McClellan v. State

• Decision Date: 03 May 2012
• Docket Number: NO. 02-10-00397-CR,02-10-00397-CR
• Parties: KEITH L. MCCLELLAN APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

KEITH L. MCCLELLAN APPELLANT

v.THE STATE OF TEXAS STATE

NO. 02-10-00397-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: May 3, 2012

FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

MEMORANDUM OPINION¹

I. Introduction

Appellant Keith L. McClellan appeals the trial court's judgment adjudicating his guilt and sentencing him to twenty years in prison. Appellant raises two issues, asserting that the trial court abused its discretion by admitting inadmissible hearsay evidence and that his counsel was ineffective at the adjudication hearing. We affirm.

II. Procedural and Factual Background

In March 2005, a Tarrant County grand jury indicted Appellant on charges of aggravated assault with a deadly weapon. Pursuant to a plea bargain agreement, the trial court placed Appellant on deferred adjudication community supervision for five years beginning January 19, 2006. In March 2010, the State filed a petition to proceed to adjudication, alleging in eight paragraphs that Appellant violated the terms and conditions of his community supervision. The trial court held a hearing on the State's petition to adjudicate on July 7, 2010. Appellant pleaded "not true" to each allegation.

At the hearing, Sergeant Gregory Morgan testified that he was an investigator with the Hamilton Sheriff's Department in Cincinnati, Ohio, and that in January 2010 Appellant became a "target" in an on-going investigation of "a local group of individuals that were taking stolen items in trade for heroin in Cincinnati."² With the help of a confidential informant, officials recorded phone calls Appellant made and received while in Cincinnati on January 12, 2010, in which he offered to sell the informant heroin. During these calls, the informant asked for two ounces of heroin, and Appellant explained that he could sell him a half ounce for $1000 and that another shipment would be arriving the next day. Appellant then told the informant he was on his way to meet him. During thephone calls, a team of narcotics officers was conducting surveillance outside the Cincinnati residence where Appellant was staying.³ When Appellant exited the residence and drove away, the narcotics team followed.

Cincinnati Police Officer Chris Perry (assigned to this regional narcotics team) testified that he stopped Appellant at the request of the surveillance team that same day, arrested him, and transported him to the jail in the backseat of his marked squad car. Appellant possessed $2200 in cash upon arrest.⁴ Officer Perry testified that during the drive, Appellant was moving around quite a bit, including bending at the waist, and moving his feet around. When Officer Perry searched the car, he found a balled-up plastic baggie in a corner of the floorboard that had not been there before Appellant's arrest. A chemist with the Hamilton County crime laboratory determined the contents to be a half ounce (14 grams) of heroin.

The narcotics team executed a search warrant for the residence. Cincinnati Police Officer Paul Fangman testified that officers found a .50 caliber Desert Eagle pistol (with a loaded magazine inside) under a couch cushion in thefirst floor living room of the small, single-family, two-story residence. Upstairs, Officer Fangman found a .9 millimeter handgun on top of a nightstand in one of two bedrooms. In this bedroom, Officer Fangman found a portfolio of documents on the floor containing Appellant's birth certificate, bank statements in Appellant's name, numerous receipts (some showing partial credit card numbers that matched Appellant's credit card number), and additional personal paperwork, including several documents regarding Appellant's Tarrant County community supervision. Officer Fangman testified that it was very common for drug dealers to have firearms because heroin is very expensive, and "[d]rug traffickers are — are afraid of each other due to the fact that there's often robberies involved between drug dealers. Other drug dealers know that — that they have something of value and there's much money to be made selling heroin." In the kitchen, officers found a digital scale and small unused glassine bags. Sergeant Morgan testified that, based on his training and experience, these types of bags are used by drug dealers in Cincinnati to distribute small amounts of heroin and cocaine, and Officer Perry testified that both drug traffickers and drug abusers often possess these types of scales.

