Hugo Andy Martinez v. State

• Court: Court of Appeals of Texas
• Decided: January 3, 2008
• Docket: 01-06-00976-CR
• Status: Published

Opinion

Opinion issued January 3, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00976-CR

HUGO ANDY MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1048707

MEMORANDUM OPINION

After the trial court denied the pretrial motions of appellant, Hugo Andy Martinez, seeking to suppress his statement and seized evidence, appellant pleaded guilty, without an agreed recommendation by the State, to the felony offense of possession with intent to deliver a controlled substance, cocaine, weighing at least 400 grams. Tex. Health & Safety Code Ann. § 481.102(3)(D) (Vernon Supp. 2007), § 481.112(a), (e) (Vernon 2003). Following a sentence investigation, the trial court found appellant guilty, assessed his punishment at 50 years' confinement in prison and a $250,000 fine, and later certified appellant's right to appeal. Appellant presents five points of error, in which he argues that (1) the trial court abused its discretion by denying appellant's motions to suppress, (2) appellant was denied effective assistance of counsel, and (3) the trial court abused its discretion by refusing to hold a hearing on appellant's motion for new trial. We affirm.

Background

By his judicial confession, appellant pleaded guilty to unlawfully and knowingly possessing with intent to deliver a controlled substance, cocaine, weighing at least 400 grams by aggregate weight including any adulterants and dilutants. Appellant had been under surveillance pursuant to a tip by an informant and was stopped for a traffic violation, after which he told officers who had followed him that he had cocaine in his truck and granted the officers permission to search the truck. Appellant was arrested in the driveway of a residence after police discovered cocaine and a large sum of cash from the truck. After seizure of the cocaine and subsequent arrest, appellant granted police oral and written consent to search the residence and handed his keys to an officer to unlock it. Once inside, police found a total of 232.2 kilograms of cocaine in the locations to which appellant had directed them.

Appellant filed two pretrial motions to suppress. In the first motion, appellant sought to suppress the written statement he provided to police; the second motion sought to suppress the cocaine from the residence. The trial court conducted an oral hearing pretrial to consider both motions, during which three police officers testified and were cross-examined, and 18 exhibits were admitted. At the conclusion of the hearing, the trial court denied the motions, thus concluding that there was no reason to suppress the seized cocaine or appellant's statement.

Hearing on Motion for New Trial

In his fifth issue, appellant contends that the trial court erred by refusing appellant's request for an evidentiary hearing on his motion for new trial. Appellant filed his motion for new trial through newly retained appellate counsel, who verified the motion and requested a hearing on it. The record reflects that the trial court initially granted appellant's request for an evidentiary hearing, but later declined to conduct the hearing because of deficiencies in the motion. Appellant initially challenged that ruling in this Court by moving to abate the appeal. Having previously ordered appellant's motion taken with the case, we address this issue first.

Article 40.001 of the Code of Criminal Procedure governs motions for new trial premised on discovery of material evidence favorable to the accused. See Wallace v. State, 106 S.W.3d 103, 107 (Tex. Crim. App. 2003) (citing Tex. Code Crim. Proc. Ann. § 40.001 (Vernon 2006). The purpose of the hearing is to develop fully the issues raised in the motion. Id. at 108; Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002); see Tex. R. App. P. 21.2 (stating that motion for new trial required to preserve error "only when necessary to adduce facts not in the record"). A defendant does not have an absolute right to an evidentiary hearing on a motion for new trial. Cooks v. State, __ S.W.3d __, No. PD-0010-06, slip op. at 5, 2007 WL 4146374 * __ (Tex. Crim. App. Nov. 21, 2007) (holding that time for filing motion for new trial is critical stage during which defendant has a constitutional right to counsel). To be entitled to a hearing, the motion for new trial and accompanying affidavit must raise matters that (1) are not determinable from the record and (2) could entitle the accused to relief. Id. (citing Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994)); Wallace, 106 S.W.3d at 108 (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993)).

