Alcaraz, Jose Luis v. State

Affirmed and Memorandum Opinion filed January 20, 2004

Affirmed and Memorandum Opinion filed January 20, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00782-CR

____________

JOSE LUIS ALCARAZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 884,151

M E M O R A N D U M O P I N I O N

A jury convicted appellant of possession with intent to deliver a controlled substance and assessed punishment at eleven years= confinement in the Texas Department of Criminal Justice, Institutional Division, and fined him $10,000.  Appellant brings four issues on appeal: (1) whether a search of appellant=s car, arguably authorized by the Texas Alcoholic Beverage Code simply because he held an alcoholic beverage license, was constitutional; (2) whether the trial court erred in instructing the jury to consider evidence obtained in that search; (3) whether the court erred in overruling appellant=s motion for instructed verdict because evidence obtained in that search should have been suppressed; and (4) whether appellant received ineffective assistance of counsel.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Viewed in the light most favorable to the prosecution, the facts of the case are as follows:

On August 3, 2001, undercover officers Antonio Gracia and Stephen Kwiatkowski of the Houston Police Department narcotics task force went to the El Tenampa Nightclub to investigate narcotics activity. Appellant owned the bar. 

Outside the bar, the officers approached an individual named Juan Cuellar.  Officer Kwiatkowski asked Cuellar for a couple packages of Asoda,@ street terminology for cocaine.

Cuellar invited the officers into the bar and spoke briefly with the bartender.  Cuellar returned to the officers and told them he could obtain the cocaine, so the officers gave him two marked twenty-dollar bills. Cuellar gave the money to the bartender, who gave Cuellar two bottle caps that had been individually folded over. Cuellar then took the officers outside the bar and gave them the bottle caps.  Officer Kwiatkowski immediately opened the bottle caps and found that each contained a small plastic baggie containing cocaine.

Cuellar then left the bar, and the officers signaled for him to be arrested.  The officers returned to the bar and waited while a uniformed raid team entered and arrested the bartender.             

As the raid team was arresting the bartender, Officer Gracia observed appellant pull two folded bottle caps from his pocket.  Officer Gracia then instructed the raid team to arrest appellant.  They handcuffed appellant and placed him in the back of a patrol car.  The bottle caps recovered from appellant contained approximately 1.5 grams of cocaine.

While appellant was in the patrol car, Sergeant John Yencha asked appellant if they could search his truck, which was parked in a fenced-in area attached to the bar.  Appellant said that he could, and told Officer Yencha where to find the keys in the bar.  The search yielded thirty-one small baggies of cocaine, identical to those contained inside the bottle caps.  The cocaine recovered from appellant=s truck weighed approximately 24.3 grams. 

Appellant was charged with possession with intent to deliver a controlled substance weighing more than 4 grams and less than 200 grams.  Appellant filed a pre-trial motion to suppress evidence of both the cocaine recovered from him and from his truck.  The trial court denied the motion.  The court allowed appellant to submit to the jury the issue of whether the search of his person was based on probable cause, but the court held that if there was probable cause to search appellant=s person, then the search of his truck was permitted as a matter of law under sections 101.04 and 101.71 of the Texas Alcoholic Beverage Code.

DISCUSSION

On appeal, appellant contends the following: (1) the search, performed pursuant to the Texas Alcoholic Beverage Code, which allowed peace officers to search the vehicle of a holder of an alcoholic beverage license, was unconstitutional; (2) the trial court erred in instructing the jury to consider evidence obtained in that search; (3) the court erred in overruling appellant=s motion for instructed verdict because evidence obtained in that search should have been suppressed; and (4) appellant received ineffective assistance of counsel.

I.        Validity of the Search.

We turn first to appellant=s claim that the trial court erred as a matter of law in admitting the evidence obtained in the search of his truck.  The trial court determined that the search was a valid warrantless search authorized by both sections 101.04 and 101.71 of the Texas Alcoholic Beverages Code.  Section 101.04 provides, ABy accepting a license of permit, the holder consents that . . . a peace officer may . . . inspect the premises for the purpose of performing any duty imposed by this code.@  Tex. Alco. Bev. Code ' 101.04.  The definition of Apremises@ includes vehicles.  Id. ' 11.49.  Section 101.71 provides, ANo holder of a permit . . . may refuse to allow . . . a peace officer, on request, to make a full inspection, investigation, or search of any vehicle.@  Id. ' 101.71.  Appellant contends the search was unreasonable and a violation of the Texas and United States Constitutions.

