Ronnie Durant Deaver v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-329-CR
RONNIE DURANT DEAVER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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OPINION
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Appellant Ronnie Durant Deaver appeals his conviction for possession of child
pornography. In one issue, he argues that his trial counsel provided him with
ineffective assistance because they failed to challenge the admissibility of the video
that contained the pornography. W e affirm.
Background Facts
On the morning of February 27, 2007, Fort W orth Police Officer Joe Shipp
learned that a fourteen-year-old girl named K.B. 1 ran away from her mother’s home
in Pasadena, Texas two days earlier and that her mother believed that she was at
Deaver’s home in Fort W orth. 2 Officer Shipp obtained Deaver’s phone number, his
address, and a detailed description of his truck, and then Officer Shipp went to
Deaver’s home. Deaver’s front porch lights were on, and a television was on inside
his home, but no one answered when Officer Shipp knocked on Deaver’s door.
Officer Shipp initially stayed at the home for approximately two hours, and on his
way back to the home later that day, he saw Deaver driving his truck away from the
home.
Deaver pulled into a convenience store, and when Officer Shipp walked up to
Deaver’s truck, he saw two children inside and discovered that one of them was K.B.
and the other one was E.D. Officer Shipp saw Deaver place a cell phone in the
center console of the truck. Officer Shipp then detained Deaver in the back of his
patrol car to investigate the offense of harboring a runaway. Deaver told Officer
Shipp that he was trying to remove K.B. from an abusive relationship and that he did
not know why he had not called the police. He also told Officer Shipp that he was
1
 To protect the privacy of the individuals involved in this appeal who are
minors, we identify them by initials only.
2
 Deaver and his six-year-old daughter, E.D., had visited K.B. and her
mother the month before.
2
asleep while Officer Shipp waited at his home for two hours, but when Officer Shipp
said that he saw Deaver’s bed inside the home (which Deaver was apparently not
lying on), Deaver said that he “didn’t know why he didn’t answer the door.” At that
time, because Officer Shipp determined that Deaver was answering his questions
falsely and because K.B. was with Deaver, he placed Deaver under arrest for
harboring a runaway.
Because Officer Shipp concluded that K.B. needed to return to her mother in
Pasadena and that there was no one available to take care of E.D., he asked Deaver
for a number that Officer Shipp could use to contact E.D.’s mother (Deaver’s ex-wife)
so that she could come pick up E.D. Deaver said that he did not know the number,
so Officer Shipp gave Deaver his cell phone from the truck to find it. Officer Shipp
eventually retrieved Deaver’s phone and saw child pornography on it, and then Fort
W orth Police Detective Sherry Kelly told Officer Shipp to transport Deaver and both
girls to her office. 3 Detective Kelly spoke with K.B. for about an hour, and then she
spoke with Deaver. K.B. apparently told Detective Kelly about a sexual relationship
with Deaver. Deaver denied having such a relationship but told Detective Kelly
about other aspects of his relationship with K.B. and her mother, Audrey (or
“Auddie”),4 and he told Detective Kelly, among other things, that he had visited K.B.
3
 More details about the discovery of child pornography on Deaver’s phone
are set forth below.
4
 Deaver met Audrey on a telephone chat line a few years before his arrest
in this case. Audrey sometimes watched E.D. for Deaver before Audrey and K.B.
3
and Audrey the previous weekend, that K.B. and Audrey had a strained relationship,
and that K.B. had put some videos on his cell phone but that he did not know of any
pornographic videos on his phone.
Eventually, Detective Kelly obtained a warrant to search Deaver’s cell phone.
Fort W orth Police Detective Troy Lawrence, who testified as an expert for the State
at trial, received the warrant and extracted videos from the phone, including the
fifteen-second pornographic video at issue in this case—created one night in
January 2007—of K.B. “exposing her unclothed breasts and genitalia.” 5 K.B.,
Audrey’s older daughter named Maygan, and E.D. were in the room in Audrey’s
apartment when the video was created.
