COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-065-CR
MARK GUTIERREZ APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION 1
I. Introduction
In one point, Appellant Mark Gutierrez appeals his conviction for
possession of a controlled substance over one gram but under four grams,
claiming that he received ineffective assistance of counsel at trial. We affirm.
1 … See Tex. R. App. P. 47.4. II. Factual and Procedural Background
On July 31, 2007, Carrollton Police Officer John Stovall was dispatched
around midmorning to investigate a complaint about two men at the Waterford
Park Apartments.2 Officer Stovall testified that the complaint was made by the
apartment complex’s manager, maintenance man, or
somebody who worked for the complex, [who] had called and apparently had some confrontation or a problem with two gentlemen who were there on the property that they had problems with on a prior occasion. And they had asked them to leave, and they refused to leave the property. So they contacted the police.
Officer Stovall stated that the complainant told him that he did not believe the
two men were supposed to be on the property and that “they might even have
been burglarizing an apartment or just in an apartment where they weren’t
supposed to be at.” He testified that he did not know of any other offenses
that occurred at the apartment complex.3
When Officer Stovall arrived five minutes after receiving the dispatch call,
the two men had already departed. The complainant told Officer Stovall that
2 … The apartment complex is in the portion of Carrollton located within Denton County. 3 … When asked whether there was any evidence that the two men had done anything other than enter the property, Officer Stovall replied, “[A]s far as my knowledge, I don’t know of any other offense that occurred there,” and he stated that he did not follow up on the other allegations.
2 the parties had gone and were walking south down the sidewalk; he described
them as a dark-skinned male and a light-skinned male.
Officer Stovall left the complex, looked south, and saw the two described
individuals, one of whom was Gutierrez. Officer Stovall approached both of
them without turning on his vehicle’s overhead lights, and they made no
attempt to evade him. For safety, Officer Stovall patted both parties down for
weapons; he found none. The two men confirmed that they were involved in
a disturbance at the apartment complex, and the officer ran a warrant check
and discovered an outstanding arrest warrant issued out of Collin County for
Gutierrez.
The officer arrested Gutierrez at Collin County’s request. After
handcuffing Gutierrez, the officer did another pat down search and found 1.6
grams of cocaine, as well as some marijuana, in a metal container in Gutierrez’s
front right pants pocket.
Gutierrez’s trial counsel did not file a motion to suppress the evidence
discovered during the second pat-down. Gutierrez pleaded not guilty to the
offense charged and true to the enhancement paragraphs. A jury found
Gutierrez guilty of possession of a controlled substance over one gram but
under four grams, found that the enhancement paragraphs were true, and
assessed punishment at eight years’ confinement. This appeal followed.
3 III. Ineffective Assistance of Counsel
Gutierrez’s sole complaint is that he received ineffective assistance of
counsel at trial because his trial counsel failed to (1) “file a meritorious motion
to suppress” the cocaine found in Gutierrez’s pocket and (2) object to the
seized evidence at trial.
A. Standard of Review
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
4 reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W .3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id., (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial
whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In
other words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
5 probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
B. Analysis
Failure to file a motion to suppress or to object to the admission of
evidence does not demonstrate a deficiency of counsel per se. See Ortiz v.
State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 998
(2003); Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.—Houston [14th
Dist.] 1997, no pet.).
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-065-CR
MARK GUTIERREZ APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION 1
I. Introduction
In one point, Appellant Mark Gutierrez appeals his conviction for
possession of a controlled substance over one gram but under four grams,
claiming that he received ineffective assistance of counsel at trial. We affirm.
1 … See Tex. R. App. P. 47.4. II. Factual and Procedural Background
On July 31, 2007, Carrollton Police Officer John Stovall was dispatched
around midmorning to investigate a complaint about two men at the Waterford
Park Apartments.2 Officer Stovall testified that the complaint was made by the
apartment complex’s manager, maintenance man, or
somebody who worked for the complex, [who] had called and apparently had some confrontation or a problem with two gentlemen who were there on the property that they had problems with on a prior occasion. And they had asked them to leave, and they refused to leave the property. So they contacted the police.
