In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00323-CR
JEREMIAH MICHAEL SCOTT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 61,447-E, Honorable Douglas Woodburn, Presiding
March 3, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
A jury in Potter County convicted appellant Jeremiah Michael Scott of possession
of at least four but fewer than four hundred grams of the controlled substance
methylenedioxymethamphetamine.1,2 The court assessed punishment of twenty years’
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.116(d) (West 2010). The offense
is a second degree felony punishable for any term of not more than twenty years or less
than two years and a fine not to exceed $10,000. TEX. PEN. CODE ANN. § 12.33 (West
2011).
confinement in prison and a fine of $10,000. Through a single issue appellant contends
his court-appointed trial counsel rendered ineffective assistance. Finding the issue
without merit, we will affirm the judgment of the trial court.
Background
Trial was in June 2011. Before jury selection began, appellant’s trial counsel
orally moved for a continuance because a witness, Tameka Michelle Walter, was at the
time incarcerated in Oklahoma City, Oklahoma. The prosecutor announced he too
would like Walter to appear at the trial and would have subpoenaed her if he had known
her whereabouts. After making further inquiry, the court denied the motion and trial
proceeded.
After the jury was selected and appellant plead not guilty, the court recessed for
lunch. Appellant was not in custody, and outside the jury’s presence he asked the court
if he might have lunch with his family. He added, “That’s all I was wanting to know
because--I mean, I’m not trying to run from y’all or none of that because that--because I
drove 300 miles up here.” The court instructed him to return by 12:45 p.m. when trial
was to resume. Appellant did not return as directed. At 1:20 p.m. counsel told the court
outside the jury’s presence he had “no idea” where his client was. The court then
returned the jury and delivered the following explanation:
For the record, I had informed the Defendant, Mr. Scott, to return here at
12:45. He left--apparently left the courthouse with his family and he has
not returned. And so we will have to proceed on with the trial since he’s
already pled on the document[.]
2
Methylenedioxymethamphetamine is commonly known as “MDMA” or “ecstasy.
Alford v. State, 358 S.W.3d 647, 651 (Tex. Crim. App. 2012).
2
Appellant did not return for the remainder of his trial. The State presented its
case and appellant called no witnesses. After returning a guilty verdict the jury was
discharged. Punishment was tried to the court in a brief hearing. The State re-tendered
its guilt-innocence evidence and rested. Counsel for appellant offered no witnesses or
evidence. The court pronounced the noted sentence.
Appellant was later found in the custody of the Oklahoma Department of
Corrections and returned to Potter County. New counsel was appointed and in
September 2013, the trial court pronounced sentence in appellant’s presence. 3 After
expressing the sentence the court commented to appellant, “A very foolish decision on
your part.”
Analysis
Appellant’s ineffective assistance complaint arises from a litany of asserted
unprofessional acts by counsel occurring prior to trial, during voir dire, and throughout
the guilt-innocence and punishment phases of trial.
Analysis of an ineffective assistance of counsel claim is conducted under the
standard set out in the United States Supreme Court’s opinion in Strickland v.
Washington. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Our review of
counsel’s performance is highly deferential and a strong presumption exists that
counsel’s conduct fell within a wide range of reasonable professional assistance.
Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see Strickland, 466 U.S. at
3
See TEX. CODE CRIM. PROC. ANN. art. 42.14(b) (West Supp. 2014) (stating
circumstances in a felony case under which sentence may be rendered in defendant’s
absence).
3
689 (noting there are countless ways to provide effective assistance in any given case).
To overcome the presumption of reasonable professional assistance, any allegation of
ineffectiveness must be firmly rooted in the record. Thompson v. State, 9 S.W.3d 808,
813-14 (Tex. Crim. App. 1999).
The Court in Strickland established a two-pronged test for analyzing a claim of
ineffective assistance of counsel. Reversal requires a defendant to demonstrate
counsel’s representation fell below an objective standard of reasonableness and the
deficient performance prejudiced the defendant. 466 U.S. at 687; see Hernandez v.
State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986) (applying Strickland standards
under Texas Constitution).
The first prong of the Strickland test requires an appellant to show counsel made
such serious errors that he did not function as the counsel guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. Appellant must show that counsel’s
performance was unreasonable under prevailing professional norms and that the
challenged action was not sound trial strategy. Id. at 689-90. Absent evidence of
counsel’s reasons for conduct challenged on appeal, we will not conclude the conduct
constituted deficient performance unless it was so outrageous that no competent
attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.