Appellant's 24-page motion for new trial invoked these standards, citing Reyes, 849 S.W.2d at 816. Appellant's motion challenged denial of his motions to suppress and also raised claims concerning the effectiveness of trial counsel. Yet, the existing record contains both appellant's motions to suppress and the reporter's record from the hearing on those motions. Accordingly, appellant's challenge to the ruling on his motions to suppress are determinable from the existing record.

Appellant's motion for new trial also asserted a claim of ineffectiveness of counsel. Specifically, appellant claimed, through appellate counsel, that his trial counsel was ineffective in the following respects: not supporting the motions to suppress with legal authorities on the issue of effective consent; not informing appellant of the doctrine of affirmative links, which adversely affected the voluntariness of appellant's plea; and not calling witnesses, offering mitigating evidence, or making a "real" plea for leniency during the punishment phase of the trial. The claim of failure to support the motions to suppress with legal authorities is determinable in part from the existing record, which contains both the motion and the reporter's record of the hearing on appellant's motions. Whether trial counsel was ineffective as appellant claims is usually not determinable from the existing record, however, and is, therefore, governed by article 40.001 of the Code of Criminal Procedure. See Guidry v. State, 132 S.W.3d 611, 612 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (ordering abatement to conduct hearing on motion for new trial claiming ineffective assistance of counsel based on claim of failure to convey defendant's acceptance of plea offer). Accordingly, we next address whether a hearing was required regarding the claim of ineffectiveness of counsel.

A. Prerequisites to Obtaining Article 40.001 Hearing

The defendant need not establish a prima facie case for a new trial in order to be entitled to an evidentiary hearing on a motion for new trial; the motion and supporting affidavit proof need only demonstrate that reasonable grounds exist for holding that a new trial could be granted. Wallace, 106 S.W.3d at 108 (citing Martinez v. State, 74 S.W.3d at 22; Guidry, 132 S.W.3d at 612.

We review the trial court's decision to deny a hearing on an article 40.001 motion for new trial for abuse of discretion. See Wallace, 106 S.W.3d at 108; Guidry, 132 S.W.3d at 612. When a defendant presents a motion for new trial that raises matters that are not determinable from the record and could entitle the defendant to relief, a trial court abuses its discretion by failing to conduct a hearing. Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21; King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000); Guidry, 132 S.W.3d at 612. An affidavit that specifically demonstrates the truth of the defendant's grounds of attack is thus an absolute prerequisite to obtaining a hearing. See Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21; Guidry, 132 S.W.3d at 612. An affidavit that states only conclusory allegations without supporting facts fails the showing required and is insufficient to warrant an evidentiary hearing on the motion for new trial. Cooks, slip op. at 5 (citing and quoting Jordan, 883 S.W.2d at 665); see also Martinez, 74 S.W.3d at 21 (stating that affidavit must demonstrate that reasonable grounds for new trial exist and that alleged grounds are true); Jordan, 883 S.W.2d at 655 (rejecting sufficiency of conclusory affidavit, unsupported by facts and explanations concerning claim of ineffective assistance of counsel, to put trial court on notice that reasonable grounds exist to conduct evidentiary hearing); Vyvial v. State, 10 S.W.2d 83, 84 (Tex. Crim. App. 1928) (op. on reh'g) (rejecting sufficiency of motion premised on "information and belief," without specific averment of facts or supporting affidavit, because same not only unassailable as perjury, but would also force limitless "fishing expeditions" by reviewing court). The defendant or another person with knowledge may supply the supporting affidavit for matters that are not apparent from the record. Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983); see Vyvial, 10 S.W.2d at 84 (holding that matters constituting hearsay as to accused require affidavit of another person with knowledge of facts).

