Leonard Jay Kane v. State ( 2012 )

NO. 07-11-00450-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
SEPTEMBER 26, 2012
LEONARD JAY KANE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;
NO. 8890; HONORABLE STEVEN RAY EMMERT, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Leonard Jay Kane appeals his conviction of possession of
methamphetamine and resulting sentence of forty years of imprisonment. Through one
issue, appellant contends he received ineffective assistance of counsel at trial. We will
affirm.
Background
Appellant was indicted in May 2011 for possession of methamphetamine in an
amount of more than one gram but less than four grams. 1 The indictment also included
two enhancement paragraphs setting forth appellant’s two previous felony convictions.
At trial, appellant plead “true” to each enhancement.
The State called several witnesses at trial to show appellant possessed
methamphetamine in April 2010. Officers testified the Pampa police crime stoppers
coordinator received a tip regarding narcotics at a local residence. Testimony showed
officer Chad Johnson went to the residence to check on the possible presence of a
methamphetamine lab. Johnson saw appellant and his sister, Jane, sitting on the porch
of the residence along with two other individuals. By the time Johnson left his vehicle,
everyone had gone inside. He went to the door and knocked. Jane and another
individual answered the door. After Johnson explained he was there to investigate a tip
that a methamphetamine lab was present in the home, Jane let Johnson into the house
and took him back to appellant’s room. Appellant and two other people were in the
room. There, Johnson saw drug paraphernalia including pipes. He also heard drawers
opening and shutting and doors closing in other areas of the house. As a result, he
asked everyone to leave the home.
Jane told Johnson appellant and his brother Jerry lived at the house. She also
said she herself lived there at times and she confirmed she owned the house. Jane
provided the officer with oral and written consent to search the house. Officers smelled
1
Tex. Health & Safety Code Ann. § 481.115(c) (West 2011).
2
chemicals in appellant’s room and located items consistent with the manufacture of
methamphetamine there. Officers also found a bag with pink residue believed to be
methamphetamine in the bathroom near appellant’s bedroom. Photographs showing
the rooms and the items found there were admitted at trial. Appellant told officers
everything in the house was his.
The defense rested without presenting evidence at either the guilt-innocence or
punishment stages of trial. The jury convicted appellant as charged in the indictment
and punishment was assessed as noted. This appeal followed.
Analysis
Appellant asserts his trial counsel rendered ineffective assistance because he did
not adequately prepare and present appellant’s defense. He argues his trial counsel
should have filed a motion to suppress the evidence found during the search of the
residence because Jane did not have authority to consent to the search and it was his
trial counsel’s duty to bring that inquiry to the trier of fact.
The adequacy of defense counsel's assistance is based on the totality of the
representation rather than isolated acts or omissions. Thompson v. State, 9 S.W.3d
808, 814 (Tex.Crim.App. 1999). Although the constitutional right to counsel ensures the
right to reasonably effective counsel, it does not guarantee errorless counsel whose
competency or accuracy of representation is judged by hindsight. Robertson v. State,
187 S.W.3d 475, 483 (Tex.Crim.App. 2006).
3
Strickland v. Washington is the seminal case setting forth the standard for
ineffective assistance of counsel claims under the United States Constitution. 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The Court in Strickland established a
two-pronged test for analyzing a claim of ineffective assistance of counsel. Reversal
requires an appellant demonstrate (1) counsel's representation fell below an objective
standard of reasonableness and (2) the deficient performance prejudiced the appellant.
466 U.S. at 687, 104 S.Ct. at 2064. See also Hernandez v. State, 726 S.W.2d 53, 54-55
(Tex.Crim.App. 1986) (applying Strickland standard under Texas constitution).
The first prong of the Strickland test requires an appellant prove that counsel
made such serious errors that he did not function as the "counsel" guaranteed by the
Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. 2064. Appellant must show
that counsel's performance was unreasonable under prevailing professional norms and
that the challenged action was not sound trial strategy. 466 U.S. at 689-90, 104 S.Ct. at
2065-66. The second Strickland prong requires an appellant to "show a reasonable
probability that, but for his counsel's unprofessional errors, the result of the proceeding
would have been different." Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002).
"Reasonable probability" means probability of a degree sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
An appellant bears the burden of proving ineffective assistance of counsel by a
preponderance of the evidence. Mitchell, 68 S.W.3d at 642. Review of counsel's
performance is highly deferential and a strong presumption exists that counsel's
conduct fell within a wide range of reasonable professional assistance.