A.      Possible Waiver of the Argument.

The State asserts three reasons that we should not address appellant=s constitutional challenge: (1) appellant failed to properly preserve the record; (2) appellant waived his complaint by not timely objecting to the evidence at trial; and (3) appellant consented to the search of his truck. Because the constitutionality of a statute is not to be addressed unless absolutely necessary, we must first address these contentions.  See Briggs v. State, 740 S.W.2d 803, 806B07 (Tex. Crim. App. 1987).

First, the State argues that the record is inadequate to review the merits of appellant=s position.  It notes that no record exists of any hearing on the motion to suppress.  But, the State also points out that the parties stipulated to the Afacts . . . which were considered by Judge Frank Price before the court ruled on Defendant=s Motion to Suppress Evidence Illegally Obtained.@  Appellant thus presented a sufficient record for review because we know what facts the court had before it when it considered the motion to suppress.  See Moore v. State, 999 S.W.2d 385, 398 (Tex. Crim. App. 1999).

Second, the State argues that appellant waived the issue by failing to object at trial.  But, appellant secured an adverse ruling on his pre-trial motion to suppress.  As a result, he did not have to object at trial.  See Gearing v. State, 685 S.W.2d 326, 329 (Tex. Crim. App. 1985) (AIt is settled that when a pre-trial motion to suppress evidence is overruled, the accused need not subsequently object to the admission of the same evidence at trial in order to preserve error.@).  The only exception to this rule arises when a defendant affirmatively states that he has no objection at trial.  Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992).  That did not happen here.

Third, the State argues that the trial court=s ruling should be upheld because appellant voluntarily consented to the search.  The State correctly points out that some evidence supports a finding that appellant voluntarily consented.  However, there also is some evidence that appellant did not consent.  In this situation, appellant would be entitled to a jury instruction on consent.  See Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986).  But the trial court did not submit one.  Instead, the trial court instructed the jury that if there was probable cause to arrest appellant, it was not necessary to consider whether appellant consented to the search of his truck.  If the evidence was not admissible as a matter of law under section 101.71, then the trial court erred in denying an instruction on consent.  That requires us to turn to section 101.71 and determine if it is constitutional.

B.      Constitutionality of the Search under Sections 101.04 and 101.71.

Appellant challenges the constitutionality of sections 101.04 and 101.71 under both the Texas and United States Constitutions.  But, because he cited only precedent concerning the United States Constitution and did not argue that the Texas Constitution affords him greater rights, we will not distinguish between them.  See Santikos v. State, 836 S.W.2d 631, 634 (Tex. Crim. App. 1992).  Our decision is supported by case law from the Court of Criminal Appeals, which has not distinguished between the Texas and United States Constitutions in addressing constitutional challenges to section 101.04 of the Texas Alcoholic Beverage Code.  Id. at 623 n.1; see also Crosby v. State, 750 S.W.2d 768, 771B80 (Tex. Crim. App. 1987);  McDonald v. State, 778 S.W.2d 88, 90B91 (Tex. Crim. App. 1989).

Appellant also does not specify whether he is making an as-applied challenge or a facial challenge to sections 101.04 and 101.71.^[1]  In an as-applied challenge, the challenger must show that the statute was unconstitutionally applied to the challenger.  Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989).  In a facial challenge, the challenger must show that the statute would be invalid under any set of circumstances.  Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992).  In order to have standing for a facial challenge, the challenger must show that the statute was unconstitutional as applied to him.^[2]  Id. We will therefore first address whether sections 101.04 and 101.71 were unconstitutional as applied to appellant.

The Supreme Court has established three standards for evaluating the validity of warrantless administrative searches: (1) the regulatory scheme must serve a substantial government interest; (2) the warrantless inspection must be necessary to further that regulatory scheme; and (3) the inspection program must provide an adequate substitute for a warrant.  New York v. Burger, 482 U.S. 691, 702 (1987).  Because appellant does not argue that the first two standards are not met, we are only confronted with the third standard.