B. Appellant's Claims of Ineffectiveness of Counsel

1. Voluntariness of Plea-Failure to Inform of Affirmative-Links Doctrine

Through newly retained appellate counsel, appellant claimed in his motion for new trial that his trial counsel was ineffective because he did not inform appellant adequately concerning the effect of the doctrine of affirmative links, as that defense might affect appellant's lack of exclusive possession of the premises where police seized the 250 kilograms of cocaine. Appellant argued that no affirmative links connected him to the offense, that trial counsel's failure to inform appellant of the affirmative-links doctrine adversely affected the voluntariness of his guilty plea, and that he would not have pleaded guilty had he been aware of the case law.

The affidavit offered in support of the motion for new trial is defective because it lacks evidentiary support. Appellant neither verified the motion for new trial, nor supported it with an unsworn declaration, as authorized by section 132.001 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon 2005) (authorizing unsworn declarations for inmates). Appellant's appellate counsel provided the only authentication for the statements through a brief verification. In addition to stating her name and status as an attorney licensed to practice law in Texas, counsel's verification recites that she had reviewed the motion for new trial, and "state[d] under oath that the facts contained therein are true and correct to the best of [her] knowledge." In Grant v. State, the Texarkana Court of Appeals rejected an affidavit in similar form signed by counsel on behalf of an accused and held that the trial court did not abuse its discretion by refusing to conduct an evidentiary hearing. 172 S.W.3d 98, 101 (Tex. App.--Texarkana 2005, no pet.) Because counsel's statements were necessarily hearsay with respect to the defendant's claims that he was coerced into pleading guilty, counsel's sworn statement was inadmissible hearsay, and the trial court did not err by not holding the requested hearing on the motion for new trial. See id. ⁽¹⁾

Just as counsel in Grant could not testify competently that the defendant had been coerced into entering a guilty plea, id., appellate counsel was not competent here to testify that trial counsel's alleged failure to inform appellant of the doctrine of affirmative links adversely affected his decision to plead guilty. Thus lacking any sworn statement or unsworn declaration by the defendant concerning trial counsel's ineffectiveness because of his alleged failure to explain the affirmative links doctrine to appellant and any relationship of that alleged failure to appellant's plea, the motion for new trial remained effectively unsworn and, thus, noncompliant with the affidavit requirement. See id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon 2005) (authorizing unsworn declaration by prison inmate in lieu of affidavit); see also Wallace, 106 S.W.3d at 108; Martinez, 74 S.W.3d at 21; Guidry, 132 S.W.3d at 612 (reiterating affidavit requirement). Accordingly, appellant's motion did not place the trial court on notice that reasonable grounds for granting appellant's request for an evidentiary hearing existed. See Jordan, 883 S.W.2d at 665.

2. Other Ineffective-Assistance Claims

Appellant also contended in the motion for new trial that his trial counsel was ineffective during the punishment phase by not offering witnesses or mitigating evidence and not making a "real" plea for leniency. In addition to the lack of sworn, supporting proof addressed above, these claims constitute bare legal conclusions without additional supporting facts to substantiate the stated failures or explanations of how any of these alleged failures adversely affected appellant. Compare King, 29 S.W.3d at 569 and Jordan, 883 S.W.2d at 665 (rejecting contentions in motion for new trial as conclusory) with Guidry, 132 S.W.3d at 612 (holding that claim of ineffective representation warranted evidentiary hearing because affidavit supporting motion for new trial explained that counsel's failure to inform prosecutor that appellant had accepted plea bargain, which resulted in greater punishment than proposed by State).

We hold that appellant's motion for new trial and the supporting verification by appellate counsel did not entitle appellant to the hearing contemplated by article 40.001 of the Code of Criminal Procedure because they did not place the trial court on notice that reasonable grounds existed for granting the requested hearing. E.g., Jordan, 883 S.W.2d at 665. Therefore, that the trial court did not abuse its discretion by refusing to conduct a hearing on appellant's motion for new trial.

We overrule appellant's fifth point of error.

Motions to Suppress

Appellant's first, second, and third points of error challenge denial of his motions to suppress. The first and second points of error challenge the trial court's refusal to suppress the evidence seized from the residence on the grounds that appellant's written consent to search was neither voluntary nor valid, in violation of article 1, section 9 of the Texas Constitution, article 38.23 of the Code of Criminal Procedure, and the Fourth and Fourteenth Amendments to the United States Constitution. See Tex. Const. art. 1, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005); U.S. Const. amend. IV, XIV.

