Hudson v. State

Beard, VI; allegation of Ridge points ineffec- Rompilla amend. v. U.S. 2456, 2462, 374, 380, pro-se 125 S.Ct. 162 L.Ed.2d notice of tive assistance Washington, Strickland v. affirmatively not peal. The record does U.S. 104 S.Ct. 80 L.Ed.2d adequately show that trial counsel did (1984). “Ineffective assistance under during period for fil- represent Ridge per Strickland[v.Washington] is deficient ing Accordingly, a motion for new trial. prejudice, resulting formance counsel Ridge that he did not does establish performance being measured the effective assistance of counsel. receive reasonableness,’ ‘objective an standard of Ridge’s fourth issue on We should overrule ” prevailing professional norms.’ ‘under that basis. Rompilla, (quoting 125 S.Ct. at 2464 should, overruling Ridge’s after is- 2052). 687, 688, at Strickland affirm. grounds, sues on the above “[Cjounsel ‘strongly presumed’ to make is professional decisions the exercise of

judgment.” Yarborough Gentry, 1, 5, L.Ed.2d 1

U.S. 2052). 690, 104 (quoting Strickland ‘firmly “A found Strickland ed the record’ and ‘the record must affirmatively demonstrate’ the meritorious Goodspeed nature of the claim.” Dewayne HUDSON, Appellant Jimmie (quoting Thompson v. (Tex.Crim.App.1999)); accord Salinas Texas, Appellee. of STATE (Tex.Crim. 734, 740

App.2005). “there no evidence [i]s No. 10-05-00172-CR. the record to show ‘that counsel Texas, Appeals Court completed that his thought duties were trial, Waco. had with the end of therefore “[tjhere ”; appellant’ abandoned the Aug. nothing suggest in the record to that the the merits of a attorney did discuss appellant, trial with the

motion for new rejected”; appellant and “[w]hen case, a motion for new trial is not filed is that it was presumption the rebuttable rejected.” appellant considered State, 17 Smith v. (quoting Oldham v. Crim.App.2000) 1998)). Likewise, no appellant’s giving “an indication that appeal pro tice of se is of her she was aware some adequate rights, presume ‘and we she affirmative ly unless the record counseled ” (quoting ly displays otherwise.’ Id. Old ham at to ten months’

court sentenced Hudson contends three confinement. Hudson that the court abused its discretion points (1) denying suppression motion by: a interrogation because his without war- rant, cause, suspi- reasonable probable (2) seizure; an unlawful cion constitutes motion denying suppression his because Pepper from a Dr. his DNA was obtained seized; unlawfully had can which been prem- for new trial denying his motion presented ised on the same issues will affirm. points. first two

Background burglary involves the of three

This case dep- The equipment semis and an trailer. initial uty responded report to the who in seat piece of a tooth the driver’s found a of the semis. About three weeks of one burglary, investigator an identi- after the suspect potential fied Hudson as in cases. involvement similar jail charges on other when Hudson was suspect. he was identified as a jailers investigator bring asked to burgla- to office to discuss Hudson Dr. ry. Pepper, asked for a Hudson asking questions, given was him. Before statutory Hudson his investigator read any- knowing Hudson denied warnings. Bishop & Bish- Bishop, Clifford Samuel burglary. He refused to thing about the Decatur, op, Appellant/Relator. for to look at his teeth allow the Atty. if or broken. He Greg Lowery, County chipped for Wise to see one was Decatur, request to use County, Appellee/Respondent. investigator’s refused the specimen. a DNA swab and obtain GRAY, Justice Before Chief Justice jailers came to return VANCE, REYNA. and Justice cell, Pep- Hudson smashed the in a per can and threw it trash OPINION left, office. After Hudson investigator’s REYNA, FELIPE Justice. investigator retrieved the can and sub- speci- A analysis. it for DNA DNA trial court denied Jimmie De- mitted After the motion, from Hudson’s Dr. Hud- men obtained wayne suppression Hudson’s tooth. Based can matched the DNA of the burglary contendere to pleaded son nolo information, an arrest warrant bargain, the on this plea a vehicle. Pursuant to a obtained, In the Court of Criminal and Hudson was arrested for the Kraft evi- Appeals explained what it means for offense. to have been “used” a defen- dence context. dant this Interrogation that may as it be concluded long [S]o Hudson contends his first main- particular evidence the accused interrogation a war without suppressed pur- tains should have been rant, cause, probable suspi or reasonable raising suant to a motion Fourth or cion constitutes unlawful seizure. Fifth Amendment violations would accused, inculpate measure defendant is not to have [A] against him in evidence has been “used” sought the evidence which he conviction, securing his misdemeanor press admitted order for the court of hence, appellate the court should to address the merits of an appeal. entertain the merits of his peal challenging pretrial denial of a mo- tion to suppress.... [Ajppellate courts 762 615 S.W.2d step inquiry must use a two when decid- Gonzales, by 966 at 523- (quoted S.W.2d ing whether to of a address the merits 24); 79 at 584. Badgett, accord S.W.3d regarding the court’s denial Here, testing DNA the result of the pretrial of a motion to suppress evidence inculpated Hudson and was relied on as First, guilty plea. appel- the Thus, the for his arrest warrant. basis court identify late “the fruits” that him. against this evidence was used See the trial court held not would Gonzales, 523-24; Kraft, 966 S.W.2d at Second, pressed. appellate the court 615; Badgett, at 79 at S.W.2d S.W.3d must determine that these fruits have 585. “somehow been If used” the State. custody at the time Hudson was testimony

