Opinion of March 16, 2006, Withdrawn, Affirmed and Substitute Memorandum Opinion filed May 16, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00411-CR
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GUSTAVO CASTRO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 980,471
S U B S T I T U T E M E M O R A N D U M O P I N I O N
We withdraw our memorandum opinion of March 16, 2006 and issue the following substitute memorandum opinion in its place.
Appellant was charged with one count of possession with intent to manufacture or deliver a controlled substance weighing more than 400 grams. After the trial court denied appellant=s motion to suppress, he pleaded guilty and was sentenced by the trial court to twenty-five years imprisonment in the Texas Department of Criminal JusticeCInstitutional Division. After his sentencing, appellant filed a motion for new trial arguing that his guilty plea was the result of ineffective assistance of counsel, which the trial court denied. We affirm.
I. Factual and Procedural Background
On July 1, 2003, appellant was a passenger in a Jeep Grand Cherokee traveling northbound on the Gulf Freeway. Neither appellant nor the Jeep=s driver were the registered owner of the vehicle. Trooper Nathaniel Taylor of the Texas Department of Public Safety was stationed in his patrol car on the side of the freeway, and when the Jeep passed him, Taylor=s radar gun indicated that the Jeep was exceeding the posted speed limit. Taylor signaled to the driver to pull over and asked him to step out of the vehicle. The driver complied, and Taylor informed him that he was being stopped for speeding. Soon thereafter, additional troopers arrived at the scene.
Taylor asked the driver if the Jeep contained any narcotics, and the driver responded that it did not. Taylor then asked for permission to search the Jeep and the driver consented, both verbally and in writing. A canine drug detection unit was called to the scene, and the dog immediately reacted to the vehicle. The dog alerted its handler to the scent of drugs at the center console of the Jeep, and traced the scent towards the back of the vehicle where an empty Xerox box was found. The dog also alerted to the area of the floor around the box.
During the search, officers learned that the driver had outstanding arrest warrants, and placed him under arrest. When the officers found relay switches and wiring leading to the rear of the vehicle, the officers decided to continue the search in a safer and better-lit environment, and removed the Jeep to the Webster police station. After two to three hours of searching, the officers discovered a hidden compartment, which contained four kilograms of cocaine and a pistol.
Appellant was charged with one count of possession with intent to manufacture or deliver a controlled substance. The charge also contained an enhancement paragraph for the use of a deadly weapon during the commission of the offense. Appellant filed a motion to suppress the evidence obtained as a result of the search. The trial court denied the motion, appellant pleaded guilty, and was sentenced to twenty-five years in prison.
After appellant=s sentencing, his counsel filed a motion to withdraw as attorney of record. Appellant=s successor counsel filed a motion for new trial on the grounds that appellant was denied effective assistance of counsel. Specifically, appellant claimed his trial counsel did not inform him that the presence of the pistol could be used to enhance his sentence. The motion for new trial was denied, and this appeal ensued.
II. Issues Presented
In appellant=s first issue, he challenges the trial court=s denial of his motion to suppress, contending that officers did not have reasonable suspicion for the traffic stop. Thus, he argues the traffic stop was an illegal detention, and the driver=s consent to search the vehicle was the product of that detention. Alternatively, appellant argues that the search was the result of his illegal detention after the investigating officer decided to issue the driver a warning citation. Finally, appellant argues that the scope of the search exceeded the driver=s consent.
In his second issue, appellant contends that the trial court abused its discretion in denying his motion for new trial on the grounds that appellant=s guilty plea was the result of his trial counsel=s failure to advise him of potential sentencing enhancements. Appellant contends that his plea was not voluntary but was instead the result of ineffective assistance of counsel.
III. Discussion
A. Did the Trial Court Err in Denying the Motion to Suppress?
1. Standard of Review
In reviewing a trial court=s ruling on a motion to suppress, we grant almost total deference to the trial court=s determination of historical facts that are supported in the record. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). Where the trial court did not make explicit findings of historical facts, we review the evidence in a light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact supported in the record. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). Similarly, we will not overrule a trial court=s ruling on mixed questions of law and fact if the ultimate issue is resolved by evaluating a witness=s credibility and demeanor. Guzman, 955 S.W.2d at 89. When the resolution of a mixed question of law and fact does not involve such an evaluation, we review the ruling de novo. Id.
2. Standing
As appellant acknowledges, a defendant bears the burden of proving his own privacy rights were violated; that is, that he has standing to contest the search or seizure. State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 1996) (en banc); Flores v. State, 871 S.W.2d 714, 719 (Tex. Crim. App. 1993) (en banc). In the absence of any evidence showing that a passenger in a vehicle has a legitimate expectation of privacy in the vehicle or a possessory interest in the property seized, the passenger has no standing to contest the search of the vehicle. Flores, 871 S.W.2d at 720; Meeks v. State, 692 S.W.2d 504, 510 (Tex. Crim. App.1985). Appellant has stated no legitimate expectation of privacy, and has claimed no possessory interest in the Jeep or its contents.
This does not end our inquiry, however. A passenger can challenge the search of a vehicle if the search resulted from an infringement of his Fourth Amendments rights. Lewis v. State, 664 S.W.2d 345, 348 (Tex. Crim. App. 1984) (en banc).
Appellant argues the police lacked reasonable suspicion to stop the Jeep and therefore, the traffic stop constituted an illegal detention. Appellant reasons that the search was the result of his illegal detention, and thus, the evidence seized should have been suppressed as the Afruit of the poisonous tree.@ In support of this argument, appellant relies on the testimony of Officer Floyd Winkler, who arrived at the scene after Taylor initiated the traffic stop. Winkler testified that there was no traffic violation, and that he had requested that Taylor stop the Jeep. Appellant acknowledges, however, that Taylor testified the Jeep was stopped for exceeding posted speed limits.