A. Voluntary Consent or Acquiescence to Police Authority--Waived

In point of error one, appellant contends that his written consent to search the residence was not voluntary because he merely acquiesced to the police officer's claim of lawful authority. See Bumper v. N. Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 1791 (1968); Paulus v. State, 633 S.W.2d 827, 850 (Tex. Crim. App. 1981). In support of that contention, appellant interprets the record as demonstrating a conflict between the testimony of the officers, who claimed that no more than ten minutes passed between appellant's detentions and his signing the consent to search the residence, and other evidence in the record that shows a gap of six hours between initial detention and his signing the consent form. ⁽²⁾ Appellant argues that this conflict casts "serious doubt" on both the officers' testimony and the voluntariness of appellant's consent. Appellant also directs us to the following handwritten addition to the consent to search form: "Narcessa Martinez (appellant's wife) will not be arrested during this [search]." Appellant contends that the addition suggests either that appellant's consent was coerced or that appellant believed he was promised impunity for his wife if he consented to the search.

Appellant did not preserve either contention in the trial court, where his motion to suppress, as well as his motion for new trial, focused on appellant's lack of authority to consent to the search of the residence, which another person actually owned, and the alleged failure of the officers at the scene to inform appellant that he could refuse to consent.

Well-settled law recognizes that virtually every right, whether constitutional or statutory, may be waived by failing to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). To preserve error for appellate review, an appellant must object timely, with reasonable specificity, and obtain an adverse ruling. Tex. R. App. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). An appellant has not preserved error when the complaint on appeal does not comport with the objection made to the trial court, Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002), or expands beyond a narrow ground presented to the trial court. See Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). Error is not preserved under either alternative because the trial court had no opportunity to rule on the grounds presented on appeal, as rule 33.1(a)(2) requires.

Because appellant did not present to the trial court the same contentions that he presents in his first point of error to this Court, the trial court had no opportunity to rule on those contentions, as required by rule 33.1(a)(2). Having thus failed to preserve error by raising his challenges for the first time on appeal, appellant has waived error. See Wilson, 71 S.W.3d at 349; Swain, 181 S.W.3d at 365.

We overrule appellant's first point of error.

B. Authority to Consent

In his second point of error, appellant contends that the trial court erred by denying his motion to suppress the cocaine the officers seized from the residence on the grounds that appellant had neither actual nor apparent authority to consent to the search because another person owned the residence. The State responds that appellant waived any error because his contentions were not before the trial court during the hearing on the motion to suppress. Though appellant's argument was not before the trial court at the hearing on the motion to suppress, appellant's motion for new trial included a challenge to his actual or apparent authority to consent to the search of the residence. The trial court did not rule expressly on the motion for new trial, which was overruled as a matter of law, but the motion nonetheless afforded the trial court an opportunity to rule on the merits of appellant's challenge and, therefore, preserved the complaint for appeal. See Tex. R. App. P. 33.1(b).

1. Standard of Review

Under the bifurcated standard of review that controls rulings on a motion to suppress, we defer almost totally to the trial court's determination of historical facts, and we review the court's application of the law de novo. See Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003); Brown v. State, 212 S.W.3d 851, 866 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). The trial court is the trier of fact at a hearing on a motion to suppress and alone determines the credibility of witnesses and the weight, if any, to accord their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Brown, 212 S.W.3d at 866-67. Accordingly, the trial court may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted. Ross, 32 S.W.3d at 855; Brown, 212 S.W.3d at 867. When, as here, the trial court files no findings of fact, we view the evidence in the light that most favors the trial court's ruling, and we will uphold the ruling on any theory of law supported by the evidence. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Brown, 212 S.W.3d at 867.

