COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-280-CR
JEROME CARR APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Jerome Carr appeals his conviction for aggravated robbery with
a deadly weapon. After a jury found Appellant guilty and assessed his
punishment at eleven years’ confinement, the trial court sentenced him
accordingly. In four points, Appellant argues that he received ineffective
assistance of counsel. We will affirm.
1
See Tex. R. App. P. 47.4.
II. F ACTUAL B ACKGROUND
Carohn Carroll and his roommate Aaron Watkins were arrested and taken
to jail after police searched their townhome and found drug paraphernalia in it.
Watkins confessed that the drug paraphernalia was his, but police also arrested
Carroll and took both men to jail. 2
The next day, Carroll and Watkins were released, and they returned to the
townhome. Later that same day, Watkins went to a nearby gas station to get
a money order to pay rent, and Carroll headed upstairs to shower and get ready
for work.
Carroll heard a knock at the door and thought that Watkins had forgotten
his keys. Carroll looked out the peephole and saw a man that he recognized
but whose name he did not know; the man was later identified as Wymie.
Carroll opened the door, stepped outside, and closed the door. Carroll told
Wymie that he and Watkins had been arrested the previous night and that the
police had said that anyone who entered the townhome would go to jail. While
he was outside, Carroll saw Carr standing against the wall. Carr and Wymie
asked if Watkins was home, and Carroll opened the door and yelled Watkins’s
name to see if he had returned while Carroll had been in the shower.
2
Carroll testified that he was never prosecuted for this offense.
2
At that point, Carr stepped inside the townhome, lifted his shirt, pulled
out a black 9 mm handgun, cocked it, and put it to Carroll’s head. Carr pushed
the gun into Carroll’s head as he repeatedly asked, “Where’s the money at?
Where’s the weed at?” Carroll said that he did not owe Carr any money. Carr
then put the gun to Carroll’s neck, cursed a couple of times, and pulled the
trigger, but the gun did not fire. Carroll said that Carr looked at the gun like he
was shocked, while Wymie stated that he was shocked that Carr had pulled the
trigger.
An altercation ensued, and Carroll escaped, jumping down the stairs and
running zig-zag through the parking lot so that he would not get shot. While
he was running, Carroll heard a bullet hit the ground and saw Carr and Wymie
looking at the gun. Carroll caught the assistant manager of the townhomes
walking to her car and told her that “he tried to kill me.” The assistant manager
pulled out her cell phone and called the police. While the assistant manager
was calling the police, she and Carroll saw Carr and Wymie leaving the area.
An officer arrived “within seconds,” and Carroll gave the officer a
summary of the events and a description of Carr and Wymie. Carroll gave the
police a written statement several days after the incident. After police arrested
Carr, they videotaped an interview with him.
3
The jury heard testimony from two of the officers who worked on the
case, Carroll, and Carr’s aunt 3 and watched the videotaped interview of Carr;
the jury found Carr guilty of aggravated robbery with a deadly weapon as
charged in the indictment. After hearing the punishment evidence, the jury
assessed punishment at eleven years’ confinement, and the trial court
sentenced Carr accordingly. That same day, Carr filed his notice of appeal. 4
III. INEFFECTIVE A SSISTANCE OF C OUNSEL C LAIMS N OT F OUNDED IN THE R ECORD
All four of Carr’s points argue that he was denied effective assistance of
counsel under both the United States and Texas constitutions due to trial
counsels’ failure to file a motion to suppress Carr’s videotaped interview and
failure to request a limiting instruction concerning part of the interview. The
State argues that the record is insufficient to overcome the presumption that
defense counsels’ conduct fell within the wide range of professional competent
assistance.
A. Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsels’ representation fell below the
3
Carr’s aunt testified that when she lived in Arlington, Carroll had come
over to her house on several occasions to smoke marijuana and that her
boyfriend had taken food to Carroll in exchange for marijuana.
4
No motion for new trial was filed.
4
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsels’ 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 counsels’ 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 counsels’ representation is highly deferential, and the
reviewing court indulges a strong presumption that counsels’ 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
5
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 counsels’ errors
were so serious that they deprived the defendant of a fair trial, i.e., a trial with
a reliable result. 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
counsels’ unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. The ultimate
focus of our inquiry must be on the fundamental fairness of the proceeding in
which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.
