Arkadi Minassian v. State , 2016 Tex. App. LEXIS 2814 ( 2016 )

Opinion issued March 17, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00966-CR
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ARKADI MINASSIAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1300894
OPINION
A grand jury indicted Arkadi Minassian for the offense of fraudulent
possession of identifying information. See TEX. PENAL CODE ANN. § 32.51 (West
Supp. 2013). Minassian moved to suppress the evidence that law enforcement
seized at the time of his arrest, contesting both the lawfulness of that arrest and the
search of (1) the white Nissan Armada in which he was traveling at the time of his
arrest, and (2) two laptop computers found within the Nissan. The trial court
denied the motion. Minassian then pleaded guilty, and the trial court assessed his
punishment at thirty years’ confinement. On appeal, Minassian contends that
(1) his arrest was unlawful because police lacked probable cause to arrest; (2) the
police search was unlawful; and (3) he received ineffective assistance of counsel.
Finding no error, we affirm.
BACKGROUND
The United States Secret Service began investigating an organized crime
ring that placed “skimmers,” or devices that capture credit information and permit
it to be wirelessly downloaded onto a nearby laptop computer, on gas pumps at gas
stations in the Dallas area. Investigators suspected that Minassian was a
participant in the scheme. A confidential informant notified officers that
Minassian planned to travel from Dallas to Houston in connection with the scheme.
The day before Minassian’s trip, members of the Houston Police Department’s
regional interagency task force on fraud received an alert that four skimmers had
been found on gas pumps at a Valero gas station on Beamer Road in Houston.
Special Agent Charles Hutchins, Jr., with the United States Secret Service in its
Houston office, confirmed that the skimmers discovered in Houston matched the
description of ones seized in connection with a Dallas investigation.
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On the day that Minassian’s plane was due to arrive in Houston, a Valero
technician discovered four additional skimmers at another Houston-area gas
station, on Bay Area Boulevard in Clear Lake. The technician notified the Secret
Service’s Houston Field Office of his finding.
Meanwhile, task force members began surveillance of Minassian when he
arrived at George Bush Intercontinental Airport. From the airport, Minassian and
another man drove to the Valero gas station on Bay Area Boulevard. Neither he
nor the driver attempted to pump gas. They departed from the gas station a few
minutes later. Minassian and the man then drove to the Valero gas station on
Beamer Road. Officers observed the vehicle stop at a gas station pump, but again,
neither Minassian nor the driver attempted to pump gas.
Officers arrested Minassian and the driver and searched the vehicle. An
open and powered-on laptop sat in the passenger-seat area. Police seized a second
laptop, two GPS devices, six universal keys for gas pumps, several cell phones,
double-sided tape, two thumb drives, and a USB radio receiver/transmitter device.
Minassian possessed two different California Driver’s licenses, one with his name
and photo, and a second one with the name “Ashot Aslanian” and Minassian’s
photo. The American Airlines ticket stubs in Minassian’s possession showed a
flight ticketed to Ashot Aslanian.
A Secret Service agent searched the laptops at the scene. In that search, the
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agent discovered about 10,000 credit card numbers and the names associated with
them. Six days later, a federal magistrate issued a warrant for the further search of
the laptops. The State alleged that this further search revealed 38,000 additional
names and identifying information.
At the hearing on the motion to suppress, neither Minassian nor the State
introduced testimony from live witnesses, but the trial court admitted without
objection an affidavit from Special Agent Hutchins as well as a copy of the federal
warrant and color copies of the two different California driver’s licenses. In the
affidavit, Hutchins averred in part:
2. This case originated on 03/25/11, when I was contacted
by Special Agent (SA) Troy Saria, United States Secret Service
(USSS), Dallas Field Office, regarding an on-going case in their
district involving gas pump skimmers. Through his investigation, SA
Saria determined Minassian is involved in an organized crime ring
responsible for distributing highly sophisticated gas pump skimmers
to several cities and downloading the credit card numbers, initially
thought to be through Bluetooth, but later determined to be via Zigbee
Radio technologies. The device works in the following manner: The
skimmer is installed in a gas pump and the user can download its
contents (credit card name and account number) from a laptop within
a 100 meter range. Bluetooth devices are discoverable on wireless
networks, whereas Zigbee Radio technologies are not. SA Sarria
stated he received information that Minassian would be traveling from
Dallas, TX to Houston, TX, on 03/29/11, and departing on 03/30/11.
