No. 04-04-00157-CR
Delivered and Filed: February 2, 2005. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-1782, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
Opinion by: CATHERINE STONE, Justice.
Kenneth Deshone Edwards appeals his conviction for robbery. The jury found Edwards guilty, found the enhancement allegations true, and assessed punishment at sixty-five years confinement. Edwards complains of his conviction in three issues on appeal. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex.R.App.P. 47.4.
Background
Christopher Colacino testified that he was working at the front desk of a hotel when a black male wearing a baseball cap and sweatshirt entered and robbed the hotel by gunpoint. After forcing Colacino to open the hotel's safe, the robber exited the front entrance with cash and a blue bank bag that contained rolls of change and a Pizza Hut receipt. Colacino jumped up, ran to the door, and witnessed the robber get into a dark-colored Chevy Monte Carlo and back out of the parking lot. Colacino memorized the license plate number of the robber's vehicle, called 911 on his cell phone to tell the dispatcher the hotel had just been robbed, gave the dispatcher a description of the robber and his vehicle as well as the vehicle's license plate number, and informed the dispatcher he was going to pursue the robber. Colacino then got into his truck and followed the Monte Carlo. Officer Gary Russell of the Leon Valley Police Department (LVPD) testified that he received a call regarding the robbery and the direction the robber was driving. Because the robber was driving toward San Antonio, Russell ordered his dispatcher to notify the SAPD of the robbery and give them the description of the robber's vehicle and license plate number. Colacino continued to drive behind the robber and stayed on his cell phone with the 911 dispatcher until members of the San Antonio Police Department (SAPD) pulled the robber over. Colacino identified Edwards as the man who had just robbed the hotel. A search of the vehicle revealed a sweatshirt, gun, cash, the blue bank bag, rolls of change, and a Pizza Hut receipt addressed to the hotel. Legality of the Stop and Warrantless Arrest
In his first issue, Edwards contends the trial court erred by denying his motion to suppress evidence. We review a trial court's ruling on a motion to suppress for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). When reviewing a trial court's ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving almost total deference to a trial court's determination of facts and reviewing de novo the trial court's application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000) (citing Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997)). Because the trial court did not make explicit findings of fact in this case, we will review the evidence in a light most favorable to the trial court's ruling. Id. at 327-28. We will review de novo the trial court's determinations of reasonable suspicion and probable cause. Id. at 328. Circumstances short of probable cause may justify a temporary investigative detention. Terry v. Ohio, 392 U.S. 1, 20 (1968). A police officer may stop and briefly detain persons suspected of criminal activity if the officer possesses a "reasonable suspicion" to justify the investigative detention. Id. at 21. In determining the reasonableness of the investigative stop, we examine the "totality of the circumstances." Woods v. State, 956 S.W.2d 33, 38 (Tex.Crim.App. 1997). Reasonable suspicion exists if the officer possesses specific, articulable facts, that when combined with rational inferences from those facts, would lead the officer to reasonably suspect that the driver of the vehicle has engaged in illegal conduct. Id. at 35. Two officers testified at the suppression hearing that at the time of the stop, officers from both the SAPD and LVPD knew: the hotel had been robbed by gunpoint by a black male; the robber had driven away in a dark-colored Chevy Monte Carlo; the license plate number of the Monte Carlo; the fact that the complainant was driving a truck behind the robber's vehicle and continued to talk live with a 911 dispatcher; and the driving location of the robber. Based on the totality of the circumstances known to the police at the time of the stop, we believe the officers' suspicion that Edwards had committed a robbery was sufficiently grounded, and that the stop was therefore reasonable. See Woods, 956 S.W.2d at 35-38. With regard to the legality of the arrest, probable cause exists when the facts and circumstances within the officer's knowledge, and of which the officer had reasonably trustworthy information, were sufficient to warrant a prudent person in believing that the suspect had committed or was committing an offense. Johnson v. State, 32 S.W.3d 294, 298 (Tex.App.-San Antonio 2000, pet. ref'd). Edwards complains that the evidence at the suppression hearing failed to establish probable cause to arrest him, pointing to the fact that officers at the scene of his arrest other than the arresting officer testified. However, "when there has been some cooperation between law enforcement agencies or between members of the same agency, the sum of the information known to the cooperating agencies or officers at the time of an arrest is to be considered" in determining whether there was sufficient probable cause to arrest. Moss v. State, 75 S.W.3d 132, 138 (Tex.App.-San Antonio 2002, pet. ref'd) (quoting Woodward v. State, 668 S.W.2d 337, 344 (Tex.Crim.App. 1982), cert. denied, 469 U.S. 1181 (1985)). The facts previously recited provided the officers with sufficient probable cause to believe that Edwards had committed robbery. Johnson, 32 S.W.3d at 298. Further, after Edwards was pulled over, Colacino identified him to police as the man who had just robbed the hotel. Because there was probable cause to stop and arrest Edwards, his arrest did not violate either the United States or the Texas Constitution. Edwards' first issue is overruled. Ineffective Assistance of Counsel
