FERM v. STATE

Full title: GREG FERM, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Jul 23, 2009

No. 14-08-00287-CR (Tex. App. Jul. 23, 2009)

Opinion

No. 14-08-00287-CR

Memorandum Opinion filed July 23, 2009. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).

On Appeal from the 344th District Court, Chambers County, Texas, Trial Court Cause No. 14384.

Panel consists of Justices YATES, GUZMAN, and SULLIVAN.

MEMORANDUM OPINION

LESLIE B. YATES, Justice.

A jury convicted appellant Greg Ferm of possession with intent to deliver hydrocodone weighing four hundred grams or more. The trial court sentenced him to ten years' imprisonment and assessed a fine. In six issues, appellant challenges his conviction based on (1) the trial court's refusal to instruct the jury under article 38.23 of the Code of Criminal Procedure, (2) ineffective assistance of counsel, and (3) the trial judge's consideration at sentencing of matters outside the record and appellant's punishment phase testimony maintaining his innocence. We affirm.

I. Background

On a March afternoon in 2007, Texas Department of Public Safety Trooper Cody Mitchell stopped a mini-van for speeding and requested criminal history checks on Brian Keen (the driver) and appellant (a passenger). Trooper Mitchell gave varying accounts of the vehicle's actual speed but consistently stated at trial that it had exceeded the speed limit. Keen's discussion of the stop with Trooper Mitchell at the scene was recorded by Trooper Mitchell's dashboard mounted camera and played before the jury. Though parts of the recording of their conversation are unclear, Keen can be heard asking how fast he was going and claiming he was behind a truck. Trooper Mitchell can be heard stating that appellant was weaving through traffic and Keen can be heard saying, "I don't agree with that." Keen later admitted on the videotape and at trial that he was exceeding the posted speed limit and testified that the dispute with Trooper Mitchell was over Keen's assumption that he was not speeding because "where [he is] from" police give "a five-mile-an-hour leeway." Trooper Mitchell testified that during the initial stop he made several observations, the totality of which, based on his training and experience, caused him to reasonably suspect that Keen and appellant were engaged in illegal activity. These observations included their sleepiness, bloodshot eyes, droopy eyelids, nervousness, shaking hands, lack of eye contact, heavy breathing, and change in demeanor when asked whether illegal items were inside the vehicle. Other observations noted by Trooper Mitchell as contributing to his suspicion included the presence of energy drinks on the vehicle's floorboard, the fact that the vehicle was a large rental, and his belief that their stories were contradictory and partially non-sensical. On the videotape, he noted appellant's extreme nervousness and Keen's evasiveness when asked about the vehicle's contents. After Keen denied Trooper Mitchell's request to search the vehicle, Trooper Mitchell requested a K-9 unit. Before the K-9 unit arrived or the criminal history checks were completed, Keen admitted his possession of a marijuana pipe. The canine eventually arrived and alerted to the vehicle. A subsequent search uncovered approximately fourteen thousand hydrocodone tablets packaged in bottles and placed in luggage in the back of the vehicle. Before trial, appellant's attorney filed a motion to suppress the hydrocodone but did not obtain a ruling. At trial, appellant testified he did not know there were drugs in the vehicle until Keen told him about them forty-five minutes to an hour before the stop. The State impeached appellant with a letter he wrote while in jail in which he claimed ignorance of the drugs until the actual stop. The jury convicted appellant. During the punishment phase, appellant again maintained his innocence on cross-examination by the State. The State emphasized that testimony in closing argument. In assessing punishment and denying appellant's request for probation, the trial judge noted, among other things, that appellant had not admitted his guilt and, as a result, was not a good candidate for probation. This appeal followed.

