Waldrup v. State

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DEWAYNE LEE WALDRUP, Appellant v. THE STATE OF TEXAS, Appellee

No. 09-21-00154-CR

Court of Appeals of Texas, Ninth District, Beaumont

June 21, 2023

Do Not Publish

Submitted on May 16, 2023

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 20-10-12141-CR

Before Golemon, C.J., Horton and Johnson, JJ.

MEMORANDUM OPINION

W SCOTT GOLEMON CHIEF JUSTICE

A jury convicted Dewayne Lee Waldrup of the second-degree felony offense of possession of a controlled substance, cocaine, in an amount greater than four grams but less than 200 grams. See Tex. Health & Safety Code Ann. § 481.115(a), (d). After finding two enhancement paragraphs true, the jury assessed punishment at fifty years of confinement. See Tex. Penal Code Ann. § 12.42(b) (providing enhanced punishment for habitual offenders). In thirteen issues, Waldrup complains: the trial court violated his due process rights by denying his motion to dismiss the indictment without a hearing; the evidence is legally insufficient to support his conviction; the trial court erred by failing to include his requested voluntariness instruction in the application paragraph of the jury charge; the regional presiding judge summarily failed to hold a hearing on his two motions to recuse; the trial court erred by granting the State's motion to quash the subpoena for the Honorable Paul Damico; the trial court should have suppressed evidence from his arrest; the trial court erred by denying his motion to dismiss appointed counsel and failing to replace him with an attorney who would follow Waldrup's directions; the trial court erred by denying his motion to dismiss based on "outrageous prosecutorial misconduct" after his case was reindicted; the trial court violated his right to represent himself by delaying a Faretta hearing; and the trial court erred by denying his motion to quash the indictment without a hearing. As discussed below, we affirm the trial court's judgment.

PRETRIAL MOTIONS AND RULINGS

Waldrup filed various motions to dismiss, a motion to quash the indictment, motions to recuse, motions to suppress, and motions regarding his right to self-representation throughout the proceedings. On appeal, he complains about certain pretrial rulings the trial court made on some of these motions. We will address the pertinent factual background and procedural history concerning these pretrial rulings with the individual issues raised below as necessary to resolve the specific complaints he raises on appeal.

EVIDENCE AT TRIAL

Sergeant Paul Hahs's Trial Testimony

Hahs is a sergeant with the Montgomery County Sheriff's Office (MCSO) assigned to the homicide and violent crimes unit. Hahs testified that on October 25, 2019, he participated in an MCSO operation to surveil a local bank and businesses that were targets of "jugging operations." Hahs described jugging as when a suspect sits and surveils a bank and watches for a customer to come out with money in their hand, then follows them home or to another business and burglarizes their residence or vehicle to steal their money. Officers were looking for suspects involved in jugging of bank customers.

Hahs was assigned to watch for suspicious activity at the Chase Bank in New Caney, located in Montgomery County. On the police radios, Hahs heard there was activity at Chase Bank and a black Ford Explorer was identified as a suspect's vehicle, which he later observed. Hahs explained nobody exited the vehicle or came to the car to drop anything off, which is typical of a jugging suspect. Hahs testified their suspicions increased when a customer exited the bank and left in a Dodge truck, and as that truck drove away, the suspect vehicle followed it "turn-for-turn, stop-for-stop for quite a ways." The suspect vehicle lost the Dodge truck in a neighborhood, so the officers returned to their original positions, and Hahs learned on the radio that the suspect's vehicle returned to Chase Bank. The suspect's vehicle then followed another vehicle from the bank in the same direction but got caught at a traffic light and could not continue. The suspect's vehicle then returned to Chase Bank and parked in front of the bank.

Hahs testified that the sergeant in charge decided to run a "decoy operation" and send an officer in to pretend to be a customer, and Hahs volunteered to be the decoy. Inside the bank, Hahs met with the manager briefly to let her know he was a police officer, then he met with the clerk and requested something that resembled "a large wad of money." They provided Hahs with a cash envelope full of blank printer paper. He exited the bank pretending to be on his cell phone and waving the stuffed envelope in his hand. The suspect's vehicle was two spaces to his left with two people in it. Hahs testified the driver had a "thinner body frame[,]" and the passenger "had a larger frame" and "appeared to be more heavyset." Hahs could tell that the vehicle's occupants were male.

