Smith v. State

• Decision Date: 17 April 2013
• Docket Number: No. 04–11–00278–CR.,04–11–00278–CR.
• Parties: Frank Norman SMITH Jr., Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

392 S.W.3d 190

Frank Norman SMITH Jr., Appellant

v.The STATE of Texas, Appellee.

No. 04–11–00278–CR.

Court of Appeals of Texas,

San Antonio.

Nov. 28, 2012.

Discretionary Review Refused Apr. 17, 2013.

Anthony B. Cantrell, Anthony B. Cantrell Law Office, San Antonio, TX, for Appellant.

Michael A. Mark, Seguin, TX, for Appellee.

Sitting: PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by: STEVEN C. HILBIG, Justice.

Frank Norman Smith Jr. was convicted of delivery of a controlled substance and sentenced to a term of thirty-six years in prison. He appeals the judgment, asserting that his right of confrontation was violated when a witness was allowed to testify using a pseudonym, the evidence was legally insufficient to support the jury's verdict because the informant's testimony was not corroborated, and his trial counsel rendered ineffective assistance. We affirm the trial court's judgment.

Background

Guadalupe County Deputy Sheriff Trey Kelly testified he received a phone call from an informant who said he needed money and wanted help on a case in another jurisdiction. Deputy Kelly had the informant place a telephone call to Smith for the purpose of arranging the purchase of $230 worth of cocaine. The call was recorded and played for the jury at trial. Lieutenant John Flores, also with the Guadalupe County Sheriff's Office, testified the informant was to purchase the cocaine at a convenience store across the street from a local university and that the informant had previously purchased cocaine from Smith. Lieutenant Flores explained to the jury the procedures followed to make the purchase. These procedures included thoroughly searching the informant for drugs before and after the drug transaction, placing a device on the informant to obtain a video recording of the transaction, and arranging for five law enforcement officers to conduct surveillance of the location during the transaction. Lieutenant Flores testified that the informant did not have any drugs on him before meeting with Smith and the informant had a clear plastic bag with two “rocks” of cocaine when he returned.

The video recording ¹ of the transaction was played for the jury, and both the informant and Lieutenant Flores testified. Lieutenant Flores testified that he saw the transaction as it occurred and that his testimony was based on both what he saw and on what he saw depicted in the videotape. Lieutenant Flores testified the informant waited for Smith in front of the convenience store. When a Ford Explorer driven by Smith approached, the informant opened one of the doors and climbed inside. Lieutenant Flores testified the videotape depicts the informant counting out money and handing it to Smith, who “grabbed” the money. The State also introduced a photograph taken from the videotape. Lieutenant Flores pointed out that the person in the photograph had a tattoo of a teardrop on his right cheek and testified that Smith had the same tattoo in the same location. He also stated he could identify Smith's voice on the recording.

The informant testified he knew Smith because they attended the same high school. He testified he called Smith and arranged to buy one-quarter ounce of cocaine from him for $230. The deputies thoroughly searched him before the transaction and gave him the money to be used for the purchase. The informant testified that when Smith arrived at the convenience store, he opened the vehicle's door and handed Smith the money. Smith handed him a package of cocaine in return. He testified he left the vehicle, returned to where the deputies were waiting, and gave them the cocaine he purchased from Smith. A toxicologist from the Texas Department of Public Safety testified that the substance submitted to his lab contained cocaine and weighed 3.84 grams.

The jury found Smith guilty as charged in the indictment. During the punishment phase Smith pled “true” to an enhancement allegation, and the jury assessed a sentence of thirty-six years in prison.

Use of a Pseudonym

Smith complains the trial court violated his right to confrontation when it allowed the informant to testify using a pseudonym. At the beginning of his testimony, the informant stated he wanted to be referred to as “CS–0905” during his testimony. After Smith objected based on his right to confrontation, the court held a bench conference during which the State insisted the use of the pseudonym was necessary to protect the informant against potential retaliation. The State told the court the witness was expected to testify in at least one other trial and it was concerned that potential defendants could obtain the record and learn the informant's name, which could pose a threat to the informant. The State also offered to provide Smith “any other information regarding him; his criminal history, et. cetera.” The trial court ruled the informant could testify using the pseudonym and the State need not disclose his name. Smith moved for a mistrial, which the court denied. Smith did not ask the court for any other relief. Smith now asserts the trial court's actions also violated rule 508 of the Texas Rules of Evidence. However, because Smith failed to present this complaint to the trial court, he cannot raise it for the first time on appeal. SeeTex.R.App. P. 33.1.

