Jackson v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury convicted the appellant of felony possession of cocaine. After finding that the appellant had two prior felony convictions, the trial court assessed punishment at confinement for twenty-five years. The appellant appealed, claiming he was denied effective assistance of counsel at trial because trial counsel did not file a motion to suppress evidence which was obtained pursuant to an allegedly illegal arrest. The Court of Appeals determined that counsel was ineffective and reversed the appellant’s conviction. Jackson v. State, 921 S.W.2d 809 (Tex.App.— Houston [14th Dist.] 1996). The State petitioned this Court for discretionary review, and we granted the State’s petition to consider the Court of Appeals’ holding.

The State says that the Court of Appeals ignored the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State argues that the appellant’s claim of ineffectiveness must fail because such a claim will be sustained only if the record affirmatively supports that claim. We agree.

On November 2, 1993, Deputy Sheriff Henry Goss was on patrol and saw the appellant standing in front of a known crack house. Jackson, 921 S.W.2d at 810. The house was dilapidated, its windows boarded up and its front door missing. It appeared to be abandoned. Goss testified that when the appellant saw him approach, the appellant made an abrupt move, stuck something in his pants, and then turned to run into the house. A chase ensued. About ten feet into the house, the appellant turned and put his hands in the air. Goss stated that he approached the appellant and “patted him down for weapons or contraband.” Id. at 811-12. After patting the appellant down Goss found a silver colored crack cocaine pipe in the waistband of his pants. The crack pipe was introduced into evidence without objection from trial counsel. Id. at 812. On appeal, the appellant argued that counsel was ineffective in failing to file a motion to suppress the crack pipe, as it was the product of a illegal arrest, and that had the crack pipe not been in evidence, he would have been entitled to a verdict of not guilty. The Court of Appeals agreed.

The Court of Appeals first stated, “[t]he record does not show whether appellant was arrested with or without a warrant.” Jackson, 921 S.W.2d at 813. The court then declared that Goss did not have probable cause to make a warrantless arrest. The court found, however, that under the facts of the case Goss was justified in making an investigative detention under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ibid Goss was therefore permitted to conduct a pat-down search of the appellant, but only to the extent necessary to discover weapons which might be used to harm the officer or others. Any search which went beyond that scope, the court stated, would no longer be valid and its fruits should be suppressed. Ibid., citing Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and Davis v. State, 829 S.W.2d 218 (Tex.Cr.App.1992). The Court of Appeals also noted that if, during a valid Terry stop, an officer “feels an object whose contour or mass makes its identity immediately apparent,” then the warrantless seizure of that object is justified. Ibid., citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The Court of Appeals held that the facts in this case did not sufficiently establish that the discovery of the crack pipe was the result of a valid search under Terry or Dickerson. Jackson, 921 S.W.2d at 814. As a result, the Court of Appeals stated there were “serious questions” as to the validity of the search conducted by Goss, and because the facts surrounding the search were not sufficiently developed, the court could not conclude whether the search was valid or invalid. Because it could not determine the validity of the search, the Court of Appeals concluded that trial counsel was ineffective in failing to challenge the introduction of the crack pipe into evidence. Ibid.

The appellant had the burden of proving his claim of ineffective assistance of counsel. Cannon v. State, 668 S.W.2d 401 (Tex.Cr.App.1984). The appellant was required to prove that counsel’s representation fell below an objective standard of reasonableness based upon prevailing norms and that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. McFarland v. State, 845 S.W.2d 824 (Tex.Cr.App.1992). A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome of the proceedings. Miniel v. State, 831 S.W.2d 310 (Tex.Cr.App.1992). Furthermore, the appellant’s burden required him to establish his claims by a preponderance of the evidence. McFarland, 845 S.W.2d at 843.

As the Court of Appeals stated, a motion to suppress would have been an appropriate vehicle to challenge the fruits of the allegedly illegal search. Furthermore, all parties agree that if counsel had filed a motion to suppress, and if the motion had been granted, the crack pipe would not have been admitted into evidence. Because the crack pipe was the only (Erect evidence of the appellant’s possession of cocaine, it is unlikely that the evidence would have been sufficient to support his conviction without it.

Nevertheless, the appellant was still obliged to prove that a motion to suppress would have been granted in order to satisfy Strickland. See Roberson v. State, 852 S.W.2d 508, 510-12 (Tex.Cr.App.1993) (unless there is a showing that a pre-trial motion had merit and that a ruling on the motion would have changed the outcome of the ease, counsel will not be ineffective for failing to assert the motion). As the movant, the appellant was required to have produced evidence that defeated the presumption of proper police conduct. Russell v. State, 717 S.W.2d 7 (Tex.Cr.App.1986). The appellant did not meet that burden. First the appellant failed to establish that his arrest was in fact warrantless. Second, even if we were to assume that there was no warrant for his arrest, the appellant failed to establish by a preponderance of the evidence that the crack pipe should have been suppressed. That there may be “questions about the validity of the search” is not enough. See Jackson v. State, 877 S.W.2d 768 (Tex.Cr.App.1994) (counsel will not be declared ineffective where the record does not reflect sufficient evidence to support the claim). To prevail on his claim of ineffective assistance of counsel the appellant had the burden to develop facts and details of the search sufficient to conclude that the search was invalid. McFarland, 845 S.W.2d at 843; Russell, 717 S.W.2d at 9-10. The appellant did not do so. For these reasons, the appellant’s claim of ineffective assistance of counsel cannot be sustained on this record.

This is not unusual in cases of this sort.

Experience has taught us that in most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not in a shape, perhaps because of the very alleged ineffectiveness below, that would adequately reflect the failings of trial counsel. Indeed, in a case such as this, where the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be ... the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.

Ex parte Duffy, 607 S.W.2d 507, 513 (Tex.Cr.App.1980). For this reason we have held that, when direct appeal has not provided an adequate record to evaluate a claim which might be substantiated through additional evidence gathered in a habeas corpus proceeding, we will not apply the general doctrine that forbids raising a claim on habeas corpus after it was rejected on appeal. Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Cr.App.1997).

Without prejudice to subsequent habeas corpus proceedings, the opinion of the Court of Appeals is reversed and the judgment of the trial court is affirmed.

BAIRD, J., joins the opinion of the Court for the reasons stated in Jackson v. State, 877 S.W.2d 768, 772 (Tex.Cr.App.1994)(Baird, J., concurring).