In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00332-CR __________________
CHRISTOPHER GEORGE TUBB, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 1A District Court Tyler County, Texas Trial Cause No. 13,545 __________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Appellant Christopher George Tubb for the offense of
possession of a controlled substance—namely, methamphetamine—in an amount of
4 grams or more but less than 200 grams. See Tex. Health & Safety Code Ann.
§ 481.115(d). Tubb initially pleaded “not guilty,” but thereafter he announced he
was going to plead “guilty” and elected for the jury to assess punishment, and the
jury assessed punishment at seventeen years of imprisonment and a fine of $8,000.
Tubb filed a motion for new trial alleging that he was denied the effective assistance
1 of counsel, and at the hearing he argued that his attorney did not listen to him or call
witnesses on his behalf, that he did not plead “guilty” to the charge but only to the
“well pled facts,” and that the trial court failed to admonish him. The trial court
denied the motion. In three issues, Tubb challenges his conviction arguing that (1) he
did not freely, voluntarily, and knowingly enter a plea of guilty, (2) the trial court
erred by denying his motion for new trial, and (3) he was denied the effective
assistance of counsel. We affirm.
Pretrial Proceedings
Tubb pleaded “not guilty” at his arraignment. Tubb subsequently filed with
the court a letter he addressed to his appointed counsel, stating in relevant part:
[] Do not argue nay [sic] facts on the public side of the above matter [o]n behalf of the undersigned. The well pled facts are all true therein and not disputed. To dispute the facts takes away my ability to dispute the substance of the presumptions in fact. ... [] It is my intent to plead guilty to the facts [in] the charging instrument and do not controvert any of the well pled facts therein, which are true.
The letter indicated that he also sent copies to the “District Attorney” and “Judge
Gibbs Walker[.]” Attached to the letter was a notarized document, signed by Tubb,
titled “Affidavit of Specific Negative Averment[.]” The affidavit makes various
allegations about the lack of evidence supporting the installation or implementation
of “Trespassing Technology” and asserts that the “Respondent(s)” may be liable to
2 Tubbs for penalties ranging from $100,000 to $300,000 or imprisonment and that
“Respondents” had twenty-one days to respond to the affidavit. 1 0F
In a pretrial hearing, Tubb’s counsel told the court that Tubb had “filed
something on his own behalf[.]” The court read from the document that Tubb had
written instructing his attorney not to argue any facts, and when the court asked Tubb
if he was pleading guilty to the offense charged, the following exchange occurred:
[Tubb]: No that I’m pleading guilty. I’m going with all the facts are true if they’re facts, if they’re true, and it’s not really a plead [sic] of guilty. It’s just acknowledging the facts and saying yes, they are true.
THE COURT: Okay. So -- so you’re saying that -- that what the -- the indictment against you is true?
[Tubb]: Yes, ma’am.
THE COURT: That the facts that are alleged in the indictment are true?
[Tubb]: Ma’am, that’s what I’m saying with this letter and that I’m not arguing any of the facts.
Tubb’s counsel told the court that Tubb had told him that he wanted to plead guilty
and go to the jury for punishment. The prosecutor stated that Tubb had not signed
anything and “he may change his mind.”
Prior to voir dire, the trial court read the indictment and asked Tubb whether
he pleaded guilty or not guilty. Tubb replied “Guilty.” He also agreed that he had
1 The affidavit does not define or identify “Trespassing Technology” or “Respondent(s).” 3 elected for the jury to decide punishment. The court received the plea and found him
guilty of the second-degree felony. During voir dire, the prosecutor told the venire
that the range of punishment was “anywhere from probation to 20 years[.]”
After the jury was selected but just before the evidence on punishment was
submitted, outside the presence of the jury, Tubb told the trial court:
[Tubb]: I don’t feel that I’m getting a very fair hearing here.
THE COURT: Here where?
[Tubb]: Here. [Defense counsel] has not done anything I’ve asked him to.
THE COURT: Okay.
[Tubb]: I don’t even have character witnesses here.
[Tubb]: I’ve barely had a chance to get to talk to him when I did talk to him. Yesterday we went over the letter that I filed.
THE COURT: Right.
[Tubb]: Said that I was going to plead guilty to the facts, not to the charge, but to the facts.
THE COURT: Okay. Well, okay. All right. Well, sounds like you did plead guilty -- you did plead guilty yesterday in chambers.
