell them a camc order

. Gamino g ave that information to the police

2and drove with L lanas to Rockdale to g o to Wal-Mart. They pulled into a restaur ant in Rockdale, and L lanas saw For d insid e and rec og nized him as one of the men who had robbed them. L lanas confr onted For d, who denied any involvement. Gamino did not rec og nize For d’s fac e, but when she hear d him speak, she “ knew that it was the same pe rson that had be en inside my house.” Police witnesses testified that the police we re c alled to the scene and that For d was eventua lly arr ested. The police found “a larg e quantity of cash in his pockets,” along with a key car d for a room at the Be st Western. For d asked that the room key be g iven to his wife, Christina F ord. The police interviewe d Chris t i n a Fo rd , wh o said For d told her he had “hit a lick,” meaning he “had robbed some Mexi cans over in Cameron ear lier that day .” She also g ave the police permission
to sear ch the motel room. The poli ce o b t ai n ed a war rant and sear ched For d’s room, wher e they found dark clothing, red and black Air J ordans, and black plastic zip-ti es t hat m atche d those used in the robber

y . They also found a digital scale , a brick of coca ine weig hing about one kilogr am, and

more than $3,000 in cash; they did not rec over any of the stolen items. Two day s afte r the robber y , L lanas was arr ested while driving a car containin g a larg e quantity of coca ine and sentenc ed to fede ral prison for drug traff icking

. The State argued that L lanas was a drug deale r whose supply was stolen by For d and Fo rd’s acc omplice and who was returning from reple nishing his supply when he was arr ested two day s later. There was testimony that the police had suspected for some time that L lanas was dealing drug s and was using Gamino’s house as a “stas h h o u s e” for his drug supply

. Gamino denied know ing that L lanas wa s dealingdrug s or might have hidden dr ug s in her house. Chri s t i n a For d testified that at the time of the robber y , she and For d had been separ ated for a month or two. The morning afte r the robber y , For d asked her to g o with him to pay

some bills. They

g ot Ford’ s vehicle out of impound, whe re it ha d been for about two months, a nd 3retrie ved some items f rom a pawnshop. For d then g ot a room at the Be st Wester n, and later in the day , Christina Ford a

nd her da ug hter we nt to the motel to g o swimming. Whil e she w as in For d’s
room, she saw cash, bag s of drug s, and a brick of coca ine. She asked For d wher e he had g otten the drug s, and he sa id he had “ hit a lick.”

F ord’s P oints of

Error I n his first point of err or, For d complains that the evidenc e is insufficient to support the robber

y conviction. Specifica lly , he argues that no phy sical evidenc e tied him to the robber y . 1 2 Although the stolen p ro p er t y was not found in For d’s possession, Gamino testified that two men broke into her house and robbed her and L lanas at g unpoint, putting her in fea r for her and her son’s lives, and that she an d L l an as s aw o ne of the men the next day ; L lanas rec og nized For d’s fac e, and she rec og nized his voice. Fur ther, L lanas was t o ld that a man named Sammie For d had committed the robbery

. Finally , For d’s wife testified t hat Ford told her tha t he had robbed “some

For d complains that the evidenc e is leg ally and fac tually insufficient, but the co u rt of 1 criminal appe als rec ently held that the “leg al-suff iciency standard is the only standard that a revie wing court should apply in deter mining whether the evidenc e is sufficie nt to sup p o rt ea ch element of a criminal offe nse that the State is require d to prove beyond a rea sonable doubt.” Brooks v. State , 323 S.W .3d 893, 895 (Tex. Crim. App. 2010). I t is not entirely clea

r w h ether For d intended to complain about the evidence supporting 2 the drug convictio n , b u t i n his argument, he states only that the char g es should not have been consolidated and does not attack the evidentiar y support for the drug conviction. We there fore assume For d attacks only the evidenc e supporting the robber y conviction. Howeve r, even if he had attacke d the drug convictio n, the evidence is sufficie nt to show that For d had custody and control over the motel room and its contents and thus to support the dru g conviction: when the police executed their sear ch warra nt on the motel room, they found larg e quantiti es of drug s, cash, and a digital scale; t h e room was rented by For d, who gave his wife the room key ; For d’s wife g ave the key to the police and told them she had seen drug s and money in the room. See Armstrong v. State , 82 S.W .3d 444, 449 (Tex