2. Standing

We first address the State's contention that appellant lacks standing to assert that he lacked actual or apparent authority to consent to the search of the residence because the residence was not appellant's residence. An accused has standing to contest a search under the Fourth Amendment provided he has a legitimate expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978); Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002); Brown, 212 S.W.3d at 867. It is the defendant's burden to establish that he had a subjective expectation of privacy that society recognizes as reasonable in the place searched. Granados, 85 S.W.3d at 223; Brown, 212 S.W.3d at 867. ⁽³⁾

In this case, appellant had keys to the residence on his keychain and gave them to an officer at the residence, who then unlocked the residence and entered it with other officers after appellant signed a written consent. Once inside, appellant, who was on crutches, remained in the kitchen area of the residence, from which he directed the officers conducting the search to areas all over the house, where they recovered cocaine and kilo wrappers. The search progressed by appellant's indicating an area for the officers to search, the officers' recovering either cocaine or kilo wrappers in that area, and then returning to appellant to ask whether any more drugs existed and where they were located. Appellant directed the officers to a specific shelf in a bedroom, a specific dresser drawer of another bedroom, a specific oatmeal bag in the pantry area of the kitchen, the attic crawl space of a bedroom, as well as the garage. Appellant instructed the officers how to access the attic--by using a ladder in the garage that was resting on large duffel bags containing the largest amounts of cocaine--and described those bags as well, and also told the officers that the owner of the house did not know that appellant was storing controlled substances there. These circumstances, including the circumstances that the contraband was hidden and not in plain view in any of the areas to which appellant directed the officers, warrant the trial court's implied conclusion that appellant had a reasonable expectation of privacy in the searched premises. See Granados, 85 S.W.3d at 223; Brown, 212 S.W.3d at 867. Accordingly, we conclude that appellant has standing to challenge whether he consented to the search.

3. Validity--Whether Officers Reasonably Relied on Appellant's Consent ⁽⁴⁾

It is undisputed that police conducted a warrantless search of the residence, but also undisputed that appellant signed a written consent authorizing the search. Consent is a well-established exception to the warrant requirement. Miller v. State, 208 S.W.3d 554, 559 (Tex. App.--Austin 2006, pet. ref'd) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973)); Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000). An individual whose premises or property is searched may consent, but an individual who has common authority over and authority to use the premises or property may also consent. Illinois v. Rodriguez, 497 U.S. 177, 179-81, 110 S. Ct. 2793, 2797 (1990) (citing United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)); Whisenhunt v. State, 122 S.W.3d 295, 298 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd); Brown, 212 S.W.2d at 868; see also Jones v. State, 119 S.W.3d 766, 787 (Tex. Crim. App. 2003) (stating that third person who has "equal control and equal use of property searched" may validly consent).

To be constitutionally valid, consent must be voluntary. See Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003) (citing Schneckloth, 412 U.S. at 219-23, 93 S. Ct. at 2041); see also Brimage v. State 918 S.W.2d 466, 480-82 (Tex. Crim. App. 1994) ("When the State has secured the voluntary consent to a warrantless search, such a search violates neither the United States or Texas constitutions, nor the laws of this state.") (citing Matlock, 415 U.S. 164, 94 S. Ct. 988 (1974); Becknell v. State, 720 S.W.2d 526 (Tex. Crim. App. 1986); Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986)). The validity of a consent to search is a question of fact and is determined from all the circumstances. Rayford, 125 S.W.3d at 528 (citing Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421 (1996)); Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Federal constitution law demands that the State prove the validity of consent by a preponderance of the evidence, and the Texas Constitution requires the State to establish validity of consent by clear and convincing evidence. Rayford, 125 S.W.3d at 528; Maxwell, 73 S.W.3d at 281.

