Zacharias Federico Almazan v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2008
• Docket: 01-06-00658-CR
• Status: Published

Opinion

Opinion issued January 31, 2008

                      In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00658-CR

  __________

ZACHARIAS FEDERICO ALMAZAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1065555

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MEMORANDUM OPINION

          A jury found appellant, Zacharias Federico Almazan, guilty of possession with intent to deliver a controlled substance, namely, cocaine weighing more than 4 grams and less than 200 grams. The trial court, having found the allegations in the enhancement paragraph true, assessed appellant’s punishment as 35-years confinement in the Texas Department of Criminal Justice—Institutional Division. On appeal, appellant argues that “trial counsel was prejudicially ineffective for failing to object to the admission of cocaine predicated dually on [his] consent to search and oral statement . . . constitutionally dependent on his unlawful detention.” We affirm.

Background

          After receiving an anonymous tip regarding drug activity at a house, Sergeant Oscar Ortegon began surveillance of the house. On two occasions, the officers saw appellant leave the house in a car and conduct what appeared to be hand-to-hand drug transactions with two different individuals. After the second drug transaction, the officers detained appellant, who consented to the search of his car. While the car was being searched, appellant consented to the search of the house, and he told the officers that the “stuff” in the house belonged to him. During the search of the house, appellant directed the officers to a bedroom closet where a bag of cocaine was found.

          On appeal, appellant argues that his counsel was ineffective for failing to object to the admission of the cocaine during the guilt/innocence stage of trial. Appellant contends that he was unlawfully detained, thus rendering his consent to search the house and his admission to the ownership of the drugs, inadmissable.   

Standard of Review

          In considering whether counsel’s assistance was so defective that a reversal of the conviction is warranted, we follow the standard enunciated in 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). Under the Strickland standard, we determine (1) whether counsel’s performance was deficient and (2) whether, but for counsel’s deficient performance, there is a reasonably probability that the result of the proceeding would have been different. Salinas, 163 S.W.3d at 740.

          To prevail, appellant must show ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In addition, appellant must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” or might reasonably be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We cannot speculate as to the reasons why trial counsel behaved as he did; rather, we must be highly deferential and presume that counsel’s actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Furthermore, when an ineffective assistance claim alleges that counsel was deficient in failing to object to the admission of evidence, the defendant must show as part of his claim that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002).

          At the outset, we note that the record does not provide any explanation of defense counsel’s strategy. In the absence of a proper evidentiary record, it is extremely difficult to show that counsel’s performance was deficient, and we must presume that his actions were taken as part of a strategic plan for representing his client. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). Only in rare cases will the record be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Appellant claims that this is one of those “rare cases” in which the record, silent as to counsel’s reason for not objecting, nonetheless reveals her deficiency, because objecting to the admission of the cocaine based on his unlawful detention was his only plausible defense. See Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (holding that trial counsel was ineffective in failing to request a jury instruction on the defense of necessity, thereby precluding the jury from giving effect to the only defense raised by the defendant).

Analysis

          In arguing that the cocaine was inadmissible, appellant asserts that his consent to search the house and his oral statement that the “stuff” was his, which led to the discovery of the cocaine, resulted from his unlawful detention, and, thus, the cocaine was inadmissible under constitutional and state law. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005) (“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence.”); Bell v. State 724 S.W.2d 780, 787 (Tex. Crim. App. 1986) (quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416 (1963)). Appellant further contends that there were no intervening circumstances between his illegal detention and his consent to search and oral statement that the “stuff” was his that attenuated the taint of the illegal detention. See Brown v. Illinois, 422 U.S. 590, 603–04, 95 S. Ct. 2254, 2261–62 (1975); Brick v. State, 738 S.W.2d 676, 681 (Tex. Crim. App. 1987).

          A temporary detention is justified when the detaining officer has specific articulable facts which, taken together with rational inferences from those facts, lead the officer to conclude that the person detained is, has been, or soon will be engaged in criminal activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)). An officer may draw upon his experience and training to assess the existence of reasonable suspicion. See United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 751–52 (2002). We disregard any subjective intent of the officer making the stop and look solely to whether an objective basis for the stop exists. See Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). The determination of the presence of reasonable suspicion is a factual one and is made and reviewed by considering the totality of the circumstances at the time of the stop. Icke v. State, 36 S.W.3d 913, 915 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d).

          There was testimony that, when appellant conducted what officers believed was the second hand-to-hand drug transaction, the car appellant was riding in was impeding traffic. Appellant apparently asserts that his detention was unlawful because there is no evidence that the car he was riding in impeded traffic. However, regardless of whether the car was impeding traffic, the officers testified that they observed appellant participate in what appeared to be two hand-to-hand drug transactions during their surveillance, the latter of which occurred immediately before officers stopped the appellant. Appellant’s consent to search the house and his oral statement concerning his ownership of the drugs located at that house occurred during this detention and after he consented to the search of the car. Appellant does not argue that the officers lacked reasonable suspicion to detain and question him based on their observation of the alleged hand-to-hand drug transaction. Appellant has not shown that the officers lacked specific articulable facts which, taken together with rational inferences from those facts, led them to conclude that appellant was, had been, or soon would be engaged in criminal activity, and, therefore, has not shown that the cocaine was inadmissible as a fruit of an unlawful detention. See Brother, 166 S.W.3d at 257. We conclude that appellant has failed to show that this is one of those “rare case” where the record is sufficient to prove that counsel’s performance was deficient. See Robinson, 16 S.W.3d at 813 n.7.

          Furthermore, even if the record did affirmatively show counsel’s ineffectiveness, appellant does not argue in his brief that, had his counsel successfully objected to the admission of the cocaine, the result of the proceeding would have been different. Appellant must make such a showing under the second prong of Strickland. 446 U.S. at 687, 104 S. Ct. at 2064. Therefore, his ineffective assistance of counsel claim has been inadequately briefed. See Peake v. State, 133 S.W.3d 332, 334 (Tex. App.—Amarillo 2004, no pet.).

          Appellant’s sole issue is overruled.

Conclusion

We affirm the judgment of the trial court.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Nuchia, Hanks, Higley.

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