II. Jury Instruction on Lawfulness of Initial Traffic Stop

In his first and second issues, appellant asserts that because the evidence raised a fact issue as to whether Keen was speeding, the trial court erred by refusing to instruct the jury under article 38.23 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005). A defendant seeking submission of a jury instruction under article 38.23 must show that affirmatively contested evidence before the jury raised a fact issue material to the lawfulness of the conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App. 2007). Here, although Trooper Mitchell gave differing accounts of the vehicle's specific speed, all of the speeds he stated exceeded the posted limit. See id. at 517-18 (noting the absurdity of requiring a jury instruction as to whether the defendant was driving six or ten miles per hour over the speed limit). Also, Keen admitted on the tape and at trial that he was exceeding the posted speed limit. See id. at 514 (stating that there must be some disputed issue of "did not speed" in the record to establish a fact issue). Furthermore, Keen's trial testimony makes clear that his disagreement with Trooper Mitchell was not over whether Keen exceeded the posted speed but over his assumption that he was not speeding because he only exceeded the posted speed to a minor degree. Because there was no material fact issue as to whether Keen was actually speeding, the trial court did not err in overruling appellant's objection and refusing to instruct the jury under article 38.23. We therefore overrule appellant's first and second issues.

III. Ineffective Assistance of Counsel

In his third and fourth issues, appellant contends that in both the guilt or innocence and punishment phases of his trial he received ineffective assistance of counsel under the Sixth Amendment to the United States Constitution.

A. Standard of Review

The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to reasonably effective assistance of counsel. U.S. CONST. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-92 (1984). Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In reviewing counsel's performance, we begin with the strong presumption that counsel was competent — that his actions and decisions were reasonably professional and motivated by sound trial strategy. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson, 9 S.W.3d at 813. When, as here, the record is silent as to trial counsel's strategy, this court can only find ineffective assistance if the challenged conduct was so outrageous that no competent attorney would have engaged in it. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005).