[Tubb]: Unknowingly to the charge. But in my letter[,] I clearly stated I agreed to the facts. We went over that.
THE COURT: Yes, we did go over that. Mr. Tubb, I accepted your plea yesterday; and we’re here today to move forward with the punishment phase. That’s exactly what we’re going to do. Okay. That’s what we’re 4 about to do. Okay. And as far as you having a fair hearing, I’m going to give you as fair of a jury trial as you can get. That’s what I’m going to do.
[Tubb]: Okay. I’m having a problem here because I haven’t had a chance to speak with this man. We couldn’t get anything together. He didn’t want to talk to me yesterday.
THE COURT: Okay. I don’t know; but I’m going to allow [defense counsel] to put on the record his efforts, as far as getting ready for trial. So, if you want to go ahead and do that, [defense counsel], you can do that or you don’t have to.
[Defense counsel]: Rather not, Judge. ... [Prosecuting attorney]: This document that was filed, I guess, July 5th that we reviewed in chambers yesterday on the record appears to severely limit what Mr. Tub[b] wants his attorney to do for him. . . .
THE COURT: Is that true, Mr. Tubb, what he’s saying, that you wanted to limit what your lawyer could do?
[Tubb]: I gave him specific directions as of what to do, yes, ma’am. It’s all right here. ... [Prosecuting attorney]: . . . it says Item No. 4, “It is my intent to plead guilty to the facts, the charging instrument, and do not controvert any of the well-pled facts therein which are true.” The charging instrument, if he’s pleading to the facts in the charging instrument, he’s pled guilty to the offense.
THE COURT: Okay. And we’re going to move forward with the punishment phase of this trial today. . . .
5 Trial on Punishment
Testimony of Officer Steven Hoke
Steven Hoke, an officer in the Woodville Police Department, testified that he
knew Tubb from prior law enforcement encounters and Tubb was his neighbor.
Officer Hoke agreed that he was on duty on November 21, 2018, and he had learned
that Tubb had voluntarily gone into the sheriff’s office, Hoke requested dispatch to
check whether Tubb’s license status was valid, and dispatch advised him Tubb’s
license was not valid. Hoke waited in a parking lot across from the sheriff’s office
for Tubb to come out, and he watched Tubb leave the building, get into a vehicle,
and drive away. According to Hoke, he could see Tubb’s vehicle plainly and clearly,
and he could read the license plate. Using the computer in his patrol vehicle, Hoke
ran the license plate, and the system indicated that the registration was expired. Hoke
agreed that, at that point, he knew that Tubb was driving with an invalid license and
an expired registration. Hoke caught up with Tubb’s vehicle and initiated a traffic
stop.
Hoke explained to Tubb that he pulled Tubb over because of an expired
registration and Hoke asked Tubb to roll his window down. Tubb only rolled the
window down about six or eight inches. Hoke asked for Tubb’s license and
insurance, and Tubb replied that he did not have them and that his license was
6 probably suspended. Hoke asked Tubb to get out of his vehicle, Tubb said he would
not, and when Hoke grabbed the door handle, Tubb tried to jerk it back.
Officer Hoke identified State’s Exhibit 1 as a video made from his body
camera that day. The video was published to the jury. The body cam video of the
traffic stop shows Officer Hoke performing a search of Tubb’s vehicle, and Hoke
agreed that he found a baggie containing a crystalline substance inside a cigarette
box during the search. Hoke also identified a bag he retrieved from Tubb that Hoke
believed contained crystal meth. Hoke field tested the substance, which weighed
fifteen grams, and it tested positive for methamphetamine. Hoke testified that he put
the substance in an evidence bag and transferred it to his captain. On cross-
examination, Hoke testified that it was common knowledge in the law enforcement
community that Tubb drove without a license, but he stated that he pulled Tubb over
for the expired registration.
Other Witnesses for the State
Sebastian Frommhold, a chemist with the DPS crime lab in Houston, testified
that his analysis of the substance submitted in this case reflected that it contained
methamphetamine and the total weight was 13.69 grams. Frommhold’s report of his
analysis was admitted as State’s Exhibit 8. Tyler County Sheriff’s Office Deputies
Simon Dean Prince and Garret Nalley testified about other traffic stops of Tubb in
which the officers had determined that Tubb did not have a valid driver’s license.