For an inspection program to provide an adequate substitute for a warrant, it must be limited in Atime, place, and scope.@  Id. at 703; see also McDonald v. State, 778 S.W.2d 88, 90 (Tex. Crim. App. 1989).  This search was conducted during appellant=s normal business hours and was limited to appellant=s truck, located in the bar=s parking lot, where the officers reasonably could have expected narcotics to be found.  The scope of the search was limited to the detection of possession of narcotics on the premises, a violation of the Texas Alcoholic Beverages Code.  See McDonald, 778 S.W.2d at 90B91; Tex. Alco. Bev. Code ' 104.01(9).  The officers were not conducting an exploratory search without regard for the intended purpose of the statute.  See McDonald, 778 S.W.2d at 91.  Thus, the time, place, and scope of the search were limited, and therefore, despite the broad language of sections 101.04 and 101.71, they were not arbitrarily or unreasonably applied to appellant.  See Santikos v. State, 836 S.W.2d 631, 634 (Tex. Crim. App. 1992); McDonald, 778 S.W.2d at 91.  

Having found that sections 101.04 and 101.71 were not unconstitutional as applied to appellant, we need not determine if either section is facially unconstitutional.  See Santikos, 836 S.W.2d at 634.  We overrule appellant=s first point of error.

In his second and third points of error, appellant contends that the trial court erred in instructing the jury to consider the evidence obtained from the search of his truck and in failing to grant his motion for instructed verdict.  Both arguments are predicated on the evidence not being admissible as a matter of law under sections 101.04 and 101.71.  Because the evidence was admissible as a matter of law, we overrule appellant=s second and third points of error.

II.       Alleged Ineffective Assistance of Counsel.

In his fourth point of error, appellant contends he was denied effective assistance of counsel because counsel failed to object to supposed hearsay.  In particular, appellant refers to testimony by the police officers as to statements allegedly made during the cocaine purchase and subsequent arrest of appellant.

To prevail on a claim for ineffective assistance of counsel, an appellant must show, first, that his counsel=s representation fell below an objective standard of reasonableness, and second, that but for his counsel=s errors, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.3d 53, 57 (Tex. Crim. App. 1986).  The standard does not mean that an accused is entitled to perfect or errorless counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992).

To be sustained, an allegation of ineffective assistance must be affirmatively demonstrated in the record.  Thompson v. State, 9 S.W.3d 808, 813B14 (Tex. Crim. App. 1999).  The record is best developed by a collateral attack, such as a motion for new trial.  Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Talbott v. State, 93 S.W.3d 521, 525 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Except in rare cases, a claim of ineffective assistance must be brought by application for writ of habeas corpus rather than direct appeal; this is to develop the facts and allow trial counsel to explain his actions. See Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000);  see also Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (holding that generally, the trial court record is inadequate to properly evaluate ineffective assistance of counsel claims); Beck v. State, 976 S.W.2d 265, 266 (Tex. App.CAmarillo 1998, pet. ref=d) (holding that a trial record only is inadequate for ineffective assistance of counsel claims).

We do not have a record developed by a collateral attack; appellant cites only to the trial record. Because the record lacks evidence as to his counsel=s reasons for his actions and does not properly address the ineffective assistance of counsel argument, we cannot conclude his counsel=s performance was deficient.  See Grant v. State, 33 S.W.3d 875, 879B80 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  We overrule appellant=s fourth point of error.

The judgment of the trial court is affirmed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed January 20, 2004.

Panel consists of Justices Hudson, Fowler and Frost.

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

---

^[1]  Further, it is not always easy to distinguish which form of challenge is being made.  See Glover v. State, 110 S.W.3d 549, 552 nn. 2B3 & 5B6 (Tex. App.CWaco 2003, no pet.) (noting that it was not clear whether the constitutional challenge in the cited cases was as-applied or facial).

^[2]  There is an exception to this rule when First Amendment rights are involved.  See Webb v. State, 991 S.W.2d 408, 416 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  The First Amendment is not implicated in this case, however.