B. Ineffective Assistance at the Guilt or Innocence Phase

In his third issue, appellant challenges multiple aspects of his trial counsel's performance on which the record is silent. Thus, he cannot rebut the presumption of competence on these grounds and we will not find counsel's assistance ineffective as a result unless the challenged acts were so outrageous that no competent attorney would have engaged in them. See id.; Thompson, 9 S.W.3d at 813; Jackson, 877 S.W.2d at 771. Therefore, we cannot sustain this issue based on his complaints that trial counsel: (1) did not object to or seek redaction of portions of the arrest tape containing extraneous offense evidence, ¹ (2) did not object to hearsay evidence regarding the K-9 unit's alert to the vehicle absent evidence proving the dog's certifications, ² (3) opened the door to evidence of appellant's post-arrest silence during cross-examination of a State's witness, ³ and (4) called appellant to testify without adequate preparation, resulting in corroboration of the State's evidence and impeachment on cross-examination.⁴ Appellant also complains of his trial counsel's failure to obtain a ruling on his pretrial motion to suppress the hydrocodone evidence or object to its admission based on an illegal detention, the authorities' failure to diligently investigate, and lack of probable cause. However, merely showing a failure to obtain a ruling or hearing on pretrial motions does not establish ineffective assistance of counsel. See Wills v. State, 867 S.W.2d 852, 857 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (providing that on silent record, failure to obtain a ruling on pretrial motions was not ineffective assistance); Mares v. State, 52 S.W.3d 886, 891 (Tex.App.-San Antonio 2001, pet. ref'd) (holding failure to obtain ruling not deficient where record did not affirmatively demonstrate that the failure was due to counsel's ineffectiveness). To establish his counsel's ineffectiveness for failing to obtain a ruling on a motion to suppress, appellant must show that the motion would have been granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998). Likewise, to show ineffective assistance for failure to object, appellant must prove that the trial judge would have committed harmful error in overruling such an objection. See Vaughn v. State, 888 S.W.2d 62, 74 (Tex.App.-Houston [1st Dist.] 1994), aff'd, 931 S.W.2d 564 (Tex.Crim.App. 1996) (per curiam). For the reasons discussed below, we hold that appellant has failed to satisfy either of those standards. Regarding appellant's claim that trial counsel should have obtained a ruling on his pretrial motion to suppress the contraband evidence or objected to its admission based on an illegal detention, we note that Trooper Mitchell testified to specific articulable facts and reasonable inferences therefrom based on his experience and training, which when considered in their totality, supported a reasonable suspicion of criminal activity justifying appellant's continued detention. See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001); Woods v. State, 956 S.W.2d 33, 35, 38 (Tex.Crim.App. 1997). Trooper Mitchell testified that (1) large rental vehicles like the one involved here are favored by criminals seeking to avoid seizure of their own vehicles⁵ and are known for their numerous hiding places; (2) Keen and appellant displayed signs of nervousness, shaking hands, lack of eye contact, and heavy breathing;⁶ and (3) Keen and appellant displayed changes in demeanor when asked about contraband inside the vehicle. Trooper Mitchell also testified that he noticed energy drinks on the vehicle's floorboard and that appellants were sleepy, had red bloodshot eyes, and droopy eyelids. He then implied that, based on his training and experience, those observations were consistent with individuals involved in illegal activity making a quick turnaround trip.⁷ Also, Trooper Mitchell noted that Keen and appellant's stories seemed inconsistent and partially nonsensical: Keen was traveling cross country to visit someone whose last name he did not know; Keen said they were just visiting a friend while appellant said they were going to a wedding; and appellant stated "we got there a day late" despite saying that they were attending a wedding or bachelor party. See Madden, 242 S.W.3d at 516-17 (inconsistent stories regarding where appellant had been, for how long, and why was factor supporting reasonable suspicion); LeBlanc, 138 S.W.3d at 605 (implausible story can support reasonable suspicion). Though appellant argues that the differences were not inherently contradictory and that there is nothing unusual about Keen not knowing appellant's friend's last name, the points noted by Trooper Mitchell could reasonably be considered suspicious under the circumstances. Finally, on the videotape Trooper Mitchell notes Keen's evasiveness when asked about contraband inside the vehicle, which can also contribute to reasonable suspicion. See Nuttall, 87 S.W.3d at 222. Considered in their totality, the above factors were sufficient to support a finding of reasonable suspicion justifying appellant's detention. Accordingly, trial counsel was not ineffective for failing to obtain a ruling on his motion to suppress the contraband evidence or object to its admission based on an illegal detention because appellant has not shown that the motion would have been granted or that the trial court would have committed harmful error by overruling an objection on that basis. Appellant also complains that his trial counsel failed to object to the detention based upon Trooper Mitchell's failure to conduct a diligent investigation. Specifically, appellant complains that Trooper Mitchell unreasonably detained him to wait for a K-9 unit after Keen's admission of drug paraphernalia possession provided probable cause to immediately arrest Keen and inventory the vehicle. Temporary detention of an automobile to allow an olfactory inspection for narcotics by a trained police dog is warranted when based upon a reasonable suspicion. Estrada v. State, 30 S.W.3d 599, 603 (Tex.App.-Austin 2000, pet. ref'd). Here, Keen's admission came after Trooper Mitchell requested a police dog. In a swiftly developing situation such as this one, we will not unrealistically second-guess whether the police are acting diligently. See U.S. v. Sharpe, 470 U.S. 675, 686 (1985). Under such circumstances, Trooper Mitchell did not act unreasonably in waiting less than twenty minutes for a K-9 unit to arrive instead of arresting Keen and searching the vehicle. As a result, trial counsel was not ineffective for failing to object on this basis because appellant cannot show that the trial court would have committed harmful error by overruling such an objection. Appellant next complains of his trial counsel's failure to obtain a ruling on the motion to suppress or object based on a lack of probable cause either to search the vehicle or to arrest appellant. Because both Keen's admission of drug paraphernalia possession and the K-9 unit's alert to the vehicle provided probable cause to search, appellant's contention that Trooper Mitchell lacked probable cause to search must fail. See State v. Gray, 158 S.W.3d 465, 470 (Tex.Crim.App. 2005); LeBlanc, 138 S.W.3d at 606. We need not reach the merits of appellant's second contention concerning probable cause for his arrest as appellant has failed to cite or apply any legal authority or principles to support his contention, thereby committing briefing waiver and failing to demonstrate ineffective assistance in that regard. See TEX. R. APP. P. 38.1(i); Jackson, 973 S.W.2d at 957; Vaughn, 888 S.W.2d at 74. Because appellant has failed to show that trial counsel rendered ineffective assistance at the guilt or innocence phase, we overrule his third issue.