7 Tubb’s Testimony
Tubb testified that he had been driving without a license due to toll violations
that he had not paid. Tubb testified that, when he was pulled over, the officer asked
if he could search his vehicle, Tubb declined, and when Tubb stepped out of the
vehicle, the officer grabbed his pockets looking for weapons. Tubb recalled that he
was pulled over three times within two weeks. According to Tubb, he needs a license
to drive, but not to travel.
Tubb testified that when he drove away from the sheriff’s office, an officer
stopped him and Tubb told the officer “I don’t understand what I did wrong. I was
traveling. I wasn’t driving; and I was traveling in my automobile, not my motor
vehicle.” Tubb told the jury that he believed there was no probable cause for the
stop, and he did not believe the officer ever had a clear view of his license plate.
Tubb agreed that he had entered a plea of guilty and agreed to have the jury
assess punishment, but he testified that he “was under the impression that [he] was
pleading guilty to the facts and that the facts were going to be presented.” Tubb also
agreed that the jury could assess punishment from probation to twenty years of
imprisonment and he was asking the jury to give him probation because he had no
criminal history “other than these traffic stops[.]” Tubb denied that he had
methamphetamine, and he told the jury he did not know where the
methamphetamine found in his vehicle came from. When the prosecuting attorney
8 asked about him pleading guilty to having methamphetamine, Tubb replied “I plead
guilty to the facts; and we haven’t established that as a fact, have we?” Tubb also
testified that, when he wrote the letter to his attorney instructing him that the “well
pled facts are all true[,]” he had not seen the indictment. Tubb denied pleading guilty
to possession of methamphetamine.
Motion for New Trial
After the jury assessed punishment at seventeen years, Tubb filed a motion
for new trial. In his motion he alleged that he had pleaded guilty but sought a new
trial because he had not received the effective assistance of counsel in the following
respects: (1) trial counsel failed to file a motion for community supervision; (2) trial
counsel failed to file a pre-trial motion to suppress evidence based on lack of
probable cause or consent to search his vehicle; (3) trial counsel failed to confer with
him prior to trial, to adequately prepare for trial, or to conduct an independent
investigation of the case; (4) trial counsel failed to interview and call defense or
character witnesses; and (5) trial counsel failed to file a motion for continuance. In
a letter filed with the trial court later, Tubb’s new counsel also complained that Tubb
was not admonished as required by article 26.13 of the Code of Criminal Procedure.
In a hearing on the motion for new trial, Tubb’s new attorney explained to the
court that when Tubb pleaded guilty he did not do so knowingly, freely, and
voluntarily, and that Tubb had meant to plead guilty to the facts but he did not want
9 to plead guilty to the charge. His attorney also argued that Tubb did not know the
range of punishment for the offense charged because he was not properly
admonished, that his plea was not knowingly and voluntarily given, and that the trial
court failed to admonish Tubb before the plea, which provided grounds to grant a
new trial. The prosecuting attorney told the court that Tubb entered his plea
knowingly, freely, and voluntarily, and that with respect to the alleged violation of
article 26.13, the trial court should determine whether the article 26.13 violation was
harmless in light of the entire record and that the record would show that Tubb knew
the range of punishment prior to pleading guilty.
Testimony by J.W.
Tubb’s trial counsel, J.W., testified at the motion for new trial hearing. J.W.
was appointed to be Tubb’s counsel on June 20, 2019, and the following day, he
learned that trial was set for July 8, 2019. He testified that on that same day, he
reviewed the case file, including the videos, lab report, and the State’s witness list.
According to J.W., Tubb never asked J.W. to show him the State’s evidence.
According to J.W., he tried to discuss the case with Tubb by phone, but Tubb “didn’t
want to talk about anything” in the phone call, and J.W. discussed the case in person
with Tubb the morning of trial. J.W. was not made aware of the availability of
character witnesses until the morning of trial, and Tubb had not mentioned character
witnesses until that morning. Although one person was present at trial, when J.W.
10 talked with her before trial, he determined “there was nothing that she could say[,]”
and Tubb told him the individual was not a witness to the incident that resulted in
Tubb’s arrest.
J.W. testified that he did not learn of the letter Tubb had filed with the court
until the morning of trial, and he discussed the letter with Tubb that morning. J.W.
advised Tubb that he did not want the jury to see the letter, and because Tubb had
already filed the letter “there’s not much [he] could have done[]” to protect Tubb.