it is not clear from the State, interrogation. See Jones v. are, exhibits what “the fruits” then the (Tex.Crim.App.2003); appellate court need not address the Cooks Likewise, if merits of the claim. the Nevertheless, the inves Crim.App.1992). fruits have not “somehow been used” properly the tigator read Hudson the then the court need statutory warnings constitutional and be address merits of the claim. him. questioning fore Gonzales v. The Fifth Amendment does not (citations omitted); Rather, prohibit interrogation.1 custodial Badgett accord Arizona, interpreted by Miranda v. (Tex.App.-Houston pet. [14th Dist.] prohibits Fifth Amendment the State from ref'd). “statements, or using exculpatory whether Here, in inculpatory, stemming it is clear that the “fruit” from custodial it dem suppressed terrogation Hudson wanted is the result of of the defendant unless testing safeguards possible by procedural the DNA made onstrates the use of following [Fifth Amendment] seizure of the effective to secure interrogation. Badgett, privilege against See 79 S.W.3d at self-incrimination.” 436, 444, 86 S.Ct. 584. U.S. provides pertinent Amendment criminal case to be a witness The Fifth part person compelled V. that no “shall be himself.” U.S. amend. Const, hold Accordingly,

L.Ed.2d 694 accord Wilkerson v. the interview. already custody questioning while preferred charges safe “procedural other not an unlawful seizure. Thus, guards” point. are well-known Miranda first we overrule Hudson’s properly- warnings, investigator which the Seizure of Can questioning

read to Hudson before him. Miranda, 444-45, See U.S. contends second at 1612. speci that the seizure of his DNA Dr. Pepper men from the can was unlawful Article of the Code of 38.22 warrant, it was done without pro Criminal Procedure likewise does cause, suspicion. probable reasonable Rather, interrogation. hibit custodial it responds The State that the seizure was provides that no written or oral statement not unlawful because Hudson in resulting of an accused from custodial the can. terrogation requi unless the admissible statutory provided. site are See warnings The Fourth Amendment does 38.22, §§ Ann. art. Tex.Code Grim. Proo. prohibit property the seizure of (Vernon 2005). Again, voluntarily abandoned. See has been Abel required warnings read Hudson the before States, 217, 241, 80 v. United 362 U.S. him. questioning 698, 683, 4 668 S.Ct. L.Ed.2d Haw 255, no when officers have basis for

