Smith v. State

TRENARD JERMAINE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-17-00081-CR

Court of Appeals Ninth District of Texas at Beaumont

Submitted on February 21, 2018

March 14, 2018

On Appeal from the 359th District Court Montgomery County, Texas

Trial Cause No. 16-10-12268-CR

MEMORANDUM OPINION

A grand jury indicted Trenard Jermaine Smith for the offense of engaging in organized criminal activity. See Tex. Penal Code Ann. § 71.02 (West Supp. 2017). After pleading not guilty, Smith was convicted by a jury, and the jury assessed punishment at two years' confinement in state jail and a fine of $10,000. Smith raises three issues on appeal, challenging the admission of a statement by a co-defendant and of a surveillance video, and alleging ineffective assistance of counsel. We affirm the judgment of conviction as reformed.

Evidence at Trial

Testimony of K.V.¹

K.V. testified that, on October 6, 2016, she went to Walgreens after having gone through the commercial drive-through window at the bank. She recalled being inside the Walgreens store for "maybe 5 to 7 minutes[.]" When she got back to her car, she heard a crackling sound when she slammed the car door, and she observed her back window was shattered and glass was in the seat of the car. She went back into Walgreens to see if the store had surveillance video so she could see what happened, and the store manager said he could not show her the video until the police had arrived. Upon returning to her car, she discovered her purse and a bank bag were missing. After the police arrived, she gave them a statement. K.V. testified that she did not know the defendant and she did not give him consent to enter her vehicle.

Testimony of S.F.

S.F. testified that, on October 6, 2016, she went to a Walgreens in New Caney to pick up a prescription for her son. At the Walgreens, she noticed a vehicle "parked at an angle that looked odd." When she passed it, she noticed another car was being broken into: there was broken glass, and she saw a person reach into the broken car window and then pull something out of the vehicle through the broken window. Then S.F. saw the person return to the other vehicle that was parked at an odd angle. S.F. explained that she decided to get the license number of the vehicle that was parked at an odd angle (hereinafter the "suspects' vehicle") and she took a photo of the suspects' vehicle with her cell phone. The photo of the vehicle was entered into evidence as State's Exhibit 10. S.F. testified that she believed at some point the suspects had noticed her. S.F. followed the suspects' vehicle and as she followed the suspects' vehicle picked up speed. S.F. observed the suspects driving erratically and cutting in and out of traffic. She believed they were trying to get away from her, and she called 911. S.F. reported to 911 that she had witnessed a robbery and a vehicle being broken into, and that she was following the suspects as they were trying to get away. Ultimately, S.F. observed the suspects enter Highway 59, traveling at a high rate of speed.

S.F. testified that she followed the vehicle for approximately five or six miles. While on the phone with 911 and following the suspects, S.F. told 911 that they were near a police station, and when she passed a parked police vehicle, she flashed her lights and pointed in front of her. S.F. explained that the police car stayed on the feeder road, and after the suspects' vehicle exited, the suspects hit something when they tried to make a U-turn. After the suspects crashed, S.F. observed a passenger getting out and running into a wooded area, and she saw another person next to the wrecked vehicle. S.F. testified that she took a photo of the wrecked vehicle, which was admitted as State's Exhibit 13. S.F. also testified that she had viewed the content of State's Exhibit 11, a surveillance video from Walgreens, and she agreed it accurately reflects the scene as she saw it on the day of the incident. The portion of State's Exhibit 11 that S.F. had personally viewed was admitted into evidence.

Testimony of Trooper Jordan Wilson

Jordan Wilson, a trooper with the Texas Department of Public Safety, testified that on October 6, 2016, he received a call regarding a vehicle involved in a possible burglary that had crashed after traveling northbound on Highway 59 at a high rate of speed. Wilson identified State's Exhibit 14 as a photo of the crashed vehicle that was involved in the chase. Based on his experience and training, Wilson concluded that the vehicle had been traveling at a high rate of speed when it crashed. The trooper testified that the wrecked vehicle was a rental that had "aftermarket tint thrown on." Wilson also identified the photo in State's Exhibit 15 as depicting a stolen purse he removed from the wrecked vehicle. He identified the purse from his conversation with an officer at the Walgreens who had spoken with the victim. Wilson testified that, in his experience, automobile burglaries such as this one are sometimes committed by persons who are linked to Houston.

