Carroll v. State

CORDARRELL CHARLES CARROLL, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-13-00735-CR

State of Texas in the Fourteenth Court of Appeals

December 23, 2014

On Appeal from the 149th District Court Brazoria County, Texas

Trial Court Cause No. 69718

MEMORANDUM OPINION

Appellant Cordarrell Charles Carroll was convicted by a jury of four counts of aggravated robbery.¹ On appeal, appellant presents three issues: (1) whether the trial court abused its discretion by refusing his motion for continuance in connection with an absent witness; (2) whether trial counsel rendered ineffective assistance of counsel; and (3) whether the trial court abused its discretion by denying his motion to suppress. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was indicted for four counts of aggravated robbery all arising out of the same criminal episode, alleged to have been committed on or about December 13, 2012. The indictments charged that appellant in the course of committing theft of property owned by Wendy's, and with intent to obtain or maintain control of said property, intentionally or knowingly placed four individual Wendy's employees in fear of imminent bodily injury or death, and did use or exhibit a deadly weapon, namely, a firearm capable of causing death or serious bodily injury. The State provided notice of its intent to prove two prior felony convictions of appellant.

At trial, all four Wendy's employees, including the manager on duty, testified. At about 9:00 p.m., on December 13, 2012, two black men entered the Wendy's restaurant on North Main Street, in Pearland, Brazoria County, Texas, wearing masks, hoodies, and gloves. The men were armed with semiautomatic pistols. One of the men, who was carrying a large, blue duffle bag, ordered the manager to open the cash registers and safe while the other man held the three employees at gunpoint against a wall at the rear of the restaurant. After they placed the money—approximately $5,000—in the duffle bag, the men exited through the back door. The manager called the police. A Pearland police officer responded to the scene. The Pearland police department sent out a teletype notifying other agencies of the incident, along with a description of the suspects, what was taken, and the suspects' vehicle.

At approximately 11:09 p.m. that same evening, a woman at her home in Richmond, Fort Bend County, Texas, called the police to report two black males dressed in black—one sitting in a parked light-colored BMW she did not recognize and the other walking along the side of her house, who opened her back gate. Deputy Stevenson with the Fort Bend County Sheriff's Office responded to the call about ten minutes later. In a dimly-lit area, Stevenson located a silver BMW with two blackmales. The driver was wearing black sweats and a black hoodie. The passenger was wearing coveralls and a dark blue hoodie. When Stevenson asked the men what they were doing at that location, they responded they were visiting a friend. When asked where their friend lived, they responded that they "didn't know" and could not give the friend's name or address. Stevenson ordered the driver, identified as Rennie Battist, to exit the vehicle. Stevenson ordered the passenger, identified as appellant, to put his hands on the roof. As the driver exited, Stevenson noticed a large, blue duffle bag on the driver's side floorboard. Stevenson also noticed thin, black finger gloves sticking out from the driver's hoodie pocket. For his safety, Stevenson handcuffed Battist and leaned him over the hood of the patrol car.

When Stevenson looked back at the BMW, the passenger, identified as appellant, was making a "furtive movement," "digging" in the backseat area. Stevenson drew his weapon and again ordered appellant to put his hands on the roof. Stevenson called for backup. Stevenson asked Battist if there were any weapons in the car—Battist replied that there was a gun in the car. Additional officers arrived, and removed appellant from the BMW and handcuffed him.

Two semiautomatic pistols were recovered from the vehicle: one from under the floor mat on the front passenger side and the other from the floor behind the driver's seat. The pistol located behind the driver's seat was visible, and was "chambered and ready to fire." Officers also recovered rifle ammunition on the front passenger floorboard. Stevenson opened the trunk and recovered a rifle. Also recovered from the trunk were a plastic bank deposit bag, containing bundles of cash and a coin tray with bank-rolled change, and a bank slip with "Wendy's Pearland" written on it. The officers contacted Pearland police regarding any recent burglaries or robberies, and Pearland officers responded to the scene in Fort Bend. Pearland officers arrested appellant and Battist.

