No. 01-05-01129-CR.
Opinion issued April 5, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 176th District Court, Harris County, Texas, Trial Court Cause No. 1018947.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
JANE BLAND, Justice.
Appellant Bobby Franklin, Jr. pleaded not guilty to the felony offense of theft in an amount greater than $1,500 and less than $20,000. TEX. PEN. CODE ANN. § 31.03(a)-(b), (e)(4)(A) (Vernon Supp. 2006). A jury found Franklin guilty and the trial court assessed punishment at eighteen months' confinement. In three issues, Franklin contends (1) the trial court abused its discretion in admitting evidence of the stolen property and his inculpatory statements because the State obtained both as a result of an unconstitutional search, (2) the trial court abused its discretion in admitting evidence of his inculpatory statements because the statements were obtained in violation of his constitutional rights, and (3) he received ineffective assistance of counsel at trial. We conclude that Franklin waived his first two issues because he did not object to the introduction of the evidence or testimony, and failed to demonstrate that he received ineffective assistance of counsel. We therefore affirm.
Background
Franklin worked for Texas Freightways, a trucking company that delivered merchandise to Radio Shack stores. David Warr is the loss prevention manager for Radio Shack in Harris County. Warr received reports that two Radio Shack stores had shortages in their shipments on several occasions. Warr investigated the shortages and found that both stores were on the same delivery route. Upon further investigation, Warr discovered that Franklin was the delivery driver for the route at issue. Based on this information, Warr decided to follow Franklin as he made his deliveries on March 4, 2005. Throughout the day, Warr observed Franklin engage in some suspicious behavior while making deliveries to Radio Shack stores. Warr approached Franklin just after he made his last delivery. Warr told Franklin that he was investigating reports of stolen merchandise and asked if he could search his truck. Franklin consented to the search. Warr searched the trailer of the truck but did not find any merchandise. Warr then searched the cab of the truck and found several camcorders, DVD players, and televisions. Warr also found a closed black duffel bag that Franklin said belonged to him. Miguel Batres was the store manager of the last Radio Shack on Franklin's delivery route, and he witnessed the entire confrontation. Warr, Batres, and Franklin then went into a back room of the Radio Shack, bringing with them the merchandise and the duffel bag. After Franklin sat down, he opened the duffel bag and said, "You might as well see these as well." The bag contained two additional DVD players. Franklin admitted to stealing the items recovered from the cab of his truck. A Houston police officer arrived at the scene a short time later and interviewed the witnesses. The officer then took Franklin into custody. Warr later confirmed that the items found in Franklin's cab were missing from shipments that Franklin was supposed to deliver that day. Search and Interrogation
In his first and second issues, Franklin contends (1) the trial court abused its discretion in admitting evidence of the stolen property and his inculpatory statements because Warr searched the cab of his truck in violation of his constitutional rights, and (2) the trial court abused its discretion in admitting evidence of his inculpatory statements because Warr obtained the statements in violation of his constitutional rights. The State responds that Franklin waived these issues because he did not object to the admission of this evidence at trial. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaining party made the complaint to the trial court by a timely request, objection, or motion. TEX. R. APP. P. 33.1(a). The party must object at the earliest possible opportunity. Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998). The complaining party must also state the grounds for the request, objection, or motion, unless the grounds are apparent from the context. TEX. R. APP. P. 33.1(a). Furthermore, the trial court must either rule on the request, objection, or motion, expressly or implicitly, or refuse to rule and the complaining party must object to the refusal. Id. A defendant may waive constitutional rights by failing to assert a timely request, objection, or motion. Little v. State, 758 S.W.2d 551, 564 (Tex.Crim.App. 1988). Franklin complains about the admission of the evidence of the stolen property and his inculpatory statements for the first time in this appeal. Franklin did not object to the admission of this evidence at trial, nor did he move to suppress the evidence. Franklin has therefore failed to preserve his first and second issues for appellate review. See TEX. R. APP. P. 33.1(a); see also Seeker v. State, 186 S.W.3d 36, 38 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (holding defendant failed to preserve complaint for appellate review because he failed to object at trial); Boler v. State, 177 S.W.3d 366, 373 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (holding defendant failed to preserve complaint for appellate review because she failed to object at trial). Ineffective Assistance of Counsel
