Opinion
No. 05-16-00728-CR
06-14-2017
On Appeal from the 15th Judicial District Court Grayson County, Texas
Trial Court Cause No. 066137
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Evans
Appellant Shancey Tymane Franklin appeals from his convictions for tampering/fabricating physical evidence with intent to impair and possession of a controlled substance and for his accompanying sentences of twenty-five and forty years, respectively. In two issues, appellant contends that (1) he was rendered ineffective assistance of counsel and (2) the trial court erred in denying the appellant's motion to suppress evidence. Finding no merit in appellant's arguments, we affirm the trial court's judgment.
BACKGROUND
On July 1, 2015, Jeremy Cox, a sergeant with Sherman police department, and Brian McClaran, a detective with the Sherman police department, were parked at the Cross Roads Motel. Sergeant Cox testified at the suppression hearing that they were in this location because it is a high crime area known for drug trafficking. One of the occupants of the hotel advised the officers that a woman named Rebecca was on her way to deliver drugs and would probably go to room 6. The officers were told that Rebecca was a white female driving a black car with her black boyfriend. Sergeant Cox testified that a short time later a black vehicle drove up and parked alongside of room 6. When a white female got out of the car, the officers approached the occupants. Sergeant Cox testified that Officer Jeremy Jones, a canine handler, performed an open air search around the vehicle and the canine alerted on the vehicle. Sergeant Cox searched the vehicle and located a zipper pouch with a marijuana smoking pipe, a glass pipe with methamphetamine residue, and a set of digital scales. The occupants of the car were identified as Rebecca Renovado, Kandis Dreher, and appellant. Sergeant Cox testified that he patted down appellant for contraband and he noticed that he was clenching his "butt cheeks" together. Based on his experience, Sergeant Cox suspected that appellant was hiding contraband in his body.
The police then escorted appellant to a motel room. Sergeant Cox testified that Detective McClaran, another officer and himself were in the room. Appellant refused to take his own shorts down and when the officers tried to assist, appellant began to resist and pull away. At that point, Sergeant Cox testified that they decided to stop and arrest appellant for resisting arrest and resisting search. Appellant was transported to the Grayson County jail and the jail staff conducted a strip search in which they recovered a bag containing 7.76 grams of methamphetamine.
Appellant was indicted for the offenses of tampering/fabricating physical evidence with the intent to impair and possession of a controlled substance. Each offense was enhanced with a prior felony conviction. Prior to trial, appellant filed a motion to suppress in which appellant alleged that the strip search was conducted while appellant was not under arrest and in violation of the Fourth Amendment. Following a hearing, the trial court denied the motion to suppress. At trial, appellant pled not guilty but was found guilty by the jury. Appellant was then sentenced to twenty-five years' confinement for the offense of tampering/fabricating physical evidence with the intent to impair and forty years' confinement for the offense of possession of a controlled substance. Appellant then filed a notice of appeal.
ANALYSIS
A. The Trial Court Did Not Err in Denying Appellant's Motion to Suppress Evidence
In his second issue, appellant contends that the trial court erred in denying his motion to suppress evidence because the evidence and testimony showed a clear violation of the appellant's Fourth Amendment right against illegal search and seizure. We disagree.
1. Standard of review
We apply a bifurcated standard of review of a trial court's ruling on a motion to suppress by giving almost total deference to the trial court's determinations of fact and reviewing de novo the trial court's application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).
2. Additional facts
In his motion to suppress, appellant argued as follows:
On the date and time in question, Defendant was subjected to a strip search while not under arrest. This warrantless search violated Defendant's Fourth Amendment right prohibiting unreasonable searches and seizures. Furthermore, arresting officers did not obtain a search warrant prior to the search.The trial court denied the motion to suppress by order dated November 18, 2015. Appellant's trial commenced on May 23, 2016. When the State moved to admit the methamphetamine during trial, appellant's trial counsel stated "no objection."
