Ford v. State
| Decision Date | 04 August 2021 |
| Docket Number | 03-19-00689-CR |
| Parties | David Wayne Ford, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
FROM THE 424TH DISTRICT COURT OF BLANCO COUNTY NO. CR01691, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Baker and Kelly
A jury convicted David Wayne Ford of both forgery and engaging in organized criminal activity and after he pleaded "true" to two enhancement paragraphs, assessed punishment at 20 years' and 50 years' imprisonment respectively. See Tex. Penal Code §§ 32.21(b), (d), 71.02(a)(8), (b). The trial court entered judgments of conviction on the verdicts with the sentences to run concurrently. In nine appellate issues, Ford contends that (1) Brady violations and ineffective assistance of counsel entitle him to reversal of his convictions, (2) he was improperly denied both a continuance and standby counsel's help with jury selection, (3) the trial court should have sustained his objection to the State's giving closing punishment argument after he waived his own, (4) comments during the punishment argument were objectionable (5) the evidence was insufficient to support his convictions (6) we should "revisit" a decision by the Court of Criminal Appeals about examining trials, (7) we should "revisit" a decision by the Court of Criminal Appeals prohibiting calling witnesses who will assert their Fifth Amendment rights not to answer questions, (8) he was entitled to a mistrial once one or two jurors saw him in handcuffs on a lunch break, and (9) cumulative error requires reversal. We affirm.
On January 18, 2019, Ford entered the Blanco Security State Bank &Trust and cashed a check for $2, 209.11. His name was typed on the check, which was purportedly drawn by J.T Drilling, Ltd., on its account with a Fredericksburg bank. The Blanco bank branch vice president called the Fredericksburg bank to verify funds. Around this time Vincent Smith-Brule walked in but left about 30 seconds later, when the branch vice president asked Ford questions. After Smith-Brule left, he got into a white car parked across the street. The branch vice president finished her call; counted out the $2, 209.11 in cash, including four $50 bills; and handed it to Ford, who took it and walked out. He walked back across the street and got into the same white car.
About eight minutes later and after Ford had left the bank Smith-Brule got out of the white car that Ford got in and walked back in the bank but to a different teller line than the one Ford had used. He handed over his ID and presented for cashing another check, which had his name typed on it and was also purportedly drawn on J.T. Drilling's account and looked like Ford's.
The branch vice president suspected something and reported this to the branch manager, who called J.T. Drilling. He spoke with its owner, who said that neither check was authorized. Meanwhile, Smith-Brule quickly left the bank, leaving his ID and the check, and got back in the same white car, which had changed parking spots. Video surveillance showed both Ford and Smith-Brule enter the car, and the branch manager phoned a Blanco Police Department (BPD) sergeant, who drove up in time to spot the car and gave chase.
He followed for about a minute before the car pulled over near the Old Blanco County Courthouse. Rasheen Smith was driving, Smith-Brule sat in the front seat, and Ford sat in the back driver's-side seat. Not long before the car turned onto the courthouse's street, the sergeant radioed a colleague and said, "They're attempting to hide something." He thought that Ford and Smith-Brule "were making furtive movements inside of the vehicle . . ., which led [him] to believe that they were attempting to hide something or conceal something." This went on for several seconds, with both Ford and Smith-Brule "leaning towards the center console area."
Once the car stopped, other officers, including BPD Detective Ben Ablon, arrived to assist. The sergeant ordered Smith out of the car and handcuffed him. In the process, Smith's legs knocked a bundle of ten checks out of the car and onto the ground. The sergeant picked up the checks and discovered ten other checks with the recipients' names typed on them:
Law enforcement later spoke to J.T. Drilling's, Cribley Enterprises', and Chaparral Cabinetry's owners, and they all stated (i) that they did not know or employ Ford, Smith, or Smith-Brule and (ii) that their companies did not authorize the checks. Cribley Enterprises' and Chaparral Cabinetry's owners thought that their checks had been stolen from their mailboxes.
With Smith, Smith-Brule, and Ford detained, officers found $209 in cash on Ford, including two $50 bills. They also found cash on Smith, including two $50 bills. There was no other cash either on Smith-Brule or anywhere else in the car.
Det. Ablon borrowed a bodycam and started recording, advised Ford of his Miranda rights, and asked him if he would tell his side of the story or stay silent. Ford first insisted that Smith was putting him to work in the oilfield. He said that Smith had handed him "my check" while they were in a supermarket parking lot across the street from the bank and told him to visit that bank. When asked if the check was a pre-payment or if instead he had been working the job, Ford responded that he had "been working" in the oilfield but could not name the location. Ford said that Smith was paying him for "picking up stuff and hauling like a hotshot driver" but admitted that he did not have a car and was instead riding in Smith's.
Ford admitted to cashing the check but said that he gave all the money to Smith. When Det. Ablon questioned why he would give someone else his money, Ford answered, "Because I haven't gotten paid yet," and added that he had just started the job that day. Det. Ablon expressed disbelief at that story and asked, "He wrote you that big of a check for one day?" Ford answered, "I didn't understand it either." Ford mentioned setting up the job while getting picked up in the parking lot of an Austin gas station by two men he did not know, who asked him if he wanted to make some money. He left in the strangers' car and was taken to San Antonio, where he met Smith and Smith-Brule, who brought him to the Blanco bank. Det. Ablon asked him how much he was supposed to earn for the job, and Ford answered, "He didn't say yet."
The State indicted Ford for forgery and engaging in organized criminal activity and alleged in two enhancement paragraphs prior felony convictions for assault on a public servant and possession of a controlled substance. The trial court appointed an attorney to represent Ford. At the arraignment, Ford, even after admonishments from the court about the risks, demanded to represent himself. At every hearing afterward and all the way through guilt-innocence and punishment, the trial court confirmed that Ford was representing himself, with the formerly appointed attorney present as standby counsel, and Ford proceeded accordingly without objection.
During guilt-innocence, the State established the above facts through witnesses and exhibits. When cross-examining certain witnesses, Ford tried to elicit testimony that someone else concocted the check-cashing scheme, for example, the two men who accosted him at the Austin gas station. In this vein, he elicited from the branch manager that it was possible that Ford could have been just as "fooled" as bank employees were by the forged check that he cashed, meaning that he could have thought that it was payment for legitimate labor.
Similarly with Det. Ablon, Ford advanced a theory involving surveillance videos from the Austin gas station and places where Smith, Smith-Brule, and Ford had stopped before he entered the bank. He suggested that because any such videos would have shown him approached by two other men or talking to others, it would exonerate him. His theory, presumably, was that others stole, altered, and marked the checks, which, he thought, would show that he was not guilty of forgery. And he suggested that because others recruited him into the scheme, he did not himself engage in organized criminal activity. Thus, when cross-examining Det. Ablon, Ford asked if it was possible that surveillance videos from the other locations-a Walmart and a combined Chicken Express and Stripes gas station-would show that another person gave Smith the bundle of checks and the one that Ford cashed. Det. Ablon agreed that it was possible. And about the Austin gas station, Det. Ablon agreed that it was possible for surveillance video to have shown the two men who approached Ford and their setting off with him for San Antonio. But Det. Ablon also repeatedly pointed out to Ford that he never told the detective about any Walmart, Chicken Express, or Stripes, so that law enforcement never knew where Ford wanted them to investigate.
Ford put on a case-in-chief. He called an investigator who the court had appointed to work on Ford's behalf. The investigator explained that by the time he spoke with Ford any relevant video footage from the Stripes in Blanco had...
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