In his third issue, Franklin contends he received ineffective assistance of counsel at trial because counsel failed to (1) object to the admission of evidence obtained as a result of the search of his truck, (2) object to the admission of evidence of his inculpatory statements, and (3) call any witnesses on his behalf. To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex.Crim.App. 2005). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness claim. Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005); Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). We presume that counsel's conduct falls within the wide range of reasonable professional assistance, and we will find counsel's performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. We cannot speculate beyond the record provided, so any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The Strickland test applies to the punishment phase of a non-capital trial, as well as guilt-innocence. Hernandez v. State, 988 S.W.2d 770, 770-72 (Tex.Crim.App. 1999). In most cases, an undeveloped record on direct appeal is insufficient to satisfy the dual prongs of Strickland because the reasonableness of counsel's decisions often involves facts not appearing in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). It is therefore critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel's conduct was strategic. Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). This kind of record is best developed in a hearing on a motion for new trial, or by application for a writ of habeas corpus. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998); McCullough, 116 S.W.3d at 92. Without evidence of the strategy and methods involved concerning counsel's actions at trial, an appellate court should presume a sound trial strategy. See Thompson, 9 S.W.3d at 814. If no reasonable trial strategy could justify trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel's subjective reasons for acting as he did. Andrews, 159 S.W.3d at 102. "To show ineffective assistance of counsel for the failure to object during trial, the applicant must show that the trial judge would have committed error in overruling the objection." Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004). A. Failure to Object to Evidence Obtained in Search
Franklin contends his trial counsel was ineffective in failing to object to the evidence obtained as a result of Warr's search of his truck. Specifically, Franklin asserts that the evidence was not admissible because Warr was acting as a government agent when he searched the truck, and Franklin's consent did not extend to the cab of the truck. The Fourth Amendment to the United States Constitution and article one, section nine of the Texas Constitution protect individuals from unreasonable searches and seizures. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. The Fourteenth Amendment to the United States Constitution makes the Fourth Amendment applicable to the states. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961). According to the federal exclusionary rule, evidence obtained in violation of the Constitution is inadmissible at trial against a criminal defendant. Id. at 655, 81 S. Ct. at 1691. The federal exclusionary rule, however, does not apply to the search and seizure of property by a private individual where there is no governmental involvement. State v. Johnson, 939 S.W.2d 586, 588 (Tex.Crim.App. 1996); Tin Man Lee v. State, 773 S.W.2d 47, 48 (Tex.App.-Houston [1st Dist.] 1989, no pet.); Morrow v. State, 757 S.W.2d 484, 488 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd). Texas has a statutory exclusionary rule that is somewhat broader than the federal rule, excluding evidence "obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America . . . ." TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005); Johnson, 939 S.W.2d at 588. "Two factors must be considered when determining whether a person is acting privately or as an agent of the State: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the person intended to assist law enforcement efforts or instead intended to further his own ends." Woods v. State, 970 S.W.2d 770, 774 (Tex.App.-Austin 1998, pet. denied); Dawson v. State, 868 S.W.2d 363, 369 (Tex.App.-Dallas 1993, pet. ref'd); Morrow, 757 S.W.2d at 488; see also Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S. Ct. 2022, 2049 (1971) (holding that test to be applied to determine whether private person is acting as instrument or agent of government is whether, in light of all circumstances, private citizen must be regarded as acting as instrument or agent of government). In this case, Warr was acting as a private individual when he searched Franklin's truck. See Oriji v. State, 150 S.W.3d 833, 836-37 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (holding private citizens, even security guards, are not ordinarily considered government agents); Tin Man Lee, 773 S.W.2d at 49 (holding constitutional protections did not apply to search by private security guard); Morrow, 757 S.W.2d at 488-89 (holding that search by airline employee was private search). The government did not initiate or become involved in the search, and Warr was not acting as a government agent when he conducted the search. See Oriji, 150 S.W.3d at 837; Morrow, 757 S.W.2d at 488. Warr conducted the search on his own initiative, and the police were not aware of the search until after it was completed. See Oriji, 150 S.W.3d at 837. Warr also had an independent motivation to conduct the search as a loss prevention manager for Radio Shack. See State v. Comeaux, 818 S.W.2d 46, 49-50 (Tex.Crim.App. 1991), overruled on other grounds, State v. Hardy, 963 S.W.2d 516, 519 (Tex.Crim.App. 1997). Warr's search of Franklin's truck was not subject to the protections of the United States and Texas Constitutions because Warr was not acting as a government agent when he conducted the search. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984); Morrow, 757 S.W.2d at 488-89. The federal exclusionary rule therefore does not require the exclusion of evidence obtained as a result of the search. See Johnson, 939 S.W.2d at 588. The Texas statutory exclusionary rule also does not require the exclusion of the evidence because Warr did not violate any laws or constitutions in conducting the search. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a). The United States and Texas Constitutions only protect against unreasonable searches and seizures by agents of the government and have no application to purely private searches and seizures. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; Jacobsen, 466 U.S. at 113, 104 S. Ct. at 1656; Comeaux, 818 S.W.2d at 49; Tin Man Lee, 773 S.W.2d at 49. The evidence obtained as a result of the search of Franklin's truck was therefore admissible, and the trial court would not have abused its discretion in admitting the evidence had defense counsel objected. See White, 160 S.W.3d at 53. We hold that Franklin has failed to satisfy the first prong of Strickland. See 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101-02. B. Failure to Object to Evidence Obtained in Interrogation
