Opinion
No. 05-08-01231-CR
Opinion Filed November 17, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 15th Judicial District Court Grayson County, Texas, Trial Court Cause No. 056357-15.
Before Justices MORRIS, BRIDGES, and MURPHY.
Memorandum Opinion
A jury found appellant Pamela Vella Crull guilty of possession of a controlled substance of less than one gram. The trial court sentenced her to two years' confinement in a state jail facility, probated to three years, and assessed a $750 fine. In a single point of error, appellant contends she was denied effective assistance of counsel. We affirm the trial court's judgment. To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability the result of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Failure to show either deficient performance or sufficient prejudice under Strickland defeats a claim for ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Our review of trial counsel's performance is highly deferential; appellant must overcome the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and his actions were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Bone, 77 S.W.3d at 833. We look to the totality of the representation rather than to individual, alleged errors and do not judge counsel's strategic decisions in hindsight. Thompson, 9 S.W.3d at 813. An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See id. ("Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without such an opportunity, we should not conclude counsel's performance was deficient unless the challenged conduct "was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Thus, in challenging trial counsel's performance, appellant's burden is "highly demanding," and she faces a "substantial risk of failure" on direct appeal. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Thompson, 9 S.W.3d at 813. Appellant's complaint is that her attorney did not file a pretrial motion to suppress evidence derived from what she claims was the illegal search of her purse. The search occurred when she was pulled over by Collinsville Police Officer Brad Stone for failing to signal a turn and for expired registration tags on the pickup truck she was driving. Stone testified he initially thought appellant and her passenger, Donna Skinner, were having vehicle problems. He described their behavior, however, as "unusual" and noticed "they were crawling around inside the vehicle" and they "appeared to be nervous." During the stop, he also made several observations about their demeanor and behavior, which based on his specialized training and experience, caused him to reasonably suspect the use of narcotics. These observations included their nervousness, fidgety, jumpy, and jittery behavior, lack of eye contact, nervous glancing about, fast talking, and jaw clenching. Because he suspected drug use, Stone asked for verbal consent from Skinner, the owner, to search the truck. After Skinner consented to the search, Stone testified he found a glass pipe located on the bench seat next to the driver's seat belt buckle. He stated the glass pipe was "in plain view" and contained a heavy white residue. Stone's search also included appellant's purse located on the front bench seat inside the truck. Without objection from appellant, Stone searched the purse by pulling items out of the purse "piece by piece" onto the hood of the truck. While removing the contents of the purse, he found a second glass pipe and cellophane wrapper, both containing a chalky white residue. Stone found a third glass pipe also containing white residue under the truck's bed protector and a copper scouring pad, on the passenger side floorboard; he testified the scouring pad is commonly used as a filter. The residue from the pipes and cellophane wrapper tested positive for cocaine. Stone explained that his experience in performing narcotics investigations included determining who possessed the narcotics; in this investigation, Stone testified he had "no doubt" appellant was in possession of drugs. Appellant and Skinner were arrested and charged with possession of a controlled substance under one gram. A jury found appellant guilty. After her conviction, appellant wrote a letter to the trial court asking the court to appoint new counsel for sentencing. In her letter, appellant claimed she could not trust her trial counsel because he did not contact her and "make [her] aware" of her plea hearing. She also stated trial counsel did not have her "best interest at heart" and that he threatened she could be in jail up to a year if she did not take an offer of probation. She wrote further that "[t]here's more," but provided no explanation. At her sentencing hearing, appellant's counsel informed the trial court of appellant's refusal to cooperate in preparing for the hearing, explaining appellant and her mother "seem[ed] to be convinced that I am in conspiracy with the State." Appellant responded, stating she wasn't "represented to [her] best interest" and reurged her request for appointment of new counsel. When asked by the trial court to tell him "specifically what you are talking about that you claim he didn't do," appellant answered by complaining (1) about the witnesses' contradictory testimony during trial; (2) that she did not get to see a lot of the evidence; and (3) that counsel advised her not to "take the stand." She argued that "had [she] been able to [testify, the jury] would have seen different." Appellant also complained "[t]here are so many issues that I don't think were addressed or that, you know, were blatant and disregard for this court." The trial court took appellant's request for new counsel under advisement and reset her sentencing hearing. The trial court also commented that counsel "did what I would expect a defense attorney would do" and stated that he "provided a good defense." Appellant had the burden of proving her claim of ineffective assistance of counsel. Thompson, 9 S.W.3d at 813. In this case, however, we conclude appellant has not met her burden because she failed to develop a record to show either deficient performance or sufficient prejudice under Strickland. Strickland, 466 U.S. at 687-88. First, there is nothing in the record to indicate trial counsel's reasons for not filing a motion to suppress the evidence recovered from appellant's purse. Goodspeed, 187 S.W.3d at 392. Although appellant complained of counsel's performance in her letter and before the trial court at the sentencing hearing, she never asserted counsel was ineffective for failing to file a suppression motion. Nor did appellant make this assertion in a motion for new trial. Thus, trial counsel was afforded no opportunity to explain why he did not file a motion to suppress. Id. Because appellant has not developed a record of trial counsel's reasons for his actions, she did not rebut the strong presumption of sound trial strategy. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) (record insufficient as to ineffective assistance of counsel because appellant did not develop record in trial court to establish this claim). Moreover, the failure to file a pretrial motion to suppress does not, in itself, constitute ineffective assistance of counsel. See Kimmelman, 477 U.S. at 384. To prevail on an ineffective assistance of counsel claim premised on trial counsel's failure to file a suppression motion, appellant must show by a preponderance of the evidence that the end result would have been different, meaning the motion to suppress would have been granted and the remaining evidence would have been insufficient to support her conviction. Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998) (per curiam) (to prevail on ineffective assistance claim, appellant is "obliged to prove that a motion to suppress would have been granted"); Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993) (per curiam) (without showing that ruling on pre-trial motion would have changed anything in the case, counsel not ineffective for failing to assert motion). In this case, appellant has not shown that even had the motion to suppress been granted, the outcome of the trial would have been different. Jackson, 973 S.W.2d at 957. The only witnesses at trial were Stone; a forensic scientist from the Texas Department of Public Safety, testifying about the tests conducted on the residue; and Skinner; appellant did not testify or present any witnesses. Stone testified that before he discovered the glass pipe and cellophane wrapper in appellant's purse, he found a glass pipe on the front bench seat closest to where appellant was sitting and that he considered the pipe to be in appellant's possession. The glass pipe was in plain view inside the truck and tested positive for cocaine. In addition, Skinner testified that she and appellant had been "smoking crack" and "were pretty high when [they] got pulled over." Thus, even had a motion to suppress been filed and granted, Stone's testimony revealed there was additional evidence to support appellant's conviction. There is also nothing in the record to contradict Skinner's testimony that she and appellant had been smoking crack. Based on these facts, it is unlikely the outcome of the trial would have been different. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.
Skinner subsequently pleaded guilty to the offense of possession related to this traffic stop and arrest. She was sentenced to nine months confinement in a state jail facility.