Appellant's mother, Sandra McMorris, testified that Appellant is very intelligent and bright, that she was upset that he got "caught up in this mess with some of his friends," and that "I really don't believe that [Appellant] should serve a lot of time, sir. He's a good boy. He really is, and he's been taking care of me." McMorris testified that she and Appellant bought junk vehicles, fixed themup, and sold them for a "nice profit." McMorris acknowledged on cross-examination, however, that she knew that the sheriff's department in Ohio had seized approximately one hundred thousand dollars from different bank accounts belonging to Appellant, noting that "some of those bank accounts, I know the money came from those sales of vehicles because I assisted in selling some of those vehicles here in the state of Texas."

The trial court found six of the eight paragraphs in the petition true, adjudicated Appellant guilty, and sentenced him to twenty years in prison. The trial court found four new-offense allegations to be true, including in part that on January 12-13, 2010, in Ohio (Hamilton County) Appellant (1) altered, destroyed, concealed, or removed heroin to impair its value or availability as evidence in such proceeding or investigation, knowing that an official proceeding or investigation was in progress or was about to be or likely to be instituted (allegation one); (2) offered to sell fourteen grams of heroin (allegation three); (3) knowingly prepared for shipment, shipped, transported, delivered, or prepared for distribution fourteen grams of heroin, when he knew or had reasonable cause to believe that the heroin was intended for sale or resale by Appellant or another person (allegation four); and (4) knowingly obtained, possessed or used fourteen grams of heroin (allegation five). The trial court also found that Appellant violated allegation seven by knowingly possessing a firearm away from his residence on or about January 12, 2010.

III. Admissibility of Evidence

In his first issue, Appellant asserts that the trial court abused its discretion by admitting and considering inadmissible hearsay. Appellant complains of the trial court's admitting (1) several receipts from drug and grocery stores in California showing the purchase of Bounce dryer sheets, Super Glue, "tubes," and "bottles" in October and November 2009 (State's Exhibits 1-4); (2) Greyhound Bus Line receipts and itineraries with Appellant's name printed on them for travel on August 28 and 29, 2009, from Dallas to Memphis to Nashville to Cincinnati, and on September 5 and 6, 2009, from Cincinnati to Nashville to Dallas (State's Exhibits 5-12); and (3) invoices with Appellant's name printed on them from the Quality Inn in Petaluma, California from October 7 to October 12, 2009 (State's Exhibits 21-23). As the State notes, Appellant made hearsay objections at various times to all of these exhibits.⁵

Appellant contends that the challenged receipts were admitted for the truth of the matter asserted—i.e, that Appellant purchased these items—and that Sergeant Morgan "then used that information to testify why the items [Appellant] purchased were important to the drug trade." Appellant maintains that the State used the receipts to show he was a nationwide drug dealer and that this evidence led directly to the trial court's findings of "true" and the maximum sentence of twenty years' confinement. Appellant refers to the trial court'scomment in adjudicating his guilt that, "You knew when you started dealing drugs what you were doing" and the State's closing argument that Appellant is "a drug dealer. He's now carried across three states. And I suspect, based on the paperwork in front of you, that he's been going coast to coast with this."

A. Applicable Law

The State has the burden to prove by a preponderance of the evidence the allegations in a petition to proceed to adjudication.⁶ See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Miles v. State, 343 S.W.3d 908, 912 (Tex. App.—Fort Worth 2011, no pet.). This standard is met when the greater weight of the credible evidence before the trial court supports a reasonable belief that a condition of community supervision has been violated. Rickels, 202 S.W.3d at 763. Thus, our review of an order adjudicating guilt is limited to determining whether the trial court abused its discretion by concluding that the appellant violated a condition of his community supervision. Id.; Miles, 343 S.W.3d at 912. Proof of any one alleged violation is sufficient to support an adjudication order. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009); Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref'd). "To overturn a revocation order, a defendant must successfully challenge eachfinding on which the revocation is based." Harris v. State, 160 S.W.3d 621, 626 (Tex. App.—Waco 2005, pet. dism'd) (citing Jones v State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978)). Once a trial court proceeds to adjudication of guilt previously deferred, it is restricted in the sentence it imposes only by the relevant statutory limits. Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999); Kim v. State, 283 S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd) (holding that punishment imposed within statutory limits is generally not subject to excessiveness challenge).

B. Analysis

Assuming without deciding that the trial court erred by admitting the challenged receipts, the error was harmless because the remainder of the...