In December 2007, a Tarrant County grand jury indicted Deaver with
possession of child pornography. See Tex. Penal Code Ann. § 43.26(a) (Vernon
2003).6 The parties filed various pretrial documents, and then Deaver’s trial began
in September 2008. Two attorneys appeared as Deaver’s counsel. After the jury
found Deaver guilty and heard evidence during the punishment phase of the trial
moved to Pasadena. Once they moved to Pasadena, Deaver and E.D. visited them
about once a month.
5
 Deaver has not contested on appeal that the video at issue contained child
pornography, that it came from and was recorded by his cell phone, or that he knew
that the video was stored on his phone.
6
 Possession of child pornography is a third-degree felony that carries a
punishment range of two to ten years’ confinement. Tex. Penal Code Ann.
§§ 12.34(a), 43.26(d) (Vernon 2003).
4
about various aspects of his background, it assessed six-and-a-half years’
confinement. Deaver filed his notice of appeal.
Ineffective Assistance of Counsel
In one issue, Deaver argues that his trial counsel were ineffective under the
Texas and federal constitutions because they did not object to the admission of the
video extracted from Deaver’s cell phone on the basis of an allegedly
unconstitutional search of the phone. 7 Specifically, Deaver contends that his
counsel were required to use all legal means to have the video suppressed and that
the evidence clearly indicates that Officer Shipp searched his cell phone to find the
video and did not have a warrant or any other legal justification to do so.
Standard of review and applicable law
The standard for ineffective assistance of counsel is the same under the
Texas and federal constitutions. Hernandez v. State, 726 S.W .2d 53, 56–57 (Tex.
Crim. App. 1986); Lemmons v. State, 75 S.W .3d 513, 526 (Tex. App.—San Antonio
2002, pet. ref’d). To establish ineffective assistance of counsel, Deaver must show
by a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable probability
that, but for counsel’s deficiency, the result of the proceeding would have been
different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
7
 After a voir dire examination of the State’s witness, Deaver’s counsel
objected to the video’s admission on nonconstitutional grounds, including the video’s
alleged noncompliance with the best evidence rule.
5
(1984); Salinas v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W .3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W .3d
808, 812 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look to the
totality of the representation and the particular circumstances of each case.
Thompson, 9 S.W .3d at 813. The issue is whether counsel’s assistance was
reasonable under all the circumstances and prevailing professional norms at the
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing
court indulges a strong presumption that counsel’s conduct fell within a wide range
of reasonable representation. Salinas, 163 S.W .3d at 740; Mallett, 65 S.W .3d at 63.
A reviewing court will rarely be in a position on direct appeal to fairly evaluate the
merits of an ineffective assistance claim. Thompson, 9 S.W .3d at 813–14. “In the
majority of cases, the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W .3d at 740
(quoting Mallett, 65 S.W .3d at 63).
To overcome the presumption of reasonable professional assistance, “any
allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson,
9 S.W .3d at 813). It is not appropriate for an appellate court to simply infer
6
ineffective assistance based upon unclear portions of the record. Mata v. State, 226
S.W .3d 425, 432 (Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors were
so serious that they deprived the defendant of a fair and reliable trial. Strickland, 466
U.S. at 687, 104 S. Ct. at 2064. In other words, Deaver must show there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. See id. at 694, 104 S. Ct. at 2068. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness
of the proceeding in which the result is being challenged. Id. at 697, 104 S. Ct. at
2070.
To succeed on his ineffective assistance claim based on counsel’s alleged
failure to attempt to suppress evidence, Deaver must rebut the presumption of
proper police conduct and prove that a motion to suppress would have been
granted. See Jackson v. State, 973 S.W .2d 954, 956–57 (Tex. Crim. App. 1998)
(affirming the appellant’s conviction when the facts surrounding the search were not
sufficiently developed) (citing Jackson v. State, 877 S.W .2d 768 (Tex. Crim. App.