App. 2001).
Under the second prong, an appellant must show that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687. The standard for judging prejudice
requires an appellant to “show that there is a reasonable probability that, but for
4
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. As with the performance prong, “the question of
prejudice turns on the facts that the record shows.” Mitchell v. State, 68 S.W.3d 640,
643 (Tex. Crim. App. 2002).
“There is no need for a court deciding an ineffective assistance claim . . . to
address both components of the inquiry if the defendant makes an insufficient showing
on one.” Strickland, 466 U.S. at 697. Thus “it is not necessary to determine whether
trial counsel’s representation was deficient if appellant cannot satisfy the second
Strickland prong.” My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—Houston
[14th Dist.] 2009, pet. refused). “If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, which we expect will often be so, that course
should be followed.” Strickland, 466 U.S. at 697.
Before stating a conclusion, we will set out the deficiencies appellant sees in his
attorney’s representation, and describe what the record shows.
Pre-trial
According to appellant, his counsel failed to investigate the case adequately. It is
trial counsel’s duty to independently investigate the facts of the case. Strickland, 466
U.S. at 691 (“counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary”). “In any
ineffectiveness case, a particular decision not to investigate must be directly assessed
5
for reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.” Id.
Appellant’s complaint relies on the content of counsel’s fee request voucher,
which appellant claims demonstrates counsel did not spend any time preparing for trial.
The document was never admitted into evidence at a hearing before the trial court nor
does the record contain an explanation of its contents from counsel. Nevertheless, the
document appears in the clerk’s record and indicates counsel performed services for
appellant from April 15, 2010, until June 15, 2011. The voucher also reflects counsel
requested, and received, a flat fee of $1,000 as compensation. It contains no
itemization of the services he rendered for appellant.
Appellant contends counsel did not meet with him until two days before trial and
did not inform him the case was set for trial on June 8, 2011. After counsel told the
court he learned of Tameka Walter’s location on the previous day, the court undertook
to understand how long appellant had known of her location. During their exchange on
that subject, appellant told the court he had contacted his counsel “last Thursday” 4 and
later told the court he had “only known [counsel] for two days.” Appellant also told the
court June 8 was the second court date of which he was aware, and he “didn’t know
[he] was coming for trial today basically.” How appellant obtained his knowledge of
court dates is not shown, and the record contains no further elaboration on appellant’s
statements to the court. The court did not seek a response from counsel, and he
offered none.
4
Trial was on Wednesday June 8 meaning the previous Thursday was June 2.
6
Appellant asserts counsel made no effort to secure the testimony of Walter, who
appellant describes as his “lone witness.” Nor, he continues, did counsel file a written
motion for continuance to obtain Walter’s testimony. When the court asked him,
appellant told the court he learned of Walter’s incarceration the previous week.
Nothing in the record shows what testimony favorable to appellant Walter was
prepared to offer. See Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010)
(explaining, “the failure to call witnesses at the guilt-innocence and punishment stages
is irrelevant absent a showing that such witnesses were available and appellant would
benefit from their testimony” (internal quotation marks omitted)). The State apparently
believed Walter’s testimony would aid its case. At any rate, the record does not tell us
how Walter would have testified had she been present.
On appeal, appellant contends his sole available defense was the suppression of
evidence arising from the discovery of the controlled substance in his vehicle. Counsel
did not file a motion to suppress nor did he object to admission of the evidence of the
contraband at trial. Trial testimony from two Amarillo police officers, Leake and
Thurman, sets out the circumstances of their seizure of the controlled substance, which
was contained in green- and orange-colored pills.
The two patrol officers were dispatched to investigate a 9-1-1 call. It was after
9:00 p.m. and according to Leake it was dark. The dispatcher reported a female caller
on an open line who was able to answer only “yes” and “no” questions. The officers
drove to the estimated address of the call in separate vehicles.
7
Near the location the officers noticed a parked vehicle, a Chevrolet Tahoe,
occupied by a male and female, later identified as appellant and Walter. Appellant was
seated in the driver’s seat and Walter, the passenger seat. At the passenger side,
Leake asked Walter to lower the window. She was “sunken down” in the seat, avoided
eye contact, and was “real quiet.” The pair appeared to match a description given by
dispatch in a subsequent broadcast.