On the first day of trial, appellant filed a verified motion for continuance, arguing that a continuance was necessary in order to investigate a previously unknown material witness, a Calvin Davis, who allegedly had been taken to the hospital. The trial court denied the motion for continuance. An attempt to serve a subpoena on the witness failed. On the second day of trial, after the State rested, appellant reurged the motion for continuance. Appellant called Battist to testify. Battist testified that he had pleaded guilty to four counts of "robbing Wendy's in Pearland." Battist also stated that his cousin, appellant, did not participate in the Wendy's robbery. Battist testified that a "Cal Davis"—appellant's friend—helped him instead. On the third day of trial, appellant's trial counsel informed the trial court that she still had not located the witness, and appellant rested.

In addition, appellant filed a motion to suppress all the evidence seized from the BMW. The trial court carried the motion to suppress with the trial and held a hearing outside the presence of the jury. The State argued that appellant had no standing with regard to contesting the search of the BMW and, in any event, the automobile could be searched without a warrant based on probable cause. Appellant maintained that he had an expectation of privacy in the vehicle, despite not being the owner or driver. The trial court denied the motion.

The jury found appellant guilty as charged on all four counts. Appellant pleaded true to the two prior felony convictions, and the jury assessed punishment at 45 years' confinement for each offense. The trial court imposed the assessed sentences to run concurrently. Appellant timely appealed.

II. ANALYSIS

A. The trial court did not abuse its discretion in denying the continuance.

Appellant argues that the trial court abused its discretion by denying his requestsfor additional time to investigate and secure the presence of a material witness, and that he was harmed by the court's decision.

The State responds even where a defendant makes the requisite showings that he exercised diligence to procure the absent witness, did not contribute to the witness's absence, the motion is not for made for purposes of delay, and what material facts the witness expects to prove,² a trial court has discretion to deny the continuance where the record does not indicate a probability that the witness could have been secured by a postponement. See Rodriguez v. State, 21 S.W.3d 562, 565-66 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (citing Varela v. State, 561 S.W.2d 186, 191 (Tex. Crim. App. 1978)).

We agree that Rodriguez is instructive here. In Rodriguez, this court indicated that uncertainty surrounding the witness's availability to testify at trial constitutes a sufficient ground for the denial of a motion for continuance. Id. at 566. There, at the time the appellant requested the continuance, he had no knowledge of the witness's whereabouts, the witness's brother did not know where she was, and trial counsel's attempts to locate her had proven fruitless. Id. This court also noted that the appellant was able to present the missing witness's grand jury testimony in support of the appellant's claim of self-defense. Id. Ultimately, we concluded that the trial court had not abused its discretion. Id.

Likewise, appellant has not presented "compelling grounds for a continuance" here. See id. The day before trial, this witness apparently informed appellant's trial counsel that he was the person who participated in the Wendy's robbery with Battist. All appellant knew at the time of the initial request was that the missing witness reportedly had been taken to an unknown hospital for an unknown health issue.Subsequent efforts to locate the witness and to serve a subpoena at the address he provided failed. In addition, appellant's trial counsel received information that the witness had changed his mind, did not want to be charged with the crime, and was not going to appear. Moreover, although not from the absent witness, appellant was able to present evidence related to his defensive theory that "Cal" Davis instead of appellant had committed the crime with Battist through the testimony of Battist himself.

Given the level of uncertainty of the absent witness's whereabouts and availability, we cannot say that the trial court abused its discretion in denying appellant's motion for continuance. See id.; see also Varela, 561 S.W.2d at 191 (noting motion also may be denied where continuance due to absence of witness would delay trial indefinitely).

We overrule appellant's first issue.

B. Appellant has not demonstrated ineffective assistance of counsel.³

Appellant argues multiple ways in which his trial counsel rendered ineffective assistance during trial: due to her failures and lack of diligence in connection with the motion for continuance; her failure to object when the State asked Stevenson about whether appellant was telling the truth in his explanation for how he was dressed; and her failure to move for a mistrial after the Wendy's manager testified in the guilt/innocence phase as to long-term effects from the robbery....