Stephen Weller v. State

Opinion

                                                                                                        NO. 12-05-00355-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

STEPHEN DON WELLER, §                      APPEAL FROM THE 114TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Stephen Don Weller appeals his conviction for possession of between one and four grams of methamphetamine.  In two issues, Appellant contends that (1) the trial court erred in failing to suppress evidence and (2) his trial counsel’s failure to file a motion to suppress and otherwise preserve error constituted ineffective assistance of counsel.  We affirm.

Background

            On May 16, 2004, Appellant arrived at the home of his ex-wife, Sandra Weller, to exercise his right to court ordered visitation with their child.  Appellant was disoriented but insisted on continuing the visit.  Eventually, he fell asleep in the child’s bedroom.  When Ms. Weller was unable to wake Appellant and could not reach Appellant’s mother, she contacted the police.

            Smith County Sheriff’s Deputies Mark Stinecipher and Rob Hartman arrived at Ms. Weller’s home.  The officers took Appellant outside Ms. Weller’s home to her front yard where they continued to talk to him.  According to Stinecipher, Appellant was acting strangely and appeared very intoxicated.  Believing that Appellant was a danger to himself and others, the officers took him into custody and placed him in the back of a patrol car.

            While Appellant was sitting in the patrol car, Appellant’s mother, Sally Kleiner, arrived at the scene.  Appellant asked Ms. Kleiner to retrieve his keys, instructing her that she would find the keys on his bed.¹  Ms. Kleiner requested that the officers accompany her to the house to retrieve the keys.  Once in the house, Ms. Kleiner initially looked on the bed for Appellant’s keys, but did not find them there.  She expanded her search to the entire bedroom.  When Ms. Kleiner opened a briefcase located in the bedroom, the officers saw drug paraphernalia.  Ms. Kleiner then opened a container of Altoids^® she located in the briefcase.  Inside the Altoids^® container, the officers saw plastic bags containing a white crystallized substance they believed to be methamphetamine.  The officers seized the briefcase and its contents.

            Appellant was charged by indictment for possession of between one and four grams of methamphetamine.  Appellant pleaded “not guilty,” and the case was tried to a jury.  Ultimately, the jury found Appellant guilty as charged and assessed his punishment at imprisonment for ten years and a fine of $5,000.00.  The trial court sentenced Appellant accordingly, and this appeal followed.

Suppression of Evidence

            In his first issue, Appellant contends that the trial court erred in failing to suppress the evidence of contraband found in a briefcase.  Specifically, Appellant argues that the seizure of the briefcase and its contents was the product of an illegal search conducted by the officers.

Standard of Review

            We review a trial court's ruling on a motion to suppress for abuse of discretion.  See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Curry v. State, 965 S.W.2d 32, 33 (Tex. App.–Houston [1st Dist.] 1998, no pet.).  A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). 

            In reviewing the trial court’s ruling, we apply a bifurcated standard of review.  See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Hernandez v. State, 957 S.W.2d 851, 852 (Tex. Crim. App. 1998).  We give almost total deference to the trial court’s determination of historical facts, while conducting a de novo review of the trial court’s application of the law to those facts.  See Carmouche, 10 S.W.3d at 327.  The trial court is the exclusive finder of fact in a motion to suppress hearing, and as such, it may choose to believe or disbelieve any or all of any witness’s testimony.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).  Furthermore, when “the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.”  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  If the trial judge’s decision is correct on any theory of law applicable to the case, the decision will be sustained.  Id. at 856.  In applying this standard, we must examine the record as it existed at the time of the suppression hearing.  State v. Gray, 157 S.W.3d 1, 5 (Tex. App.–Tyler 2004), aff’d, 158 S.W.3d 465 (Tex. Crim. App. 2005).

Applicable Law and Analysis

            The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures.  U.S. Const. amend. IV.  The Texas Constitution contains a similar prohibition.  See Tex. Const. art. I, § 9.  These protections apply when the government conducts the search and/or seizure, but they do not apply when the search and/or seizure is conducted by a private party, unless the private party is acting as an agent of the government.  See State v. Comeaux, 818 S.W.2d 46, 49 (Tex. Crim. App. 1991).  To determine whether a private party is acting as an agent or instrument of the government, all the circumstances surrounding the search must be examined.  Id.  If the search is conducted independently of the government, even if officers were present and interested in the search and/or seizure, the private party is not deemed to have acted as an agent of the government.  Id. at 50.

