Robinson v. State

11 Citing cases

  1. Jackson v. United States

    56 A.3d 1206 (D.C. 2012)   Cited 5 times
    In Jackson, we cited a number of other cases in this jurisdiction in which we appreciated that the defendant’s attempted concealment of something that could have been a weapon "[gave] rise to reasonable suspicion" supporting a protective search.

    into the driver's side area of the sunroof compartment and found a ski cap wrapped around a loaded .45 caliber automatic pistol with an extra ammunition clip”); United States v. Sample, 136 F.3d 562, 563 (8th Cir.1998) (handguns found behind detachable dashboard); United States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir.1989) (during inventory search, officer located a “.25 caliber handgun behind a potato chip bag in an open dashboard compartment on the driver's side of the car; the open compartment was inches from the steering wheel, within an effortless reach of [the defendant]”); Delatorre v. State, 903 N.E.2d 506, 507 (Ind.Ct.App.2009) (gun in the compartment of the driver's side door); People v. Sandoval, No. B198105, 2008 WL 638391, at *1 (Cal.Ct.App. Mar. 11, 2008) (unpublished), review denied May 21, 2008 (searching vehicle with the defendant's consent, officers “discovered a compartment at the base of the steering column” which held, inter alia, drugs and “a loaded handgun”); Robinson v. State, 22 S.W.3d 631, 634 (Tex.App.2000) (after traffic stop, officer observed drugs in the car; later search of “the console of the car” which “had a compartment below the gearshift” revealed “two guns” and “crack cocaine”); State v. Nebbitt, 713 S.W.2d 49, 50 (Mo.Ct.App.1986) (after observing defendant appearing to hide something, officer pulled “a piece of felt with a cardboard backing hanging down from under the glove compartment” and “a loaded pistol fell to the floor.” Subsequent search, “which included removing a section of the dashboard, revealed two other loaded pistols”); Roy v. State, 552 S.W.2d 827, 829 (Tex.Crim.App.1977), partially overruled on non-search related grounds by Johnson v. State, 650 S.W.2d 414 (Tex.Crim.App.1983) (after arrestingman who falsely claimed to be a “deputy constable,” officer “conducted an inventory of the pickup and discovered a loaded .38 calibre [ sic ] revolver in the side compartment of the left door”).

  2. Jones v. State

    NO. 12-15-00267-CR (Tex. App. Aug. 17, 2016)

    Thus, we must presume counsel made all significant decisions in the exercise of professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); see Robinson v. State, 22 S.W.3d 631, 636-37 (Tex. App.—Waco 2000, pet. ref'd) (holding, on face of silent record, that defendant failed to establish deficient performance based on failure to present motion to suppress evidence seized during allegedly illegal traffic stop when, given facts surrounding stop, it was possible counsel determined motion would have been frivolous).

  3. Richard v. State

    NO. 03-12-00222-CR (Tex. App. Aug. 31, 2012)   Cited 1 times

    We cannot conclude from this silent record that counsel's decision not to file a motion to suppress was, as Richard contends, "so outrageous that no competent attorney would have engaged in it." See Goodspeed, 187 S.W.3d at 392; see also Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.—Waco 2000, pet. ref'd) (noting that court could not speculate about reasons for counsel's decision not to file motion to suppress evidence from allegedly illegal traffic stop because record was silent as to counsel's trial strategy). Accordingly, we overrule Richard's sole issue.

  4. Rice v. State

    No. 10-07-00057-CR (Tex. App. Feb. 27, 2008)

    While this, and other reasons, may explain trial counsel's failure to file a motion to suppress, we may not speculate as to those reasons. See Robinson v. State, 22 S.W.3d 631, 636 (Tex.App.-Waco 2000, pet. ref'd). Absent a record revealing trial counsel's strategy or motivation, Rice has not defeated the strong presumption that trial counsel's actions fell within the wide range of reasonable professional assistance.