SA Sarria stated Minassian was traveling under the alias Ashot
Aslanyan.
3. On 03/28/11, Sgt. Gorski, HPD and Houston Area Fraud
Task Force (HAFTF) member, was notified 4 skimmers were found in
4 different gas pumps at a Valero gas station located at 11499 Beamer
Rd., Houston, TX 77089. Sgt. Gorski, SA Russell Sparks, and I met
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with Valero technician James Henderson and observed the gas pump
skimmers in 4 different pumps. The skimmers are described as a
black hard plaster square block with connection cables to the card
reader and key pad of the gas pump attached to the pump with double
sided tape. Each skimmer was labeled with a name believed to be a
city. I confirmed with SA Sarria the description of these skimmers
matched the skimmers seized in Dallas throughout their investigation.
4. On 03/29/11, Valero technician James Henderson
notified the USSS Houston Field Office that he conducted an
inspection of another Valero gas station, located at 2404 Bay Area
Blvd., Clear Lake, TX 77058. Henderson discovered 4 additional
skimmers at 4 separate gas pumps at this Valero gas station. All
skimmers are in the custody of the USSS.
5. Continuing on 03/29/11, members of the HAFTF
conducted surveillance of Minassian upon his arrival into Bush
Intercontinental Airport. Minassian departed the airport riding in the
passenger seat of a white Nissan Armada, California License Plate
(LP) 5GRC174, registered to Arvin Mehrabian. Minassian and the
driver, later determined to be Arin Mehrabian, drove directly to the
Valero gas station, located at 2404 Bay Blvd. Neither the driver nor
the passenger attempted to get gas, and approximately 2-3 minutes
later, the Nissan Armada departed the scene in an erratic behavior and
at a high rate of speed. Mobile surveillance was discontinued.
6. Continuing on this date, members of the HAFTF
conducted stationary surveillance at the Valero gas station, located at
11499 Beamer Rd. The Nissan Armada, LP 5GRC74, was observed
driving up to the gas station pump and again neither the driver, nor the
passenger, attempted to pump gas. Members of the HAFTF arrested
Minassian and Meharbian without incident. Search incident to arrest
revealed an open, powered on, laptop in the passenger seat area, an
additional laptop, 2 GPS devices, 6 universal keys for gas pumps,
several cell phones, double sided tape, 2 thumb drives, and a USB
radio receiver/transmitter device. Mehrabian also possessed notebook
paper containing a list of addresses, including the addresses to both
gas stations which contained the skimmers. Due to the risk of losing
the data stored on the computers, the laptops were immediately
examined by SA Sparks. Approximately 10,000 credit card numbers
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and names associated with these numbers were discovered. Efforts
are on-going to examine the 8 skimmers found at the aforementioned
gas pumps.
After the hearing, the court denied Minassian’s motion to suppress the
evidence seized in connection with his arrest. Minassian subsequently pleaded
guilty. The trial court admonished him about the potential range of punishment
and other consequences of his plea; it then accepted Minassian’s plea and assessed
his punishment at thirty years’ confinement.
Minassian moved for a new trial, contending that he had received
ineffective assistance of counsel. At the hearing on the motion for a new trial,
Minassian introduced a transcript of the suppression hearing and its accompanying
exhibits, as well as his own declaration and affidavits from his wife and an attorney
representing him in California describing the circumstances of the plea. In
opposition, the State introduced an affidavit from Minassian’s former counsel, who
had withdrawn from the representation. The court denied the motion for new trial.
