IN THE
TENTH COURT OF APPEALS
No. 10-07-00063-CR
Gontrai Henderson,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2006-891-C2
MEMORANDUM Opinion
A jury convicted Gontrai Henderson of possessing less than one gram of methamphetamine, and the court sentenced him to two years in a state jail and a $2,500 fine, suspended imposition of sentence, and placed him on community supervision for five years. Henderson contends in four issues that: (1) the court erred by denying his pretrial motion to suppress evidence seized during a search of his backpack; (2) the court erred by failing to instruct the jury that the State had to prove by clear and convincing evidence that he had voluntarily consented to the search; (3) the court erred by failing to sua sponte instruct the jury on the State’s burden of proof for extraneous offenses in the guilt-innocence charge; and (4) he received ineffective assistance of counsel during the guilt-innocence phase. We will affirm.
Background
On the occasion in question, Henderson was visiting his girlfriend who lived in a Baylor University dormitory. They were sitting in the lobby. The dorm director called Baylor police to come talk to Henderson and remove him from the dorm because she “just wasn’t comfortable with him.” Officers Raymond Lantz and Lory VonStaden responded, and, after talking briefly with the dorm director, they asked Henderson to step outside, which he did.
The officers asked him for his name and date of birth and whether he had any identification. He identified himself but said that he did not have any identification with him. Officer Lantz asked for permission to search Henderson’s backpack. According to the officers, Henderson consented. However, Henderson testified that he did not consent. Lantz searched the backpack and found what he suspected to be a marihuana pipe. The officers then arrested Henderson for possession of drug paraphernalia and transported him to the county jail.
At the jail, Henderson was searched in accordance with the standard booking procedures. A baggie of methamphetamine fell to the ground when he took off his left shoe.
Backpack Search
Henderson contends in his first issue that the court erred by denying his pretrial motion to suppress which challenged the validity of Lantz’s search of his backpack. Specifically, Henderson argues that he did not consent to the search and Lantz’s observation of the marihuana pipe does not satisfy the plain view/plain smell exception to the warrant requirement because Lantz had to reposition the pipe and smell it before he could determine that it had been used to smoke marihuana.
At a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). Thus, the court may choose to believe or disbelieve any or all of a witness’s testimony. Id. “This Court is not at liberty to disturb any fact finding that is supported by the record.” Id. We view the evidence in the light most favorable to the court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When as here the court makes explicit findings of fact, we must determine whether the evidence supports those findings. Id. We then review the court’s legal ruling de novo unless the court’s findings (which are supported by the evidence) are also dispositive of the legal ruling. Id.
Generally, we consider only the evidence introduced at the pretrial suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); Kearney v. State, 181 S.W.3d 438, 446 (Tex. App.—Waco 2005, pet. ref’d); Herrera v. State, 80 S.W.3d 283, 290 (Tex. App.—Texarkana 2002, pet. ref’d) (op. on reh’g). However, when the suppression issue is consensually relitigated at trial, we may also consider relevant trial evidence in our review. Rachal, 917 S.W.2d at 809; Kearney, 181 S.W.3d at 446; Herrera v. State, 80 S.W.3d at 291.
Under the “plain view” exception to the warrant requirement, an officer may lawfully seize evidence without a warrant if: (1) the officer observes evidence in plain view from a location where he has a right to be; and (2) the incriminating nature of the evidence is “immediately apparent.” See Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112 (1990) (citing Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 1153, 94 L. Ed. 2d 347 (1987); Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971) (plurality op.)); Martinez v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000). The second element requires a showing that the officer had “probable cause to associate the item with criminal activity.” Martinez , 17 S.W.3d at 685; accord Hicks, 480 U.S. at 326-27, 107 S. Ct. at 1153-54; Lopez v. State, 223 S.W.3d 408, 416-17 (Tex. App.—Amarillo 2006, no pet.); Arrick v. State, 107 S.W.3d 710, 719 (Tex. App.—Austin 2003, pet. ref’d).
Though the “immediately apparent” element requires a showing of probable cause, it “does not require actual knowledge of incriminating evidence.” Joseph v. State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991); Arrick, 107 S.W.3d at 719. But “immediately apparent” does mean that an officer cannot manipulate, move, or inspect an object to determine whether it is associated with criminal activity. See Hicks, 480 U.S. at 324-28, 107 S. Ct. at 1152-54. Otherwise, the object’s association with criminal activity could not be said to be immediately apparent.
Here, the officers testified that Henderson consented to a search of his backpack. Henderson testified to the contrary. The court stated in Findings of Fact Nos. 19 and 20 that it found the officers to be credible and accepted their testimony as true, and it was within the court’s discretion to believe the officers’ testimony over Henderson’s. See Garza, 213 S.W.3d at 346. Thus, the first element for the plain view exception is satisfied because Officer Lantz viewed the contents of Henderson’s backpack from a “location” where he had a right to be. See Lopez, 223 S.W.3d at 417.
At the pretrial suppression hearing, Lantz testified that his purpose for searching the backpack was to find some form of identification for Henderson, but he did not find any. Instead, he “found a black and brown pipe shaft in the bag. And the end of the pipe shaft had been burnt. And when you smelled it, you could smell what I believed was burnt marijuana on the end of it.” He added that “it looked just like the wooden shaft off your regular smoking pipe without the bowl on the end of it,” and “in [his] experience,” such a pipe shaft “would be used as drug paraphernalia.”
Lantz’s trial testimony did not vary appreciably from the suppression hearing on the discovery of the pipe shaft in the backpack. On neither occasion did he provide a step-by-step explanation of whether he moved the pipe shaft before noticing that it was burnt on one end or before smelling the odor of burnt marihuana. Nor did the court make any detailed findings regarding the timing of the various components of the search. Findings of Fact Nos. 9, 10, and 11 address the search:
9. That Officer Lantz found a black and brown pipe shaft in the defendant’s backpack.
10. That the pipe was burnt on one end and Officer Lantz smelled what he believed, in his experience and training, to be the odor of marihuana.