J.W. recalled that Tubb had told the court prior to trial that he was pleading to the
facts, and the trial court read from the reporter’s record of that conference that Tubb
had agreed that the facts alleged in the indictment were true. J.W. agreed he regarded
Tubb’s letter as Tubb’s instructions to him. J.W. also testified that, after pleading
before the trial court, Tubb did not sign the set of plea papers that had been drawn
up, Tubb refused to sign any type of judicial confession or anything to justify a plea
of guilty, and those papers were discarded.
According to J.W., he talked with Tubb prior to trial and did an independent
investigation prior to trial, but he did not do an investigation on the charge of
possession of a controlled substance because it was “pretty straightforward.” J.W.
also agreed that he talked with Tubb prior to trial and prepared him to testify and
that he spent more than twelve hours preparing for trial. J.W. agreed that he felt
11 “hamstrung” by the letter that Tubb had filed with the court because it limited what
he could do.
J.W. agreed that, on the day of the arraignment and prior to entering a plea,
he advised Tubb that he was facing a range of punishment from two to twenty years,
and that he would ask for probation. J.W. testified that Tubb understood he could
get two to twenty years’ imprisonment and that they were going to the jury on
punishment because they could possibly give him probation. Although J.W. did not
file an application for community supervision, he made an oral motion, which the
court granted, and the jury charge included the possibility of community supervision.
J.W. testified that he did not contemplate filing a motion for continuance. In
his affidavit, he stated that Tubb never asked for a continuance. J.W. testified that
he did not file a motion to suppress because he did not find any viable grounds for
one. An affidavit by J.W. was entered into evidence as State’s Exhibit 4.
Tubb’s Testimony at the New Trial Hearing
Tubb testified that he met his original defense counsel at the arraignment, they
discussed trial strategy, but they did not discuss the evidence or his testimony.
According to Tubb, his attorney told him that if he did not think he needed a driver’s
license to drive, then there was nothing to talk about. Tubb further testified that his
attorney told him he did not understand the letter Tubb had filed with the court. Tubb
testified that, in his mind, he was not pleading guilty to possession, but he was
12 pleading guilty “to the facts whatever they may be before anything had been
presented or proved[,]” that when he pleaded guilty, “nothing had been brought forth
yet and nothing had been proven as fact yet[,]” and that “I was pleading guilty to the
facts and [] no facts had been established.” Tubb agreed that his plea was not
knowing or voluntary.
According to Tubb, he did not see any of the State’s evidence prior to the
hearing in which he entered his guilty plea, and he would not have pleaded guilty if
he had known that the facts alleged in the indictment would not have to be proved
at trial. Tubb testified that his attorney did not talk with him about witnesses or what
could be expected at trial. Tubb agreed that his attorney told him he was facing two
to twenty years as a consequence of pleading guilty and “that we were going to go
for probation[.]” Tubb agreed that his attorney got him the right for the jury to
consider probation.
Tubb recalled that, on the day of his punishment trial, he told his attorney he
had character witnesses, and his attorney replied, “It’s too late for that.” Tubb
testified that three character witnesses were present for the trial on punishment,
including one inside the courtroom, but his attorney did not want to talk with that
witness and his attorney did not call any character witnesses. Tubb agreed that he
signed the State’s Certificate of Discovery and Defendant’s Acknowledgement of
13 Receipt of Discovery after the trial, but he denied that he saw any of the documents
listed.
Tubb agreed that the July 3, 2019 letter he filed with the court contained
Tubb’s directions to his attorney. He testified that he thought the letter
communicated that “nothing had been proven yet. There were no facts and that the
facts may not be what is presumed.” When asked what pretrial motion to suppress
his attorney should have filed, Tubb replied that he was not sure.
Testimony of H.P.
H.P. testified that she was present for most of Tubb’s trial on punishment.
According to H.P., she had called Tubb’s attorney numerous times about the letter
Tubb wrote to his attorney and filed with the clerk. She testified that she was
prepared to testify on behalf of Tubb, but his attorney did not call her. H.P. testified
that she would have testified that Tubb had always been honest.
Issues
Appellant’s first issue argues that his plea was not knowing, voluntary, and
intelligent, that he did not have a full understanding of his plea and its consequences,
and that the trial court erred by failing to give admonishments required by article
14 26.13 of the Code of Criminal Procedure. Appellant also argues the court’s error in
accepting his plea is “constitutional error that rises above harmless review.” 2 1F
Appellant’s second issue argues that the trial court erred in denying his motion
for new trial because he presented evidence in support of his legal claim and his
substantial rights were prejudiced. Appellant’s third issue argues he was denied the
effective assistance of counsel.