B. Trial Counsels’ Objections
During the State’s direct examination of Detective Danny Nutt, the State
offered into evidence the videotaped interview of Carr. Before the State played
the videotape, defense counsel objected based on the Fifth Amendment,
arguing that Carr had not taken the stand and might not take the stand. The
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trial court overruled this objection, and the videotape was played for the jury.
After the jury watched the video, defense counsel asserted a hearsay objection
to Detective Nutt’s statements about what Wymie had said and requested an
instruction to the jury to disregard these statements. The trial court overruled
this objection.
The State then concluded its direct examination of Detective Nutt. After
defense counsel cross-examined the detective, passed the witness, and
Detective Nutt was excused, defense counsel indicated her desire to “in an
abundance of caution,” “put on the record” “our concern about the officer
referring to information given to him by someone else.” When the trial court
stated that it had already ruled on this issue, defense counsel complained that
“we don’t have an opportunity to confront, is our main concern.” The trial
court again indicated that it had already ruled on this issue.
C. Strickland Analysis
In his first and second points, Carr argues that his trial counsel provided
ineffective assistance by failing to file a pretrial motion to suppress the video.
Trial counsels’ failure to file a motion to suppress is not per se ineffective
assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 384, 106
S. Ct. 2574, 2587 (1986); Hollis v. State, 219 S.W.3d 446, 456 (Tex.
App.—Austin 2007, no pet.). Counsel is not required to engage in the filing of
7
futile motions. Hollis, 219 S.W.3d at 456 (citing Mooney v. State, 817 S.W.2d
693, 698 (Tex. Crim. App. 1991)). Rather, to satisfy the Strickland test and
prevail on an ineffective assistance claim premised on counsels’ failure to file
a motion to suppress, an appellant must show by a preponderance of the
evidence that the result of the proceeding would have been different—i.e., that
the motion to suppress would have been granted and that the remaining
evidence would have been insufficient to support his conviction. Id. (citing
Jackson v. State, 973 S.W.2d 954, 956–57 (Tex. Crim. App. 1998)).
Carr argues that if a motion to suppress had been filed, it would have
been granted; although Detective Nutt read Carr his rights, although Carr
indicated that he understood his rights, and although Carr then proceeded to
answer the questions propounded by Detective Nutt, Carr points out that he did
not affirmatively waive his rights before he made the statements. He contends
that the statements were involuntary under article 38.22 of the code of criminal
procedure for this reason. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3
(Vernon 2005). An express, affirmative verbal statement from an accused
indicating that he waives his rights is not required in order for a custodial, oral
statement to be admissible under article 38.22, section 3. See, e.g., Etheridge
v. State, 903 S.W.2d 1, 18 (Tex. Crim. App. 1994), cert. denied, 516 U.S.
920 (1995); Barefield v. State, 784 S.W.2d 38, 40–41 (Tex. Crim. App.
8
1989), overruled on other grounds by Zimmerman v. State, 860 S.W.2d 89
(Tex. Crim. App. 1993) and cert. denied, 497 U.S. 1011 (1990). Instead, in
measuring the voluntariness of a confession, courts look to the totality of the
circumstances surrounding the making of the statement. See, e.g., Griffin v.
State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989). Frequently, when a
defendant has been advised of his rights, indicates that he understands his
rights, and then chooses to proceed to answer questions, from the totality of
these circumstances it may be inferred that the accused waived his rights. See
Hargrove v. State, 162 S.W.3d 313, 318–19 (Tex. App.—Fort Worth 2005,
pet. ref’d); State v. Oliver, 29 S.W.3d 190, 193 (Tex. App.—San Antonio
2000, pet. ref’d); Gomes v. State, 9 S.W.3d 373, 381 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d). Thus, because Carr received the required
statutory warnings, indicated that he understood them, and proceeded to
answer Detective Nutt’s questions, he has not established that a motion to
suppress—alleging the involuntariness of his statements based on the lack of
an affirmative waiver of his rights, if filed—would have been granted. See,
e.g., Etheridge, 903 S.W.2d at 18; Hargrove, 162 S.W.3d at 318–19; Oliver,
29 S.W.3d at 193.
Moreover, as mentioned above, Carr did not file a motion for new trial;
therefore, no record exists establishing defense counsels’ reasons for failing to
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file a motion to suppress. 5 Nor does the record establish what evidence the
State would have presented had defense counsel filed a motion to suppress.