An individual's authority to consent to search another's premises or property derives from the Supreme Court's recognition that several persons may have joint access or control over a property for most purposes and thus may use the property sufficiently mutually that it is reasonable to recognize that a cohabitant has the right to permit the inspection in his own right. See Maxwell, 73 S.W.3d at 282; see Matlock, 415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7. Accordingly, a person who has common authority over a premises has the same authority to consent as another with whom the person shares the premises. See Maxwell, 73 S.W.3d at 281-82; Brown, 212 S.W.3d at 868 (citing Matlock, 415 U.S. at 171, 94 S. Ct. at 993). "Common authority," therefore, "derives from the mutual use of the property, not the ownership or lack thereof." Jones, 119 S.W.3d at 787; see Maxwell, 73 S.W.3d at 281.

In Whisenhunt, this Court concluded that an officer acted reasonably in searching an accused's bedroom, having been led to the room by a person "who appeared to have authority to consent to the search." 122 S.W.3d at 301. We relied on Illinois v. Rodriguez, in which officers had been granted access inside an apartment by a woman who represented that the apartment was "our[s]" and that she had clothes and furniture there. 497 U.S. at 179, 110 S. Ct. at 2797. Though the woman unlocked the apartment with her key and gave officers permission to enter, she had no actual authority to consent to the officer's entry because she had moved and was not living there. Id. at 180. Noting that the record did not clearly establish whether the woman told the officers that she currently lived at the apartment or that she had merely lived there once, the Supreme Court ruled that searches could be valid under the apparent authority rationale. Id. at 188, 110 S. Ct. at 2801. The court instructed, "Whether the basis for such authority exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their judgment; and all the Fourth Amendment requires is that they answer it reasonably." Id. at 186, 110 S. Ct. at 2800. Because many situations that confront officers in the course of executing their duties "are more or less ambiguous, room must be allowed for some mistakes on their part," though mistakes must be "reasonable" and result from "acting on facts leading sensibly to . . . conclusions of probability." Id. (citing Brinegar v. United States, 338 U.S. 160, 176, 69 S. Ct. 1302, 1311 (1949)).

More recently, in Georgia v. Randolph, the Supreme Court reiterated that the "constant element in assessing Fourth Amendment reasonableness in the consent cases . . . is the great significance given to widely shared social expectations . . . ," and that Matlock "stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other's interest" so that "shared tenancy is understood to include an 'assumption of risk,' on which police officers are entitled to rely." 547 U.S. 103, 111, 126 S. Ct. 1515, 1521-22 (2006). Accordingly, Matlock imposed no burden on police "to eliminate the possibility of atypical arrangements" when there is no "reason to doubt that the regular scheme was in place." Randolph, 547 U.S. at 112, 126 S. Ct. at 1522.

Viewing the totality of the circumstances of this case in the light that most favors the trial court's ruling, we begin with the consent form that appellant signed, which appellant executed after he was arrested based on the cocaine and large amount of cash recovered from his truck. When asked whether additional drugs were inside the residence, appellant replied "yes" and consented orally to a search of the residence. The officers then waited about ten minutes for another officer to arrive with the consent form.

Before signing the form, appellant received his statutory warnings twice and indicated that he understood them. Appellant also read the consent form, which includes the recital that he had a right to refuse consent and that no promises, threats, or physical or mental coercion had been used to gain either his consent or his signature on the form. Appellant read and understood English well. No guns had been drawn, and appellant was cooperative. The officers were attentive to appellant's physical limitations because his leg was injured, and he had to use crutches. The officers and appellant were the only people present at the residence, and two officers were present when appellant signed the consent form.

Though no friends or family members were under investigation, and the officers had no knowledge of appellant's wife or family, appellant indicated to the officers that he wanted to take ownership of any contraband recovered and did not want his wife to go to jail. In addition, appellant informed the officers that the actual owner of the residence did not know that appellant was storing drugs there.

Appellant gave his keychain to police officers, who used one of the keys to unlock and enter the residence. When one of the officers was asked under cross-examination what led him to believe that the residence was appellant's, he responded that appellant had keys to the residence, which led the officers to believe that appellant "might have control of the residence"; that appellant "told us he had cocaine there," and that he "believe[d appellant] knew what was in that location." Once inside, appellant remained in the kitchen, because of his injury, but was nonetheless able to direct the officers specifically to multiple areas where cocaine had been hidden, as addressed above.