Knowing and Voluntary Plea
The Texas Code of Criminal Procedure requires that “[n]o plea of guilty or
plea of nolo contendere shall be accepted by the court unless it appears that the
defendant is mentally competent and the plea is free and voluntary.” Tex. Code
Crim. Proc. Ann. art. 26.13(b). The rules require that the trial court shall make
certain admonishments prior to accepting a guilty plea, including among other items
an admonishment about “the range of the punishment attached to the offense[.]” Id.
art. 26.13(a)(1); Davison v. State, 405 S.W.3d 682, 687 (Tex. Crim. App. 2013). In
admonishing the defendant, “substantial compliance by the court is sufficient, unless
the defendant affirmatively shows that he was not aware of the consequences of his
plea and that he was misled or harmed by the admonishment of the court.” Tex. Code
Crim. Proc. Ann. art. 26.13(c). The trial court may make the admonishments orally
2 Appellant did not argue at trial and does not argue on appeal that the letter to his trial attorney that he filed with the district clerk and on which he copied the district attorney and the court was a privileged attorney-client communication. 15 or in writing. Id. art. 26.13(d). A failure to admonish under article 26.13 is subject
to review for harmless error. See Davison, 405 S.W.3d at 687-88; see also Aguirre-
Mata v. State, 125 S.W.3d 473, 476 (Tex. Crim. App. 2003) (concluding that article
26.13(a) admonishments have not been held to be constitutionally mandated) (citing
McCarthy v. United States, 394 U.S. 459, 465 (1969)); High v. State, 964 S.W.2d
637, 638 (Tex. Crim. App. 1998). Harm in this context means that the defendant
probably would not have pleaded guilty but for the failure to admonish. See Burnett
v. State, 88 S.W.3d 633, 638 n.14 (Tex. Crim. App. 2002).
Evidence that a defendant’s guilty plea was part of a strategy to persuade the
jury to grant probation may imply that the defendant’s guilty plea was voluntary and
knowing under article 26.13. See Gardner v. State, 164 S.W.3d 393, 399 (Tex. Crim.
App. 2005). Where the attorneys, with the defendant present, explain the applicable
range of punishment to the venire during voir dire, a defendant is deemed to have
notice of the range of punishment and a trial court’s failure to admonish on the
punishment range is harmless error that does not affect the defendant’s substantial
rights. See Valdez v. State, 326 S.W.3d 348, 351-52 (Tex. App.—Fort Worth 2010,
no pet.) (mem. op.); Moore v. State, 278 S.W.3d 444, 447-48 (Tex. App.—Houston
[14th Dist.] 2009, no pet.); Stevens v. State, 278 S.W.3d 826, 827-28 (Tex. App.—
Houston [14th Dist.] 2009, pet. ref’d).
16 In this case, during voir dire and while Tubb was present, the prosecutor told
the venire the applicable range of punishment. In a pretrial hearing, Tubb’s attorney
asked for the record to reflect that, if he were found guilty, that the jury could give
probation, and the trial court responded, “Okay.” In the same hearing, Tubb’s
attorney stated, “if you’re found guilty, [] we’ll be asking the jury to assess you
probation as punishment; correct?” to which Tubb replied, “[t]hat’s correct.” During
the trial on punishment, Tubb agreed that the jury could assess punishment from
probation to twenty years of imprisonment and that he was asking the jury to give
him probation. At the motion for new trial, Tubb testified that his attorney told him
he was facing two to twenty years because of pleading guilty and that they would
ask the jury for community supervision. Tubb’s trial counsel testified that on the day
of the arraignment and prior to entering a plea, he advised Tubb that the charge was
a second-degree felony, that he was facing a range of punishment from two to twenty
years and a fine of up to $10,000, and that he would ask for community supervision.
We conclude that the record reflects that Tubb was aware of the range of possible
punishment for the crime charged, including the possibility of community
supervision, and that the trial court’s failure to admonish him, while erroneous, was
harmless. See Davison, 405 S.W.3d at 688; Gardner, 164 S.W.3d at 399; Valdez,
326 S.W.3d at 351; see also Tex. R. App. P. 44.2(b); Burnett, 88 S.W.3d at 635, 640
(holding that where the record was “replete with statements concerning the
17 applicable range of punishment[,]” trial court’s failure to admonish on the issue,
while clearly erroneous, was harmless). Appellant has also failed to show that, but
for the failure to admonish, he probably would not have pleaded guilty. See Burnett,
88 S.W.3d at 638 n.14.
Appellant also states that his plea was not knowing and voluntary and the
court’s error in accepting his plea is “constitutional error that rises above harmless
review.” Appellant has failed to brief the nature of the alleged constitutional error or
cite to appropriate legal authorities in support of this contention. See Tex. R. App.