DISCUSSION
I. Probable Cause to Arrest
Minassian first contends that law enforcement lacked probable cause to
arrest him and therefore violated his constitutional right to be free of unreasonable
seizures. See Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972)
(probable cause is a prerequisite to warrantless arrest). He argues that he was not
6
in a suspicious place when he was taken into custody and exigent circumstances
did not require his arrest without first obtaining a warrant. See TEX. CODE CRIM.
PROC. ANN. art. 14.03(a)(1) (West Supp. 2015) (warrantless arrest permitted when
person is found in a suspicious place under circumstances that reasonably show he
is guilty of a felony); Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005)
(warrantless arrest under Section 14.03(a)(1) requires showing of exigent
circumstances). He further contends that his lawyer failed to effectively challenge
the validity of the arrest, which directly led to his plea agreement.
A. Standard of Review
We review the trial court’s ruling on a motion to suppress for abuse of
discretion. Castleberry v. State, 425 S.W.3d 332, 334 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d). We defer to the trial court’s assessment of the credibility
of witnesses and determination of historical facts. Dixon v. State, 206 S.W.3d 613,
616 (Tex. Crim. App. 2006); Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.
App. 2005). As the trial court did not file findings of fact, we view the evidence in
a light most favorable to the trial court’s ruling. Torres, 182 S.W.3d at 902. We
review the trial court’s application of the law de novo when deciding whether there
is probable cause for a warrantless search or seizure. Id. We review the ultimate
question of whether a particular search is reasonable or supported by probable
cause de novo as well. Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App.
7
2009); Dixon, 206 S.W.3d at 616. The trial court’s implicit conclusion that
Minassian was in a suspicious place at the time of his warrantless arrest is subject
to the same standard of review as the probable cause determination. E.g., State v.
Parson, 988 S.W.2d 264, 267 (Tex. App.—San Antonio 1998, no pet.).
B. Analysis
1. Informant Corroboration
Probable cause for an arrest exists when the totality of the circumstances
show that law enforcement has “reasonably trustworthy information sufficient to
warrant a reasonable person to believe a particular person has committed or is
committing an offense.” Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App.
1997). While probable cause requires “a relatively high level of suspicion,” it is
“far short of a preponderance of the evidence standard.” Baldwin, 278 S.W.3d at
371; accord Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)
(preponderance of the evidence “is a much higher standard” than probable cause).
And it requires “far less evidence” than is necessary to support a finding under a
preponderance of the evidence. Guzman, 955 S.W.2d at 87. Under this standard,
information from a confidential informant that has been corroborated through
independent investigation by law enforcement may supply probable cause for an
arrest. See Angulo v. State, 727 S.W.2d 276, 278–80 (Tex. Crim. App. 1987).
Minassian first contends that his arrest resulted from a confidential
8
informant’s tip alone without evidence that the informant was credible and reliable.
See Lowery v. State, 843 S.W.2d 136, 140–41 (Tex. App.—Dallas 1992, pet. ref’d)
(probable cause lacking where information supplied by informant was not shown
to be reliable or credible). Thus, he contends, the trial court erred in denying his
motion to suppress.
But the record shows that Minassian’s arrest was not based solely on an
informant’s tip. The informant told law enforcement that Minassian would fly
from Dallas to Houston on a particular date. The accuracy of the informant’s
information was verified when Minassian traveled to Houston on the day in
question, using an assumed name and fake driver’s license. There, law
enforcement observed Minassian travel directly from the airport to a gas station,
and then later observed him at another gas station. Officers previously had
determined that skimmers like those discovered in the Dallas area had been
installed in pumps at both of these gas stations. Minassian and his companion
drove to both of these stations directly from the airport; neither one attempted to
pump gas at either gas station.
The information from a confidential informant in the Dallas area thus was
independently corroborated by firsthand surveillance of Minassian’s activities by
law enforcement in the Houston area. Probable cause may arise from such a
combination of sources. E.g., Angulo, 727 S.W.2d at 280 (anonymous tip with
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independent police corroboration and surveillance based on prior investigation
provided probable cause). Accordingly, the trial court acted within its discretion in
denying Minassian’s motion to suppress on this ground.