Appellant contends, however, that the totality of the circumstances demonstrates that no person could reasonably believe that appellant validly consented to the search of the residence. Appellant emphasizes that an officer conceded that he discovered during the search that the house was the residence of another person, and that the officer could not identify, from photographs presented to him at trial, whether the cocaine discovered from a bedroom was in appellant's bedroom or a bedroom that someone else used. From this, appellant infers that no items, personal to appellant, were identified in the house. Appellant also emphasizes that the officers had no advance information about the residence as it related to appellant. We disagree.

Though the officer could not identify which bedroom was appellant's from a photograph introduced into evidence and there was no testimony concerning personal effects like clothing, these circumstances alone are insufficient to show that appellant lacked authority, in light of other evidence that affirmatively connects appellant to the house. Appellant referred voluntarily to both his wife and the actual owner of the property in reference to the house, but stated that the owner did not know about the cocaine and that his wife was not involved in the possession and should not be arrested. Both statements, however, connected appellant to the house, to which appellant had keys. On reviewing the record under the controlling standard, we conclude that the State presented clear and convincing evidence, and thus a preponderance of the evidence, that appellant validly consented to a search of the residence and, therefore, that the officers at the scene acted reasonably in relying on appellant's consent.

Except for narrow exceptions that do not apply here, settled law recognizes that lack of legal ownership of a residence is a nondispositive inquiry in consent-to-search cases. See Jones, 119 S.W.3d at 787; Maxwell, 73 S.W.3d at 282 & n.3 (recognizing exceptions for cases involving landlord and tenant and hotel and guest). Appellant's command over the residence, to the extent that he was able to describe specific places, specific directions to those places, and even specific containers--like the oatmeal bag in the pantry and the box in the attic crawl space--and to tell the officers where items like the ladder he recommended to access the attic crawl space was stored, constituted clear and convincing evidence that appellant had control and authority over the residence based on his unequivocal use of it and command over it. Learning that another person actually owned the house did not diminish that showing except to demonstrate that appellant's control, authority, use, and command over the house were mutual with the owner and were shared with the owner. See and compare Brimage, 918 S.W.2d at 480-82 (rejecting validity of consent based on consenter's representations that cast doubt on consenter's ownership) with Maxwell, 73 S.W.3d at 282 (upholding validity of consent because officer could reasonably have believed that driver had mutual control with defendant over rig, despite defendant's ownership).

We hold that the facts available to the officers in this case would warrant a person of reasonable caution to believe that appellant used and had authority and control over the residence where officers seized the contraband and, therefore, that the trial court did not abuse its discretion by overruling appellant's motion to suppress the cocaine.

We overrule appellant's second point of error.

C. Appellant's Statement

Appellant's third point of error challenges denial of his motion to suppress his written statement. Appellant contends that the statement should have been suppressed as the "fruit of the poisonous tree," specifically, the wrongful conduct of the officers at the scene. Appellant waived this point by failing to preserve it in the trial court. See Tex. R. App. P. 33.1(a); Turner, 805 S.W.2d at 431; Steadman, 31 S.W.3d at 742.

We overrule appellant's third point of error.

Ineffective Assistance of Counsel

In his fourth point of error, appellant contends that his trial counsel was ineffective. Appellants claims that counsel did not inform him of the law of affirmative links, did not provide legal authorities to the trial court in support of the motion to suppress, and did not call witnesses, offer mitigating evidence, or make a "real" plea for leniency at the punishment hearing conducted on the presentence-investigation report (PSI).