In two issues, Edwards contends he was denied effective assistance of counsel in violation of his rights under the Sixth Amendment to the United States Constitution and Art. I, § 10 of the Texas Constitution. U.S. Const. amend. VI; Tex. Const. art. I, § 10. Edwards complains of his counsel's failure to: adequately communicate with him before trial, discuss trial strategy with him or share the file; pursue two pro se pre-trial motions; object to introduction of extraneous offense evidence on Rule 403 grounds during the punishment phase of trial and any testimony regarding that evidence; prosecute a motion in limine by failing to object to extraneous offense testimony introduced during the punishment phase of trial; and artfully phrase an objection in front of the jury so as to avoid mentioning that Edwards had been charged with other offenses. To establish ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that: 1) counsel's performance was so deficient as to fall below an objective standard of reasonableness; and 2) there is a reasonable probability but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex.Crim.App. 2003) (citing Strickland v. Washington, 477 U.S. 668, 691 (1984)). A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The Strickland standard applies to claims of ineffective assistance both during the guilt/innocence and punishment phases of trial. Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999). As a reviewing court, we cannot speculate as to the reasons why trial counsel acted as he did; rather, we must be highly deferential and presume trial counsel's actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Any allegations of ineffectiveness must be firmly founded in the record, and the appellant must prove he was denied a fair trial based on the totality of the representation, not by isolated instances or by only a portion of the trial. Id. at 835; Harling v. State, 899 S.W.2d 9, 12 (Tex.App.-San Antonio 1995, pet. ref'd). In assessing whether a defendant has met both prongs of Strickland, we are limited to the facts of the case. Thompson, 9 S.W.3d at 813. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-814. A silent record usually cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. Jackson, 877 S.W.2d at 771. Edwards faults his defense counsel for failing to share his file, failing to discuss trial strategy with him, and failing to adequately communicate with him prior to trial. The record reflects that Edwards conferred with his counsel before trial. Because the record is silent as to how any other communications between Edwards and his counsel prior to trial would have resulted in a different outcome at trial, Edwards has failed to rebut the presumption that counsel provided effective assistance. See Rylander, 101 S.W.3d at 110; Harling, 899 S.W.2d at 12. Although Edwards filed a motion for new trial, no hearing was conducted to explore defense counsel's trial strategy. Accordingly, there is no evidence from defense counsel's perspective concerning the complained-of actions of his counsel. In the absence of a properly developed evidentiary record which adequately reflects the motives behind counsel's inaction, it is extremely difficult to prove that counsel's performance was deficient. Rylander, 101 S.W.3d at 110-11. Absent record evidence to the contrary, we presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-14. To conclude that the representation by Edwards' defense counsel was deficient without a proper record exploring his defense counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. Without evidence in the record to both establish deficiency and rebut the presumption of reasonable assistance, Edwards is unable to satisfy the first prong of Strickland. See Thompson, 9 S.W.3d at 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (the record on direct appeal is often particularly inadequate to reflect the failings of trial counsel when the errors complained of are errors of omission). Further, Edwards has failed to show how his counsel's errors, if any, caused harm. Rylander, 101 S.W.3d at 109-10 (requiring the defendant to show that as a result of his counsel's unprofessional errors, the outcome of the proceeding would have been different). The failure to pursue pre-trial motions or object to unadjudicated extraneous offense evidence does not categorically result in ineffective assistance of counsel. See Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref'd) (the failure to file pretrial motions does not categorically result in ineffective assistance of counsel); Tex. Code. Crim. Pro. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004) (permitting evidence of unadjudicated extraneous offenses or "any matter the court deems relevant to sentencing" to be introduced during the punishment phase of a trial); see also Muniz v. State, 851 S.W.2d 238, 258 (Tex.Crim.App. 1993), cert. denied, 474 U.S. 934 (1995) (the failure to object to admissible evidence does not constitute ineffective assistance of counsel). Therefore, we overrule Edwards' second and third issues. We affirm the judgment of the trial court.