No. 01-09-01049-CR
Opinion issued April 14, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Case No. 1161324.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
EVELYN V. KEYES, Justice.
A jury convicted appellant, Jorge Alfredo Zamora, of the offense of unlawful possession of a firearm by a felon. After appellant pleaded true to the allegations in two enhancement paragraphs, the jury assessed punishment at thirty-five years' confinement. In two issues on appeal, appellant contends that (1) his trial counsel rendered ineffective assistance by failing to move to suppress the weapon discovered during an allegedly illegal pat down search, and (2) the trial court erroneously admitted into evidence the marijuana found on appellant during the pat down search. We affirm.
Background
On April 6, 2008, Pasadena Police Department Officer J. Anderson was on his routine night-shift patrol on the Beltway 8 frontage road, a common area for alcohol-related traffic stops and accidents, when he noticed a car in front of him swerving between the lanes. He observed the car continue to swerve between the lanes for approximately a quarter of a mile before the driver turned off of the frontage road without using a turn signal. Officer Anderson pulled the car over, and both vehicles stopped in a parking lot. As he walked to the car, Officer Anderson noticed three people sitting inside, so he asked the driver to step out of the car "for [Anderson's] safety." Although Officer Anderson did not detect the smell of alcohol on the driver's breath, he did smell "the distinct odor of burnt marijuana on [the driver's] person." Officer Anderson testified that when he smells marijuana on a vehicle's occupant, that smell "[g]ives [him] a pretty good clue that there's something going on inside that vehicle that either the driver or the participants are taking part in." Officer Anderson called for additional units to assist with the other two occupants of the car, who included appellant. Once the additional officers arrived, Officer Anderson asked the passengers to step out of the car and sit on the ground next to it. He testified that, in this situation, he usually separates the occupants of the vehicle to determine the source of the marijuana odor and to "make sure there is nothing on them that's going to hurt [the officers.]" As he was securing another occupant of the car, he heard Officer J. Ramirez, who was conducting appellant's pat down search, say "gun." Officer Anderson walked over to assist Ramirez in appellant's pat down. During the search, Officer Anderson felt a bulge in appellant's right front pocket, and the officers removed a loaded revolver. Officer Anderson testified on two separate occasions during the trial that he continued the pat down search after finding the weapon, and, although he did not discover any more weapons, he did discover a small baggie of marijuana in appellant's left front pocket. Defense counsel did not object to this testimony. During the direct examination of Officer Anderson, the prosecutor stated her intention to introduce the marijuana found in appellant's pocket into evidence. Defense counsel objected on relevancy grounds and argued that the marijuana was not material to any issue in the case and would only "inflame and prejudice the jury" against appellant. The trial court overruled the objection and admitted the marijuana during the direct examination of Sebastian Frommhold, a forensic chemist with the Pasadena Police Department. Officer Ramirez testified that, during her regular patrol, she received a call to assist Officer Anderson in a traffic stop. When she arrived, all of the occupants were sitting on the ground outside of the car. Officer Ramirez testified that, because of safety reasons, she pats down everyone before placing them in the back of her patrol car. She further testified that, as she was patting appellant down, she felt a bulge in his right front pocket, and, after she squeezed the item in his pocket, she believed that it "had the consistencies of a gun." She called out that appellant had a gun, and Officer Anderson came over to assist with the pat down. Officer Ramirez testified that she removed the weapon from appellant's pocket and immediately handed it to Officer Anderson. Defense counsel did not move to suppress the weapon found in appellant's pocket. At trial, appellant stipulated that he had been previously convicted of the felony offense of unauthorized use of a motor vehicle in 2001. After the jury found appellant guilty of the present offense, appellant pleaded true to the allegations in two enhancement paragraphs, and the jury assessed punishment at thirty-five years' confinement. Appellant did not move for a new trial. Ineffective Assistance of Counsel
