Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00498-CR
Benjamin ELIAS, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No. 12, Bexar County, Texas Trial Court No. 427052 Honorable Scott Roberts, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice
Delivered and Filed: June 3, 2015
AFFIRMED
Following a single car accident, Appellant Benjamin Elias was arrested for driving while
intoxicated. The jury returned a verdict of guilty and the trial court assessed punishment at six
months’ confinement in the Bexar County Jail and a $2,000.00 fine. In his sole issue on appeal,
Elias contends he received ineffective assistance of counsel based on trial counsel’s failure to
pursue a pre-trial motion to suppress. We affirm the trial court’s judgment. 04-14-00498-CR
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review
In order to establish that trial counsel rendered ineffective assistance, Elias must “establish
two components by a preponderance of the evidence: deficient performance of trial counsel and
harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome
of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex.
Crim. App. 2012). To establish the first prong, deficient performance, Elias must prove that his
attorney’s performance “‘fell below an objective standard of reasonableness’ under prevailing
professional norms and according to the necessity of the case.” Ex parte Moore, 395 S.W.3d at
157 (quoting Strickland, 466 U.S. at 687–88). To establish harm, Elias “must demonstrate that he
was prejudiced by his attorney’s performance or that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at
158 (citations omitted) (quoting Strickland, 466 U.S. at 694).
“An appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct
fell within the wide range of reasonable professional assistance.” Id. Therefore, Elias “‘must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466
U.S. at 689).
“A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of
counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record
on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” -2- 04-14-00498-CR
Id. at 813–14. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003).
In the absence of a developed record, we will not “speculate as to the reasons why trial
counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic
plan for representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San
Antonio 2010, pet. ref’d). Moreover, an “appellate court should not find deficient performance
unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged
in it.’” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005)).
B. Arguments of the Parties
Elias contends that his trial counsel committed unprofessional errors by failing to pursue a
pretrial motion to suppress evidence obtained from an allegedly illegal arrest, based on the officer’s
erroneous and unreasonable belief that Elias was intoxicated at the scene of the accident.
The State counters that Elias failed to establish that counsel’s performance was deficient
or that there is a reasonable probability the motion to suppress would have been granted.
C. Analysis
At the onset, we note that “[t]he failure to file pre-trial motions is not categorically deemed
ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as
part of his trial strategy.” Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001,
pet. ref’d); see also Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (reiterating
trial “[c]ounsel is not required to engage in the filing of futile motions”). Rather, to satisfy the
Strickland test and prevail on an ineffective assistance claim premised on counsel’s failure to file
a motion to suppress, Elias was required to show, by a preponderance of the evidence, that the -3- 04-14-00498-CR
motion to suppress would have been granted and that the remaining evidence would have been
insufficient to support his conviction. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.
1998); accord Carmen v. State, 358 S.W.3d 285, 295 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d). This requirement includes producing sufficient evidence to defeat the presumption of
proper police conduct. Jackson, 973 S.W.2d at 957; accord Carmen, 358 S.W.3d at 295.
We therefore turn to an analysis of the record.
1. Testimony at Trial
The jury heard two days of testimony from multiple witnesses, including three different
police officers.
San Antonio Police Officer Matthew Flores testified that he came across the scene of the
accident at approximately 3:30 in the morning on May 24, 2013. Officer Flores noted significant
damage to the vehicle, but Elias did not appear to be injured. According to Officer Flores, there
were no other vehicles in the vicinity and no other individuals at the scene.
Officer Gary Nel testified that he drove up shortly after the accident and Elias’s vehicle
was blocking oncoming lanes of traffic. Officer Nel did not see Elias drive the vehicle, but he did
“[observe Elias] walking from the driver’s side door towards the barrier on the right-hand side [of
the vehicle].” Officer Nel did not see any other individuals or vehicles at the scene and Elias did
not mention any people involved in the accident. Additionally, Officer Nel testified that an
arrogant Elias reported he was run off the road by another vehicle, but Elias could not provide
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00498-CR
Benjamin ELIAS, Appellant
v.