Thurman went to the driver’s side, and asked appellant to exit the vehicle.
Appellant responded with a “real quick move” toward the vehicle’s center console.
Believing appellant may have been reaching for a weapon, the officers drew their
weapons and Leake commanded appellant to show his hands. As directed, appellant
exited the vehicle and was handcuffed. Thurman placed him in a patrol vehicle.
Appellant denied the officers permission to search his vehicle.
After Walter was placed in the other patrol car,5 Leake searched the location on
the driver’s side of the passenger compartment to which appellant had moved his hand.
The officer testified he was looking for a weapon, but did not find a weapon or see other
contraband.
When Thurman returned to the vehicle, through the open driver’s door he saw
“what appeared to be two or three small green pills in the floorboard.” He then noticed a
larger clear plastic bag containing green-colored and orange-colored pills. He reported
to Leake that he found drugs in the car. After Leake retrieved a camera, he also saw
the two green pills on the driver’s side floorboard. As he collected the pills he noticed a
5
Officer Leake testified she was, in his opinion, “high on Ecstasy.”
8
bag of similar pills under the driver’s seat. The officers believed the pills were narcotics.
Later analysis by the Department of Public Safety crime lab proved they were ecstasy.
Thurman placed appellant under arrest and transported him to the police station.
According to his testimony, in the patrol vehicle and without inquiry by Thurman,
appellant admitted the ecstasy was his, and came from a “party pack” he purchased at
an Amarillo restaurant.
Voir Dire
Appellant finds counsel’s voir dire of the jury panel deficient in several respects.
He complains it was “extremely short,” limited to inquiry of biases concerning
possession of controlled substances, and without pertinent follow-up questions.
Further, according to appellant, counsel did not touch on the rights of the accused,
including remaining silent, was rude to appellant in the panel’s presence, did not
“personalize” him, and did not remove any panelists for cause.
The State accurately points out that the prosecutor’s voir dire addressed the
rights of the accused, including the right to remain silent, and that the trial court also
reiterated the right to remain silent and included it in the jury charge. From the trial
record, it is not possible to ascertain what information counsel gleaned from the State’s
questioning and how the panel’s answers to the State’s questions affected counsel’s
jury-selection strategy. However, in his voir dire, after introducing appellant to the
panel, counsel did explain, “I’m not going to take as long as the prosecutor because he
said most of everything that I was going to say.” And he concluded by telling the panel,
“I think that I’ve gotten the information that I need and he’s got the information that he
9
needs. So we’ll pick our jury and be ready to go.” While questioning the panel, counsel
engendered their laughter with beginning and ending comments about his bow tie and
role as a defense attorney. Obtaining a show of hands to an inquiry concerning
possession of controlled substances, counsel individually questioned seven panel
members. As appellant points out counsel did not inquire about the impartiality of these
individuals. But the record reflects counsel exercised peremptory challenges to strike
the seven plus two others and appellant does not argue an objectionable panel member
was seated on the jury. Four jurors were struck for cause and appellant does not argue
that counsel erroneously failed to challenge others for cause.
Guilt-Innocence and Punishment Phases of Trial
Appellant condemns counsel’s trial performance with a broad brush. He
criticizes counsel for not attempting to limit the judge’s explanation to the jury of
appellant’s absence following the noon recess. He adds that counsel did not object to
evidence at trial, including the drugs and appellant’s incriminating statement to
Thurman, and was ineffective on cross-examination. Finally he criticizes counsel’s
closing argument for questioning the sufficiency of the evidence of possession in light of
the officer’s testimony appellant admitted the drugs were his.
The record at guilt-innocence indicates counsel cross-examined three of the
State’s five witnesses. He had no questions for a fingerprint expert, who testified he
found no fingerprints, and the Department of Public Safety chemist. Counsel called no
witnesses on behalf of appellant. At the close of evidence, counsel moved for a
directed verdict on jurisdictional grounds. It was overruled. He lodged an objection to
10
the charge which was implicitly overruled. He argued to the jury a lack of evidence that
appellant intentionally and knowingly possessed the ecstasy. On rebuttal the
prosecutor pointed out that officer Thurman testified to appellant’s admission that the
pills were his.
