Opinion
No. 13-08-00178-CR
Opinion delivered and filed August 13, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the 94th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES.
MEMORANDUM OPINION
Appellant, Justin Del Llano, appeals from the trial court's order denying his petition for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.072 § 8 (Vernon 2008). By two issues, Justin argues that he received ineffective assistance of counsel when his counsel advised him to accept a plea bargain and did not challenge the validity of a search warrant that uncovered evidence forming the basis of the prosecution. We affirm.
I. Background
On May 23, 2007, Officer G. Olvera sought a search warrant to search a residence at 5702 Glen Arbor in Nueces County, Texas. Officer Olvera executed a probable cause affidavit, which stated that the "suspected place is in charge of and controlled by" Justin and his father, Henry Del Llano. At the time the search warrant was issued, Justin was seventeen years old and was living with his parents. The affidavit stated that Officer Olvera believed that Justin was knowingly and intentionally in possession of contraband that had been used to deface property:Your affiant has had prior contact with Justin Del Llano and [C.T.] During these contacts it has become apparent that both boys have some connection with the Criminal Street Gang "South Side Bloods." Justin Del Llano has "South Side" tattooed on his for [sic] arms.
On 10-19-06 your affiant entered the boys restroom at King High School and detected a strong odor of permanent marker. On the walls and stalls, written in black permanent marker were "Trubl" and "South Side Blood." Justin Del Llano was seen on surveillance camera entering the restroom with a known associate of his identified as [V.Y.]. [V.Y.] was later identified through emails as the tagger "Trubl."
On 2-4-07 numerous areas of King High School was [sic] vandalized with graffiti. Your affiant reviewed the surveillance camera and observed three subjects walking to areas that were vandalized with graffiti. One subject wearing a grey hooded jacket went to areas that were tagged with "LEAN." The other two wearing black hooded jackets were seen going to areas that were tagged with "South Side Bloods." It was later discovered that the identity of "LEAN" was [J.A.] an associate of Justin Del Llano. A vehicle used during the time of the vandalism fits the description of a vehicle seen at the residence of Justin Del Llano. The vehicle, a gold Nissan Maxima with a missing right rear hub cap TX LP Y30-LYB, came back registered to Annette Del Llano.
On 5-16-07 [C.T.] an associate of Justin Del Llano was arrested for places [sic] weapons prohibited and graffiti. Later that night King High School was vandalized with graffiti. On camera a subject wearing a black hooded jacket was seen spray painting "South Side Blood" on the brick wall of King. It is believed that the act was in retaliation for arresting [C.T.] who is known to have a connection with the criminal street gang "South Side Bloods."The Honorable Sandra Watts, the presiding judge of the 117th District Court of Nueces County, signed the warrant on May 23, 2007. The object of the warrant was to seize items such as markers and aerosol paints, paraphernalia used to commit graffiti, cameras, film, memory storage, photos and video evidence, and clothing. Officer Olvera executed the warrant the same day it was signed. During his search of Justin's room, Officer Olvera discovered a shotgun with a barrel less than fifteen inches long in Justin's closet. On June 21, 2007, Justin was indicted for possession of an unlawful firearm. See Tex. Penal Code Ann. § 46.05(a)(3) (Vernon Supp. 2008) (making possession of a short-barrel firearm a felony). Justin retained an attorney, and on December 13, 2007, he appeared before the trial court and pleaded guilty pursuant to a plea bargain with the State. The court inquired whether Justin pleaded guilty voluntarily, and Justin agreed that he was pleading guilty voluntarily because he was guilty. Justin also informed the trial court that he had reviewed the court's written admonishments with his attorney, that his attorney had explained the provisions, and he understood the provisions. The State offered into evidence State's Exhibits 1 and 2, which contained the police investigation, Justin's judicial confession, and the plea agreement. Justin did not object to any of this evidence. The State's evidence included Officer Olvera's narrative report, which described the execution of the search warrant. Officer Olvera's narrative indicated that during the execution of the search warrant, he located a sawed-off shotgun in Justin's closet. Justin's judicial confession and stipulation stated:
My attorney has investigated the facts and circumstances surrounding my case, discussed those with me, and advised me of possible defenses. I am satisfied with my attorney's representation. I am pleading guilty to the offense of POSSESSION OF A PROHIBITED WEAPON because I am guilty. My plea is freely, voluntarily, knowingly, and intelligently given.In exchange for the guilty plea, the State agreed to recommend that the court defer adjudication, place Justin on community supervision for seven years, and assess a fine of $1,500. The trial court accepted the plea, found that there was enough evidence to convict Justin, and adopted the plea agreement. On December 13, 2007, the trial court entered a written order deferring adjudication, placing Justin on community supervision for seven years, and assessing a $1,500 fine. The trial court certified that Justin had no right to appeal the guilty plea. See Tex. Code Crim. Proc. Ann. art. 44.02 (Vernon 2006). On February 5, 2008, Justin filed an application for a writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.072(a). Justin alleged that he received ineffective assistance of counsel because his trial attorney advised him to accept a plea agreement but failed to investigate and challenge the validity of the search warrant that resulted in the discovery of the prohibited weapon. He argued that the search warrant was not based on probable cause, and had his counsel been effective, he would have advised Justin that there was a chance the weapon could be suppressed. He argued that he would not have pleaded guilty had he known there was any chance that the search warrant was defective. In support of his application, Justin attached the probable cause affidavit in support of the search warrant, his own affidavit, and an affidavit signed by his father, Henry Jessie Del Llano. Justin's affidavit stated:
I met with my trial attorney on several occasions in preparation for the defense in my case. My case was based on a search warrant issued and executed on May 23, 2007. I understand that the validity of the search warrant was the key element in the defense of my case.