11. That based upon the education, training and experience of Officer Lantz he recognized the pipe as drug paraphernalia.
The court concluded without elaboration that the search of the backpack “was reasonable.”
When viewed in the light most favorable to the ruling, these findings are supported by Officer Lantz’s testimony. See Kelly, 204 S.W.3d at 818. Nevertheless, the court made no findings regarding whether Lantz moved or manipulated the pipe shaft in any fashion to determine whether it was associated with criminal activity. When a trial court does not make explicit findings, we “must defer not only to all implicit factual findings that the record will support in favor of a trial court’s ruling, ‘but also to the drawing of reasonable inferences from the facts.’” Amador v. State, 221 S.W.3d 666, 674-75 (Tex. Crim. App. 2007) (quoting Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005)).
Here, Officer Lantz’s testimony supports the reasonable inference that he saw the burnt end of the pipe shaft and recognized it to be a marihuana pipe before he moved it, regardless of whether he smelled the odor of marihuana at that juncture in the search. Thus, Lantz’s testimony was sufficient to establish that he had probable cause to believe that the pipe shaft constituted drug paraphernalia. Cf. Waugh v. State, 51 S.W.3d 714, 716-17 (Tex. App.—Eastland 2001, no pet.) (officer who observed bong in plain view in house had probable cause to believe occupants were in possession of drug paraphernalia).
Accordingly, we overrule Henderson’s first issue.
Consent Instruction
Henderson contends in his second issue that the court erred by failing to instruct the jury that the State had to prove by clear and convincing evidence that he had voluntarily consented to the search of his backpack.
As Henderson readily acknowledges, he did not raise this objection at trial, and thus he must establish that: (1) the charge is erroneous as alleged; and (2) this error caused him to suffer egregious harm. Ex parte Smith, 185 S.W.3d 455, 464 (Tex. Crim. App. 2006); Witt v. State, 237 S.W.3d 394, 398 (Tex. App.—Waco 2007, pet. ref’d).
Henderson is correct that in a suppression hearing before the trial court the State is required to prove the voluntariness of a defendant’s consent by clear and convincing evidence. See Johnson v. State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007). However, if a defendant chooses to relitigate the issue before a jury under article 38.23 of the Code of Criminal Procedure, “the standard of proof to the jury is beyond a reasonable doubt.” Lalande v. State, 676 S.W.2d 115, 118 n.5 (Tex. Crim. App. 1984) (citing Tex. Code Crim. Proc. Ann. art. 38.23);[1] accord Coleman v. State, 45 S.W.3d 175, 181 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d), overruled on other grounds by Johnson v. State, 95 S.W.3d 568, 573 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d);[2] Johnson v. State, 885 S.W.2d 578, 580 (Tex. App.—Dallas 1994, no pet.); Peterson v. State, 727 S.W.2d 125, 126 (Tex. App.—San Antonio 1987, no pet.).
Therefore, because Henderson chose to relitigate the voluntariness of his consent before the jury, the trial court was not required to charge the jury on the clear-and-convincing standard because this burden of proof applies only in a suppression hearing. Accordingly, we overrule Henderson’s second issue.
Extraneous Offense Instruction
Henderson contends in his third issue that the court erred by failing to sua sponte instruct the jury on the State’s burden of proof for extraneous offenses in the guilt-innocence charge. Henderson’s third issue is based on this Court’s decision in Rodgers v. State, 180 S.W.3d 716, 724 (Tex. App.—Waco 2005, no pet.), in which it was held that a trial court has a duty to sua sponte submit such an instruction. However, our decision in Rodgers has since been expressly disavowed by the Court of Criminal Appeals. See Delgado v. State, 235 S.W.3d 244, 252-53 & n.35 (Tex. Crim. App. 2007). Therefore, we overrule Henderson’s third issue.
Ineffective Assistance
Henderson contends in his fourth issue that he received ineffective assistance of counsel during the guilt-innocence phase.
We begin with a “strong presumption” that counsel provided reasonably professional assistance, and Henderson bears the burden of overcoming this presumption. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). If nothing in the record reveals the reason for the act or omission which is the basis of an ineffective assistance complaint, we may not speculate on that reason. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Jones v. State, 170 S.W.3d 772, 775 (Tex. App.—Waco 2005, pet. ref’d); Hajjar v. State, 176 S.W.3d 554, 567 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
Henderson did not raise the issue of ineffective assistance in a motion for new trial. Without a record elucidating the reasons for trial counsel’s allegedly ineffective acts and omissions, Henderson has failed to overcome the “strong presumption” that counsel provided reasonably professional assistance. See Andrews, 159 S.W.3d at 101; Jones, 170 S.W.3d at 776-77; Hajjar, 176 S.W.3d at 567. Accordingly, we overrule Henderson’s fourth issue.
We affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in only the judgment which affirms the trial court’s judgment. A separate opinion will not be issued.)
Affirmed
Opinion delivered and filed March 26, 2008
Do not publish
[CR25]
[1] Article 38.23(a) provides in pertinent part:
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).
[2] The First Court of Appeals overruled that part of Coleman in which it had held that an intermediate court of appeals may conduct a factual sufficiency review of an implied jury finding under article 38.23. See Johnson v. State, 95 S.W.3d 568, 573 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (overruling Coleman v. State, 45 S.W.3d 175, 178-80 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d)). The Court of Criminal Appeals later confirmed that such “implied findings” are not subject to appellate review. Hanks v. State, 137 S.W.3d 668, 672 (Tex. Crim. App. 2004).