3. Analysis
Texas courts have repeatedly held that when a court overrules a pretrial motion to suppress evidence, the defendant need not subsequently object to the admission of the same evidence to preserve error. See Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004). However, when a defendant affirmatively asserts during trial that he has "no objection" to the admission of the complained-of evidence, he waives any error in the admission of the evidence, despite the pretrial ruling. See Brown v. State, 183 S.W.3d 728, 741 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Here, appellant originally preserved error by obtaining an adverse ruling on his motion to suppress and he was not required to object again at trial. However, when the State sought to admit the evidence (the bag of methamphetamine) at trial, appellant's trial counsel affirmatively stated that she had "no objection." Accordingly, appellant waived any complaint regarding admission of the evidence that was the subject of the motion to suppress. See id.
However, even if we had concluded that error had been preserved, appellant would need to demonstrate that the trial court abused its discretion in denying the motion to suppress. To evaluate the trial court's ruling on the motion to suppress, we must review the search of appellant's person. A warrantless search of a person or property is considered per se unreasonable subject to a few specifically defined and well-established exceptions. Minnesota v. Dickerson, 508 U.S. 366, 371 (1993). The exceptions include voluntary consent to search, search under exigent circumstances, and search incident to arrest. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). It is the State's burden to show that a search falls within one of these exceptions.
On appeal, appellant argues that the unreasonable search took place in the motel room. The facts, however, do not support this assertion. In this case, an officer patted down appellant for contraband and the officer noticed that appellant was clenching his "butt cheeks" together. The police escorted appellant to a motel room. Appellant, however, refused to take his own shorts down and when the officers tried to assist, appellant began to resist and pull away. At that point, Sergeant Cox testified that they decided to stop and arrest appellant for resisting arrest and resisting search. Thus, the officers did not conduct a strip search, a visual body cavity search, or a manual body cavity search in the motel room.
The term "strip search" generally refers to an inspection of a naked person, without any scrutiny of the person's cavities. A "visual body-cavity search" includes a visual inspection of a person's anal or genital areas. A "manual body-cavity search" involves some degree of probing or touching a person's body cavities. McGee, 105 S.W.3d at 615.
Following appellant's arrest, he was transported to the Grayson County jail. Paul Hager, a sergeant for the Grayson County Sheriff's Office in the correctional division, testified at the suppression hearing that the Sherman police department requested a strip search because of their belief that appellant had possession of drugs on him. Sergeant Hager testified that two officers took appellant to the strip search area. After appellant failed to comply with the officers' requests, Sergeant Hager went to the strip search area and requested that appellant turn around and appellant refused. Sergeant Hager testified that he physically turned appellant around and made him face some lockers. Sergeant Hager again requested that appellant comply and appellant refused again. Sergeant Hager testified that he removed a cartridge from his taser and placed the cartridge in his pocket. Sergeant Hager again asked him to comply and appellant removed a bag containing 7.76 grams of methamphetamine from his "butt cheeks."
The Supreme Court has previously held that a search incident to arrest authorizes the police to conduct a "full search of the person." United States v. Robinson, 414 U.S. 218, 235 (1973). However, to determine if the search was constitutional, the search must also have been reasonable. The test of reasonableness under the Fourth Amendment requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. See Bell v. Wolfish, 441 U.S. 520, 559 (1979). Courts must consider the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it was conducted. Id. Each analysis turns on the particular facts and circumstances of the underlying case and no one factor is determinative. McGee, 105 S.W.3d at 616.
To the extent any search took place in this case, it occurred upon appellant's arrival at the Grayson County jail and we apply the four factors to this search. Here, the scope of the intrusion was limited as appellant removed the evidence from his "butt cheeks" himself. Thus, this factor weighs in favor of the conclusion that the search was reasonable. In regard to the manner in which the search was conducted, one factor to consider is whether the officers conducting the search had training and/or experience in conducting such searches. Id. In this case, Sergeant Hager testified that he had been employed as a sergeant for seven years in the correctional division of the Grayson County sheriff's office, but did not testify about his experience in conducting strip searches. Accordingly, this factor does not favor one conclusion or another.
