MODIFY, RFFOk1L and AFFIRM; and Opinion Filed 1%larch 27, 2013.
In The Qtmtrt tf pia1 )nitrirt uf Jtxua at 1a11ai No. OSi200360CR
ELMER 0. SALMERON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No, F11-00773-M
OPINION Before Justices FitzGerald, Fillmore, and Evans Opinion by Justice Fillmore A jury convicted Elmer 0. Salmeron of delivery of more than 400 grams of a controlled
substance and assessed punishment of fifteen years’ imprisonment and a $ 15,000 fine. In one
issue, Salmeron asserts he received ineffective assistance of counsel because his trial counsel
failed to request that a limiting instruction be included in the jury charge. We modify the trial
court’s judgment to reflect the correct offense of which Salmeron was convicted and the correct
name of Salmeron’s trial counsel. As modified, we affirm the trial court’s judgment. Background
As part of “Operation Starlight,” an investigation into illegal drug sales, Dallas police
officers Andrew ()rtiz and Noel Carrasco arranged to meet Erhvin Benitez on September 28,
2010 at his apartment to negotiate the purchase of a kilogram ot cocaine and a kilogram of
methamphetamme. Salmeron, who was in the apartment with l3enitez when Ortiz and Carrasco
arrived, introduced himself to the officers as “Haco” and participated in the conversation.
Carrasco secretly recorded the negotiations, which were conducted partially in English and
partially in Spanish. Ortiz, Carrasco, and Benitez 2 all testified that Salmeron was a party to the
negotiations and agreed to play a role in the drug transaction. Salmeron denied any involvement
in the drug transaction and testified he was at the apartment only to have a discussion with
Benitez concerning an unpaid electric bill.
After the officers agreed to a price for the drugs, Benitez proposed the transactions be
handled separately, with the methamphetarnine purchase to occur first. Benitez also proposed
that the methamphetamine be delivered at a nearby car wash while the money was
simultaneously delivered to the apartment. Benitez and Ortiz agreed they would meet at the car
wash. After Ortiz saw the methamphetamine, he would call Carrasco, and Carrasco would meet
Salmeron at the apartment to count the money.
The methamphetamine transaction was ultimately scheduled for October 4, 2010. Ortiz
met Benitez at the car wash, and Carrasco parked in the vicinity of the apartment SO that he could
identify Salmeron to the response team. Benitez had 982 grams of methamphetarnine in a
5aimeron has not challenged the suhietency of the evtdence to suppo the conviction, ihereiore. we recite only those Octs necessary to address his complaint on appeal
2 in a separate case, Benites pleaded guilty to the charges against him, hot had not yet been sentenced. Tupperware container in the front seat of his car. After Ortiz saw the methamphetamine, he
notitied SWAT officers to arrest Benitez and to search the apartment.
Dallas police ofhcers Keith Tyler and Terrell McNeil were conducting surveillance on
l3enetiz’s apartment. They saw Salmeron drive a white Cadillac into the apartment complex and
then go into the apartment. Salmeron came Out of the apartment with a white plastic bag in his
hand, placed the hag into the backseat of the Cadillac, went back upstairs, and stood on the
balcony outside the apartment talking on a cellphone. Salmeron then came downstairs and was
arrested in the parking lot, Tyler searched the car and found a homemade press, commonly used
to compress cocaine, in the white bag in the backseat of the car. During the search of the
apartment, the police (bund three guns, a lease for the apartment in Salmeron’s name, and
paperwork relating to drug transactions.
Ortiz, Carrasco, Tyler, and McNeil all testified about whether there was a warrant to
arrest Salmeron and a warrant to search the apartment. The arrest warrant for Salmeron and the
search warrant for the apartment were issued by the magistrate on October 4, 20l0, Further, the
affidavit in support of the arrest warrant indicates it was subscribed and sworn to before the
magistrate by Ortiz on October 4, 2010. The evidentiary affidavit completed by Ortiz in support
of the search warrant has “Oct 04 2010” stamped under Ortiz’s name, but states that it was
subscribed and sworn to before the magistrate on October 29, 2010. Further, an intelligence
report of activities in Operation Starlight states the warrants were obtained on October 10, 2010.