P. 38.1(i). When an appellate issue is unsupported by argument, fails to apply the
law to the facts, or lacks citation to the record or legal authority, nothing is preserved
for review. See Wolfe v. State, 509 S.W.3d 325, 342-43 (Tex. Crim. App. 2017);
Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003); Tong v. State, 25
S.W.3d 707, 710 (Tex. Crim. App. 2000). Appellant has focused his arguments on
appeal to address only article 26.13, and to the extent he intended his brief to assert
a constitutional due process challenge to his guilty plea, we decline to address the
issue because it is inadequately briefed. See Wolfe, 509 S.W.3d at 345; Busby v.
State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008) (appellate court has no
obligation to consider inadequately briefed points of error) (citing Cardenas v. State,
30 S.W.3d 384, 393 (Tex. Crim. App. 2000)). We overrule Appellant’s first issue.
18 Denial of Motion for New Trial and Alleged Ineffective Assistance of Counsel
Appellant’s second issue argues that the trial court erred in denying his motion
for new trial because he presented evidence in support of his legal claim and his
substantial rights were prejudiced. Appellant’s third issue argues he was denied the
effective assistance of counsel. We address Appellant’s second and third issues
together because Appellant’s motion for new trial was based on his claim that he
was denied the effective assistance of counsel.
We review a trial court’s ruling on a motion for new trial under an abuse-of-
discretion standard. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App.
2004). Where the motion for new trial alleges ineffective assistance of counsel, we
must determine whether the trial court’s resolution of the ineffective-assistance
claim and denial of the motion for new trial were clearly wrong and outside the zone
of reasonable disagreement. See Smith v. State, 286 S.W.3d 333, 339-40 (Tex. Crim.
App. 2009). In a motion for new trial, the trial court possesses broad discretion to
determine the credibility of the witnesses and the weight of the evidence. See
Shanklin v. State, 190 S.W.3d 154, 166 (Tex. App.—Houston [1st Dist.] 2005, pet.
dism’d); State v. Pilkinton, 7 S.W.3d 291, 292 (Tex. App.—Beaumont 1999, pet.
ref’d).
A defendant has a Sixth Amendment right to the effective assistance of
counsel at trial. U.S. Const. amend. VI; see Strickland v. Washington, 466 U.S. 668, 19 684-85 (1984). To establish that he received ineffective assistance of counsel, an
appellant must demonstrate that (1) counsel’s performance fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. See Garcia
v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at
687). The party alleging ineffective assistance has the burden to develop facts and
details necessary to support the claim. See Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994). A party asserting an ineffective-assistance claim must
overcome the “strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance.” See Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 689). An appellant’s failure
to make either of the required showings of deficient performance or prejudice defeats
the claim of ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex.
Crim. App. 2003); see also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009).
The right to effective assistance of counsel ensures the right to “reasonably
effective assistance[,]” and it does not require that counsel must be perfect or that
the representation must be errorless. See Ingham v. State, 679 S.W.2d 503, 509 (Tex.
Crim. App. 1984). The appropriate context is the totality of the representation, and
ordinarily counsel should not be judged on isolated portions of the representation.
20 See Thompson, 9 S.W.3d at 813; Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim.
App. 2012); Solis v. State, 792 S.W.2d 95, 98 (Tex. Crim. App. 1990).
In Appellant’s motion for new trial and his appellate brief, he argues that trial
counsel failed to file a sworn motion for community supervision. Appellant cites to
Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998), but we find that case
distinguishable on the facts because in Welch, trial counsel had mistakenly
understood the defendant had a prior felony conviction that would preclude
community supervision. See 981 S.W.2d at 184-86. Appellant does not allege, nor
does the record support, any confusion or mistake about whether Tubb had a prior
felony conviction or whether he was eligible for community supervision.
