Fusilier, Roman v. State ( 2006 )

Affirmed and Memorandum Opinion filed April 6, 2006

Affirmed and Memorandum Opinion filed April 6, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01093-CR

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ROMAN FUSILIER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1236639

M E M O R A N D U M   O P I N I O N

Appellant Roman Fusilier was convicted of possession of marijuana, pleaded true to one enhancement paragraph for a previous conviction for marijuana possession, and was sentenced to two years= probation and a $1,000 fine.  In five points of error, appellant claims that the trial court erred in quashing a subpoena and refusing to rule on several motions and that he received ineffective assistance of counsel.  We affirm.

                                                  Background

Deputy Rex Evans of the Harris County Sheriff=s Department pulled appellant=s car over after observing appellant fail to come to a complete stop at two stop signs. When Deputy Evans approached the driver=s side window of appellant=s car, he smelled what he believed to be the odor of marijuana coming from the car. Deputy Evans arrested appellant, searched appellant and his car, and recovered bags of marijuana inside the car and inside appellant=s shoe.

About a week before trial, the trial court appointed new counsel for appellant. Second counsel issued a subpoena for Deputy Evans=s disciplinary records.  The State filed a motion to quash the subpoena, which the trial court granted.  The jury convicted appellant of marijuana possession, and this appeal followed.

                                                      Analysis

In his first point of error, appellant asserts that the trial court erred in quashing his subpoena for Deputy Evans=s disciplinary records.  Appellant asserts that he Ahas information that the deputy in question has a reputation in law-enforcement circles as an over-zealous officer that regularly engages in racial profiling.@  Thus, according to appellant, disciplinary records proving this allegation would have supported his trial theory that Deputy Evans stopped him because appellant is African-American and that Deputy Evans planted the drugs.  Appellant claims he was entitled to this evidence under Brady v. Maryland, 373 U.S. 83 (1963).

A criminal defendant has no general right to discovery of evidence in the State=s possession.  Cruz v. State, 838 S.W.2d 682, 685 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d).  Rather, decisions about pretrial discovery of evidence are generally within the trial court=s discretion.  Id. However, under Brady, the prosecution must disclose material evidence that is favorable to the defendant. See Brady, 373 U.S. at 87; Cruz, 838 S.W.2d at 685.  To establish a Brady violation, the defendant must present evidence that (1) the prosecution suppressed or withheld evidence, (2) this evidence would have been favorable to the defendant, and (3) this evidence would have been material.  Cruz, 838 S.W.2d at 685.

Appellant presented no evidence that any such disciplinary records showing racial profiling exist, much less that they would be favorable and material. Appellant also has no evidence of his Ainformation@ that Deputy Evans Aregularly engages in racial profiling.@  In lieu of providing evidence, appellant speculates that the information in Deputy Evans=s file must have been favorable to him or the State would not have filed a motion to quash.  AWe will not order the State to produce information under Brady based merely on Appellant=s speculation that the requested information contained exculpatory evidence.@  Page v. State, 7 S.W.3d 202, 206 (Tex. App.CFort Worth 1999, pet. ref=d); accord Michaelwicz v. State, No. 03-04-00019-CR, __ S.W.3d __, 2006 WL 263579, at *10 (Tex. App.CAustin Feb. 2, 2006, no pet. h.).  We overrule appellant=s first point of error.

In his second, third, and fourth points of error, appellant claims his that his second attorney provided ineffective assistance of counsel.  Ineffective assistance claims are governed by the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, the appellant must show (1) that trial counsel=s representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).

Appellant claims counsel was ineffective because she failed to issue a proper subpoena for Deputy Evans=s disciplinary records.  We have already concluded that appellant made no showing that he was entitled to these records; thus, whether counsel made technical errors in the subpoena process is irrelevant.  Appellant further complains that counsel should have moved for in camera inspection of the records.  To succeed on an ineffective assistance claim based on failure to file a motion, the appellant must prove, as an initial matter, that the motion would have been successful.  See Akin v. State, 981 S.W.2d 297, 301 (Tex. App.CTexarkana 1998, no pet.); see also Melancon v. State, 66 S.W.3d 375, 379 n.5 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d).  Because appellant presented no evidence that he was entitled to Deputy Evans=s disciplinary records, he cannot show that the trial court would have granted a motion for in camera inspection.  See Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987); Ransonette v. State, 550 S.W.2d 36, 40 (Tex. Crim. App. 1976). Finally, appellant asserts that counsel was ineffective because she did not introduce other evidence of Deputy Evans=s bias or evidence of the racial composition of the neighborhood in which he was stopped.  Appellant offers no proof that evidence of Deputy Evans=s alleged bias even exists, nor does he demonstrate the neighborhood=s racial composition or how it would have helped his case.  A[S]ince appellant does not explain what . . . evidence his trial counsel should have proffered, we cannot possibly find that a failure to proffer such evidence constituted ineffective assistance.@  Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992); see also McCain v. State, 995 S.W.2d 229, 246 (Tex. App.CHouston [14th Dist.] 1999, pet. denied, untimely filed) (finding no ineffective assistance based on failure to subpoena jail records when court lacked evidence of what records would have shown and thus could not determine if records were helpful).  Appellant has not proven that his counsel was ineffective, and we overrule his second, third, and fourth points of error.

In his fifth point of error, appellant complains that the trial court should have ruled on a series of pretrial motions filed by his first counsel. Appellant does not discuss whether these motions were meritorious or whether granting them would have helped his case.  Rather, he claims the trial court=s refusal to rule on them deprived him of due process. Even assuming appellant=s motions had merit, appellant fails to show he presented these motions to the trial court.  A motion must be presented to the trial court to preserve a complaint for appellate review, and presentment means more than mere filing.  Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  The movant must make the trial judge aware of the motion by calling the court=s attention to it and requesting a ruling.  Id.  Appellant asserts in his brief that his second counsel Adid in fact seek a ruling,@ but he offers no record citation for this proposition, and we can find nothing in the record that supports this assertion.  The trial judge specifically noted in a pretrial hearing that he was not ruling on the motions because they had not been presented, and appellant=s counsel did not dispute the trial judge=s comment or request a ruling.  Because appellant has not shown that his motions were presented to the trial court, we overrule his fifth point of error.

Having overruled appellant=s points of error,^[1] we affirm the trial court=s judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed April 6, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  In addition to his five points of error, appellant lists three Aissues@ at the beginning of his brief.  However, because appellant neither discusses these issues again nor provides any clear arguments or citations to authority supporting them, he has waived these issues on appeal.  See Tex. R. App. P. 38.1(h).