Ortiz and Carrasco testified that, on October 4th, they obtained a search warrant for the
apartment, a seizure warrant for Benitez’s car, which had been used in prior drug transactions
between Benitez and Ortiz, and arrest warrants for Salmeron and Benitez. Ortiz testified the
The arrest warrant and the search warrant were adnstttcd, without objection, for record purposes only. The officers were questioned about the dates on the warrants.
a eareli and arrest an ants were iened on ( )ctoher 4 tlL not ( )ctoher I 0th. and the ( )etober I 0th
date in the nitell leenee report was ineon-ect. Aeeordin to Carrasco, the October 10th (late in the
)peration Starlwht report “could possibly have been a typo on a date.” Carrasco was adamant
that “it did not happen on the 10th. It happened on the 4th.” Carrasco speculated that the
magistrate signed the search warrant affidavit on October 29th because that was the date he
“actually approved and reviewed each document. (‘arrasco testified that’s what I ‘in guessing
happened because I do know that we went and isited with him and he reviewed each document
before it was siened and that he believed “that’s why the stamp is there for October 4th.”
Carrasco testified he found out Salmeron’s true identity on the (lay of his arrest, October 4th,
However, he was not the affiant on the arrest warrant and did not know how Salmeron was
identified for purposes of the arrest warrant. Ortiz, the affiant on the arrest warrant, was not
questioned about how he identi fled Salmeron
Tyler testified there was a search warrant tbr the apartment. McNeil tcstilied there was
an arrest warrant “for the individual associated with that apartment’ and it was his job to notilv
the “takedown team” of any person coming and going from that apartment so that the person
could be detamed and possibly identified as the individual subject to the arrest warrant.
According to McNeil, there was also a search and seizure warrant for the Cadillac.
After the State rested its ease in chief, the trial court held a hearing to consider a
“suppression issue” raised by Salmeron’s trial counsel. Trial counsel initially requested “a
limiting instruction as to the admission of the arrest warrant and everything.” The prosecutor
responded that the arrest warrant and the search warrant had been admitted for record purposes
only. Salmeron’s trial counsel indicated he believed the warrants had been admitted for all
purposes. The prosecutor also argued there was nothing to suppress because no evidence was
4 ihund on Salmeron Ibilowing his arrest and Salmeron did not have standing to contest the search
of the apartment.
Salmeron’s trial counsel then argued:
Based on the testimony of the officer, he stated that he did not — he did not have any information about the identity of Mr. Salmeron before he obtamed the search warrant And I pressed on him, “How do you find out the affidavit” “the identity oC Mr. Salmeron?” He said it was after the arrest. And I asked him, “How did you then have a search warrant” — “an arrest warrant for Mr. Salmeron when you don’t even know who he was?” Which means that either two things, that the affidavit was not executed on the date of the search or arrest— because if you look at it, it was signed around the 29th. Why the arrest was on the 4th?
The trial court reviewed the search warrant and stated it was issued at 8:30 a.m. on October 4th.
The trial court then stated, “I don’t know how that 29th got in there or not. It’s clerical error or
brain — whatever, But I — I’m not sure I understand exactly what you’re trying to suppress.
What your point is, the arrest warrant, your argument there, I understand, is it has the name of
the defendant in it.” Trial counsel responded, “Before they found out who the defendant is.”
The trial court indicated there had been testimony to that effect, but that it was not sure the
testimony made the arrest warrant invalid. Trial counsel then stated there was no need to go
forward on the motion to suppress, but he wanted “a limiting instniction if the Court considers
that affidavit is incorrect or don’t [sic] meet the status for the Court to issue a limiting
instructions [sic] as to any evidence obtained in reference to the search and the arrest warrant that
he [sic] cannot be attributed to the defendant.” The trial court indicated it would take up that
request at the charge conference and “may or may not give something.”
The charge prepared by the trial court did not contain a limiting instruction under article
38.23 of the code of criminal procedure. Trial counsel did not object that the charge did not
5 ii lode the instti Letion ot iiiake another reqtiest lot Hfl tHStrucIiOIL I he jury convicted Salmcron
rtI ehiverine m)te than $00 gratils of tnethainphictaniine and assessed punishment of tiheen
years’ impnsonmenl and a $1 5,0(B) tine.
Salmeron tiled a motion fiar new trial on the ground the verdict is contrary to the law and
the evidence. Without conducting a hearing, the trial court overruled the motion for new trial.
ineffective Assistance of Counsel
In one issue. Salmeron asserts his trial counsel was ineiThetive by not requesting at the
charue conference that an nstruetion under article 3$.2S of the code of criminal procedure be
included in the jury charge.
To succeed on a claim for ineffective assistance of counsel, a defendant must show that
counsel’s performance was deficient and the deficiency prejudiced the defense. Strickland v.