. App.—Austin 2002, pet. ref ’d) (totality of circ umstances must show defe ndant’s knowledg e of a nd control over

drug s). 4Mexi cans” in Cameron, she saw a large q u an t i t y o f cash in For d’s motel room, and the day afte r

the robber

y , For d had enoug h money to retrie ve his c ar from impound a nd g et some proper

ty from

a pawnshop. The ev i d en ce is sufficie nt to support the ag g rava ted robber

y verdic t. See Clayton

v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) (“[d]i rec t an d circ umstantial evidenc e are trea ted equa lly ”).

For d arg ues in his second point o f er ro r that his war rantless arr est was improper beca use there was no probable cause to arr est him for robber y . Howeve r, L lanas rec og nized For d’s fac e and Gamino rec og nized his voice. For d had a vehicle at his disposal that would allo w h i m to leave the scene if not detained for investiga tion. This evidenc e provided a sufficie nt basis for the police to arr est For d for the felony of ag g ravated robber y . See Tex. Code Crim. Proc. Ann. art. 14.04 (West 2005) (“Where it is shown by satisfac tory proof to a peac e office r, upon the repr esenta tion of

a cre dible person, that a felony has been committed, and that th e o ff en d er i s about to esca

pe, so that there is no time to procur e a war rant, such peac e office r may , without war rant, pursue and arr est the acc used.”) ; State v. Steelman , 93 S.W .3d 102, 1 0 7 (Tex. Crim. App. 2002) (police may make

war rantless arr est if there is probable cause and arr est falls within exception to war rant require ment). I n his t h i rd and fourth points of err or, For d complains that the sear ch war rant

was improper beca

use the police lacke d probable cause and beca use the war

rant did not place limit s

on the sea rch a nd instead allowe d “g ener al exploratory rummag ing.” He a

rg ues t hat t here was no

corr oboration of the information that For d had tried to se ll a camc order to the unidentified people. The aff idavit rec ites that L lanas and Gamino lear ned For d’s name from the unidentified people, but it also states that L lanas and Gamino rec og nized For d in the Rockdale restaur ant, that Christina For d told the police that For d had admitted to committing a robber y in Cameron, th at s h e saw larg e 5sums o f ca s h an d coca ine in the motel room, and that, when confr onted by “Mexicans” at the

restaur ant, For d said “those are the Mexi cans I hit the lick from.” The aff idavit relied on more than the anony mous tip and provided sufficie nt probable cause for the mag istrate to believe that the stolen items might be found in the motel room. See Rodriguez v. State , 232 S.W .3d 55, 59-60 (Tex. Crim. App. 2007) (se arc h war

rant should be uphe ld if aff idavit provided m ag istrate with probable cause that particula

r item will be found in particula r location); Hespe th v. State , 249 S.W .3d 732, 736-37 (Tex. App. —Austin 2008, pet. ref ’d) (cour ts should defe r to mag istrate and uphold war rant if mag istrate had substantial basis to conclude sear ch would uncover evidenc e of spe cific c rime and if aff idavit established proba

ble ca use). I n his third point of err or, Fo rd co m p lains that the sear ch of his motel room was im proper beca

use t he search warr ant di d not put limit s on t h e s ea rc h and instead allowed the police to do “g ener al exploratory rummag ing.” On rehe aring , For d argues that the war rant did not particula rly descr ibe the items that wer e to be s eized and the place or things to be sear ched. Howeve r, althoug h a sear ch war rant may not allow unfett er ed d i s cre tion to “burr ow throug h a person’ s possessions looking for any evidenc e of a crime,” a war rant is proper if it provides enoug h specific s that the office r executing the war rant will “re asonably know what items are to be seized.” Porath v. State , 148 S.W .3d 402, 410 (Tex. App.—Houston [14t h Dist.] 2004, no pet.). The war rant ref ers to the aff