Officer Stovall stated that the complainant told him that he did not believe the
two men were supposed to be on the property and that “they might even have
been burglarizing an apartment or just in an apartment where they weren’t
supposed to be at.” He testified that he did not know of any other offenses
that occurred at the apartment complex.3
When Officer Stovall arrived five minutes after receiving the dispatch call,
the two men had already departed. The complainant told Officer Stovall that
2 … The apartment complex is in the portion of Carrollton located within Denton County. 3 … When asked whether there was any evidence that the two men had done anything other than enter the property, Officer Stovall replied, “[A]s far as my knowledge, I don’t know of any other offense that occurred there,” and he stated that he did not follow up on the other allegations.
2 the parties had gone and were walking south down the sidewalk; he described
them as a dark-skinned male and a light-skinned male.
Officer Stovall left the complex, looked south, and saw the two described
individuals, one of whom was Gutierrez. Officer Stovall approached both of
them without turning on his vehicle’s overhead lights, and they made no
attempt to evade him. For safety, Officer Stovall patted both parties down for
weapons; he found none. The two men confirmed that they were involved in
a disturbance at the apartment complex, and the officer ran a warrant check
and discovered an outstanding arrest warrant issued out of Collin County for
Gutierrez.
The officer arrested Gutierrez at Collin County’s request. After
handcuffing Gutierrez, the officer did another pat down search and found 1.6
grams of cocaine, as well as some marijuana, in a metal container in Gutierrez’s
front right pants pocket.
Gutierrez’s trial counsel did not file a motion to suppress the evidence
discovered during the second pat-down. Gutierrez pleaded not guilty to the
offense charged and true to the enhancement paragraphs. A jury found
Gutierrez guilty of possession of a controlled substance over one gram but
under four grams, found that the enhancement paragraphs were true, and
assessed punishment at eight years’ confinement. This appeal followed.
3 III. Ineffective Assistance of Counsel
Gutierrez’s sole complaint is that he received ineffective assistance of
counsel at trial because his trial counsel failed to (1) “file a meritorious motion
to suppress” the cocaine found in Gutierrez’s pocket and (2) object to the
seized evidence at trial.
A. Standard of Review
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first prong, we look
to the totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance
was reasonable under all the circumstances and prevailing professional norms
at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.
Ct. at 2065. Review of counsel’s representation is highly deferential, and the
4 reviewing court indulges a strong presumption that counsel’s conduct fell within
a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on
direct appeal to fairly evaluate the merits of an ineffective assistance claim.
Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind
trial counsel’s actions.” Salinas, 163 S.W .3d at 740 (quoting Mallett, 65
S.W.3d at 63). To overcome the presumption of reasonable professional
assistance, “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Id., (quoting Thompson, 9 S.W.3d at 813). It is not
appropriate for an appellate court to simply infer ineffective assistance based
upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432
(Tex. Crim. App. 2007).
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial
whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In
other words, appellant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
5 probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.
B. Analysis
Failure to file a motion to suppress or to object to the admission of
evidence does not demonstrate a deficiency of counsel per se. See Ortiz v.
State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 998
(2003); Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.—Houston [14th
Dist.] 1997, no pet.). To show that counsel’s performance was deficient,
Gutierrez was obliged to prove that the motion would have been granted or that
the objection would have been sustained. See Ortiz, 93 S.W.3d at 93 (stating
that a claim of ineffective assistance based on failure to object to the admission
of evidence must establish that the evidence was inadmissible); Jackson v.
State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (holding that, to prevail
on a claim of ineffective assistance, appellant is “obliged to prove that a motion
to suppress would have been granted”); Roberson v. State, 852 S.W.2d 508,
510–11 (Tex. Crim. App. 1993) (holding that without a showing that a pretrial
motion had merit and that a ruling on the motion would have changed the
outcome of the case, counsel is not ineffective for failing to assert the motion).
6 Gutierrez complains that Officer Stovall had no reasonable suspicion to
detain him and that he should not have been detained. He argues that the
arrest warrant did not attenuate the subsequent illegal search resulting from his
unlawful detention and that, because he was illegally detained, his trial
counsel’s failure to file a motion to suppress the evidence discovered during the
illegal detention amounted to ineffective assistance of counsel. We disagree.