The STATE of Texas, Appellee
From the County Court at Law No. 12, Bexar County, Texas Trial Court No. 427052 Honorable Scott Roberts, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice
Delivered and Filed: June 3, 2015
AFFIRMED
Following a single car accident, Appellant Benjamin Elias was arrested for driving while
intoxicated. The jury returned a verdict of guilty and the trial court assessed punishment at six
months’ confinement in the Bexar County Jail and a $2,000.00 fine. In his sole issue on appeal,
Elias contends he received ineffective assistance of counsel based on trial counsel’s failure to
pursue a pre-trial motion to suppress. We affirm the trial court’s judgment. 04-14-00498-CR
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review
In order to establish that trial counsel rendered ineffective assistance, Elias must “establish
two components by a preponderance of the evidence: deficient performance of trial counsel and
harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome
of the trial.” Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex.
Crim. App. 2012). To establish the first prong, deficient performance, Elias must prove that his
attorney’s performance “‘fell below an objective standard of reasonableness’ under prevailing
professional norms and according to the necessity of the case.” Ex parte Moore, 395 S.W.3d at
157 (quoting Strickland, 466 U.S. at 687–88). To establish harm, Elias “must demonstrate that he
was prejudiced by his attorney’s performance or that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” Id. at
158 (citations omitted) (quoting Strickland, 466 U.S. at 694).
“An appellate court looks to the totality of the representation and the particular
circumstances of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). “There is a strong presumption that counsel’s conduct
fell within the wide range of reasonable professional assistance.” Id. Therefore, Elias “‘must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’” Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466
U.S. at 689).
“A substantial risk of failure accompanies an appellant’s claim of ineffective assistance of
counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “In the majority of instances, the record
on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” -2- 04-14-00498-CR
Id. at 813–14. “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
2003).
In the absence of a developed record, we will not “speculate as to the reasons why trial
counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic
plan for representing the client.” Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San
Antonio 2010, pet. ref’d). Moreover, an “appellate court should not find deficient performance
unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged
in it.’” Menefield, 363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005)).
B. Arguments of the Parties
Elias contends that his trial counsel committed unprofessional errors by failing to pursue a
pretrial motion to suppress evidence obtained from an allegedly illegal arrest, based on the officer’s
erroneous and unreasonable belief that Elias was intoxicated at the scene of the accident.
The State counters that Elias failed to establish that counsel’s performance was deficient
or that there is a reasonable probability the motion to suppress would have been granted.
C. Analysis
At the onset, we note that “[t]he failure to file pre-trial motions is not categorically deemed
ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as
part of his trial strategy.” Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001,
pet. ref’d); see also Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (reiterating
trial “[c]ounsel is not required to engage in the filing of futile motions”). Rather, to satisfy the
Strickland test and prevail on an ineffective assistance claim premised on counsel’s failure to file
a motion to suppress, Elias was required to show, by a preponderance of the evidence, that the -3- 04-14-00498-CR
motion to suppress would have been granted and that the remaining evidence would have been
insufficient to support his conviction. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App.
1998); accord Carmen v. State, 358 S.W.3d 285, 295 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref’d). This requirement includes producing sufficient evidence to defeat the presumption of
proper police conduct. Jackson, 973 S.W.2d at 957; accord Carmen, 358 S.W.3d at 295.
We therefore turn to an analysis of the record.
1. Testimony at Trial
The jury heard two days of testimony from multiple witnesses, including three different
police officers.
San Antonio Police Officer Matthew Flores testified that he came across the scene of the
accident at approximately 3:30 in the morning on May 24, 2013. Officer Flores noted significant
damage to the vehicle, but Elias did not appear to be injured. According to Officer Flores, there
were no other vehicles in the vicinity and no other individuals at the scene.