Itushington 466 L S 668 687 8X (1984) MenlfILld State 363 S W 3d 9l 92 (Fe\ (‘rim
App. 2012) (citing Goat/speed i. State, 187 S.W.3d 390, 392 (Tex. (‘rim. App. 2005)). The first
prong requires the defendant to show counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms . Strickland, 466 U.S. at 68788, 689; Ex
pane Lane, 303 S.W.3d 702, 707 (Tex. (‘rim, App. 2009). The second prong requires the
defendant to show there is a reasonable probability that, but for his counsel’s errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694 Ex pane Lane, 303
S.W.3d at 707.
In determining whether a defendant has met his burden, we consider the totality of the
representation and the particular circumstances of each case. Ex pane Lane, 303 S.W.3d at 707.
We strongly presume counsel’s conduct fell within the wide range of reasonable professional
Salmeron does not complain on appeal that the trial court erred by fiuling to include a limiting instruction under article 38 23 of the code of criminal procedure in the urv charge.
6 assistance and do 1)1)1 judge counsel’s actions in hindsight. Strirklcmd. 466 (iS. at 689;
Thompson ‘t Stale, 9 S.W.3d 808. 813 (Tex. Crim. App. 3999). The fact that another attorney
might have pursued a different strategy at trial is insufficient to prove counsel was ineffective.
Scheanette v. State, 144 S.W.3d 503, 509 (rex. Criin. App. 2004).
An ineffective assistance claim must be “firmly founded in the record,” and the record
must affirmatively demonstrate the claim has merit. Menefleld, 363 S.W.3d at 592; Goocicpeed,
187 S.W.3d at 392; see also Er porte Maninez, 330 S.W.3d 891, 901 (Tex. Crim. App.), ccii.
denied, 131 S. Ct. 3073 (2011) (“Allegations of ineffectiveness must be based on the record, and
the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the
attorney’s reasons for his conduct”). In most cases, a silent record that provides no explanation
for counsel’s actions will not overcome the strong presumption of reasonable assistance. See
Rvlander v. Slate. 101 S.W.3d 107, 110—il (rex. (‘rim. App. 2003). Direct appeal is usually an
inadequate vehicle for raising an ineffective assistance claim because the record is generally
undeveloped. Menefleld. 363 S.W.3d at 592—93. Counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective. Ii at 593. “If trial
counsel is not given that opportunity then the appellate court should not find deficient
performance unless the challenged conduct was ‘so outrageous that no competent attorney would
have engaged in it” Id. (quoting Goocicpeed, 187 S.W.3d at 392).
Under article 38.23, the trial court is required to exclude any evidence that it finds, as a
matter of law, was obtained in violation of the Constitution or the laws of the United States or of
the State of Texas. Thx. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005); Robinson v. State,
377 S.W.3d 712, 719 (rex. Crim. App. 2012). However, where there is a fact issue regarding
the manner in which the evidence was obtained, article 38.23(a) requires the trial court to submit
7 the question to the jury with an instruction that, if the jurors find that the evidence was obtained
in violation ot the law, they are not to consider it in reaching their verdict. Tiix. CODE Ciuvi.
PROC. ANN, art. 38,23; Robinson, 377 S.W.3d at 719. To he entitled to an article 3823(a)
instruction, a defendant must show (1) the evidence heard by the jury raised an issue of fact; (2)
the evidence on that fact was affinnatively contested; and (3) the contested factual issue was
material to the lawftilness of the challenged conduct in obtaining the evidence, Madden v. State,
242 SAV.3d 504, 510 (Tex. Crirn. App. 2007). If the defendant successfully satisfies these
requirements, inclusion of a properly worded article 38.23 instruction in the charge is mandatory.
Id. However, where no issue is raised by the evidence, the trial court acts properly in refusing a
request to charge the jury. hi; see also Robinson, 377 S.W.3d at 719.
While Salmeron argues on appeal that he was entitled to an article 38.23 instruction
because of an illegal arrest and search, his analysis focuses on the search warrant. Nevertheless,
we will address both warrants.
As to the arrest warrant, Salmeron argues there was an issue of fact regarding when the
warrant was issued because (1) the warrant is dated October 4, 2010, but the intelligence report
indicates it was obtained on October 10, 2010, and (2) Carrasco testified he did not know
Salmeron’s name until after the arrest. However, Ortiz, not Carrasco, was the affiant on the
affidavit in support of the arrest warrant, and Ortiz was not questioned about how Salmeron was
identified for purposes of the affidavit. Further, both the affidavit and the warrant are dated
October 4, 2010 and both Ortiz and Carrasco testified the October 10, 2010 date in the
intelligence report was incorrect. Finally, Salmeron’s arrest outside the apartment did not lead to
the seizure of any evidence and, therefore, could not be the basis of an article 38.23 instruction.