In his first issue, appellant contends that his trial counsel rendered ineffective assistance by failing to move to suppress the weapon discovered on appellant during the allegedly illegal pat down search. To prevail on an ineffective assistance of counsel claim, the appellant must demonstrate, by a preponderance of the evidence, that (1) his trial counsel's performance was deficient and (2) a reasonable probability exists that, but for the deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The appellant must first show that his counsel's performance fell below an objective standard of reasonableness, which does not require showing that counsel's representation was without error. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland requires the appellant to demonstrate prejudice — a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and therefore the appellant must overcome the presumption that the challenged action constituted "sound trial strategy." Id. at 689, 104 S. Ct. at 2065; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). Our review is highly deferential to counsel, and we do not speculate regarding counsel's trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail, the appellant must provide an appellate record that affirmatively demonstrates that counsel's performance was not based on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate alleged ineffectiveness). If the record is silent regarding the reasons for counsel's conduct — as it usually is on direct appeal — then the record is insufficient to overcome the presumption that counsel followed a legitimate trial strategy. Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813-14; see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ("[I]n the absence of evidence of counsel's reasons for the challenged conduct, an appellate court . . . will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it."). Trial counsel's failure to file a motion to suppress evidence is not per se ineffective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 2587 (1986). "Counsel is not required to engage in the filing of futile motions." Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.-Austin 2007, no pet.) (citing Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)). Rather, to prevail on an ineffective assistance claim based on counsel's failure to file a motion to suppress, "an appellant must show by a preponderance of the evidence that the result of the proceeding would have been different — i.e., that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction." Id. (citing Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998)). To meet this burden, the appellant must produce evidence that defeats the presumption of proper police conduct. Id. (citing Jackson, 973 S.W.2d at 957). The appellant must therefore develop facts and details of the search sufficient to conclude that the search is invalid. Id. (citing Jackson, 973 S.W.2d at 957). Simply contending that there "may be questions about the validity of the search is not enough" to support an ineffective assistance claim based on counsel's failure to move to suppress evidence. Jackson, 973 S.W.2d at 957. A police officer has the right to briefly detain and investigate a person when the officer has a reasonable suspicion that the person is involved in criminal activity. State v. Sheppard, 271 S.W.3d 281, 287 (Tex. Crim. App. 2008) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). If the officer has a reasonable belief that the person is armed and dangerous, the officer may conduct a pat down search to determine whether the person is carrying a weapon. Id. (citing Terry, 392 U.S. at 27-28, 88 S. Ct. at 1883); State v. Castleberry, No. PD-0354-10, 2011 WL 709697, at *5 (Tex. Crim. App. Mar. 2, 2011); O'Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000). "It would be unreasonable to deny a police officer the right to neutralize the threat of physical harm." O'Hara, 27 S.W.3d at 550. The scope of this search is limited, and its purpose is "not to discover evidence of a crime, but to allow the peace officer to pursue investigation without fear of violence." Carmouche, 10 S.W.3d at 329 (quoting Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974)). Before conducting a valid pat down search, the police officer need only be able to "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." O'Hara, 27 S.W.3d at 550-51 (quoting Terry, 392 U.S. at 21, 88 S. Ct. at 1880); Carmouche, 10 S.W.3d at 329. The determination of whether a Fourth Amendment violation occurred in conjunction with a pat down search "turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken." O'Hara, 27 S.W.3d at 551 (quoting Maryland v. Macon, 472 U.S. 463, 470-71, 105 S. Ct. 2778, 2783 (1985)). The officer need not be absolutely certain that the individual is armed before conducting a pat down. Id. The relevant issue is whether a reasonably prudent person would justifiably believe that his safety or the safety of others was in danger. Id. (citing Terry, 392 U.S. at 27, 88 S. Ct. at 1883); see also Castleberry, 2011 WL 709697, at *7 (holding same). Roadside encounters between police and suspects are "especially hazardous." Michigan v. Long, 463 U.S. 1032, 1049, 103 S. Ct. 3469, 3481 (1983); Carmouche, 10 S.W.3d at 330. Furthermore, "a police officer's reasonable belief that a suspect is armed and dangerous may be predicated on the nature of the suspected criminal activity." Carmouche, 10 S.W.3d at 330 (citing Terry, 392 U.S. at 27-28, 88 S. Ct. at 1883); Sargent v. State, 56 S.W.3d 720, 725-26 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). It is well settled that weapons and violence are frequently associated with drug activities and transactions. See Carmouche, 10 S.W.3d at 330; Martinez v. State, 236 S.W.3d 361, 370 (Tex. App.