idavit prepa

red by Offic er W h i t e, in which Whit e listed a pigg y bank, two cell phones, a video came ra, and ab o u t $1,800 in cash as stolen items that wer e believed to be in the motel room. Whit e rec ited that Gamino an d L l an as re p orted the robber y and told the police that “a friend who wished to rema in anony mous” told them Ford h ad tried to sell the friend a stolen video came ra . I n h i s descr iption of the robber y , Whit e mentioned black zip-ti es and “fire arms 6(pistols),” and he also ave rre d that Gamino spotted For d at a restaur ant in Roc kdale and called the

police to repor

t For d’s wher eabouts. Whit e aver red that For d’s wife told the police For d admitted to committing a robber

y in Cameron, she saw larg e amounts of cash and coca ine in For d’s motel room, and she believed For d had place d a g un in his backpa ck. The war rant allowed the po l i ce to “ente r the suspected place descr ibed in said Affidavit and to there sear ch for persona l p ro p er ty descr ibed in said Affida

vit.” I n the sear ch, the police seized zip-ti es, digital scale s, four plastic bag s of coca ine, one “[gr ay ] taped coca ine packa g e,” a ”[gr ay ] roll duct tape , ” o n e plastic bag of marihuana , a bac kpack, a pair of shoe s, dark c lothing, and a “Wal-Mar

t Visa” in F ord’s name. Contrary to For d’s arguments, the war rant was sufficie ntl y specific

. I t ref err ed to the aff idavit, which listed the specific items stolen from Gamino or L lanas, m en t i o n ed t hat black plastic ties wer e used in the robbery , and st ated that drug s, firea rms, and ca sh wer e believed t o be in the motel room. The police could sear ch any wher e in the motel room wher e such items might be

conce aled. The war

ra n t was sufficie ntly specific in its instructions that the police should sear ch For d’s motel room for dr

ug s, cash, a

nd evidenc e re lated to the robbe ry . See id. On rehear ing, Ford asserts t hat we neg lected to addre ss his eleve nth point of error, in which he argues that the trial court should have g rante d his motion to suppress. Although we did
not specific ally state that we wer e ad d ressing his eleve nth point, we did addre ss whether For d’s motio n t o s u ppress should have been g rante d, an arg ument that is made in sever al of his points and that is an ove rar chingissue rela ted to the proprie ty of the searc h as a w hole. For d asser ts that the pol i ce d i d n o t obtain Gamino’s identification of For d and that “[n] o evidenc e of a robber y

was prese nted to show the rig ht person was arr ested.” He asser ts that the police improperly secr eted witnesses and that sever al witnesses wer e not called to testify at the suppression hear ing. Howeve r, 7there is no require ment that the State call all of its witnesses at a suppression hear ing, and as noted

above, the State provided sufficie nt evidenc e to support both the arr est and the war rant. There fore , the evidenc e seized throug h For d’s arr est and the se arc h of his motel r oom w as proper ly obtained.

Fo rd next complains that his double-jeopa rdy rig hts wer e violated when he wa s retrie d on the drug possession char g e afte r an initial trial that resulted in a hung jury

. He also arg ues that the same evidence wa s u sed to prove both drug possession and ag g ravated robber y and that the State imp roperly soug ht two convictions when the evidenc e showed only one offe nse was committed. Howeve r, ag g ravated robber y is a crime distinct from drug possession, and there is no bar ag ainst one piece of evidenc e being used to prove more t han one o ffense, especially when the
two offe nses are rela ted in some way , as was the case here

. As to the hung jury , “[t] he law reg arding double jeopar dy in such case s is well-settled. A trial court’s decla ration of a mistrial following a hung jury is not an event that terminates the orig inal jeopar dy to which a defe nd an t i s subjected.” Ex parte Cantu , 120 S.W .3d 519, 521 (Tex. App.—Corpus Christi 2003, no pet.) (citations omitted).