Officer Gary Nel testified that he drove up shortly after the accident and Elias’s vehicle
was blocking oncoming lanes of traffic. Officer Nel did not see Elias drive the vehicle, but he did
“[observe Elias] walking from the driver’s side door towards the barrier on the right-hand side [of
the vehicle].” Officer Nel did not see any other individuals or vehicles at the scene and Elias did
not mention any people involved in the accident. Additionally, Officer Nel testified that an
arrogant Elias reported he was run off the road by another vehicle, but Elias could not provide
either a make, model, or color of the other vehicle.
The next officer called to testify was Officer Chad Bendele. Officer Bendele testified that
he was called to the accident scene based on Officer’s Nel’s suspicion of Elias’s ingestion of
intoxicants. Officer Bendele reported Elias was very confused as to his location, where he had
been, and where he was headed. After several questions, Elias acknowledged spending the last -4- 04-14-00498-CR
several hours at the Thirsty Horse Bar. Elias, however, did not know how much he had consumed.
Officer Bendele testified that Elias had a strong odor of intoxicants, slurred speech, and bloodshot,
glassy eyes.
Officer Bendele explained to Elias his right to refuse the field sobriety tests, but Elias was
cooperative and agreed to perform the tests. Officer Bendele testified that Elias exceeded the
allowable markers on the horizontal gaze nystagmus, the walk and turn test, and the one-leg stand.
He also testified that Elias agreed to provide a breath specimen. This test was later interpreted by
State’s witness Debbie Stephens—who testified Elias’s first specimen registered a blood alcohol
concentration of 0.14 and his second registered a 0.129.
2. Alleged Defects by Defense Counsel
Elias points to trial counsel’s failure to pursue a pretrial motion. Our analysis, however, is
conducted based on a review of the entire record. See Thompson, 9 S.W.3d at 813. The record
reflects that defense counsel conducted extensive voir dire and cross-examination of all the
witnesses during two days of trial. Elias’s complaints about the video and lack of physical
evidence were all addressed during the cross-examinations.
In a hearing on a motion to suppress, “the trial court is the sole trier of fact and judge of
the credibility of the witnesses and the weight to be given their testimony.” State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000). Therefore, just like the jury, the trial court could have
reasonably resolved the conflicting testimony in favor of the State. See id. at 855–56. Elias
therefore failed to show the motion to suppress would have been granted. The fact that other
counsel may have tried the case differently does not show ineffective assistance. See Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
This court is bound by the strong presumption that defense counsel’s conduct was
reasonable and professional and could be considered sound trial strategy. Id. Trial counsel’s -5- 04-14-00498-CR
reasons for not pursuing the motion to suppress are not firmly founded in the record and we will
not engage in retrospective speculation. Id. at 835; Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994) (holding appellate court will not indulge in speculation concerning trial
counsel’s decision-making process); see also Ex parte Moore, 395 S.W.3d at 157. We presume
that trial counsel exercised reasonable professional judgment in exercising a decision not to pursue
a pretrial motion to suppress, and we do not speculate as to counsel’s reason for that decision. See
Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d)
(involving an ineffective assistance of counsel claim for failure to file a pretrial motion to suppress
evidence related to officer’s traffic stop).
CONCLUSION
Upon review of the entire record, we conclude Elias failed to affirmatively demonstrate his
ineffective assistance of counsel claim. Ex parte Moore, 395 S.W.3d at 157; Menefield, 363
S.W.3d at 592; Jackson, 973 S.W.2d at 957; accord Carmen, 358 S.W.3d at 295. More
specifically, Elias failed to demonstrate that a motion to suppress would have been successful.
Likewise, given that the officer’s testimony supports reasonable suspicion for making the arrest,
Elias failed to demonstrate that the outcome of trial probably would have been different had his
trial counsel pursued a motion to suppress. See Carmen, 358 S.W.3d at 295.
Because we conclude that Elias failed to show counsel’s performance was deficient, we
need not address prejudice. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Accordingly, we overrule Elias’s claim of ineffective assistance of counsel.
Patricia O. Alvarez, Justice
DO NOT PUBLISH
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