I asked my attorney about the search warrant and he told me that it was "legally sound."
I would not have pleaded guilty, had my attorney told me that there was a chance that the affidavit supporting the warrant was bad and that we might successfully exclude the evidence obtained from the warrant. I relied solely on my attorney's advice in reaching my decision to plead guilty.Justin's father provided an affidavit making similar assertions:
I met with Justin's trial attorney on several occasions in preparation for Justin's defense. On most occasions the attorney would meet with Justin by himself, but he would talk with me also. I understood that the validity of the search warrant was the key element in the defense of Justin's case and I asked the attorney if the search warrant was good. Justin's lawyer told me that the search warrant was a "sound" warrant.
Justin depended on his attorney's advice in pleading guilty. He also depended on me to assure him that his attorney was giving him good advice. Had I known that there was a chance that the affidavit supporting the warrant was defective and that the evidence might possibly be suppressed, Justin would not have pleaded guilty.The State filed a response to the application. See Tex. Code Crim. Proc. Ann. art. 11.072 § 5(b). The State argued that the application should be denied because Justin did not meet his burden to prove that he would have insisted on going to trial but for his counsel's alleged errors and that a motion to suppress would have been granted. The State attached an affidavit from Justin's trial counsel, which stated:
During the ensuing seven months [after the search warrant was executed] I had many meetings with Justin and/or his parents, and prosecutors. After several discussions with intake District Attorney Jack Pulcher, all of Justin's felony charges were reduced to misdemeanors or no billed, except the sawed-off shotgun (possession of prohibited weapon). Numerous meetings with James Gardner, gang prosecutor at the time, made it clear that he didn't want to give Justin any breaks. He believed Justin is a leader of the South Side Bloods street gang, and he was upset that the two felony graffiti charges were dropped. A plea offer for deferred adjudication with Homer Salinas bootcamp as a condition was negotiated.
I discussed Justin's options with him and his parents. We discussed defenses and the plea offer. I explained that because Justin was caught with the contraband in his closet and dresser, the only defense would be a challenge to the search. Our primary objective was to avoid a conviction. It was made clear during plea negotiations that a suppression hearing would result in the plea offer for deferred adjudication being withdrawn. Subsequently, straight deferred adjudication with no bootcamp was negotiated.
. . . .
The assertion in the Del Llano's affidavits that I advised them that I did not believe the search warrant affidavit for probable cause would successfully be challenged is true. I advised them that in my opinion there was enough evidence provided in the affidavit that the reviewing Judge would not overrule Judge Watts' decision to issue the warrant. In my experience, the circumstances presented were not conducive to a favorable ruling. I advised Del Llano that if we challenged the search, the Prosecutor would withdraw the plea offer and he would probably end up with a felony conviction on his record. We talked about a 'mere evidence' warrant and the fact that it had to be issued by a licensed attorney judge. We discussed the probable cause assertions, and I did express my opinion that challenging the warrant would be risky. In my opinion, Justin and his parents understood his options and he decided to take the plea offer for deferred adjudication. By doing so he was aware that he was waiving his right to challenge the search warrant, and his trial rights.On March 17, 2008, the trial court denied the application for a writ of habeas corpus, finding that the application was frivolous. This appeal ensued.