For d further contends that his rig hts wer e viol ated when t he S tate consolidated the drug possession and robber y char g es for trial. He asser ts tha t be cause Gamino and L lanas did not 3 tell the police that drug s had been stolen in the robber y , the police improperly tied the two char g es t og ether

. Howeve r, beca use the char g es involve overla pping evidenc e and testimony , it was more efficie nt to try the charg es t og ether rathe r t han goi n g t h ro u g h two trials, and section 3.02 of the penal code allows t h e consolidation of criminal char g es. See Tex. Penal Code Ann. § 3.02 (West 2003). Although a defe ndant m ay reque st a sever ance of consolidated char g es under

For d also asser

ts that the State committ ed m i s co nduct by prese nting false evidenc e, but 3 there is nothing in the re cord to support that a ssertion. 8section 3.04, For d did not object t o t h e co n s o l idation or seek a sever ance . See id. § 3.04(a)

(West Supp. 2010). Nor has For d shown how he w as har med by havingthe causes consoli dated. See Tex. R. App. P. 44.2(b). For d rec eived identical s en t ences that wer e set to run concur rently , wher eas with separ ate trials he might have rec eived longe r sentenc es or had his sentenc es set to

run conse cutively

.

For d raises severa l p oints complaining that his confr ontation rig hts wer e viol ated. He argues that the State should have identified and called as witnesses the people who g ave L lanas For d’s name and complains t h at beca use the State did not call L lanas, who was in fede ral prison, For d was d enied the opportunity to cross-e x amine him. The confr ontation clause bars the use of “out-of- court testimonial statements by a wi t n es s unless the witness is unavailable to testify and the defe ndant had a prior opportunity to cross-e x amine the witness.” Martinez v. State , 327 S.W .3d 727, 738 (Tex. Crim. App. 2010). The State did not prese nt “ out-of-c ourt testimonial stateme nts” by L lanas or the people who g ave L lanas F ord’s name. See id. 4

I n his e ighth point, F ord complains that only two office rs testified at the hear ing on his motion to suppress, arg uing that the State should have prese nted all of its witnesses. Howeve r,

a suppression hear ing addre sses onl y the propriety of the seizure of evidenc e, and the State is not obligated t o prese nt its entire case or all its witnesses. I n his nint h p o i n t , For d complains that the

For d also asser

ts that the State “sec rete d witnesses” beca use there was testimony in For d’s 4 ear lier trial, which ended with a hung jury , that the coca ine was tested and handled by crime labs in both Waco and Austin. Howeve r, that evidenc e was not introduced in the trial at issue here , and we cannot consider evidenc e that was not introduc ed into this rec ord. See Lewis v. State , 504 S.W .2d 900, 904 (Tex. Crim. App. 1974). Furthe r, F ord has not explained how the analy sis by more than one lab or technicia

n harme d him, other than to a ssert that there was a broken chain of custody for the evidenc e, an a ssertion not supported by the re cord. 9State did not ask For d ’s wi fe whether she knew any thing about the robber

y , arguing that beca

use there was no evidenc e that she saw any of the stolen items or knew about the robber y , her testimony

was improper. How ev er , For d’s wife testified about seeing drug s and cash in the motel room, as well as For d’s statements to he r that he had committed a robber y the day befor e. Her ignor ance of the details of the r obbery

or the items stolen does not re nder he r testimony improper. For d complains in his tenth point t h at the trial court should have admitted notes from a police interv i ew with L lanas afte r the robber y . For d’s attorney attempted to introduce the police re port in an attempt to show that L lanas wa s ly ing a bout the robber

y , but the State objected that the repor

t contained hear say and that L lanas was not there to testify about what he actua lly said or what he meant to say . The trial court sustained the State’s objection, which For d complains shifted the burden from the State to For d. Even if there was m er i t to this contention, For d has
not shown how the repor

t would have aided his defe nse, much less that his defe nse was prejudice d by the ex cl u s i on of the repor t or that his constitutional rig hts wer e violated. See Tex. R. App. P. 44.2(b). For d contends in his twelfth point that the State made prejudicia l c omments dur ing its closing arguments when it ref err ed to Cedric Ba

rnes as Fo rd ’s ac complice despite the fac t that Ba rnes was not c harg ed. “The approve d g ener al are as of argument are : (1) summation of the evidenc e, (2) rea sonable deduction from the evidenc e, (3) answe r to argument of opposing counsel, and (4) plea for law enfor ceme nt.” W esbrook v. State , 29 S.W .3d 103, 115 (Tex. Crim. App. 2000). I n his closing arguments, For d’s attorney argued that the State’s witnesses wer e ly ing and said, “And then [Gamino] tells y ou on the witness stand y esterda y that while all this was g oing on, the shorter person, who’s supposed to be this g uy Cedric Ba rnes—who is listed as a suspect and was appar ently 10questioned about it and has never been arr ested for it—is the one that pointed the g un at her and her

son.” L ater in his arguments, he ref err ed ag ain to Ba

rnes, saying Ba

rnes “appa

rently , for all purposes now, is in El Paso someplace .” The State’s rebuttal addre ssed the fac t that Gamino and L lanas said
two men had robbed them, saying, “[W ]hat about Cedric Ba rnes? What’s g oing to happen to him?