[EJven kins v. S.W.2d individual, they suspecting particular a Crim.App.1988); Mouton v. 686, may generally of that indi- questions (Tex.App.-Texarkana ask S.W.3d vidual, ask to pet.). examine the individual’s no is considered to Property (1) identification, request consent to “if have been the long his or her luggage proper search intended the defendant to abandon —as (2) message police convey ty the do a that his to the decision abandon is re- compliance requests police with their was not miscon property due to quired. Brimage v. duct.” Mouton, (Tex.Crim.App.1994); accord Bostick, 429, 434-35, Florida v. 501 U.S. 690; Shelley 115 L.Ed.2d 389 606, 611 (Tex.App.-Houston [1st S.W.3d (1991). situation, appropri- “In such the 'd). pet. ref Dist.] person inquiry ate whether a reasonable re- would feel free to the officers’ decline Here, to when Hudson was about be the encoun- quests or otherwise terminate office, investigator’s from taken the he Id. at at 2387. ter.” in the trash threw his can an intent his own volition.2 This indicated warned Hud- properly to the can. Cali part on his abandon right to son of his remain silent. Cf. Greenwood, 39-41, 486 U.S. any questions promptly refused to answer fornia 1625, 1628-29, Thus, 100 L.Ed.2d 30 in cooperate investigation. he expecta has no reasonable (person felt to decline to answer apparently free trash). in in deposited investigator’s questions privacy and terminate tion items jailers suggests own accord and not because 2. Hudson that he would required to. to him See Carmouche been allowed take the can back cell. Nevertheless, (appel- nothing the record there is in to S.W.3d should that the trial court support this contradict it. In late court "assume assertion or event, supported implicit findings discretion made of fact in it was within the court’s to conclusion”). that its that Hudson threw the can in the trash of the record buttress find Suppress Evidence. In indi- Motion to nothing There is the record to issues, that two he contends the Hudson’s first cate that Hudson’s decision to throw overruling Hud- the trial court erred away by police miscon- induced In evidence. suppress son’s motion to State, 15 Hollingsworth duct. See issue, oral state- complains first he (Tex.App.-Austin no complains In he ments.1 his second Moreover, pet.). essentially deter- specimen of his saliva. mined connection Hudson’s first A is not to have defendant point police that there was no misconduct. sought sup- which he the evidence Accordingly, we overrule Hudson’s second press in order for the court of admitted point. of an to address the merits Motion for New Trial of a mo- peal challenging pretrial denial courts suppress. [AJppellate tion to that Hudson contends his third step inquiry use a two when decid- by denying the court abused its discretion ing whether to address the merits of a trial, his motion for new raised denial regarding the court’s presented same issues his first two pretrial suppress of a motion to evidence points. Because we have overruled Hud- First, plea. appel- to a guilty points, say son’s first two we cannot identify court must “the fruits” that late the court by denying abused its discretion the trial court held would a motion for premised new trial on the ], McGlynn pressed. [v. State same issues raised in points. those Ac- [18,] 21 [ ]. cordingly, we overrule Hudson’s third Second, court must deter- point. these fruits have mine “somehow affirm the judgment. by been used” the State. [v. Kraft State], [612,] 613-14 762 S.W.2d concurring. Chief Justice GRAY If it (Tex.Crim.App.1988) is not clear [ ]. GRAY, Justice, TOM concurring. Chief testimony from the what exhibits are, “the fruits” then the court his conviction for bur of the claim. need address the merits glary of a vehicle. See Tex. PeNAl Code Likewise, if the fruits “some- (Vernon 30.04(a) § Our first Ann. State, by how been used” then the duty court, an appellate beyond deter need not address the appellate court jurisdiction, determine, mining our is to if merits of the claim. complaint type is of the that must be State, 521, v. review, Gonzales 966 S.W.2d preserved for whether it has been (some internal cita- State, properly preserved. Haley See omitted). tions 510, 515 (Tex.Crim.App.2005); State, 504, Martinez pro- contain the The record does not State, Crim.App.2000); see also Alonzo v. guilty The rec- ceedings plea. Hudson’s 515, 158 S.W.3d 515-17 clearly any ord does not show statements 2005) (Keller, P.J., dissenting). Accord analysis any Hudson or saliva DNA ingly, affirm following we should on the evidence. Nor does the record show grounds. majority Because the does not Ac- use of such evidence the State. so, judgment. cordingly, do I concur in the should not address the mer- Although orally granted simply 1. the trial court Hud- written order denies the motion. statements, son’s motion as the court’s issues, first two and should

its of Hudson’s DAVIS, Appellant, Trey Logan grounds. overrule them on those In Hudson’s for New Trial. Motion trial court he contends that the third Texas, Appellee. of STATE motion for overruling erred in Hudson’s inadequately trial. Hudson’s issue new 10-06-00129-CR, 10-06-00144-CR. Nos. ... brief must appellant’s briefed.2 “The argument concise contain a clear and Texas, Appeals Court made, ci appropriate the contentions Waco. to authorities and to record.” tations Tex.R.App. 38.1(h). 30, appellant P. Aug. citations provide argument with

does not issue, the issue is inade support of an briefed, nothing for re quately presents view, Hall v. be overruled. See and must (Tex.Crim.App.2004), 24, 26 n. 160 S.W.3d — U.S. -, denied, t.

cer (2005); Han 162 L.Ed.2d 891 (Tex.Crim.App.), kins v. 132 S.W.3d denied, t. 543 U.S. cer (2004); 358, 160 L.Ed.2d 256 McCar (Tex.Crim.App.2001), 49 n. thy v. denied, t. 545 U.S.

cer 162 L.Ed.2d 298 Tong v. (op. orig. submis sion); Cardenas Hudson’s brief (Tex.Crim.App.2000). argument support provide does not is thus Hudson’s third issue his issue. briefed, over and we should inadequately ground. it rule should, having overruled Hudson’s I grounds, affirm. issues on the above judgment. in the concur Davis, Snyder, pro se.

Trey Logan Turner, County Dist. Bill R. Brazos Bryan, appellee. Atty., Appellant the evidence seized from entirety, its is as follows: 2. Hudson’s original suppressed at should have been for new trial Appellant filed a motion reason, along could presenting hearing. that Defendant evidence For this the Dr. Appellant's showing the violations law alleges a which Hudson above, [from rights detailed constitutional jail specimen was taken] saliva denying Appellant's mo- trial court erred taking such items prohibited him from rules for new trial. tion established jail. Such motion back into the

Case Details

Case Name: Hudson v. State

Court Name: Court of Appeals of Texas

Date Published: Aug 30, 2006

Citation: 205 S.W.3d 600

Docket Number: 10-05-00172-CR

Court Abbreviation: Tex. App.