NUMBER 13-11-00637-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESSE DAVID BRISTER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 284th District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Rose Vela
Appellant, Jesse David Brister, entered into an open plea of guilty to the offense of
fraudulent possession of identifying information, a second-degree felony. See TEX.
PENAL CODE ANN. § 32.51(c)(3) (West Supp. 2011). Following a punishment hearing, the
trial court sentenced him to ten years' imprisonment. By a single issue, appellant argues
he was denied his right to effective assistance of counsel as guaranteed by the Sixth
Amendment to the United States Constitution and Article 1, Section 10 of the Texas
Constitution because his defense counsel did not file a motion to suppress evidence
which was discovered during an inventory detention in violation of the Fourth Amendment
to the United States Constitution and Article 1, Section 9 of the Texas Constitution. We
affirm.1
I. DISCUSSION
A. Standard of Review
"The Sixth Amendment to the United States Constitution, and section ten of Article
1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a
criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)
(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires
more than the presence of a lawyer; it necessarily requires the right to effective
assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v.
Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right to
errorless counsel,[ 2 ] but rather to objectively reasonable representation." Id. (citing
Strickland v. Washington, 466 U.S. 668, 686 (1984)).
"A defendant has a Sixth Amendment right to effective assistance of counsel in
plea proceedings." Ex parte Niswanger, 335 S.W.3d 611, 614 (Tex. Crim. App. 2011)
(citing U.S. CONST. amend. VI; Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim.
App. 2010)). "A guilty plea is not considered knowingly and voluntary if it is made
because of ineffective assistance of counsel." Id. at 614–15 (citing Ex parte Burns, 601
S.W.2d 370, 372 (Tex. Crim. App. 1980)).
1
This appeal was transferred from the Ninth Court of Appeals pursuant to a docket-equalization
order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
2
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
2
"To prevail on a claim of ineffective assistance of counsel, an appellant must meet
the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Lopez,
343 S.W.3d at 142. "Appellant must show that (1) counsel's representation fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced the
defense." Id. (citing Strickland, 466 U.S. at 689). "Unless appellant can prove both
prongs, an appellate court must not find counsel's representation to be ineffective." Id.
(citing Strickland, 466 U.S. at 687). "In order to satisfy the first prong, appellant must
prove, by a preponderance of the evidence, that trial counsel's performance fell below an
objective standard of reasonableness under the prevailing professional norms." Id. "To
prove prejudice, appellant must show that there is a reasonable probability, or a
probability sufficient to undermine confidence in the outcome, that the result of the
proceeding would have been different." Id. (citing Strickland, 466 U.S. at 687).
In order to satisfy the prejudice prong in the context of a guilty plea, a defendant
"must show that there is a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474
U.S. 52, 58–59 (1985). A defendant "'need not show that his case would have received
a more favorable disposition had he gone to trial.'" Ex parte Niswanger, 335 S.W.3d at
615 (quoting Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005)).
"An appellate court must make a 'strong presumption that counsel's performance
fell within the wide range of reasonably professional assistance.'" Lopez, 343 S.W.3d at
142 (quoting Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing
Strickland, 466 U.S. at 689)). "In order for an appellate court to find that counsel was
ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record; the
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court must not engage in retrospective speculation." Id. (citing Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999)). "'It is not sufficient that appellant show, with
the benefit of hindsight, that his counsel's actions or omissions during trial were merely of
questionable competence.'" Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430
(Tex. Crim. App. 2007)). "When such direct evidence is not available, we will assume
that counsel had a strategy if any reasonably sound strategic motivation can be
imagined." Id. at 143 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)). "In making an assessment of effective assistance of counsel, an appellate court
must review the totality of the representation and the circumstances of each case without
the benefit of hindsight." Id. (citing Robertson, 187 S.W.3d at 483).
The court of criminal appeals "has repeatedly stated that claims of ineffective
assistance of counsel are generally not successful on direct appeal and are more
appropriately urged in a hearing on an application for a writ of habeas corpus." Id. (citing
Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131 (Tex.
Crim. App. 2004). "On direct appeal, the record is usually inadequately developed and
'cannot adequately reflect the failings of trial counsel' for an appellate court 'to fairly
evaluate the merits of such a serious allegation.'" Id. (quoting Bone, 77 S.W.3d at 833).
B. Analysis
The issue is whether defense counsel was ineffective for failing to file a motion to
suppress incriminating evidence, 3 which a police officer seized from appellant's
backpack. The First Court of Appeals addressed this issue in Broussard v. State, 68
3
The incriminating evidence consisted of W2 forms, showing the victims' names and social
security numbers.
4
S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd), wherein the defendant
argued his defense counsel was ineffective for failing to move to suppress the cocaine
found in his home. Id. at 199. In overruling this argument, the court of appeals stated:
While we would not characterize such a motion as a "hands-down"
winner, we cannot address the ineffectiveness question because of the
state of the record.
Although [the defendant] filed a motion for new trial asserting
ineffective assistance of counsel, he never raised the ground he now
asserts on appeal. Thus, the record is silent as to why his counsel might
have acted as he did. In such circumstances, our duty is clear—we must
presume counsel made all significant decisions in the exercise of
reasonable professional judgment. The Court of Criminal Appeals has
repeatedly held that without a sufficient record, an appellant cannot
overcome this presumption, and we cannot conclude counsel was
ineffective.
Id. (citations omitted).
In the instant case, appellant filed a motion for new trial, but he did not assert
ineffective assistance of counsel. The trial court did not hold a hearing on the motion for
new trial. Because the record is silent with respect to why defense counsel acted as he
did, we must presume defense counsel made all significant decisions in the exercise of
reasonable professional judgment. See id.; see also Chuong Duong Tong v. State, 25
S.W.3d 707, 714 (Tex. Crim. App. 2000) (holding that "without some explanation as to
why counsel acted as he did, we presume that his actions were the product of an overall
strategic design").
Even assuming trial counsel was deficient for failing to file a motion to suppress,
appellant has failed to satisfy the prejudice prong of Strickland v. Washington by showing
a reasonable probability that, but for counsel's error, he would not have pleaded guilty
and would have insisted on going to trial. See Hill, 474 U.S. at 58–59. The record is not
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developed regarding the alleged prejudice. Appellant did not provide live testimony or
any specific evidence regarding the rationale of how defense counsel's failure to file the
motion to suppress impacted his decision to plead guilty. See Ex parte Moody, 991
S.W.2d 856, 858 (Tex. Crim. App. 1999) (holding applicant established prejudice based
on applicant's own testimony and that of his plea counsel). Compare Ex parte
Tanklevskaya, 361 S.W.3d 86, 97 (Tex. App.—Houston [1st Dist.] 2011, pet. filed)
(holding applicant's testimony was alone sufficient to establish prejudice), with Jackson v.
State, 139 S.W.3d 7, 21 n.10 (Tex. App.—Fort Worth 2004, pet. ref'd) (stating in dicta that
affidavit alone was insufficient to demonstrate prejudice). The sole issue for review is
overruled.
II. CONCLUSION
The judgment of the trial court is affirmed.
ROSE VELA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of August, 2012.
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