To prevail on his claim of ineffective assistance of counsel, appellant must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Appellant must first demonstrate that his trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See id. at 688, 104 S. Ct. at 2064-65; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, appellant must establish that his counsel's performance was so deficient that it prejudiced his defense. See Howland v. State, 966 S.W.2d 98, 104 (Tex. App.--Houston [1st Dist.] 1998), aff'd on other grounds, 990 S.W.2d 274 (Tex. Crim. App. 1999). Thus, appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Howland, 966 S.W.2d at 104. Appellant has the burden to establish both prongs of the Strickland test by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Because there is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance, appellant must overcome the presumption that counsel's action or inaction might be considered "sound trial strategy" under the circumstances. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. The record on direct appeal, therefore, will not normally be sufficient to demonstrate a preponderance of evidence that an attorney's representation was so deficient and so lacking in tactical or strategic decision-making that an appellant will succeed in overcoming the presumption that representation was reasonably professional. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When the record is silent regarding counsel's reasoning or strategy, we may not speculate to find trial counsel ineffective. Gamble, 916 S.W.2d at 93.

Though appellant filed a motion for new trial and requested a hearing on the motion, in part to substantiate the claims of ineffectiveness of trial counsel, we held above that the appellant's appellate counsel's motion lacked the evidentiary support required by article 40.001 of the Code of Criminal Procedure to entitle appellant to an evidentiary hearing. Accordingly, there is no record on which we might rely to substantiate and assess either trial counsel's strategy or his reasons for acting or not acting as appellant contends he should have. Under the circumstances, we may not speculate concerning either. See Thompson, 9 S.W.3d at 814; Gamble, 916 S.W.2d at 93.

We cannot say that appellant's criticism of the motion to suppress because of lack of substantive authority is sufficient to show that counsel's performance fell below an objective standard of reasonableness, to the degree that appellant can overcome the presumption that the motion constituted effective representation. Counsel cited the controlling provisions of the Texas and federal constitutions and the Code of Criminal Procedure that supported his constitutional challenges and presented several challenges, including many preserved by that motion and presented on appeal. The hearing on the motion further reflects vigorous cross-examination by which trial counsel scrutinized each police officer's version of the sequence and timing of events, particularly concerning appellant's consents to search both his vehicle and the residence. Concerning appellant's criticism of trial counsel for not calling witnesses at the punishment hearing, the record shows that counsel presented several character letters on appellant's behalf. Similarly, counsel's closing argument at punishment strongly recommended lesser punishment by emphasizing that appellant cooperated with police, had a good work history, an insignificant criminal history, was young and had family support, as well as family obligations, but was also disabled by his leg injury.

We hold that appellant has not met his burden to show, by a preponderance of the evidence, that his trial counsel's performance was deficient. Having thus not satisfied the first prong of the Strickland test, appellant has not overcome the presumption that his trial counsel provided reasonably effective representation.

We overrule appellant's fourth point of error, and we deny all pending motions.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. The defendant in Grant had provided his own statement in support of the motion for new trial, but it was neither a sworn affidavit nor an unsworn declaration. See Grant v. State, 172 S.W.3d 98, 101 (Tex. App.--Texarkana 2005, no pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 132.001).

2. The State explains in its brief that the 6-hour lapse is from 2 p.m., when the officers received their tip. Rolling surveillance of appellant did not occur until four or five hours later, when officers observed the first hand-to-hand transfer from appellant's truck.

3. Several factors are relevant to determining whether a given claim of privacy is objectively reasonable, including whether the accused (1) had a property or possessory interest in the place invaded, (2) was legitimately in the place invaded, (3) had complete dominion or control and the right to exclude others, (4) took normal precautions customarily taken by those seeking privacy before the intrusion, or (5) put the place to some private use, and lastly (6) whether the accused's claim of privacy is consistent with historical notions of privacy. See Brown v. State, 212 S.W.3d 851, 867 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (citing Granados v. State, 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002)). This list of factors is non-exhaustive, and no single factor is dispositive of a legitimate expectation of privacy. Id.

4.

We note that this case differs from many involving consent by third parties, in that here the consenting third party contends that his own consent was invalid, rather than the consent given by another. See e.g., Maxwell v. State, 73 S.W.3d 278, 280 (Tex. Crim. App. 2002) (involving driver who consented to search of defendant's truck trailer).