Hahs notified other officers on the radio that they were leaving, and the suspect's vehicle began following him "turn-for-turn." He parked in the Walmart parking lot, and the suspect's vehicle followed him. He testified he put the envelope on his center console in plain sight then walked into Walmart and left an open parking space on the driver side of his truck. Hahs positioned himself inside Walmart so he could watch his truck, but he did not have a full view of his vehicle, because there were other cars in the parking lot. He observed the suspect's vehicle pass in front of the store, then back in next to his vehicle. Hahs did not see what happened next but heard radio traffic that a male exited the car and tried to get into his truck, then they were given the "bust signal[.]"

Hahs testified he ran out of Walmart to his truck, where he observed a male lying between his truck and the suspect's vehicle in handcuffs and another male in handcuffs outside the vehicle on the passenger side. The person on the driver side was David Thomas, "a thin build, African-American male[.]" Hahs identified Waldrup in court as the passenger. Booking photos of Waldrup and Thomas were admitted at trial during Hahs's testimony and were consistent with Hahs's description.

Video from the Walmart parking lot was admitted without objection. Hahs testified the video showed the suspect's vehicle back into a space, with the driver's door next to his vehicle. Hahs testified that the video did not show what happened between the vehicles, but you could see the police units converge on the area and Hahs running to the vehicle. Hahs testified that although they did not break the window or get into the vehicle, officers saw enough to detain the men and find out what was going on, since they did not have permission, giving officers reasonable suspicion of criminal activity.

Hahs testified that when detectives interviewed Waldrup, he told them they left Houston in the suspect vehicle, stopped at a bank to deposit some money, drove around, and smoked marijuana. Hahs testified that Waldrup confirmed to detectives that he was the passenger in the vehicle.

Trial Testimony of Deputy Matthew McCord

Deputy McCord works for the MCSO and is assigned to the Organized Crimes Unit, where he focuses on narcotics and conducts surveillance. As a member of the Organized Crimes Unit McCord works with the Drug Enforcement Agency ("DEA"). McCord testified he has experience and training investigating narcotics and knows how they appear and are packaged.

McCord testified he was also assigned to the operation that conducted the bank-jugging sting in the New Caney area. McCord was assigned to surveil Chase Bank and parked in a lot north of the bank. McCord said just before 2:00 p.m., he observed a "black Ford SUV with Tennessee tags" arrive at the bank. He explained the suspect vehicle was parked in a spot where they could see the front door. McCord saw no one get out of the suspect vehicle, which was suspicious.

McCord testified the suspect vehicle then followed someone in a work truck who left the bank, but that was not a successful jugging, and the suspect vehicle eventually returned to the bank. McCord said the suspects eventually followed another vehicle, which also did not succeed. McCord explained that when the suspects again returned to the bank, a decoy was put into the operation. McCord testified that when the decoy, Hahs, left the bank with an envelope, the suspect vehicle followed him to Walmart.

At Walmart, McCord could not see the attempted break in from his location but was listening on the radio. After the signal was given, he waited at his location in the Walmart parking lot to make sure everything went smoothly. Once everybody was detained, McCord drove up to the scene but never saw who was in the passenger or driver seats. McCord testified that when he arrived at the scene, Waldrup and Thomas were already detained and handcuffed, and because he did not see them, he assumed they were in patrol cars.

McCord was assigned to take photographs as officers inventoried the vehicle. He photographed items in the front passenger seat area. McCord testified that in the front passenger area floorboard, he observed an eyeglass case. There "was a bunch of stuff" on the floorboard with the glasses, and he photographed that area. McCord testified that in the eyeglass case there were two baggies, containing what looked like cocaine, one powder and one rock that field tested positive, along with a pill bottle of tablets. During McCord's testimony, photographs of the items in the passenger floorboard were admitted into evidence without objection. The laboratory report regarding the substances was also admitted during McCord's testimony without objection. McCord...