1994)); see also Ortiz v. State, 93 S.W .3d 79, 93 (Tex. Crim. App. 2002), cert.
denied, 538 U.S. 998 (2003). In other words, “[t]o prevail on his claim of ineffective
assistance of counsel[,] [Deaver has] the burden to develop facts and details of the
search sufficient to conclude that the search was invalid,” and mere “questions about
7
the validity of the search” are not enough. Jackson, 973 S.W .2d at 957; see Lesso
v. State, 295 S.W .3d 16, 21 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); Hollis
v. State, 219 S.W .3d 446, 456 (Tex. App.—Austin 2007, no pet.) (reiterating that the
appellant has the burden of developing facts about the search).
Analysis
Deaver’s contention that his trial counsel should have moved to suppress the
cell phone video because it was discovered during an allegedly unauthorized search
is, of course, dependent on his establishing that a search in fact occurred. See
Jackson, 973 S.W .2d at 957. The State asserts, in part, that the record does not
provide sufficient evidence that Officer Shipp searched Deaver’s phone. W e agree
with the State.
A “search” occurs when an expectation of privacy that society is prepared to
consider reasonable is infringed. Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct.
2038, 2042 (2001); United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652,
1656 (1984). If an item is in plain view, neither its observation nor its seizure
involves any invasion of privacy. Hill v. State, 303 S.W .3d 863, 873 (Tex. App.—Fort
W orth 2009, pet. ref’d); see Walter v. State, 28 S.W .3d 538, 541 (Tex. Crim. App.
2000); see also McCall v. State, 540 S.W .2d 717, 720 (Tex. Crim. App. 1976)
(stating that it “is simply not a search to observe that which is open to view”); Duhig
v. State, 171 S.W .3d 631, 636–37 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)
(explaining that a “search implies a prying into hidden places for that which is
8
concealed” and holding that a plain-view observation of marijuana and drug
paraphernalia was not a search).
The rationale of the plain view doctrine is that if contraband is in open view
and is observed by a police officer from a lawful vantage point, there has been no
invasion of a legitimate expectation of privacy and thus no “search” within the
meaning of the Fourth Amendment. Hill, 303 S.W .3d at 873; see Illinois v. Andreas,
463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983). An object is seized in plain view
if three requirements are met. Hill, 303 S.W .3d at 873; see Keehn v. State, 279
S.W .3d 330, 334 (Tex. Crim. App. 2009). First, law enforcement officials must
lawfully be where the object can be “plainly viewed.” Keehn, 279 S.W .3d at 334
(citing Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2311 (1990)).
Second, the “incriminating character” of the object in plain view must be
“immediately apparent” to the officials. Id. Third, the officials must have the right to
access the object. Id.
Officer Shipp’s testimony during the State’s direct examination at trial
concerning what happened when he gave Deaver’s cell phone to Deaver to find
E.D.’s mother’s number is as follows:
Q. And at that point what did he do?
A. He said he was going to get me the phone number so I
could contact the mother. He started punching the buttons on it like
what I thought was scrolling through a phone list to get a phone
number. This went on for about 45 seconds.
9
Q. Okay. Did you become concerned that something was
being deleted or making contact? W ere you concerned?
A. Yes, ma’am. I -- I looked back there and it looked -- when
someone is going through a phone list, they are hitting a phone list over
and over and over, and he was hitting multiple buttons. . . .
....
A. At that point I was afraid he may have been making a text
message to someone in regards to, “I’m being arrested” or something
like that, looking for outside help. So for officer safety reasons, I went
to get the phone from him.[ 8 ]
Q. When you got the phone back, did you discover there were
images on the phone?
A. Yes, ma’am.[9 ] [Emphasis added.]
As can be seen, this evidence does not explicitly reveal what actions Officer Shipp
took, if any, between the time that he regained control of Deaver’s phone and the
time that he discovered pornography on the phone.
8
 Deaver has not contested the legal justification of Officer Shipp’s retrieval
of Deaver’s cell phone for officer safety reasons or his counsel’s trial strategy or
conduct with respect to that retrieval.
