No. 01-06-00972-CR
Opinion issued February 28, 2008. DO NOT PUBLISH. SEE TEX. R. APP. P. 47.2(b).
On Appeal from the 405th District Court, Galveston County, Texas, Trial Court Cause No. 05CR3241.
Panel consists of Justices TAFT, KEYES, and ALCALA.
ELSA ALCALA, Justice.Page 2
Appellant, Thairin Arnell Walker, appeals from a judgment sentencing him to 25 years' confinement for possession of a controlled substance, codeine, of an aggregate weight, including adulterants or dilutants, of 400 grams or more. See TEX. HEALTH SAFETY CODE ANN. §§ 481.104(4), 481.117(e) (Vernon 2003). Appellant pleaded not guilty; the jury found him guilty and determined his sentence. In his sole issue, appellant asserts that his trial counsel rendered ineffective assistance by failing to object to evidence that appellant admitted that the codeine in the car was his. We affirm.
Background
On October 14, 2005, appellant was driving a car belonging to his passenger, Brittany Miller. Officer Stewart of the Galveston Police Department observed an expired inspection sticker and a defective taillight on the car. After pulling the car over, Officer Stewart approached the driver's side of the car and smelled marijuana coming from inside. Officer Stewart saw a cigar laced with a purple liquid in the ashtray and a Styrofoam cup containing purple liquid in the cup holder of the center console. Officer Stewart asked appellant for proof of financial responsibility, but appellant was unable to provide it. Officer Stewart asked appellant to get out of the car, and, as appellant complied, Officer Stewart observed that appellant's eyes were bloodshot and glassy and his speech was slurred. Because of appellant's physical condition and the strong odor of marijuana, Officer Stewart suspected that appellant was intoxicated. When appellant got out of the car, Officer Stewart also noticed a clear baby bottle with a small amount of purple liquid residue and a soda bottle containing purple liquid on the driver's seat. Officer Stewart placed appellant in the back seat of the patrol car. Returning to the car, Officer Stewart asked Miller to identify herself. He asked her to get out of the car and detained her for further investigation. Officer Stewart collected the cigar, the cup, the baby bottle, and the soda bottle. Officer Stewart noticed that the purple liquid emitted a strong odor of codeine. Officer Stewart returned to the patrol car and read appellant his Miranda warnings. Officer Stewart asked appellant if the codeine was his or Miller's, to which appellant replied, "It's all mine, Stewart." Officer Stewart handcuffed and arrested appellant, who was transported to the Galveston city jail. At trial, appellant testified that he was unaware that the codeine was in the car and that Officer Stewart never asked him if the codeine belonged to him. Appellant denied making the statement admitting ownership of the codeine. Ineffective Assistance of Trial Counsel
In his sole issue, appellant contends that he received ineffective assistance of counsel because his trial counsel failed to object to the admission of his statement "It's all mine, Stewart." Appellant contends that the oral, custodial statement was inadmissible under the Code of Criminal Procedure governing admissibility of custodial statements. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 2005). In evaluating contentions of ineffective assistance of counsel, we review the totality of the representation. Wright v. State, 223 S.W.3d 36, 42 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). To prevail on a claim of ineffective assistance of trial counsel, the defendant must objectively show that (1) trial counsel's performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of the Strickland test requires the defendant to show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that trial counsel's representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. The "benchmark" for evaluating a challenge of ineffective assistance of counsel is whether counsel's conduct "so undermined the proper functioning of the adversarial process" that one cannot rely on the trial "as having produced a just result." See Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App. 2005). Only in that relatively rare instance may the defendant obtain a new trial on the grounds that his attorney provided constitutionally deficient assistance. Id. at 354. The constitutional right to counsel ensures the right to reasonably effective counsel, not "'errorless counsel whose competency or accuracy of representation is . . . judged by hindsight.'" Mercado v. State, 615 S.W.2d 225, 228 (Tex.Crim.App. 1981). The reviewing court must, however, indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. This rule even extends to situations in which the appellate court may "have trouble understanding why" trial counsel may have acted as he did before the trial court. Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001). A Strickland challenge must, therefore, be "firmly founded" in a record that "affirmatively demonstrate[s]" the meritorious nature of the claim. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). When counsel's reasons for failing to do what the defendant contends should have been done do not appear in the record — as, for example, when trial counsel has not been afforded an opportunity to explain his actions — we should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. Unless contentions of ineffective assistance are clearly demonstrated of record, therefore, we normally will not speculate to find trial counsel ineffective when the record is silent on his reasoning or strategy. See Henderson v. State, 29 S.W.3d 616, 624 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Under normal circumstances, the record on direct appeal will not be sufficient to demonstrate that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. See Thompson, 9 S.W.3d at 813-14. When the record on direct appeal is sufficient to prove that counsel's performance was deficient, however, an appellate court "should obviously address the claim. . . ." Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App. 2000). An oral, custodial statement is not admissible unless there is strict compliance with the requirements of article 38.22. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(e); see Woods v. State, 152 S.W.3d 105, 116 (Tex.Crim.App. 2004). However, a statement taken in violation of article 38.22 may still be admitted for other purposes, such as to impeach the credibility of the defendant. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 5; see Badall v. State, 216 S.W.3d 865, 870 (Tex.App.-Beaumont 2007, pet. ref'd). Knowing that appellant intended to testify that he did not make the statement admitting ownership of the codeine, his trial counsel may have decided not to object to the admission of the statement during the State's case-in-chief because he knew that the statement would likely later be introduced in rebuttal as a prior inconsistent statement. See McKinny v. State, 76 S.W.3d 463, 473 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (noting, in context of ineffective assistance claim, that "advocates must be free to choose not to make [objections] even if they have a legal basis for doing so"). However, we do not know if this was trial counsel's strategy because there was no motion for new trial. There is at least one other reason that trial counsel may have opted not to object. As the State contends in its brief, appellant's trial counsel could reasonably have chosen not to object to Officer Stewart's testimony on the basis of article 38.22 because she could have "researched the issue and come to the reasonable conclusion that her efforts would be wasted on this issue." This is so, asserts the State, because appellant was not in custody when he said, "It's all mine, Stewart," and article 38.22 only applies to statements "made as a result of custodial interrogation." See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Woods, 152 S.W.3d at 116. During an investigative detention, a law enforcement officer "may use such reasonable force as is necessary to effect the goal of the stop: investigation, maintenance of the status quo, or officer safety." Balentine v. State, 71 S.W.3d 763, 771 (Tex.Crim.App. 2002). In Balentine, the court held that Balentine was not in custody when he was handcuffed and placed in a patrol car because those actions were reasonably necessary to ensure the officer's safety. Id. Here, Officer Stewart did not handcuff appellant but placed appellant in the back of the patrol car while he spoke with Miller, the passenger in the vehicle, and performed a brief investigation of the suspicious containers in the vehicle. Further, at trial, both appellant and Officer Stewart testified that appellant was not under arrest at the time that appellant made the statement. Therefore, we cannot conclude that trial counsel could not have employed reasonable trial strategy in declining to object to the statement. Again, we do not know if this was trial counsel's strategy because there was no motion for new trial. The record is silent concerning appellant's trial counsel's reason for not objecting to the admission of appellant's statement on grounds that it did not comply with article 38.22. Because the record is silent regarding trial counsel's reasoning for not objecting to the introduction of appellant's statement to Officer Stewart, we may not speculate to find counsel's performance deficient. See Perez v. State, 56 S.W.3d 727, 731-32 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (overruling ineffective assistance claim where trial counsel failed to object on grounds that statement did not comply with article 38.22 but record was silent concerning reason for counsel's action); see also Henderson, 29 S.W.3d at 624; Gamble, 916 S.W.2d at 93 (holding that reviewing court may not speculate on reasons for trial counsel's actions in ineffective assistance of counsel claims). We overrule appellant's sole issue. Conclusion
We affirm the judgment of the trial court.