Testimony of Sergeant Terry Barnhill

Sergeant Terry Barnhill, a DPS Sergeant assigned to the New Caney Highway Patrol office, testified that on October 6, 2016, he heard a call regarding a crash involving "suspected robbers[,]" and he went to the scene of the crash. Barnhill testified that the vehicle had crashed into a pillar under an overpass, and in his opinion, the vehicle had been traveling fast. Barnhill explained that the vehicle was a rental with window tinting that had been put on "really fast to cover up the windshield." According to Barnhill, the air bags were deployed and one of the license plates was inside the vehicle.

Barnhill explained that other law enforcement officers on the scene had apprehended two people that were in the vehicle, and he assisted in collecting evidence, photographing the scene, and inventorying the vehicle. Barnhill identified State's Exhibits 16 through 27 as photographs he took as he was conducting an inventory of the vehicle, and he agreed they were accurate depictions. Barnhill identified the object depicted in State's Exhibit 24 as a springloaded window punch, which he explained is used to break car windows or windshields and is commonly used in vehicle burglaries because it is a quick way to get into a vehicle without setting off the alarm. According to Barnhill, the initial report described suspects targeting people at banks, and inside the vehicle was a bag with a bank logo, which he identified in the photo in State's Exhibit 23. Barnhill testified that he has seen an increase in burglary cases in the past few years involving perpetrators coming into Montgomery County from Houston.

Testimony of Deputy Colton Bird

Deputy Colton Bird, a patrol deputy with the sheriff's office, testified that on October 6, 2016, he was dispatched to the scene of a burglary of a motor vehicle at a Walgreens on Road 1485 in New Caney, where a woman's vehicle had been broken into and her purse had been stolen. Bird identified State's Exhibits 9 through 35 as photographs taken at the scene, and he agreed they were accurate depictions of the victim's vehicle showing the rear passenger window broken and debris of broken glass on the ground, the front side passenger window with two marks that reflected other failed attempts to break the window, the rear passenger side with broken glass on the seat inside the victim's vehicle, the victim's purse and items in the victim's purse that had been recovered, including her identification and a bank bag. Bird agreed that he transported Smith from the hospital to jail after the offense.

Bird further explained:

I was initially dispatched to Walgreens where I met with [K.V.]. I went inside and I spoke with the manager of Walgreens and asked if I could view the security footage from the store. They had a camera on the corner of the store that pointed in the direction where her vehicle was parked. And I observed that footage with the manager in the back room.

Bird testified that he obtained a copy of the surveillance video from the Walgreens store manager on the day of the offense after observing the recording of the offense from the recording equipment, and he agreed that, based on his knowledge of the Walgreens parking lot and what he observed, the video recording accurately reflected the Walgreens parking lot. About twenty minutes of the video was published to the jury. Bird agreed that the video depicted a parked vehicle that did not move and from which no one entered or exited for a period of about fifteen minutes, that Chase Bank was visible across the street, and the parked vehicle was "pointed looking at the bank[.]" Bird identified the victim's vehicle in the video as it was leaving the Chase Bank parking lot.

Testimony of Deputy Ryan Jones

Deputy Ryan Jones with the Montgomery County Sheriff's Office Gang Intelligence Unit (GIU) testified that he assists as an investigator on gang offenses. Jones explained that the goal of the GIU is to "disrupt and dismantle all gangs in Montgomery County[,]" which includes documentation of gang membership in a statewide database known as "TxGang." Jones explained that various factors indicate to him that someone is a gang member: a judicial finding, self-identification, a reliable or corroborated informant, dress, hand signs, tattoos, internet recruitment, or use of gang colors. According to Jones, only three indicators are stand-alone criteria: a judicial finding, self-identification, or a corroborated informant. Jones explained that the gang known as "Bloods" is associated with the color red, tends to prefer certain tattoos and symbols, and commonly uses certain hand signs. Jones testified that Bloods' tattoos often depict a five-point star, red ink, paw prints, bricks, flames, or the letter B, and that sometimes Bloods' members alter the logo of local sports teams to conform to the gang.

Jones testified that he was called to the scene in this...