Right to Confrontation

The Sixth Amendment guarantees an accused the right to confront the witnesses against him. Maryland v. Craig, 497 U.S. 836, 844, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). The United States Supreme Court has identified four core rights guaranteed by the Confrontation Clause—physical presence of the witness, testimony under oath, cross-examination, and observation of the witness's demeanor by the trier of fact. Id. at 846, 110 S.Ct. 3157. Any violation of the right to confrontation is subject to a review of whether the error was harmless. Coy v. Iowa, 487 U.S. 1012, 1022, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

Discussion

In his brief, Smith asserts there “is no meaningful confrontation” under our state and federal constitutions when a witness is unidentified. Smith argues the refusal to identify affects the ability to investigate the witness's background, voir dire the jurors as to their knowledge of the witness, or determine if a juror has a relationship with the witness. All of these issues are valid concerns, but Smith sought no relief from the trial court based on the concerns now raised on appeal. The record does not disclose whether Smith accepted the State's offer to provide the witness's criminal history, but it demonstrates he did not request the court to question the jurors about their knowledge of the witness or any relationship with him. Smith does not assert the failure to identify the witness before the jury prevented an effective cross-examination because he was unable to investigate the witness's background or reputation. See Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App.2000) (“A primary interest secured by the Confrontation Clause is the right of cross-examination.”).

Smith offers no argument how the failure to identify the witness by name implicated any of the four core concerns that comprise the essence of the right to confrontation. That is, Smith offers no argument that the failure to identify the witness by name impaired or diminished his constitutional right of confrontation when the witness testified under oath before the jury, was subjected to cross-examination, and the jury was able to view the witness's demeanor during his testimony. See Romero v. State, 173 S.W.3d 502, 505–06 (Tex.Crim.App.2005) (holding that allowing witness to wear disguise that obscured facial features impaired “physical presence” and “demeanor” elements and violated defendant's right to confrontation).

Even assuming the trial court erred, we are able to say beyond a reasonable doubt the failure to identify the witness by other than a pseudonym did not contribute to Smith's conviction. See Snowden v. State, 353 S.W.3d 815, 818 (Tex.Crim.App.2011) (standard of review for constitutional error); Tex.R.App. P. 44.2(a) (same). “[A]n analysis for whether a particular constitutional error is harmless should take into account any and every circumstance apparent in the record that logically informs an appellate determination whether ‘beyond a reasonable doubt [that particular] error did not contribute to the conviction or punishment.’ ” Id. at 822 ( quotingTex.R.App. P. 44.2(a)). There is nothing in the record to indicate the witness's use of a pseudonym was highlighted by either party to Smith's detriment and none of the four core elements of the confrontation right was impaired by the use of the pseudonym. Any error is harmless beyond a reasonable doubt and Smith's point of error is overruled.

Corroboration and Article 38.141

Smith next argues the judgment should be reversed because there is insufficient evidence to corroborate the informant's testimony that Smith delivered the cocaine. Article 38.141 of the Texas Code of Criminal Procedure provides that a person may not be convicted of an offense under Chapter 481 of the Health and Safety Code (Texas Controlled Substances Act) upon the testimony of someone not a licensed peace officer or special investigator unless the person's testimony is corroborated by other evidence tending to connect the defendant to the offense. SeeTex.Code Crim. Proc. Ann. art. 38.141 (West 2005). The corroboration requirement is similar to the corroboration required of an accomplice witness. See id. art. 38.14. The standard for evaluating the sufficiency of the corroborating evidence under article 38.141 is the same as that used to evaluate sufficiency under the accomplice-witness rule. Malone v. State, 253 S.W.3d 253, 258 (Tex.Crim.App.2008). Under the accomplice-witness rule, the corroborative evidence need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the...