  5. Salinas v. State

    No. 13-06-501-CR (Tex. App. Aug. 23, 2007)   Cited 1 times

    ist.] 2006, no pet.). An appropriate record, including counsel's reasons for his actions, is generally prepared at a hearing on a motion for new trial or developed by a writ of habeas corpus. Batiste, 2006 Tex. App. LEXIS 8822, at *19 -20 . "'[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Goodspeed, 187 S.W.3d at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003)). Absent an opportunity for the attorney to explain his actions, an appellate court should not "find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). This presumption of reasonable professional judgment which we extend to trial counsel means that we may not speculate about the reasons that trial counsel did not file a particular motion. Robinson v. State, 22 S.W.3d 631, 636 (Tex.App.-Waco 2000, pet. ref'd). It is possible, for instance, that trial counsel may simply have decided that the presentation of a particular motion would have been frivolous. Id. If there is no explanation for trial counsel's actions in the record, then we must presume that counsel was better positioned than the appellate court to judge the pragmatism of the decision. Ex parte Okere, 56 S.W.3d 846, 856 (Tex.App.-Dallas 2001, no pet.). Similarly, an appellate court is also barred from revisiting trial counsel's failure to subpoena a witness unless there is an explanation in the record as to what the testimony of the witness would have established. Id. Lacking an offer of proof or any other evidence that would provide such an explanation, a court has no basis for evaluating whether there was a reasonable probability that the outcome of the trial would have been different had the witness been subpoenaed and testified. See Reese v. State, 905 S.W.2d 631, 635-36, 638 (Tex.App.-Texarkana 1995, pet. ref'd). To do so wo

  6. Wilson v. State

    No. 05-06-00313-CR (Tex. App. Apr. 18, 2007)

    eeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003); Kemp, 892 S.W.2d at 115. We have reviewed the complained-of portion of the prosecutor's questioning and statements and conclude that Wilson's claim of ineffective assistance of counsel is without merit. Contrary to Wilson's argument, the record reflects counsel objected to many of the questions posed by the prosecutor; counsel's explanation for not objecting to the rest of the questions and the prosecutor's opening and closing arguments are not in the record. Wilson neither filed a motion for new trial asserting ineffective assistance of counsel nor otherwise developed a record explaining why counsel failed to object, and his counsel's ineffectiveness is not "apparent from the record." Given the record before us, we cannot conclude counsel was deficient. Thompson, 9 S.W.3d at 814 (silent record insufficient to show counsel's performance deficient for failing to object to admission of inadmissible hearsay); Robinson v. State, 22 S.W.3d 631, 636 (Tex.App.-Waco 2000, pet. ref'd) (silent record insufficient to show counsel's performance deficient for failing to file motion to suppress). We resolve Wilson's third issue against him. Modification of Judgment

  7. Mccormick v. State

    No. 10-05-00325-CR (Tex. App. Jan. 10, 2007)   Cited 2 times

    "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Robinson v. State, 22 S.W.3d 631, 636 (Tex.App.-Waco 2000, pet. ref'd) (internal citation omitted). "[C]ounsel is 'strongly presumed' to make decisions in the exercise of professional judgment." Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (quoting Strickland, 466 U.S. at 690).

  8. Walker v. State

    No. 10-05-00346-CR (Tex. App. Dec. 6, 2006)

    "It is possible that counsel determined that filing a motion to suppress would have been frivolous." Robinson v. State, 22 S.W.3d 631, 636 (Tex.App.-Waco 2000, pet. ref'd). Walker does not establish that trial counsel rendered deficient performance in not filing a motion to suppress.

  9. Medina v. State

    No. 05-03-01193-CR (Tex. App. Aug. 17, 2004)   Cited 3 times

    Given the record before us, we cannot conclude counsel was deficient. See Thompson, 9 S.W.3d at 814 (silent record insufficient to show counsel's performance deficient for failing to object to admission of inadmissible hearsay); Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd) (silent record insufficient to show counsel's performance deficient for failing to file motion to suppress). We overrule appellant's second point of error.

  10. Jenkins v. State

    No. 14-03-00135-CR (Tex. App. Mar. 30, 2004)

    re § 11.10(c) (2d ed. 1999), and citing Thompson, 9 S.W.3d at 814); see also Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002) (stating "[a] vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent"); Tong v. State, 25 S.W.3d 707, 714 (Tex.Crim.App. 2000) (holding, despite arguably objectionable nature of evidence to which counsel did not object, "without some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design"). The record is silent regarding trial counsel's reasons for not presenting appellant's pro se motion to suppress. In such circumstances, we must presume counsel made all significant decisions in the exercise of professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex.App. — Houston [1st Dist.] 2002, pet. ref'd) (en banc); see Robinson v. State, 22 S.W.3d 631, 636-37 (Tex. App.-Waco 2000, pet. ref'd) (holding, on face of silent record, defendant failed to establish deficience performance based on failure to present motion to suppress evidence seized during allegedly illegal traffic stop when, given facts surrounding stop, it was possible counsel determined motion would have been frivolous). Because the record is silent, appellant has failed to rebut the presumption that trial counsel's actions were based upon a reasonable decision. See Perez v. State, 56 S.W.3d 727, 731-32 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). Without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective. Tong, 25 S.W.3d at 714; Broussard, 68 S.W.3d at 199. Moreover, appellant cannot satisfy Strickland without proving his suppression motion was meritorious. Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (stating defendant obliged to prove suppression motion would have been granted in order to satisfy Strickland); see also Kimme