2. Suspicious Circumstances
In addition to probable cause, law enforcement officers also must have
statutory authorization to make a warrantless arrest. Parker v. State, 206 S.W.3d
593, 596–97 (Tex. Crim. App. 2006). Section 14.03(a)(1) of the Texas Code of
Criminal Procedure authorizes law enforcement to arrest “persons found in
suspicious places and under circumstances which reasonably show that such
persons have been guilty of some felony . . . or are about to commit some offense
against the laws.” This section requires “the legal equivalent of constitutional
probable cause.” Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).
Places seldom, if ever, are suspicious in and of themselves. Dyar v. State,
125 S.W.3d 460, 464–65 (Tex. Crim. App. 2003). Instead, whether a given place
is suspicious requires a fact-specific analysis and turns on the totality of the
circumstances. Id. at 468. The proper inquiry focuses not on whether a particular
activity is innocent or criminal standing alone, but rather on the degree of
suspicion that the activity engenders when viewed in the totality of the
circumstances. Guzman, 955 S.W.2d at 87; Hall v. State, 795 S.W.2d 195, 197
(Tex. Crim. App. 1990) (per curiam). Innocent activities can provide probable
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cause when they are coupled with prior knowledge by law enforcement that
indicates a criminal offense is occurring. Stull v. State, 772 S.W.2d 449, 451–52
(Tex. Crim. App. 1989). With that knowledge, a place “may become suspicious”
and raise a reasonable belief that the person has committed a crime. Swain, 181
S.W.3d at 366; see also Goldberg v. State, 95 S.W.3d 345, 363 (Tex. App.—
Houston [1st Dist.] 2002, pet. ref’d). The same facts that support a finding of
probable cause may also support a finding that a defendant was in a suspicious
place. E.g., Dyar, 125 S.W.3d at 467–68 (same facts supported findings of
probable cause and that the defendant was in a suspicious place).
The facts in this case support a finding that the police arrested Minassian in
a suspicious place under suspicious circumstances, i.e., upon leaving the second of
two minutes-long visits to gas stations with skimmers like the ones discovered in
Dallas, and without attempting to purchase gas at either location. Minassian
argues that traveling to the two Houston-area gas stations is as consistent with
innocent activity as it is with criminal conduct. See Torres, 868 S.W.2d at 802–03
(probable cause does not exist when a defendant’s activities are as consistent with
innocent conduct as criminal conduct). He posits, for example, that he could have
visited a gas station to look at a map or GPS.
Minassian’s argument is tenable only if one considers his gas-station visits
in isolation from the remainder of the record, rather than in context. Law
11
enforcement had identified the two stations that Minassian visited as locations at
which skimmers had been installed, confirmed that these skimmers were of the
same type as those associated with an organized crime ring’s activities in the
Dallas area, suspected that Minassian was a member of this ring, and learned that
he was travelling from Dallas to Houston in apparent furtherance of the ring’s
scheme. Law enforcement surveilled Minassian when he arrived in Houston, and
observed that he went directly to one of the two stations at issue but made no
attempt to pump gas. He later went to the second station and again made no
attempt to pump gas.
Taken as a whole, the facts are not as consistent with innocent activity as
criminal conduct, and they support a finding that Minassian was arrested in a
suspicious place under circumstances that raised a reasonable belief that he had
committed a crime. See Dyar, 125 S.W.3d at 464–85 (a place may become
suspicious when circumstances raise a reasonable belief that a person has
committed a crime there); Hall, 795 S.W.2d 197 (the proper inquiry is not limited
to whether the actual activity observed is innocent or criminal but instead concerns
the degree of suspicion reasonably aroused by the observed activity); Lunde v.
State, 736 S.W.2d 665, 667 (Tex. Crim. App. 1987) (holding that another statutory
provision authorizing warrantless arrest was satisfied despite that fact that law
enforcement did not observe overtly criminal conduct). Thus, the trial court did
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not abuse its discretion in denying the motion to suppress on this ground.