Franklin contends his trial counsel was ineffective in failing to object to the evidence of his inculpatory statements because Warr obtained the statements in violation of his constitutional rights. Specifically, Franklin asserts that the statements were not admissible because Warr did not administer the proper warnings in accordance with Miranda v. Arizona and article 38.22 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630 (1966). In Miranda, the United States Supreme Court held that an individual subjected to custodial interrogation must be warned of his right to avoid self-incrimination before any statements obtained in the interrogation can be used against him at trial. See 384 U.S. at 478-79, 86 S. Ct. at 1630. The Texas Code of Criminal Procedure requires similar warnings and places additional limitations on the use of oral statements obtained in a custodial interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a). In Bass v. State, the Court of Criminal Appeals analyzed article 38.22 and concluded that the legislature intended the term "custodial interrogation" to be construed consistently with its meaning under the Fifth Amendment to the United States Constitution. 723 S.W.2d 687, 690-91 (Tex.Crim.App. 1986). In Miranda, the United States Supreme Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S. Ct. at 1612; Escamilla v. State, 143 S.W.3d 814, 824-25 (Tex.Crim.App. 2004); Paez v. State, 681 S.W.2d 34, 36-37 (Tex.Crim.App. 1984) (holding article 38.22 does not apply to non-law enforcement personnel who are not government agents). Accordingly, the "safeguards attendant to custodial interrogation do not come into play unless the person to whom the statements are made is acting as an agent of law enforcement pursuant to a police practice." Macias v. State, 733 S.W.2d 192, 195 (Tex.Crim.App. 1987); Oriji, 150 S.W.3d at 837. Additionally, article 38.22 expressly provides that statements made by the accused that do not stem from a custodial interrogation are admissible. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5. Warr was acting as a private individual and not a law enforcement agent when he interrogated Franklin. See, e.g., Oriji, 150 S.W.3d at 837 (holding private citizens, even security guards, are not ordinarily considered law enforcement agents); Woods, 970 S.W.2d at 774 (holding private security guard who was employed by sheriff's department and working under supervision of sheriff was acting as government agent when he conducted interrogatory stop of defendant at security checkpoint in courthouse); Ortiz v. State, 727 S.W.2d 37, 38-39 (Tex.App.-San Antonio 1987, pet. ref'd) (holding record contained no evidence security guard was government agent). The government did not initiate or become involved in the interrogation; rather, Warr conducted the interrogation on his own initiative. See Oriji, 150 S.W.3d at 837. The police were not even aware of the interrogation until after it was completed. See id. Warr also had an independent motivation to conduct the interrogation as a loss prevention manager for Radio Shack. See Comeaux, 818 S.W.2d at 49-50. Warr did not qualify as a government agent or law enforcement officer at the time he interrogated Franklin. See Manns v. State, 122 S.W.3d at 183-84 (Tex.Crim.App. 2003) (holding that, to qualify as government agent, informant must have some agreement with, or act under instructions from, government official). Franklin's inculpatory statements were therefore admissible because they did not stem from a custodial interrogation. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Macias, 733 S.W.2d at 195; Oriji, 150 S.W.3d at 837. The trial court would not have abused its discretion in admitting the statements if defense counsel had objected. See White, 160 S.W.3d at 53. We hold that Franklin has failed to satisfy the first prong of Strickland. See 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101-02. C. Failure to Call Witnesses
Franklin contends his trial counsel was ineffective in failing to call any witnesses on his behalf. At trial, counsel attempted to call Rich Cleveland, but the bailiff was unable to locate him in the courthouse. Instead of calling any additional witnesses, counsel decided to make a closing argument and did not move for a continuance or attempt to have Cleveland attached. The record contains no evidence of counsel's reasons for not seeking to obtain the presence of Cleveland, or attempting to call additional witnesses. Franklin also fails to specify on appeal any available witnesses that he believes counsel should have called on his behalf. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983) ("Counsel's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony."). Franklin has therefore failed to rebut the Strickland presumption that counsel's conduct was strategic. See Thompson, 9 S.W.3d at 814; McCullough, 116 S.W.3d at 92-93. Accordingly, Franklin has not satisfied the first prong of Strickland. See 466 U.S. at 687-88, 104 S. Ct. at 2064-65. Conclusion
We hold that Franklin (1) waived his first issue because he did not object to the evidence obtained as a result of the search, (2) waived his second issue because he did not object to the evidence of his inculpatory statements, and (3) failed to demonstrate that he received ineffective assistance of counsel. We therefore affirm the judgment of the trial court.