-Fort Worth 2007, pet. ref'd, untimely filed); see also Lemons v. State, 135 S.W.3d 878, 884 (Tex. App.-Houston [1st Dist.] 2004, no pet.) ("We find that the Terry stop and search were proper. [Officer] McGann testified that, as a result of his experience and training, when he is involved in narcotics situations, he conducts pat-downs to check for weapons because there is a greater chance of weapons being present."). Based on an officer's knowledge of a person's suspected drug activities, an officer may reasonably believe that the person is armed and dangerous and, therefore, may conduct a limited search for weapons. Carmouche, 10 S.W.3d at 330; Sargent, 56 S.W.3d at 726; see also Martinez, 236 S.W.3d at 370 ("Thus, encountering one who is reasonably suspected of engaging in drug activity can justify a brief and minimally intrusive frisk of his person."). Appellant contends that his pat down search was illegal because "there were no objective, articulable facts to justify a protective search of [his] outer clothing." Appellant points out that neither Officer Anderson nor Officer Ramirez testified that appellant made any furtive gestures or attempted to flee the scene and that neither officer testified that he observed any "suspicious bulge[s]" in appellant's clothing before the search. Appellant also notes that, although Officer Ramirez testified that she pats everyone down before placing them in her vehicle, no evidence in the record demonstrates why she had a right to place appellant in her vehicle. Appellant thus concludes that, had defense counsel moved to suppress the weapon, the trial court would have granted the motion. Officer Anderson testified that he observed the driver of the vehicle swerving between lanes in an area known for alcohol-related traffic stops and accidents. After he stopped the vehicle, following an additional traffic violation, Officer Anderson spoke to the driver and smelled "the distinct odor of burnt marijuana on his person." Two other individuals, including appellant, were in the car, and Officer Anderson testified that smelling marijuana on someone inside a vehicle "[g]ives [him] a pretty good clue that there's something going on inside that vehicle that either the driver or the participants are taking part in." He further testified that, in situations such as this one, in order to determine the source of the odor, he prefers to separate the occupants to "make sure there is nothing on them that's going to hurt [the officers]" and to "get a straight story out of somebody as to what's going on." Officer Anderson later testified on cross-examination that he "viewed each person inside that vehicle as a potential threat to [his] officer safety." Officer Ramirez testified that she always conducts a pat down before she puts someone in her vehicle for "safety reasons" and as "part of [her] training." If an officer conducts a pat down search solely as a matter of routine, this fact, standing alone, is insufficient to justify the search. O'Hara, 27 S.W.3d at 553-54. The Court of Criminal Appeals noted, however, that, even if an officer erroneously conducts a pat down search as a matter of routine, the objective facts of the case may "nevertheless justify the pat down." Id. Although Officer Ramirez testified that she pats everyone down before placing them in her vehicle, Officer Anderson also testified that he suspected that the occupants of the vehicle were engaged in drug activity due to the driver's erratic driving and the "distinct odor" of burnt marijuana after the vehicle was stopped. Given the close connection between drug activity and violence, the trial court could have concluded that it was not unreasonable for the officers in this case to conduct a limited search for weapons. See Carmouche, 10 S.W.3d at 330; Martinez, 236 S.W.3d at 370; Lemons, 135 S.W.3d at 884; Sargent, 56 S.W.3d at 726. To prevail on his ineffective assistance claim based on counsel's failure to move to suppress the weapon found during a pat down, appellant bears the "burden to develop facts and details of the search sufficient to conclude that the search was invalid." Jackson, 973 S.W.2d at 957. Appellant contends that the trial court would have granted a motion to suppress in this case because neither officer affirmatively testified regarding furtive gestures, visible