3. Exigent Circumstances
So long as probable cause to make the arrest exists, a warrantless felony
arrest made in a public place need not be supported by exigent circumstances in
order to pass constitutional muster. Milton v. State, 549 S.W.2d 190, 192 (Tex.
Crim. App. 1977). Minassian contends without elaboration that no exigency
required his immediate arrest.
Hutchins’ affidavit permits a reasonable inference that Minassian and his
driver were pulled over and arrested at the second gas station or on a nearby
roadway. Both of these locations are public places. Accordingly, regardless of
any exigency, Minassian’s arrest was not constitutionally infirm, because there was
probable cause. Milton, 549 S.W.2d at 192. Section 14.03(a)(1) of the Texas Code
of Criminal Procedure, requires exigent circumstances to make a warrantless arrest
premised on suspicious activity in a suspicious place. Swain, 181 S.W.3d at 366.
Even if not in public, the possibility of escape and immediate erasure of any
evidence of wrongdoing provides the necessary exigency for an immediate arrest.
Coyne v. State, 485 S.W.2d 917, 919 (Tex. Crim. App. 1972). Thus, the trial court
did not abuse its discretion in denying the motion to suppress on this ground.
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II. Standing to Challenge the Search
Minassian next contends that law enforcement violated his Fourth
Amendment rights when they conducted a search of the laptops found within the
vehicle without a warrant. See Brown, 481 S.W.2d at 109 (probable cause is a
prerequisite to warrantless search). He relies on Riley v. California to argue that a
fact-specific basis for a search must be shown in support of any invocation of the
exception for exigent circumstances when undertaking a computer search. 134 S.
Ct. 2473, 2493–95 (2014). The State responds that Minassian lacks the standing
necessary to challenge this search and that sufficient exigent circumstances existed
for the initial search.
A. Standard of Review
To challenge the constitutionality of a search, a defendant must have “a
legitimate expectation of privacy in the place invaded.” Villarreal v. State, 935
S.W.2d 134, 138 (Tex. Crim. App. 1996). Absent a legitimate expectation of
privacy, a defendant lacks standing to raise this issue and we may not consider the
substance of his complaint. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App.
2004).
A defendant has the burden of showing his standing to challenge a search by
“proving facts establishing a legitimate expectation of privacy.” Villarreal, 935
S.W.2d at 138. Allegations in a motion to suppress are not “self-proving” and are
14
insufficient to establish standing without proof. Calloway v. State, 743 S.W.2d
645, 650 (Tex. Crim. App. 1988); accord Handy v. State, 189 S.W.3d 296, 299
(Tex. Crim. App. 2006) (assertion made in motion to suppress that the residence
searched belonged to the defendant held insufficient as “he presented no proof of
such claim”). Evidence must prove both that the defendant “exhibited an actual
subjective expectation of privacy” and that society recognizes this expectation as
an objectively reasonable one under the circumstances. Villareal, 935 S.W.2d at
138.
We consider a variety of factors to determine whether a defendant has
standing to challenge a search. See e.g., State v. Granville, 423 S.W.3d 399, 406–
08 (Tex. Crim. App. 2014) (listing multiple considerations). For example, a
defendant typically has standing to challenge the search of places and objects he
owns, including a car. Id. at 406–07. But he does not have standing to challenge
the search of a vehicle in which he is a passenger absent additional facts
demonstrating a reasonable expectation of privacy. Jones v. State, 119 S.W.3d
766, 787 (Tex. Crim. App. 2003) (fact that the defendant was a passenger in the
vehicle and had driven it on prior occasions did not suffice to prove reasonable
expectation of privacy). Proximity to the place or item searched does not confer
standing absent other indicia of ownership or other reasonable expectation of
privacy. Rawlings v. Kentucky, 448 U.S. 98, 100–06, 100 S. Ct. 2556, 2559–62
15
(1980) (examining the facts in the record to ascertain whether the defendant had a
reasonable expectation of privacy in a companion’s purse that was located between
the defendant and his companion).
