Branch v. State , 03–09–00477–CR.
| Decision Date | 18 March 2011 |
| Docket Number | No. 03–09–00477–CR.,03–09–00477–CR. |
| Parties | Hubert Theodore BRANCH, Appellant,v.The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Bob D. Odom, Assistant District Attorney, Wm. Nelson Barnes, Assistant County Attorney, Belton, TX, for State.Barbara A. Drumheller, Houston, TX, for appellant.Before Justices PURYEAR, PEMBERTON and HENSON.
A jury convicted Hubert Theodore Branch of possession of between four and two-hundred grams of cocaine with intent to deliver, a first-degree felony. See Tex. Health & Safety Code Ann. § 481.112 (West 2010). Branch pled true to an enhancement paragraph alleging a previous conviction for the felony offense of delivery of cocaine, and the jury assessed punishment at life in prison and a $5,000 fine. Branch raises three issues on appeal, contending that the trial court erred in: (1) denying Branch's motion to suppress the evidence found during a traffic stop; (2) denying Branch's motion to suppress the evidence discovered in a search of his home after the traffic stop; and (3) denying Branch's motion for new trial based on ineffective assistance of counsel.
Because we conclude that the trial court did not err in denying Branch's motion to suppress, we affirm the portion of the trial court's judgment finding guilt. Because we conclude that the trial court erred in denying Branch's motion for new trial, we reverse the portion of the trial court's judgment assessing punishment, and we remand this cause to the trial court for a new punishment hearing.
Evidence presented at a hearing on Branch's motion to suppress shows that on September 14, 2007, Detective Joel Wadley of the Killeen Police Department Organized Crime Section was conducting an investigation of Branch. Wadley testified that Branch sold narcotics in Killeen and that Wadley had been investigating Branch for some time. Wadley further testified that on September 14, 2007, he believed that Branch was in possession of cocaine based on information he had learned from a confidential informant. On that day, Wadley was parked down the street from Branch's home on Crockett Drive. While parked, he observed Branch load something into his car, leave the car door open, and walk back inside his house. Wadley then observed Branch walk back outside, get into his car, and drive away. Wadley followed Branch from a distance in an unmarked car. Wadley testified that he followed Branch because he believed Branch was “going to a specific location to drop off some narcotics.”
Wadley testified that while he was following Branch, he observed Branch fail to signal his intent to turn on several occasions. Wadley contacted another officer, Officer Willie Wingfield, and asked him to make a traffic stop of Branch's car. A video from Wingfield's patrol car was admitted into evidence during the hearing on the motion to suppress. The video shows Branch failing to signal his intent to turn on at least one occasion. Wingfield responded to Wadley's request and ultimately stopped Branch as Branch pulled into his sister's driveway on Petunia Street. Before Wingfield made the traffic stop, he observed that Branch did not signal his intent to turn onto Petunia Street and provided a “short signal” (his turn signal blinked only once) before he turned into his sister's driveway.
Wadley contacted Detective Carl Pergande, a detective with a trained narcotics-detection dog, and requested that Pergande bring the dog to the site of the traffic stop to conduct an open-air sniff of Branch's car. Pergande was already on his way to the site because Wadley had previously contacted him to inform him that Wadley was surveilling Branch's residence and may need a narcotics-detection dog at some point. Wadley testified that Pergande arrived within approximately seven or eight minutes of the initial stop. The video from Wingfield's patrol car shows that the dog arrived within eight minutes of the traffic stop. Wingfield testified that during the time after the initial stop and before Pergande arrived with the dog, Wingfield was checking Branch's driver's license and insurance information and waiting for a police dispatcher to respond regarding whether Branch had any warrants. Wingfield testified that waiting for Pergande to arrive with the dog did not delay the stop. Wadley testified that during the time after the initial stop and before Pergande and the dog arrived, Wadley informed Branch that he was being stopped for a traffic violation. He testified that Branch told him that he may have failed to signal a turn because he was talking to his son, who was in the car with him. Wadley spoke with Branch's son, who was ten years old, and then allowed the boy to go inside the house.