The next factor involves the justification for the search. In this case, Sergeant Cox testified that they parked at the Cross Roads Motel because it is an area known for drug trafficking. One of the occupants of the hotel advised the officers that a woman named Rebecca was on her way to deliver drugs and would probably go to room 6. The officers were told that Rebecca was a white female driving a black car with her black boyfriend. A short time later a black vehicle drove up and parked alongside of room 6. When a white female got out of the car, the officers approached the occupants. The canine alerted on the vehicle and a zipper pouch with a marijuana smoking pipe, a glass pipe with methamphetamine residue, and a set of digital scales were found in the car. Sergeant Cox testified that he patted down appellant for contraband and he noticed that he was clenching his "butt cheeks" together. Based on his experience, Sergeant Cox suspected that appellant was hiding contraband in his body. Thus, based on the totality of the circumstances, the arresting officer had probable cause to believe that appellant was engaged in criminal activity and had sufficient justification to believe a search was necessary. Id. at 617.
The final factor involves where the search was conducted. Here, the search took place in the strip search area of the sheriff's office. Sergeant Hager testified that the strip search area is "out of the view from the book-in, away from the public's eye. It's a closed room, no video or audio is in it. It's used for dressing out and strip searching individuals." The search, to the limited extent one was performed, occurred in an environment which was sufficiently sterile considering there was no actual penetration of appellant's person and which protected the appellant's privacy interests. Id. As the factors weigh in favor of the conclusion that the search was reasonable, the trial court properly denied appellant's motion to suppress. We overrule appellant's second issue.
B. Appellant Was Not Rendered Ineffective Assistance of Counsel
In his first issue, appellant contends that his attorney was ineffective in that he failed to object to any and all testimony or evidence presented at trial which counsel had attempted to suppress previously. Appellant contends that he was rendered ineffective assistance of counsel. We disagree.
1. Standard of review
Texas courts apply the two-pronged Strickland test to determine whether counsel's representation was so inadequate as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687 (U.S. 1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland two-prong test for criminal cases in Texas.). Under this two-part test, appellant must establish that: (1) counsel's performance was deficient and that his assistance fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not find counsel's representation to be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). In order to satisfy the first prong, appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Further, there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To prove the second prong, appellant must show that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Lopez, 343 S.W.3d at 142.
We ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Texas procedure makes it "virtually impossible" for appellate counsel to present an adequate ineffective assistance of trial counsel claim on direct review. Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013). This is because the inherent nature of most ineffective assistance of trial counsel claims means that the trial court record "will often fail to 'contai[n] the information necessary to substantiate' the claim." Id. (quoting Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).
2. Analysis
Appellant argues that his trial attorney was ineffective because she "failed to object to any and all testimony and/or evidence presented at trial although it had been challenged prior to trial at the hearing on the Motion for Suppression." Appellant further argues that trial counsel's failure to preserve error prejudiced his defense.
Under the first prong of Strickland, the appellant must show that his attorney's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms and according to the necessity of the case. Strickland, 466 U.S. at 687-88. As stated above, trial counsel stated "no objection" to the introduction of the evidence that was the subject of the suppression motion and error was waived in the admission of this evidence. See Garza v. State, 126 S.W.3d at 84. The record, however, is completely silent as to why trial counsel failed to object to the introduction of evidence. As the court of criminal appeals has previously held, "[a]n appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions—whether those actions were of strategic design or the result of negligent conduct." Thompson, 9 S.W.3d at 814. Thus, we cannot conclude that appellant has rebutted the strong presumption in favor of trial counsel. See Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) ("Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. If trial counsel is not given that opportunity, then the appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.") (internal citations omitted).
Further, even if we did hold that trial counsel's assistance fell below an objective standard of reasonableness, appellant would still need to satisfy the second prong of Strickland. Under that prong, the applicant must demonstrate that he was prejudiced by his attorney's performance or that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Thus, to demonstrate harm in this case, appellant must show that he would likely have been successful on appeal had the issue been properly preserved; that is, that the trial court's denial of the motion to suppress was an abuse of discretion. See Ex Parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). As stated above, we conclude that the trial court did not err in denying appellant's motion to suppress. Accordingly, appellant cannot demonstrate that that he was prejudiced by his trial counsel's statement of "no objection," which waived his ability to appeal the motion to suppress. We overrule appellant's first issue.
CONCLUSION
We resolve appellant's issues against him and affirm the trial court's judgment.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160728F.U05
JUDGMENT
On Appeal from the 15th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 066137.
Opinion delivered by Justice Evans. Justices Bridges and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 14th day of June, 2017.