As with Minassian’s challenges to his arrest, we defer to the trial court’s
factual findings and review the legal issue of standing de novo. Kothe, 152 S.W.3d
at 59.
B. Analysis
Law enforcement searched the vehicle in which Minassian was a passenger
incident to his arrest. See State v. Tereco, 467 S.W.3d 1, 5 (Tex. App.—Houston
[1st Dist.] 2015, pet. ref’d) (referring to search incident to an arrest as a well-
established exception to the warrant requirement). We have concluded that the
arrest was lawful. The search-incident-to-arrest exception to the warrant
requirement, however, does not render an immediate, warrantless search of the
laptops found in the car constitutional, and it is this further search that Minassian
challenges. See Riley, 134 S. Ct. at 2493–95.
One of the two laptops was discovered in the passenger area of the vehicle in
which Minassian was traveling as a passenger, and the other was located elsewhere
within the vehicle. In the trial court, Minassian asserted in a footnote to his motion
to suppress that the computers “were both personal computers, with personal
information, under his control.” But Minassian did not introduce any evidence in
16
support of this allegation at the suppression hearing. Nor is there any evidence of
ownership of the laptops elsewhere in the record. The argument of counsel, as
opposed to evidence, is not enough to show standing. Handy, 189 S.W.3d at 299;
Calloway, 743 S.W.2d at 650. The fact that Minassian was seated near one laptop
is not proof of ownership without evidence linking him to it. Rawlings, 448 U.S. at
100–06, 100 S. Ct. at 2559–62.
In sum, Minassian failed to carry his burden to prove a legitimate
expectation of privacy in the laptops. We hold that he failed to establish standing
to challenge law enforcement’s search of them. Granville, 423 S.W.3d at 405.
Accordingly, the trial court did not abuse its discretion in denying Minassian’s
motion to suppress on this ground. Thus, we do not reach the State’s further
contention that sufficient exigent circumstances existed for the search.
III. Ineffective Assistance
Finally, Minassian contends that his trial counsel rendered ineffective
assistance at the suppression hearing. He points to two deficiencies: (1) counsel
should have objected to introduction of the federal affidavit that detailed the results
of the search of the laptops, because this information was unlawfully obtained; and
(2) counsel erroneously advised him about the potential range of punishment.
A. Standard of Review
When, as here, ineffective assistance claims are raised in a motion for new
17
trial, rejected by the trial court, and reasserted on appeal, we “analyze the
ineffective assistance of counsel issue as a challenge to the denial of the motion for
new trial.” Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). We review the trial court’s ruling on ineffectiveness for an abuse
of discretion, viewing the evidence in a light favorable to the trial court’s ruling.
Id.
To prevail on his claim of ineffective assistance, Minassian must prove that
his lawyer’s performance fell below an objective standard of reasonableness and
that this deficiency prejudiced his defense. Lopez v. State, 343 S.W.3d 137, 142
(Tex. Crim. App. 2011). He bears the burden of proof on both issues, and failure
to make either showing by a preponderance of the evidence will defeat his
ineffectiveness claims. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
Ineffective assistance may render a plea involuntary. Labib v. State, 239
S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.). “In determining
whether a plea is voluntary, we consider the record as a whole.” Id. When the
record shows that a trial court properly admonished the defendant, the
admonishment is prima facie evidence of voluntariness, and shifts the burden to the
defendant “to show that he entered the plea without understanding the
consequences.” Id.
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We begin with a presumption that a lawyer performed within professional
norms. See Lopez, 343 S.W.3d at 142–43. We do not assume that counsel lacked
a sound reason for making the choices he did, rather the defendant must
demonstrate that no plausible reason exists for a particular act or omission. Bone
v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Without testimony from
counsel, we cannot meaningfully assess his strategic reasons for making the
choices he did. Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d); see also Lagaite v. State, 995 S.W.2d 860, 864 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d) (“When the record is silent as to
counsel’s reasons for his actions, we will not speculate as to counsel’s trial
strategy.”).