Salmeron, therefore, has not established that he was entitled to an instruction under article 3. 23(a) based on the validity of the arrest warrant. See J?obincon, 377 SW3d at 719; Qarmen
v. State, 358 SW3d 285, 296 (Tex. App—Houston fist Distj 2011, pet. reFd).
Similarly, Salmeron has not established he was entitled to an instruction under article
38.23a) based on the validity of the search warrant, Salmeron asserts the different dates on the
warrant, the affidavit in support of the warrant, and in the intelligence report raise an issue of fact
about whether a valid warrant existed for the search of the apartment on October 4, 2010. The
warrant indicates It was issued at 8:30 a.m. on October 4, 2010. The intelligence report contains
a statement that the warrant was obtained on October 10, 2010. Finally, the affidavit in support
of the warrant bears two dates, one stanpec1 “Oct 04 20 1 0” and one handwritten stating the
affidavit was “[s]ubscribed and sworn to before” a district judge on October 29, 2010.
Ortiz, Carrasco, Myers, and McNeil all testified the warrants were issued prior to the
search. Carrasco and Ortiz testified the October 10, 201 0 date in the intelligence report on
Operation Starlight’s activities was incorrect. Carrasco speculated the district judge wrote
October 29, 2010 on the affidavit because that was when the district judge “actually approved
and reviewed each document.” Carrasco testified “that’s what I’m guessing happened because 1
do know that we went and visited with him and he reviewed each document before it was
signed” and that he believed “that’s why the stamp is there for October 4th.” Salmeron did not
affirmatively challenge or contest the reasonableness of these explanations. Thus, on this record,
we conclude the dates together with the proffered explanations with respect to the dates did not
raise an issue of fact that would have entitled Salmeron to an article 38.23(a) instruction.
Because Salmeron has failed to establish there was a fact issue relating to either the arrest
warrant or the search warrant that entitled him to an article 38.23(a) instruction, he cannot
establish that counsel was ineffective by failing to request the instruction at the charge
9 conftrence, flardin v. State, 951 S.W,2d 20, 21 1 (Tex. App. Houston [[4th Dist,j 1997, no
pet) (because defendant was not entitled to instruction under article 38.23, he could not show
error by counsel or that any error affected the outcome of case and, therefore, could not prevail
on his ineffective assistance of counsel claim).
Even if we were to assume the different dates associated with the search warrant raised a
fhct issue regarding whether there was a valid search warrant prior to the search of the
apartment, Salmeron is also required to establish that he was prejudiced by trial counsel’s failure
to pursue the instruction. Garza v. State, 213 S.W.3d 338, 347—48 (Tex. Crirn. App. 2007);
carmen, 358 S.W.3d at 295. To show prejudice, Salmeron must establish by a preponderance of
the evidence that the jury would have found in his favor under article 38.23 and that there is a
reasonable probability the result of the case would have been different. See Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam); Howes v. State, 120 S.W.3d 903, 907 08
(Tex. App.—Texarkana 2003, pet. ref’d) (defendant was not harmed by trial court’s failure to
include article 38.23(a) instruction in charge because contested evidence was not sole evidence
6 Salmeron, at a minimum, had the burden in the trial court to develop facts supporting verdict).
and details concerning when and how the search warrant was obtained sufficient to conclude that
the warrant was invalid. Jackson, 973 S.W.2d at 957. This Salmeron did not do. The existence
of questions about the validity of the search warrant is not enough to establish that trial counsel
See Robjnson, 377 5.W.3d at 719 (“Evidence to justify an Article 38.23(a) mstruction can derive ‘from any source.’ no matter whether ‘strong. weak, contradicted. unimpeached, or unbelievable” (quoting Garca v. State. 26 S.W.3d 79, 85 (Tex, (‘rim. App. 2004)),
Si also Ba s ,ls Dupliornc Stats No 05 Il (>0761 CR 2012 W L 6014745 at *3 (fex App Dallis Dcc 4 2012 no pet) (not design ited for publication) (defendant’s claim that counsel was ineffective by failing to obtain a limiting instruction under article 38.23 was meritless because defendant failed to establish jury would have dctermmcd issue in her lavor):C’havis v. State, No. l4l I 00634CR. 2012 WL 601 7711 at *5, 6 (Tex. App. -llouston [14th Dist.j Dec. 4, 2012. pet. filed) (mciii. op., not designated for publication) (defendant’s ineffective assistance of counsel claim overruled because officer’s inconsistent testimony about information in search warrant was insufficient to establish defendant .,sould base prey uled on motion to suppress) (install s St its ‘so 10 07 00070 OR 2009 WI 29093s it 7 ( lex App ‘2* ico feb 6 2009 pet. dism’d) (not designated 14r publication) (“Because [defendantj can establish only the existence of a fact issue, we cannot say with any confidence that a pretrisil motion to suppress would have been granted or that the jury would have found in his favor under article 38.23” and, therefore, defendant failed to establish prejudice from failure to request instruction).