In the hearing on the motion for new trial, trial counsel testified that he knew
Tubb was eligible for community supervision, and although he did not file a written
application, he made an oral motion that community supervision be considered and
the court granted the motion. The jury charge provided that the jury could
recommend that Tubb be placed on community supervision. Because the full range
of punishment, including community supervision, was before the jury, the failure of
the attorney to submit a written motion for community supervision is moot and
Appellant has failed to show there is a reasonable probability that, but for any alleged
error by trial counsel in failing to file a written application, the result of the
21 proceeding would have been different. See Strickland, 466 U.S. at 687; Garcia, 57
S.W.3d at 440.
In Appellant’s motion for new trial, he also argued that the methamphetamine
found in Tubb’s vehicle “was found pursuant to a fabricated reason for a stop and a
subsequent illegal search.” According to Appellant, law enforcement officers “began
harassing” Tubb after he filed a criminal trespass claim against a deputy, and the
officer who initiated the traffic stop “could not read the [license] plate from his
position relative to Defendant’s vehicle[.]”
Appellant’s brief does not provide any legal support for his contention that
there was no probable cause for the traffic stop. See Tex. R. App. P. 38.1(i) (requiring
an appellate brief to clearly state arguments and cite to appropriate legal authorities
and to the record). Nevertheless, we find no harm under the second prong of
Strickland.
Tubb testified at the trial on punishment that he had been driving without a
license for about three and a half years and his license was suspended because he
had not paid toll violations. He also testified that he did not need a license to travel
because his vehicle is an extension of his household and he was not doing commerce
on the roadways. Tubb believed the local police were harassing him and he did not
believe Officer Hoke could see his license plate that night.
22 Officer Hoke testified that dispatch told him that Tubb’s license was not valid.
Hoke also testified that he could read the license plate on Tubb’s vehicle, and when
he ran the plates, the system indicated that the registration was expired. According
to Hoke, Tubb did not have insurance and registration for the vehicle, and Tubb told
the officer that his license was probably suspended.
It is a traffic violation in Texas to operate a motor vehicle that has not been
registered as required by law. See Tex. Transp. Code Ann. § 502.472. A driver must
also possess a valid driver’s license and display it upon request by a law enforcement
officer. See Tex. Transp. Code Ann. § 521.025. Generally, an officer may use
information obtained from checking a vehicle’s license plate in a computer database
to form reasonable suspicion for a traffic stop. See Delk v. State, 855 S.W.2d 700,
709-10, 712 (Tex. Crim. App. 1993). An officer may lawfully stop and detain a
person for a traffic violation committed in an officer’s presence, and an “objectively
valid traffic stop is not unlawful [] just because the detaining officer had some
ulterior motive for making it.” Crittenden v. State, 899 S.W.2d 668, 674 (Tex. Crim.
App. 1995); see also Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).
“If an officer has probable cause to believe that an individual has committed even a
very minor criminal offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354
(2001); see also Tex. Code Crim. Proc. Ann. art. 14.01(b) (“A peace officer may
23 arrest an offender without a warrant for any offense committed in his presence or
within his view.”); Tex. Transp. Code Ann. § 543.001 (an officer may arrest without
a warrant a person violating the Transportation Code). When an officer has probable
cause to arrest, a search incident to arrest is valid if it is conducted immediately
before or after arrest. See State v. Sanchez, 538 S.W.3d 545, 550 (Tex. Crim. App.
2017) (citing Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); State v. Ballard, 987
S.W.2d 889, 892 (Tex. Crim. App. 1999)); see also Thornton v. United States, 541
U.S. 615, 623 (2004) (in a search incident to arrest, an officer may search the
passenger compartment of a vehicle “to ensure their safety and to preserve
evidence”).
It is undisputed that Tubb did not have a valid registration and that he was
driving with a suspended license. Therefore, Officer Hoke had a reasonable
suspicion for the traffic stop and probable cause for a warrantless arrest and could
conduct a search incident to the arrest. See Thornton, 541 U.S. at 623; Atwater, 532
U.S. at 354; Sanchez, 538 S.W.3d at 550; Walter, 28 S.W.3d at 542. Appellant has
not demonstrated that, but for his trial counsel’s failure to file a motion to suppress,
the result of the proceeding would have been different. See Strickland, 466 U.S. at
687; Garcia, 57 S.W.3d at 440.
In Appellant’s motion for new trial, he also argued that trial counsel failed to
meet with Tubb and prepare for trial and failed to conduct an independent
24 investigation. Trial counsel has a duty to become acquainted with the facts of the
case and conduct a reasonable investigation. See Strickland, 466 U.S. at 691; Ex
parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983). “Strickland does not
require defense counsel to investigate each and every potential lead,” and a decision
not to present mitigating evidence should be based on a “thorough understanding of
the available evidence.” Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App.