            A warrantless search is unreasonable unless it falls within certain specific exceptions such as consent.  See Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991).  Consent must be given freely, unequivocally, and without duress or coercion.  Id.  Any person who has joint control or access over property or other sufficient relationship to the property can validly consent to the search.  Dawson v. State, 868 S.W.2d 363, 368 (Tex. App.–Dallas 1993, pet. ref’d).  Furthermore, when incriminating evidence is in the plain view of an officer, the officer may seize the evidence without violating the prohibition against unreasonable searches and seizures.  Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).  To satisfy the “plain view” doctrine, (1) law enforcement officials must have a right to be where they are and (2) it must be immediately apparent that the items constitute evidence, that is, the items seized are associated with criminal activity.  Id.; Horton v. California, 496 U.S. 128, 135–36, 110 S. Ct. 2301, 2307, 110 L. Ed. 2d 112 (1990).

            In the case at hand, Appellant objected to Deputy Stinecipher’s testimony that he and Deputy Hartman escorted Ms. Kleiner to her house, arguing that the officers had no warrant to search that residence and that there was an issue as to consent.  The trial court overruled Appellant’s objections.²  Assuming arguendo that Appellant preserved error, we will address the merits of Appellant’s motion to suppress.

            Here, the record indicates that Ms. Kleiner owned the home in which the drugs and drug paraphernalia were found.  Furthermore, Ms. Kleiner consented to have the officers in the home.  See Dawson, 868 S.W.2d at 368.  Ms. Kleiner opened the briefcase and Altoids^® container in front of the officers, at which time the officers observed the drugs and drug paraphernalia that were seized.  There is no evidence that Ms. Kleiner opened the briefcase or the Altoids^® container at the request of the officers.  The record reflects that the officers immediately recognized the contents of the briefcase and the Altoids^® container as drugs and drug paraphernalia.

            We conclude that the record supports that the officers were in the home lawfully by permission granted by Ms. Kleiner as homeowner and cotenant.  We further conclude that the record reflects that no search of the briefcase or Altoids^® container was conducted by the officers.  Moreover, when the contraband came into the plain view of the officers, the officers had the right to seize the items as evidence.  We hold that the trial court did not abuse its discretion in overruling Appellant’s objection to the search of the premises that resulted in the seizure of the briefcase, drug paraphernalia, and methamphetamine.  Appellant’s first issue is overruled.

Ineffective Assistance of Counsel

            In his second issue, Appellant argues that he received ineffective assistance of counsel due to his trial counsel’s failure to file a motion to suppress evidence from the alleged search of the house he shared with Ms. Kleiner.  Specifically, Appellant contends that his counsel was ineffective in that he failed to preserve error related to the alleged search and subsequent seizure of the methamphetamine and drug paraphernalia contained in the briefcase.

            Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).  The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.  Strickland, 466 U.S. at 688, 104 S. Ct. at 2065.  To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness.  See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel’s representation, but will judge the claim based on the totality of the representation.  Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

            Under the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney.  Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).  To establish prejudice, an appellant must prove that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.  A “reasonable probability” was defined by the Supreme Court as a “probability sufficient to undermine confidence in the outcome.”  Id.  The appellant bears the burden to prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial.   Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d).  It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings.  Id.  He must show that there is a reasonable probability that, but for his attorney’s errors, the outcome would have been different.  Id.

            In the case at hand, Appellant argues that his trial counsel was ineffective in that he failed to file a motion to suppress evidence or otherwise preserve error related to the admission of the evidence at issue.  With regard to Appellant’s first issue, we addressed the merits, holding that the trial court did not abuse its discretion in overruling Appellant’s objection to the search of the premises that resulted in the seizure of the brief case, drug paraphernalia, and methamphetamine.  As such, even if our previous assumption that Appellant preserved error is incorrect, Appellant cannot meet his burden under the second prong of the Strickland test  in light of our holding with regard to Appellant’s first issue.  Appellant’s second issue is overruled.

Disposition

            Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.

                                                                                                    BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered October 25, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ Appellant lived in Ms. Kleiner’s home, which was less than one hundred yards from his ex-wife’s home.  Ms. Kleiner also lived in the home part of the time.

² Thereafter, the trial court took a proffer of Stinecipher’s testimony outside the presence of the jury.  The trial court then made the following factual findings on the record:  (1) only Ms. Kleiner looked for Appellant’s keys; (2) no search was conducted by the officers; (3) Ms. Kleiner consented to the officers’ being in the home; and (4) the drugs and drug paraphernalia came into the plain view of the officers due to the actions of Ms. Kleiner when she was looking for Appellant’s keys.  Subsequently, the State offered the briefcase into evidence.  Appellant made no objection.  When the State later offered the drug paraphernalia from the briefcase into evidence, Appellant was asked if he had any objection.  He stated, “Subject to previous ones, none.”  Finally, when the methamphetamine was offered into evidence, Appellant objected, stating, “[M]y objection is ... that they have not linked this to this defendant.”