Reasonable suspicion exists when, based on the totality of the
circumstances, the officer has specific, articulable facts that when combined
with rational inferences from those facts, would lead him to reasonably
conclude that a particular person is, has been, or soon will be engaged in
criminal activity. Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App.
2005). Based on Officer Stovall’s testimony, Gutierrez’s trial counsel and the
trial court, if counsel had presented a motion to suppress, could have believed
that the officer had information sufficient to develop a reasonable suspicion of
criminal activity based on the specific, articulable facts that he testified about
at trial—that an apartment complex employee informed him of a confrontation
or problem, including trespassing and possibly burglary, with some individuals
who had refused to leave the property; 4 gave him a description of the two
4 … See, e.g., Tex. Penal Code Ann. § 30.02 (Vernon 2003) (burglary); id. § 30.05 (Vernon Supp. 2008) (criminal trespass).
7 individuals involved; and told him in which direction the individuals had gone
and that they had just left. See Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct.
1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim.
App. 2000); see also Hoag v. State, 728 S.W.2d 375, 380–81 (Tex. Crim.
App. 1987) (stating that a police officer may briefly stop a suspicious individual
in order to determine his identity or to maintain the status quo momentarily
while obtaining more information and may conduct a limited search for weapons
where it is reasonably warranted for his safety). Based on these facts,
Gutierrez cannot show that the motion to suppress would have been granted
or that an objection to the evidence would have been sustained.
Additionally, the discovery of an outstanding warrant during the detention
broke the connection between the primary taint of the alleged unlawful
detention, if any, and the subsequently discovered evidence. See Johnson v.
State, 496 S.W.2d 72, 74 (Tex. Crim. App. 1973); see also Lewis v. State,
915 S.W.2d 51, 54 (Tex. App.—Dallas 1995, no pet.) (holding that discovery
of outstanding warrants and the legal arrest under those warrants were
intervening circumstances which attenuated the connection between any illegal
detention and the discovery of heroin); Reed v. State, 809 S.W.2d 940, 947
(Tex. App.—Dallas 1991, no pet.) (holding that the second, legal arrest under
the outstanding warrant purged the taint of any illegality from the initial arrest).
8 But see St. George v. State, 197 S.W.3d 806, 824 & n.71 (Tex. App.—Fort
Worth 2006) (op. on reh’g en banc) (declining to address attenuation where the
State did not raise it), aff’d, 237 S.W.3d 720 (Tex. Crim. App. 2007).5
Therefore, even if Gutierrez’s trial counsel had filed a motion to suppress,
Gutierrez has failed to show a reasonable probability that the result of the
proceeding would have been any different. See Strickland, 466 U.S. at 694,
104 S. Ct. at 2068. We overrule Gutierrez’s sole point.
5 … Several courts have mentioned the policy issues that are problematic in drawing a line between deterring unlawful seizures on one hand and allowing a suspect with outstanding warrants for his arrest to go free. See Fletcher v. State, 90 S.W.3d 419, 421 (Tex. App.—Amarillo 2002, no pet.); Neese v. State, 930 S.W.2d 792, 802–03 (Tex. App.—Beaumont 1996, pet. ref’d); Reed, 809 S.W.2d at 948 n.3. However, those issues involve facts that are not pertinent to the instant case. Furthermore, while Gutierrez cites Sims v. State, 84 S.W.3d 805 (Tex. App.—Houston [1st Dist.] 2002, no pet.), for the proposition that he should not have been detained in the first place, we note that even though the Sims court concluded that there was an unlawful detention, it also held, as we do here, that any taint from an initial illegality became attenuated upon discovery of an outstanding warrant, a legal arrest based on that warrant, and the discovery of evidence subsequent to that arrest. Id. at 807, 810.
9 IV. Conclusion
Having overruled Gutierrez’s sole point, we affirm the trial court’s
judgment.
BOB MCCOY JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
WALKER, J. concurs without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 15, 2009