Punishment was tried to the bench. The State re-tendered its evidence from
guilt-innocence and rested. Counsel presented no evidence for appellant. Of course
appellant was not available to testify or otherwise assist in the presentation of his
punishment case. The court assessed the maximum sentence, twenty years’
confinement and a fine of $10,000.
Application
Appellant’s argument on appeal is little more than his present counsel’s critique
of trial counsel’s representation. “The object of an ineffectiveness claim is not to grade
counsel’s performance.” Strickland, 466 U.S. at 697. Critical to the ineffectiveness
determination, we are not shown how trial counsel’s representation prejudiced
appellant’s defense.
Appellant’s primary challenge to his conviction is his counsel’s failure to attempt
suppression of the controlled substance and his incriminating admission to Thurman.
To demonstrate ineffective assistance of counsel from a failure to object to the
admission of evidence, an appellant must show the trial court would have committed
error in overruling such an objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.
Crim. App. 2011) (citing Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996)).
In like manner, a claim of ineffective assistance based on counsel’s failure to file a
11
motion to suppress cannot be sustained absent proof that the motion would have been
granted. Chapa v. State, No. 04-02-00346-CR, 2003 Tex. App. LEXIS 2091, at *10
(Tex. App.—San Antonio Mar. 12, 2003, pet. refused) (mem. op., not designated for
publication) (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per
curiam)). As noted, most of the record regarding seizure of the incriminating evidence
comes from the officers’ testimony. The testimony appears direct and consistent, and it
appears likely to us the trial court would have found it credible. By their testimony, the
officers were dispatched at night, after a 9-1-1 call, to investigate possible domestic
violence and approached a parked vehicle occupied by a male and female. The officers
got little information from their conversation with Walter. When an officer approached
appellant on the driver’s side and asked him to step out of the vehicle, appellant made a
quick movement toward the console, causing both officers to draw their weapons. As
the result of that action, appellant was handcuffed and placed in a patrol car. An officer
looked for a weapon but saw none. See, e.g., Michigan v. Long, 463 U.S. 1032, 103
S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (search of vehicle for weapon reasonable under
Terry v. Ohio6 principles). The vehicle’s door remained open, and from his position
standing in the street at the open door, an officer saw the two green ecstasy pills on the
floorboard. His observation of the two pills led to a further search and discovery of the
bag of similar pills under the driver’s seat. Based on this record, counsel could have
concluded that an effort to suppress the pills found in the car would not have been
meritorious. See Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009)
(automobile exception authorizes warrantless search of vehicle if it is readily mobile and
6
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
12
there is probable cause to believe it contains contraband); Walter v. State, 28 S.W.3d
538 (Tex. Crim. App. 2000) (discussing application of plain view doctrine); Barnes v.
State, 424 S.W.3d 218, 225 (Tex. App.—Amarillo 2014, no pet.) (discussing automobile
exception and cases).
The record does not establish prejudicial error by counsel in the conduct of pre-
trial matters and voir dire. Not securing a continuance for the sake of presenting
Walter’s testimony may well have worked to appellant’s benefit. The State apparently
wanted her testimony but was unable to locate her. At the least, the record does not
show how Walter’s absence harmed the presentation of appellant’s case on guilt or
punishment. We have already noted counsel reasonably could have considered moving
to suppress the drug and appellant’s alleged admission of possession to an officer
would be fruitless. Otherwise, we are not shown with argument and authorities the
proper objections counsel failed to make and how his cross-examination might
otherwise have diminished the force of the State’s case. Counsel’s closing argument
contained a possible lapse. But we lack the assistance of counsel’s explanation. See
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (noting an appellate
court should ordinarily not denounce trial counsel as ineffective without a record
affording counsel the opportunity to explain his actions). As for appellant’s sentence, it
was within the lawful range. The trial court as factfinder may have recalled appellant’s
comment before the fateful lunch break, “I’m not trying to run from y’all or none of
that . . . .” Disregarding the impact of appellant’s choice to absent himself from the trial
may have had on the effectiveness of counsel’s representation, on the record
13
presented, we do not find appellant has discharged his burden under Strickland’s
prejudice prong.
Conclusion
We overrule appellant’s sole issue on appeal and affirm the judgment of the trial
court.
James T. Campbell
Justice
Do not publish.
14