It is entirely possible that in this case defense counsel may have made a
strategic decision not to file a motion to suppress when they knew that it was
unlikely to be granted. See, e.g., Hollis, 219 S.W.3d at 456. Thus, Carr’s
claim of ineffective assistance of counsel based on a failure to file a motion to
suppress cannot be sustained on this record. See Thompson, 9 S.W.3d at
813–14; Jackson, 973 S.W.2d at 957 (holding that appellant’s claim of
ineffective assistance could not be sustained based on the record before the
appellate court because appellant failed to develop facts and details of the
search sufficient to show that the search was invalid).
In his third and fourth points, Carr argues that his trial counsel provided
ineffective assistance by not properly objecting to Carr’s videotaped statement
before it was admitted into evidence and by failing to request a limiting
instruction with regard to Detective Nutt’s hearsay statements that Wymie had
corroborated Carroll’s version of the events, including that Carr had a pistol.
In the absence of evidence of trial counsels’ reasons for the challenged
conduct, an appellate court “commonly will assume a strategic motivation if
5
The record reveals that defense counsel had notice from the State
regarding the videotape approximately four months before trial.
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any can possibly be imagined.” See Andrews v. State, 159 S.W.3d 98, 101
(Tex. Crim. App. 2005); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001), cert. denied, 537 U.S. 1195 (2003). We will not conclude the
challenged conduct constituted deficient performance unless the conduct was
so outrageous that no competent attorney would have engaged in it. See
Thompson, 9 S.W.3d at 814.
While many attorneys might have prudently objected and requested such
a limiting instruction, it is equally possible that other reasonable and
conscientious attorneys would not have objected or requested a limiting
instruction in order to avoid drawing further attention to Wymie’s statements.
See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (explaining
failure to request limiting instruction fell within the wide range of reasonable
professional assistance and that because such conduct might be sound trial
strategy, silent record did not satisfy appellant’s burden under first Strickland
prong); Bryant v. State, 282 S.W.3d 156, 171 (Tex. App.—Texarkana 2009,
pet. ref’d) (holding record did not support ineffective assistance claim when
appellate court could imagine a reasonable, strategic reason to explain trial
counsel’s failure to request a limiting instruction). Nothing in the record
indicates what defense counsels’ trial strategy was. Therefore, we cannot say
that the alleged ineffectiveness is firmly founded in the record or that the record
11
affirmatively demonstrates the alleged ineffectiveness. See Thompson, 9
S.W.3d at 814. Consequently, Carr has not met his heavy burden to defeat the
strong presumption that trial counsels’ actions fell within the wide range of
reasonable professional assistance. See Andrews, 159 S.W.3d at 101.
We therefore hold that the record is insufficient to demonstrate that
Carr’s trial counsel rendered ineffective assistance on the grounds alleged by
Carr.6 And because we have held that trial counsels’ conduct was not deficient
under Strickland’s first prong, we need not address the second prong of the
Strickland test. See Andrews, 159 S.W.3d at 101; Rylander v. State, 101
S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (both stating that a failure to
6
As noted by the court in Jackson, this is not unusual in cases of this
sort:
Experience has taught us that in most instances where the claim of
ineffective assistance of counsel is raised, the record on direct
appeal is simply not in a shape, perhaps because of the very
alleged ineffectiveness below, that would adequately reflect the
failings of trial counsel. Indeed, in a case such as this, where the
alleged derelictions primarily are errors of omission de hors the
record rather than commission revealed in the trial record, collateral
attack may be . . . the vehicle by which a thorough and detailed
examination of alleged ineffectiveness may be developed and
spread upon a record.
973 S.W.2d at 957.
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make a showing under either prong of the Strickland test defeats a claim of
ineffective assistance of counsel). We therefore overrule Carr’s four points.
IV. C ONCLUSION
Having overruled Carr’s four points, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 17, 2009
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