2005). A claim of ineffective assistance based on trial counsel’s general failure to
investigate the facts of the case fails absent a showing of what the investigation
would have revealed that reasonably could have changed the result of the case. See
Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim. App. 2007).
In this case, Tubb’s trial counsel testified that he did an independent
investigation prior to trial, but the possession charge was “pretty straightforward.”
Trial counsel stated in his affidavit and testified at the motion for new trial that he
talked with Tubb multiple times prior to trial and he spent more than twelve hours
preparing for trial. In his affidavit, trial counsel stated that Tubb “only wanted to talk
about how the local law enforcement was harassing him[,]” and he testified that he
advised Tubb prior to trial that talking about “the so-called harassment” would not
look good to the jury. According to trial counsel, Tubb never requested to see any
discovery. The trial attorney testified that Tubb “was well aware of the alleged
facts[]” and admitted they were true. Trial counsel stated that he felt “hamstrung”
25 by the letter that Tubb had filed with the court because it limited what trial counsel
could do.
Appellant has not demonstrated what further investigation or conference with
Tubb would have revealed that reasonably could have changed the result of the case
or that, but for trial counsel’s alleged failure to confer and investigate, the result of
the proceeding would have been different. See Strickland, 466 U.S. at 687; Cooks,
240 S.W.3d at 912; Garcia, 57 S.W.3d at 440.
Appellant also argued that trial counsel was deficient because he failed to
interview and call defense witnesses. To show ineffective assistance of counsel
based on an uncalled witness, an appellant must show that the witness would have
been available to testify, and that the witness’s testimony would have been of some
benefit to the defense. See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App.
2007).
H.P. testified at the hearing on the motion for new trial that she was present at
the trial on punishment, and she would have testified that Tubb was honest. Tubb
testified that three character witnesses were present at the trial on punishment, but
he did not identify these witnesses or their expected testimony in his testimony, his
motion for new trial, or in his brief. Trial counsel testified that Tubb told him the
person who was present at trial was not a witness to the incident that resulted in
Tubb’s arrest, and after trial counsel talked with her, he concluded “there was
26 nothing she could say[.]” On this record, we conclude that Appellant has not
demonstrated that the testimony of any uncalled witnesses would have been of some
benefit to the defense or, but for trial counsel’s failure to interview or call witnesses,
the result of the proceeding would have been different. See Strickland, 466 U.S. at
687; Ramirez, 280 S.W.3d at 853; Garcia, 57 S.W.3d at 440.
Appellant also argues on appeal that he did not receive the effective assistance
of counsel because his trial counsel failed to file a motion for continuance.
According to Appellant, during the punishment trial, he requested a continuance
“when he realized that what he thought he was pleading guilty to was not, in fact,
what he did indeed plead guilty to.” Appellant argues that he needed time to confer
with his counsel to understand the meaning of his oral and written statements.
We first note that Appellant did not argue in his motion for new trial that he
needed more time for his defense counsel to help him understand the importance and
meaning of his written and oral statements and his plea of guilty. Therefore, no
testimony was developed at the hearing on the motion for new trial on this issue.
Without presenting the issue in the motion for new trial, the record on direct appeal
is generally inadequate to develop an ineffective assistance claim. See Thompson, 9
S.W.3d at 813-14. Appellant’s brief asserts that “on several occasions” he requested
a continuance to confer with his counsel, but Appellant provides no citations to the
record where he made such requests. See Tex. R. App. P. 38.1(i) (an appellate brief
27 must provide citations to legal authority and to the record). That said, Appellant has
also failed to make the required showing that, but for his counsel’s alleged failure to
file a motion for continuance, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 687; Garcia, 57 S.W.3d at 440.
We conclude that Appellant has not demonstrated that counsel’s performance
fell below an objective standard of reasonableness and he failed to show there is a
reasonable probability that, but for counsel’s alleged errors, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 687; Garcia, 57
S.W.3d at 440. The trial court’s denial of the motion for new trial was within the
zone of reasonable disagreement. See Smith, 286 S.W.3d at 339-40. We overrule
Appellant’s second and third issues.
Having overruled all of Appellant’s issues, we affirm the judgment of the trial
court.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on February 5, 2021 Opinion Delivered April 28, 2021 Do Not Publish
Before Golemon, C.J., Kreger and Johnson, JJ.