9
 The State concedes that the “images” that Officer Shipp saw were
pornographic. Although the record does not explicitly state that Officer Shipp saw
pornography on Deaver’s cell phone, the record does reveal that after seeing the
“images” on Deaver’s phone, Officer Shipp seized the phone and directed dispatch
to call the Crimes Against Children Unit. Detective Kelly, who was assigned to that
unit, told officers to transfer Deaver, E.D., and K.B. to the unit in separate vehicles
because she had concerns of “additional abuse” involving K.B. that were unrelated
to her being a runaway. Detective Kelly then asked Deaver about nude images of
K.B. during Deaver’s interrogation.
10
Detective Lawrence and Deaver’s expert—Daniel Fitzgerald—testified that
there is no pornography on the first frame of the video at issue, so the pornographic
nature of the video would not be immediately discernable if someone was just
scrolling through the various videos on Deaver’s phone. In other words, to find that
the video contains pornography, it must actively be played. Deaver asserts that this
is evidence that Officer Shipp could not have seen the pornographic video without
searching the phone to play the video. But the evidence does not preclude the
possibility that Deaver played the video—advertently or inadvertently (for instance,
while trying to delete the video before giving the phone back to Officer Shipp, as the
State theorizes) 10 —and that Officer Shipp immediately saw the video playing upon
retrieving the phone from Deaver. The experts could not testify that Officer Shipp
searched Deaver’s phone because they were not present when Officer Shipp saw
the child pornography. The crux of the experts’ testimony is only that the cell phone
video had to be played to see pornography; the experts could not determine who
played the video.
If Officer Shipp was initially justified in gaining control over Deaver’s phone for
safety reasons (Deaver has not argued that he was not), and if Officer Shipp
immediately saw the pornographic video upon controlling the phone (as may or may
10
 The evidence showed that Deaver’s cell phone saved videos in numerical
sequential order. The pornographic video at issue was “Video 002.” Video 001
(which had undeterminable content) was not on the phone when Officer Shipp
regained control of it.
11
not have happened based on the limited, unclear record), 11 then a motion to
suppress would not have succeeded because the video was in plain view, no
invasion of Deaver’s privacy could be shown, and no search could have therefore
occurred. See Keehn, 279 S.W .3d at 334; Walter, 28 S.W .3d at 541; Hill, 303
S.W .3d at 873. Because Deaver therefore cannot demonstrate, on this ambiguous
record, that his counsel’s motion to suppress would have been successful, we
overrule his sole issue of ineffective assistance. See Strickland, 466 U.S. at 687,
104 S. Ct. at 2064; Jackson, 973 S.W .2d at 956–57; see also Mata, 226 S.W .3d at
432 (explaining that we cannot infer ineffective assistance from unclear portions of
the record).
Conclusion
Having overruled Deaver’s only issue, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DAUPHINOT, J. filed a concurring opinion.
PUBLISH
DELIVERED: April 22, 2010
11
 Officer Shipp might in fact have found the video while combing through
all parts of Deaver’s phone upon gaining control of it to look for evidence regarding
the harboring of a runaway offense, to relieve his safety concerns, or for other
reasons. However, the record at trial is simply too undeveloped to prove that this
occurred. See Jackson, 973 S.W .2d at 956–57.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-329-CR
RONNIE DURANT DEAVER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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CONCURRING OPINION
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The only evidence before this court is that the State and the defense experts
viewed the pornographic images at the same time. There is no evidence that Officer
Shipp ever viewed pornographic images, only images. Officer Lawrence viewed the
contents of the cell phone pursuant to a search warrant, which was never
challenged. I would therefore hold that the record is inadequate to show that trial
counsel rendered ineffective assistance of counsel. Trial counsel had no opportunity
to explain his trial strategy, but it is certainly reasonable that a lawyer would not want
to call the jury’s attention to the existence of pornography when the State had not
proved its existence. Nor did trial counsel have the opportunity to explain his
strategy regarding the absence of a motion to suppress. But it is reasonable trial
strategy to wait until trial to object to evidence because the State has no appeal of
an evidentiary ruling made during trial.
Because the trial record is inadequate to support a claim of ineffective
assistance of counsel, I would not assume what the record does not clearly reflect.
I therefore concur in the result only.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: April 22, 2010
2