When Pergande arrived, his police dog, “Justice,” conducted an open-air sniff of Branch's car. Justice alerted to the presence of a controlled substance in the vicinity of the driver's door. Pergande asked Branch to step out of the car. Branch initially refused, but after speaking further with Pergande, he stepped out and stood at the back of the car. Officers then began conducting a search of Branch's car. Wadley testified that Branch remained standing at the back of the car and that he put his hands in his pockets several times. Wadley told Branch to stop putting his hands in his pockets and then patted Branch down. Wadley testified that Branch had something in his front, left pocket. Wadley removed the item from Branch's pocket. The item was later determined to be 3.4 grams of crack cocaine. Wadley testified that the cocaine was still wet, indicating that it had recently been cooked and leading him to believe that Branch likely had more cocaine at his house. After the cocaine was discovered in Branch's pocket, officers arrested Branch and took him to jail.
Meanwhile, Wadley began the process of obtaining a search warrant for Branch's home, and Detective Pergande and other officers went to Branch's home to attempt to secure the scene until the search warrant was obtained. When Pergande arrived at Branch's home, he knocked on the door but no one answered. At some point later, Branch's sister arrived at the home to pick up Branch's younger son, who was there with a babysitter. When Branch's sister arrived, Pergande was still waiting outside the house. Branch's sister knocked on the door and identified herself. The woman babysitting Branch's baby answered the door, and Branch's sister walked into the home followed by Pergande and other officers. Pergande told the babysitter that he and the other officers would be preserving the home as a crime scene and that she was no longer free to move around the house. Pergande testified that he and the other officers then walked through the house to ensure that no one else was present. They did not find anyone else. After inspecting the items the babysitter planned to take with her out of the home, the officers told her she was free to leave. They also allowed Branch's sister to leave with Branch's baby. The officers then waited for a search warrant.
Wadley eventually obtained a search warrant. During the subsequent search, officers discovered two separate quantities of cocaine—one later determined to weigh 1.8 grams and the other later determined to weigh 12.6 grams.1
The State indicted Branch for intentionally or knowingly possessing, with intent to deliver, between four and two-hundred grams of cocaine. The indictment also included an enhancement paragraph alleging that Branch had previously been convicted of the felony offense of delivery of cocaine. Before trial, Branch filed a motion to suppress the evidence obtained in the search of him and his home. At the conclusion of a hearing on the motion, the trial court denied the motion.
The case proceeded to a jury trial, and the jury convicted Branch of possession of between four and two-hundred grams of cocaine with intent to deliver. At the subsequent punishment hearing, Branch pled “true” to the enhancement paragraph. The applicable punishment range was fifteen to ninety-nine years or life in prison. During the State's closing argument, the prosecutor addressed the issue of parole, stating, in part:
[Branch is] going to get out. You can see. You give him life, fifteen years he's eligible for parole. He is not going to stay in prison until he dies, and that fifteen years, as you can see in here, is tempered by how he's good. Okay? He's a good boy, he stays in prison seven years, eight years. He's going to be done on life. Give him thirty, give him forty, he's going to get out quicker.
It's almost obscene that we have to come to you and tell you that these number games [are] played. It would be much simpler if I could walk in here and tell you he's going to go to prison for what you give him, and that's it.
Later in the argument, the prosecutor referred to the issue again, stating,
The jury assessed punishment at life in prison and a $5,000 fine. Branch filed a motion for new trial, alleging that his trial attorneys provided ineffective assistance by failing to object to the prosecutor's closing argument regarding parole. The trial court denied Branch's motion by operation of law. Branch appeals his conviction.
Branch raises three issues on appeal, contending that the trial court erred in: (1) denying his motion to suppress the cocaine discovered in his pocket during the traffic stop; (2) denying his motion to suppress the cocaine found in the search of his home; and (3) denying his motion for new trial based on ineffective assistance of counsel. Because Branch's first two issues both relate to his motion to suppress, we address them within the same section below. We then address Branch's third issue separately.
We review a trial court's ruling on a motion to suppress evidence...
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