Because we defer to the trial court=s determination of historical facts and to its evaluation of witness credibility, we conclude the trial court resolved this conflict in the testimony and implicitly found that Taylor had reasonable suspicion to stop the Jeep for a traffic violation. As a result, the traffic stop did not constitute an illegal detention, and did not violate appellant=s Fourth Amendment rights.
Alternatively, appellant argues Aany continued detention beyond the moment Taylor determined he was going to issue a warning citation was improper as the purpose of the stopCa speeding investigationChad been completed.@ In support of this argument, appellant points to Taylor=s testimony that: (a) the investigation for speeding was concluded after Taylor decided to issue the driver a warning citation for speeding; and (b) Taylor asked for consent to search the vehicle after he decided to issue the citation.
We are not persuaded by this argument. Under appellant=s reasoning, all traffic stops contain a period of illegal detention between the time an officer decides to take an action and the time that action is completed.[1] Having decided to write a warning citation, it is not illegal for an officer to detain a driver for the time required to do so.
Finding no violation of appellant=s Fourth Amendment rights, and no asserted possessory interest in the Jeep or its contents, we conclude appellant lacks standing to challenge the search of the vehicle. We therefore need not address appellant=s challenges to the search.
B. Did the Trial Court Abuse Its Discretion By Denying Appellant=s Motion for New Trial?
Following the denial of his motion to suppress, appellant pleaded guilty to one count of possession with intent to manufacture or deliver a controlled substance weighing more than 400 grams. The charge also included an enhancement paragraph alleging a deadly weapon was used in the commission of the crime. After the trial court sentenced appellant to twenty-five years in prison, appellant obtained other counsel and filed a motion for a new trial claiming he received ineffective assistance of counsel. According to appellant, his prior counsel advised him that the pistol found in the secret compartment could not be linked to him and would not be a factor in the trial court=s sentencing decision. Appellant=s only evidence supporting this claim is his own two-page affidavit.
1. Standard of Review
When the trial court=s determination of historical facts is based solely upon affidavits, we review a ruling on a claim of ineffective assistance of counsel made during a motion for new trial for an abuse of discretion. Charles v. State, 146 S.W.3d 204, 210 (Tex. Crim. App. 2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court=s decision was arbitrary or unreasonable. Id. We view the evidence in the light most favorable to the trial court=s ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id.
2. Analysis
In an affidavit attached to the written motion and introduced into evidence at the hearing, appellant stated the following:
I want to start by saying that I don=t think I was well-represented by my [prior] attorney . . . .
I explained to [my prior counsel] from the beginning that there was a gun involved in my case and that it did not belong to me.
I asked for him or the DA to have it checked for fingerprints but his answer to me was that the only way this gun would be pinned on me was if,
1) The gun was registered under my name.
2) If I had possession of the gun at the time of my arrest.
3) If my fingerprints were on the gun.
4) If an officer saw me put it there.
That only if they could prove any of these four, then the gun was not an issue.
And when I brought up the gun throughout this whole ordeal he kept saying it wasn=t an issue all the way till the day I was sentenced.
So Your Honor when I agreed to have you sentence me I was under the assumption that the gun was not an issue.
Had my attorney told me I could receive a deadly weapon finding I would not [have] pursued a motion to suppress and accepted the lower offer made to me.
The State argued the affidavit was insufficient evidence of the prior counsel=s actions and argued that the best evidence of this alleged advice was the testimony of appellant=s prior counsel. Appellant responded that the affidavit constituted uncontroverted evidence that the advice received was clearly erroneous, and that he was harmed by relying on that advice. Appellant also argued that heCnot his prior counselCwas the best witness to testify as to how the advice affected his decision to plead guilty.
A record reflecting that the trial court properly admonished the defendant as to the consequences of his plea is prima facie evidence that the defendant entered a knowing and voluntary plea. Nicholas v. State, 56 S.W.3d 760, 769B70 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). However, when a defendant enters a plea of guilty on the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of the plea depends on (1) whether counsel=s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel=s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52,
56 (1985). The burden, however, is on the defendant to show that the plea was entered without knowledge of its consequences. Nicholas, 56 S.W.3d at 770.
As noted, appellant=s only evidence in support of his claim of ineffective assistance of counsel was his affidavit. A trial judge is not required to believe such an affidavit, even when it is uncontradicted. Charles, 146 S.W.3d at 213. Moreover, appellant=s unwillingness to support his affidavit with live testimony could be considered evidence that the affidavit is untrue. Kober v. State, 988 S.W.2d 230, 234 (Tex. Crim. App. 1999). Although appellant=s counsel correctly notes that only appellant had personal knowledge of how the advice provided by prior counsel affected appellant=s decision-making processes, the testimony of prior counsel is most probative of the advice that was actually provided. Finally, appellant=s unwillingness to offer proof on this issue was made manifest by appellant=s refusal to call his prior counsel to testify.
On these facts, we cannot say the trial court abused its discretion in denying appellant=s motion for new trial.
IV. Conclusion
Because appellant lacks standing to challenge the search of the vehicle, we conclude the trial court did not err in denying appellant=s motion to suppress. We further conclude the trial court did not abuse its discretion in denying appellant=s motion for new trial. Therefore, we affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Substitute Memorandum Opinion filed May 16, 2006.
Panel consists of Justice Fowler, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant does not argue that Taylor delayed writing the citation.