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65 S.W.3d 59, 63 (Tex.Crim.App. 2001); see Strickland, 466 U.S. at 689, 104 S.Ct. at
2065 (noting there are countless ways to provide effective assistance in any given
case). To overcome the presumption of reasonable professional assistance, any
allegation of ineffectiveness must be firmly rooted in the record. Thompson, 9 S.W.3d at
813-14. In the majority of cases, the record on direct appeal is inadequate to show that
counsel's conduct fell below an objectively reasonable standard of performance; thus,
the better course is to pursue the claim in habeas proceedings. Mitchell, 68 S.W.3d at
642. Absent evidence of counsel's reasons for the challenged conduct, we will not
conclude the challenged conduct constituted deficient performance unless the conduct
was so outrageous that no competent attorney would have engaged in it. Garcia v.
State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001).
The record before us does not demonstrate counsel’s performance fell below an
objective standard of reasonableness. Appellant’s trial counsel cross-examined some
of the State’s witnesses and made appropriate objections and argument during trial.
The failure to file a suppression motion does not necessarily constitute ineffective
assistance of counsel. Yuhl v. State, 784 S.W.2d 714, 717 (Tex.App.—Houston [14th
Dist.] 1990, pet. ref’d); Ellis v. State, 677 S.W.2d 129, 134 (Tex.App.—Dallas 1984, writ
ref’d). The same is true of a decision not to make a particular argument before the jury.
See generally Ramirez v. State, 229 S.W.3d 725, 730-31 (Tex.App.—San Antonio
2007, no pet.) (substance of counsel’s argument is inherently a trial strategy).
5
The record does not explain why trial counsel did not file a motion to suppress or
present to the jury the argument Jane did not have authority to consent to the search. 2
Johnson v. State, 233 S.W.3d 109, 116 (Tex.App.—Houston [14th Dist.], 2007, no pet.).
Allegations of ineffective assistance of counsel must be firmly founded in the record.
Thompson, 9 S.W.3d at 813. Such a decision is not outside the range of reasonable
professional assistance and nothing in the record suggests otherwise. We also do not
know whether trial counsel was aware of other evidence not presented or knew of other
factors bearing on the admissibility of the seized evidence that would have made
fruitless the pursuit of a motion to suppress or a lack of authority to consent argument
We will not speculate on the reasons behind trial counsel’s actions. Jackson v. State,
877 SW.2d 768, 771 (Tex.Crim.App. 1994).
Other Texas courts have declined to find ineffective assistance of counsel in
similar circumstances. In Greene v. State, 124 S.W.3d 789, 791-92 (Tex.App.--Houston
[1st Dist.] 2003, pet. ref'd), the court concluded that because there was nothing in the
record to show why counsel chose not to attempt to have the in-court identification
suppressed, appellant could not meet the first prong of the Strickland test. Greene, 124
S.W.3d at 791-92, citing Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App. 2002). The
2
Appellant does not discuss the necessity of a jury instruction pursuant to Article
38.23 of the Code of Criminal Procedure for the jury to be able to consider any fact
questions concerning the search and Jane’s authority to consent to it. See Tex. Code
Crim. Proc. Ann. art 38.23 (West 2011) (providing “[i]n any case where the legal
evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has
a reasonable doubt, that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such evidence so obtained”);
Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App. 2007).
6
same conclusion was reached in Davis v. State, 930 S.W.2d 765, 769 (Tex.App.--
Houston [1st Dist.] 1996, pet. ref'd), in which the court held that appellant failed to
satisfy the first prong of Strickland because, without testimony by trial counsel, the court
could not meaningfully address his reasons for not filing a motion to suppress. See also
Whitney v. State, 190 S.W.3d 786, 788 (Tex.App.--Fort Worth 2006, no pet.) (finding
appellant failed to meet the first prong of Strickland where the record was silent
regarding counsel’s reasons for failing to request transcription of record of the
punishment hearing); Hardin v. State, 951 S.W.2d 208, 211 (Tex.App.—Houston [14th
Dist.] 1997, no pet.) (rejecting claim for ineffective assistance when trial counsel failed
to request article 38.23 instruction).
Appellant has not overcome the presumption that trial counsel made the
decisions of which he complains in the exercise of reasonable professional judgment.
Appellant thus has not met the first prong of the Strickland test. 3 We overrule
appellant's issue and affirm his conviction and sentence.
James T. Campbell
Justice
Do not publish.
3
We need not examine both Strickland prongs if one cannot be met. Blumenstetter v.
State, 135 S.W.3d 234, 242 (Tex.App.—Texarkana 2004, no pet.), citing Strickland, 466
U.S. at 697.
7