. . . You may not know what happens to him. Every body g ets their day in court. Today is Sammie L ee For d, J r.’s day in court, and that’s what y ou’re here to decide .” The State’s ref ere nce to Ba

rnes was in answe r to For d’s ar g ument and wa s not errone ous. See id.

I n his thirteenth point, For d argues that the State improperly seized For d’s proper ty throug h a forf

eiture proce eding , that it did not prove the proper ty was derive d from illega l activities, and that For d was not g rante d a civil trial as he reque sted. A forf eiture is a civil proce eding distinct from a criminal prose cution. See G ambling Paraphernalia, Devic es, Equip., & Procee ds v. State , 22 S.W .3d 625, 627 (Tex. App.—Dallas 2000, no pet.); see also Beasley v. State , 5 S.W .3d 812, 814 (Tex. App.—San Antonio 1999, pet. ref ’d) (for fei t u re filed separ ate from criminal proce eding ). Whether the for feiture proce eding was prope r is not before us in this cause.

Finally , in his last two points of err or, For d complains that he rec eived i n ef fe cti ve assistance of counsel at trial and on appea l. He arg ues t ri al co u n s el should have: moved for

a direc ted verdic t beca

use the evidenc e was leg ally insufficient, objected to the State’s calling only
two witnesses at the supp re s s i o n h earing , investigated other potential witnesses, objected to the consolidation of the two prosec utions, proper ly argued For d’s motion to suppress, and attacke d the

war rantless arr est. He also raises other complaints simil ar to those asser ted in his pro se brief. We have considere d For d’s pro se complaints and have ex plained why they lack merit. We have also revie wed the trial court rec ord and hold that For d rec eived eff ective assistance throug hout his trial. 11Simi larly , beca use we ag ree with appellate counsel that there are no g rounds for rever sal, counsel did not provide ineff

ective a ssistance to F ord on appe al.

Conclusion We have considere d the rec ord, For d ’ s p ro se complaints, and the brief filed by For d’s attorney and ag ree that the appea l is frivolous and without merit. Acc ording ly , we overr ule For d’s 5 motion for rehe aring , g rant F ord’s a ttorney ’s motion to withdraw, and a ffirm F ord’s c onvictions. 6

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med on Motion for Rehea ring Filed: September

22, 2011 Do Not Publish

Be cause the brief prese nts a profe ssional evaluation of th e record and demonstrates 5 that there are no arg

uab l e g rounds to be advanc ed, the brief meets the require ments articula ted in Anders v. Ca l i

f o r n i a , 386 U.S. 738, 743-44 (1967). See Penson v. Ohio , 488 U.S. 75, 80 (1988); High v. State , 573 S.W .2d 807, 811-13 (Te x . Crim. App. 1978). No substitut e counsel will be appointed. S h o uld For d wish to seek further revie w of 6 his case by the court of criminal appea ls, he must either reta in an attorney to fil e a p et i t i o n for discretionar

y revie w or file a pro se petition for discretionar y re v i ew . S

ee generally Tex. R. App. P

. 6 8 -7 9 (g overning proce eding s in Texas Court of Criminal Appea ls). Any petition for discretionar

y revie w must be filed within thirty day s from the date of either this opinion or the date this C ourt overr

ules the l ast timely motion for rehea ring filed. See id. R. 68.2. The petiti on must be filed with this Court, afte r which it will be forwa rded to the court of criminal appea ls along with the rest of the filings in this case . See id. R. 68.3, 68.7. Any petition for discretionar y revie w should comply with rules 68.4 and 68.5 of the rules of

appellate proce dure. See id. R. 68.4, 68.5. 12