C. Ineffective Assistance of Counsel at Punishment

In his fourth issue, appellant alleges he received ineffective assistance of counsel at the punishment phase of trial. Specifically, appellant complains that his trial counsel failed to object to (1) the State's cross-examination of him as to whether he still maintained his innocence, (2) the State's argument that appellant "does not acknowledge his guilt," (3) the trial court's consideration of appellant's failure to admit his guilt in assessing punishment, and (4) the trial judge's consideration of matters outside the record in denying appellant's probation request. Appellant's contention that trial counsel erred in failing to object to evidence and argument concerning appellant's failure to admit his guilt is premised upon his mistaken belief that this evidence was inadmissible. The challenged matters here went to appellant's attitude toward the offense of which he was convicted, which is relevant to punishment. See Vaughn v. State, 931 S.W.2d 564, 568 (Tex.Crim.App. 1996) (per curiam); Boone v. State, 60 S.W.3d 231, 240 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd) (recognizing that whether appellant is contrite is a relevant factor at punishment); Koffel v. State, 710 S.W.2d 796, 805 (Tex.App.-Fort Worth 1986, pet. ref'd) (stating that the defendant's unrepentant attitude regarding the crime he is convicted of is relevant at punishment). Where, as here, a defendant decides to testify at punishment, he assumes the risk that the State will cross-examine him as to whether he assumes responsibility for the offense for which he has been convicted. See Vaughn, 931 S.W.2d at 566; Zachery v. State, No. 14-07-01050-CR, 2009 WL 136915, at *4 (Tex.App.-Houston [14th Dist.] Jan. 20, 2009, no pet.) (mem. op., not designated for publication). Under such circumstances, to testify and maintain his innocence in light of the probability that he will seem unrepentant or even defiant was a voluntary tactical decision by appellant and his counsel. See Vaughn, 931 S.W.2d at 568; Zachery, 2009 WL 136915, at *4. The trial court's consideration of such testimony in assessing sentence is merely the fruition of the risk inherent in that tactical decision. See Vaughn, 931 S.W.2d at 568. Moreover, the Court of Criminal Appeals has held that where a defendant takes the stand at punishment, maintains his innocence, and requests probation, the prosecution does not commit reversible error by arguing in response that the defendant's refusal to admit guilt is a barrier to rehabilitation. Overstreet v. State, 470 S.W.2d 653, 655 (Tex.Crim.App. 1971). Because appellant has not demonstrated that the trial judge would have erred in overruling an objection on that basis, he has therefore failed to show that his trial counsel was deficient for not objecting under Strickland's first prong. We also find appellant's fourth complaint unpersuasive. In announcing appellant's sentence, the trial judge noted that (1) he read the pre-sentencing investigation report; (2) hydrocodone "sells on the streets;" (3) he appreciated appellant not claiming that the contraband was for personal use; (4) the conviction was for a serious crime; and (5) the minimum sentence was ten years' imprisonment. The trial judge then stated:

So I am . . . considering giving someone probation that has not admitted his guilt that is only asking me for probation strictly for leniency, not because you want to rehabilitate yourself, not because you want to atone for your guilt in this particular case which is what the probation officers have told me for 35 years that I have been involved, "Don't send me probationers that don't want to do right, that don't want to admit their guilt, that don't want to do it. It is impossible to deal with them," because all they ever hear is, "I don't want to do this because I was not guilty in the first place." So that does not make this a very — you are not a very good candidate for probation plus this is a huge amount of controlled substance here.

(emphasis added). The trial judge then imposed the minimum sentence of ten years' confinement. To support his argument that trial counsel was deficient for failing to object to the trial court's consideration of these matters, appellant cites authorities holding that (1) consideration at sentencing of extraneous misconduct not linked to the defendant by record evidence violates due process;⁸ (2) factors arising after the offense and independent of the defendant are inadmissible to mitigate punishment;⁹ and (3) the disposition of a co-defendant's case is inadmissible in the trial of another co-defendant.¹⁰ However, in the instant case, the trial judge's comments reflect a permissible reference to his experience regarding the suitability for probation of defendants who, like appellant, request probation yet refuse to admit their guilt. See Torres, 92 S.W.3d at 921-22 n. 5 (recognizing that reference to personal experience is allowable, and possibly even necessary, in making a subjective judgment regarding punishment and that judges must routinely look to personal experience in making subjective judgments); see also Smith, 227 S.W.3d at 763-64 (recognizing that due process does not require the trial court to glean all relevant information from evidence presented in a formal courtroom proceeding in assessing punishment). Accordingly, the trial court would not have erred by overruling an objection based on an analogy to the authorities cited in appellant's brief, and thus appellant has failed to satisfy Strickland's first prong. See Vaughn, 888 S.W.2d at 74. Moreover, even if appellant had satisfied Strickland's first prong, he has also failed to satisfy Strickland's second prong given the other factors considered by the trial judge at sentencing. Because appellant has failed to show that his trial counsel was ineffective at punishment, we overrule his fourth issue.¹¹ Having overruled all of appellant's issues, we affirm the trial court's judgment.