10 \\ as ineiThu tive JuLsini, 97$ SW2d at 057 .Iu/ii r State. X77 S.\V.2d 76X, 771 ties (:nm.
App. I 904) ( counsel v ill not he declared met tech \ c when the record does not contain su Iticient
idenec to support the chum Th.//m’’’i v. .Shth’, 223 SW 3d 76X. 779—XO (Tex. App
Eastland 201)7. pet. re[d).
Further, even it we assume the evidence from the apartment was illegally seized, the
remaining evidence of Salmeron’s guilt is overwhelming. This evidence included Ortiz’s and
Carrasco’s testimony about Salmeron’s participation in the negotiations to purchase the
narcotics, the recording of the negotiations, l3enitez’s testimony incriminating Salmeron in the
drug deal, Benitez’s delivery of the methamphetamine to Ortiz, and Salmeron’s presence at the
apartment at the time the money fbr the drug transaction was to be delivered. Accordingly, we
conclude that SaIncron did not meet his burden ol establishing the jury would have found in his
favor tinder article 3X.23 and that there is a reasonable probability the result of the case would
have been di Iferent. See limes, 1 20 S.W.3d at 907 OX: Irba v •Siaie, 69 S. W .3d 71 3. 7 19 (Tex.
App— Waco 2002, no pet.).
Finally, although Salmeron filed a motion for new trial, he did not raise the issue of
ineffective assistance of counsel in the motion and did not have a hearing on the motion.
Consequently, Salmeron’s trial counsel has not been given an opportunity to explain his actions
following the introduction of all the evidence or whether, for strategic reasons, he decided the
best course of action was to use the various dates relating to the warrants to attempt to create
doubt concerning the reliability of the evidence. Nor has Salmeron shown that this case is one of
those extraordinary situations in which the lace of the record shows counsel’s challenged
conduct was “so outrageous that no competent attorney would have engaged in it.” Mene/Ie/d,
363 S.W.3d at 593.
11 We conclude Salmeron has not met his burden of showing that trial counsel’s
performance fell below an objective standard of reasonableness and that there is a reasonable
probability the result of the case would have been different if a limiting instruction had been
included in the jury charge. See Id. (in most cases, silent record will not overcome the strong
presumption of counsel’s reasonable assistance); Freeman v. State, 125 S.W.3d 505, 506-07
(rex. Crim. App. 2003) (“The record in this case is insufficient to support the conclusion [that
appellant received ineffective assistance of counsel] because appellant did not develop a record
in the trial court for the purpose of establishing this claim.”). Accordingly, we resolve
Salmeron’s sole issue against him.
Modification of Judgment
Sahneron was charged with, and convicted of; delivering more than 400 grams of a
controlled substance. The trial court’s judgment, however, reflects Salmeron was convicted of
unlawfiul possession of a controlled substance. Further the trial court’s judgment reflects
Salmeron was represented by Paul Banner while the reporter’s record indicates Salmeron was
represented by Winston Udeh. This Court has the power to modify an incorrect judgment to
make the record speak the truth when we have the necessary information to do so. See Thx. lt
App. P. 43.2(b); BIgley i’. State, 865 S.W.2d 26,27—28 (Tex. Crim. App. 1993); Asbeny v. State,
813 S.W.2d 526, 529—30 (rex. App.—Dallas 1991, pet. ref’d). Accordingly, on our own
motion, we modify the trial court’s judgment to reflect Salmeron was convicted of the delivery
of more than 400 grams of a controlled substance and was represented at trial by Winston Udeh.
12 As modified, we affirm the trial court’s judgment.
ROBERT M. FILLMORE JUSTICE
Do Not Publish TEx. R. An. P.47
120360F.U05
13 (Ctnth of Aira1 ifti! Jitrict nf tErxa at 1aIhui JUDGMENT
ELMER 0, SALMERON, Appellant On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05l2M0360CR V. Trial Court Cause No. Fl l-00773M. Opinion delivered by Justice Fillmore. THE STATE OF TEXAS, Appellee Justices FitzGerald and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
The section of the judgment titled “Offense for which Defendant Convicted” is modified to state “Delivery of 400 grams or more of a controlled substance.”
The section of the judgment titled “Attorney for Defendant” is modified to state “Winston Ucleh.”
As REFORMEI), the judgment is AFFIRMED.
th 27 Judgment entered this day of March, 2013.
,1