suspicious bulges, or attempts to flee the scene by appellant. Here, however, there were sufficient indicia of drug activity to justify the search for weapons. Moreover, it was appellant's burden to elicit testimony to establish the invalidity of the search. See id. He did not do so. Mere questions about the validity of the search are not sufficient to support an ineffective assistance claim. Id. We therefore conclude that, based upon this record, appellant has not established by a preponderance of the evidence that the trial court would have granted a motion to suppress the weapon. We hold that appellant has not met his burden under Strickland to establish that his trial counsel rendered ineffective assistance. We overrule appellant's first issue. Admission of Extraneous Offense Evidence
In his second issue, appellant contends that the trial court erred in admitting into evidence the marijuana discovered during appellant's pat down search because the marijuana was impermissible character evidence that had no relevance to whether appellant unlawfully possessed a firearm. The State contends that appellant failed to preserve this contention for appellate review because Officer Anderson twice testified regarding his discovery of marijuana during the pat down search without objection from defense counsel before the State offered the marijuana for admission into evidence. We agree with the State. To preserve a complaint for appellate review, the appellant must make a timely request, objection, or motion that states the grounds for the ruling sought from the trial court with sufficient specificity to make the trial court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). To be "timely," the complaint must be made "as soon as the ground for complaint is apparent or should be apparent." Aguilar v. State, 26 S.W.3d 901, 905 (Tex. Crim. App. 2000). A specific objection to inadmissible evidence must be urged at the first opportunity. Id. at 905-06. Texas courts have repeatedly held that an objection to the introduction of physical evidence made after the witness testifies without defense objection regarding the evidence preserves no error for appellate review. See Marini v. State, 593 S.W.2d 709, 714 (Tex. Crim. App. 1980) ("Assuming there was some objection to [LSD tablets and marijuana] when offered, there was no objection to Officer Frazier's testimony about finding the narcotics. An objection must be urged at the earliest opportunity. Nothing is presented for review."); Ratliff v. State, 320 S.W.3d 857, 862 (Tex. App.-Fort Worth 2010, pet. ref'd) ("[A]ppellant's failure to object at the time Detective Luecke specifically described the physical evidence and explained how he found that evidence forfeited any error associated with his objection to the State's later introduction of the evidence."); see also Thomas v. State, 884 S.W.2d 215, 216-17 (Tex. App.-El Paso 1994, pet. ref'd) (holding same when defendant objected to introduction of syringe with cocaine residue but did not object to earlier testimony regarding discovery of syringe); Turner v. State, 642 S.W.2d 216, 217 (Tex. App.-Houston [14th Dist.] 1982, no pet.) ("Error has also been held waived in situations, such as here, where there was no objection regarding the testimony preceding the admission of the exhibits.") (emphasis in original). Here, Officer Anderson testified on direct-examination that, after he secured the weapon found on appellant, he "[f]inished the pat down of [appellant] to make sure there [were] no other weapons on his person and [he] located a small baggie of what [he] found out to be marijuana inside [appellant's] left-hand pocket." Defense counsel did not object to this testimony. After defense counsel questioned Officer Anderson on voir dire regarding the chain of custody for the weapon and the trial court admitted it as an exhibit, the State asked Anderson whether he conducted any further investigation after finding the weapon. Officer Anderson responded that he continued the pat down search, which "revealed a small clear plastic baggie with marijuana inside it [in appellant's] front left-hand pocket." Once again, defense counsel did not object to this testimony. Defense counsel did not object until the prosecutor informed the trial court, at the end of Officer Anderson's direct examination, of her intention to offer the marijuana into evidence. At this point, defense counsel objected on relevancy grounds and argued that admission of the marijuana itself would "inflame and prejudice" the jury. We conclude that, because defense counsel failed to object to Officer Anderson's testimony regarding his discovery of marijuana during appellant's pat down search, appellant waived any error associated with the later admission of the marijuana into evidence. See TEX. R. APP. P. 33.1(a)(1)(A); Marini, 593 S.W.2d at 714; Ratliff, 320 S.W.3d at 862. We overrule appellant's second issue. Conclusion
We affirm the judgment of the trial court.