1 See Greene v. State, 928 S.W.2d 119, 123 (Tex.App.-San Antonio 1996, no pet.) (stating that the failure to object to inadmissible extraneous offense evidence does not necessarily constitute ineffective assistance). Trial counsel may have been attempting to appear open and honest with the jury and could have reasonably decided that muting or redacting the challenged portion of the videotape would hamper that strategy. See Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (presuming reasonable trial strategy supported failure to object in face of silent record); see also Varughese v. State, 892 S.W.2d 186, 192 (Tex.App.-Fort Worth 1994, pet. ref'd) (recognizing strategy to appear open and honest as a valid reason for not objecting).

2 See Thompson, 9 S.W.3d at 814 (failing to object to attempts to elicit hearsay held not ineffective assistance of counsel). Trial counsel may have known the State could prove up the dog's qualifications and reasonably decided not to object to avoid drawing more attention to the contraband evidence. See Young v. State, 10 S.W.3d 705, 713 (Tex.App.-Texarkana 1999, pet. ref'd) (finding no error in failure to object where counsel may have reasonably decided not to do so to avoid drawing more attention to the matter).

3 See Johnson v. State, 137 S.W.3d 777, 779 (Tex.App.-Waco 2004, pet. ref'd) (holding that trial counsel's opening the door to introduction of inadmissible evidence did not constitute ineffective assistance on silent record regarding trial counsel's reasons for pursuing that line of questioning). When trial counsel asked the police officer if appellant gave a statement, the officer replied that appellant was uncooperative, did not want to speak with him, and gave him "a story" as to why he had gone on the trip. We must presume that trial counsel's failure to object to that testimony was based on a reasonable trial strategy, e.g., seeking to avoid drawing further attention to the matter. See Young, 10 S.W.3d at 713. Even assuming trial counsel performed deficiently in this regard, appellant has not met Strickland's second prong, as the State impeached appellant through prior inconsistent statements. Strickland, 466 U.S. at 687-88.

4 See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003) (silent record would not support ineffective assistance for, inter alia, failing to prepare witness to testify).

5 See Sims v. State, 98 S.W.3d 292, 296 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (considering testimony that rental cars are favored by criminals seeking to avoid vehicle seizure as contributing to reasonable suspicion).

6 See LeBlanc v. State, 138 S.W.3d 603, 608 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (considering nervousness, shaking, and lack of eye contact as factors giving rise to reasonable suspicion of criminal activity justifying a continued detention); Nuttall v. State, 87 S.W.3d 219, 222 (Tex.App.-Amarillo 2002, no pet.) (per curiam) (considering rapid breathing as a factor supporting reasonable suspicion of criminal activity justifying a continued detention).

7 The trial court sustained appellant's trial counsel's objection that this testimony was nonresponsive, but we nevertheless consider it here for the purpose of determining whether appellant's motion to suppress would have been granted.

8 See, e.g., Smith v. State, 227 S.W.3d 753, 764 (Tex.Crim.App. 2007).

9 See, e.g., Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Crim.App. 1979).

10 See, e.g., Torres v. State, 92 S.W.3d 911, 918 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd).

11 In his fifth and sixth issues, appellant challenges the trial court's consideration of appellant's claim of innocence and matters outside the record in assessing punishment. In overruling appellant's fourth issue, we have determined that the judge could consider the challenged matters and that his comments were appropriate. Moreover, appellant's trial counsel failed to preserve those issues for our review by not objecting to the judge's consideration of those matters. See TEX. R. APP. P. 33.1(a) (providing that to preserve error for appellate review, a party must make a timely, specific objection and obtain an adverse ruling); Harvey v. State, 173 S.W.3d 841, 850 (Tex.App.-Texarkana 2005, no pet.) (holding that appellant's failure to object waived complaint that trial court considered matters outside the record in assessing punishment). Therefore, we need not address appellant's fifth and sixth issues.