B. Analysis
1. Failure to object and to adduce evidence of standing
Reciting the results of law enforcement’s search of the laptops, Minassian
contends that his counsel should have objected to the admissibility of the part of
the federal affidavit in which Agent Hutchins avers that law enforcement
discovered about 10,000 credit card numbers in an initial search and the names
associated with them. Minassian maintains that this proof was obtained as a result
of his unlawful arrest. See Wong Sun v. United States, 371 U.S. 471, 484–88, 83 S.
Ct. 407, 415–17 (1963) (evidence illegally obtained must be excluded).
19
Minassian’s trial counsel argued to the trial court that the results that were
obtained from the laptop in the initial search were inadmissible. Counsel thus
made the trial court aware of Minassian’s objection to the admissibility of the
information from the laptop at the suppression hearing. We have held, however,
that Minassian did not establish standing to contest that search and that
Minassian’s arrest was lawful. In the context of a motion to suppress, a defendant
must develop the facts that show that the motion would have been granted. See
Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002); Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998).
The record here does not detail any facts to support such a conclusion. The
State submitted an affidavit made by Minassian’s trial counsel. In that affidavit,
counsel avers that, while on bond in this case, Minassian had been “charged with
felony theft by charging thousands of dollars on someone else’s credit card.”
There was also an allegation by the State that a second search of the laptops
pursuant to a federal search warrant revealed an additional 38,000 names and
identifying information. Counsel’s affidavit does not address the laptops or
suppression-related arguments concerning them or any consequences of admitting
ownership or possession of the laptops. Absent evidence of counsel’s strategy, we
cannot assess his reasons for his decisions in connection with the motion to
suppress or whether those reasons were deficient. Crawford, 355 S.W.3d at 199.
20
In sum, Minassian has not shown that the motion to suppress would have been
granted absent deficient performance. See Ortiz, 93 S.W.3d at 93; Jackson, 973
S.W.2d at 957. We therefore hold that the trial court did not abuse its discretion by
denying Minassian a new trial on this ground.
2. Voluntariness of the plea
Minassian alleges that his lawyer advised him that the trial court would
assess punishment of less than 20 years, and it would be more severe if he was
convicted after a trial. Minassian introduced his own declaration and affidavits
made by his wife and a lawyer representing him in California.
Minassian’s trial counsel denies these allegations. In addition, the record as
a whole controverts Minassian’s claim of involuntariness. The trial court
admonished Minassian on the record. Among other things, the court informed
Minassian that the range of punishment was not less than five years nor more than
99 years or life. It also confirmed that no one had coerced Minassian to plead
guilty, and ensured that he understood that the court would consider the full range
of punishment. Minassian initialed and signed written admonishments that
included the potential range of punishment. Minassian executed a written
confession in which he stipulated that he pleaded guilty without a recommendation
from the prosecutor regarding punishment and that the trial court would consider
the full range of punishment. The trial court signed this plea-related paperwork.
21
These admonishments present a prima facie showing of voluntariness. Labib, 239
S.W.3d at 332.
In connection with his motion for new trial, Minassian contradicted his own
representations to the court that he understood that it would consider the full range
of punishment. As the fact-finder, the trial court was entitled to weigh the
credibility of these witnesses—even though their averments were made by
declaration and affidavit—and draw its own conclusions. Id. at 334. By denying
Minassian’s motion for new trial, the court implicitly found that the version of
events averred by Minassian’s counsel was more credible, and we defer to this
implicit finding. Id. Accordingly, we hold that the trial court did not abuse its
discretion in denying Minassian a new trial on this ground.
CONCLUSION
We hold that the trial court did not abuse its discretion in denying
Minassian’s motion to suppress or his motion for new trial. We therefore affirm
the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
Publish. TEX. R. APP. P. 47.2(b).
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