AFFIRM; and Opinion Filed March 19, 2013.
In The
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No. 05-11-00966-CR
KENNETH D. ARMSTEAD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No, 2
Kaufman County, Texas
Trial Court Cause No. 1OCL-0720-02
MEMORANDUM OPINION
Before Justices Bridges, O’Neill, and Murphy
Opinion by Justice Murphy
Appellant Kenneth D. Armstead was convicted of driving while intoxicated, and the jury
assessed punishment at one year in the Kaufman County jail and a $4000 fine. See TEx. PENAL
CoDE ANN. § 49.04. (West Supp. 2012). He raises four issues, arguing the trial court erred by
denying his motion to suppress and his trial counsel provided ineffective assistance of counsel.
We affirm.
BACKGROUND
State Trooper Chris Countryman with the Texas Department of Public Safety was the
only person the State called to testify. He stated he was on duty on December 10, 2009, when he
was called to the scene of a one-vehicle crash on a county road in Kaufman County. When he
arrived, he found Armstead “behind the wheel of his vehicle crashed into a tree.” EMS
personnel were also on the scene. Countryman talked to Armstead and noticed that he had “very
slurred speech.” When he asked him to get out of his vehicle, Armstead “kind of fell, lost his
balance a little bit.” Countryman noticed Armstead had “lblloodshot eyes and just a smell of an
alcoholic beverage coming from his person.”
Armstead told Countryman he was going home from a friend’s house and drove off the
road two blocks “from where he started.” Countryman also testified Armstead told him that he
had had one or two beers.
Countryman determined that Armstead was unable to perform a standardized field
sobriety test because they were on a gravel road, so he decided to take Armstead to a water tower
with a paved area where he could conduct the test properly. Countryman handcuffed Armstead
and put him in the front seat of his car to take him to the paved area. Countryman said that he
“advised him multiple times he wasn’t under arrest” and he only used handcuffs for Armstead’s
safety.
Countryman removed Armstead’s handcuffs once they reached the water tower and
performed a standardized field sobriety test. Following the test, Countryman arrested Armstead
for DWI and drove him to the Kaufman County jail. Upon arriving at the jail, Countryman took
Armstead to the “intoxilyzer room,” but Armstead refused to give a breath specimen.
Armstead was charged by information with DWI. He filed a motion to suppress evidence
before trial in which he argued he “was arrested without lawful warrant, probable cause or other
lawful authority.” The trial court held a hearing to consider pretrial motions, but Armstead’ s
trial counsel stated that he was “not necessarily asking for a pretrial hearing on [that motionj.”
He suggested instead that “if the court wants to hear the [motion] simultaneously with the
hearing, and then at the conclusion of the trial, I’ll move to suppress the evidence. So that way.
the court won’t have to hear the testimony outside the jury’s presence. . . .“ Armstead’s trial
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counsel reasoned that if the court granted his motion to suppress, everything the State introduced
would be suppressed, and “the State will have no case left” The State did not object, and the
trial court agreed to Armstead’s suggestion. After the State presented its evidence, the court held
a suppression hearing outside the jury’s presence. The trial court denied Armstead’s motion.
The jury found appellant guilty and assessed punishment. This appeal followed.
MOTION TO SUPPRESS
Armstead argues in his first three issues that the trial court erred by overruling his motion
to suppress because the record in this case does not support the trial court’s conclusion that the
arresting officer had probable cause to arrest him for DWI,
Standard QiReview and Applicable Law
We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. St. George v. State, 237 S.W.3d 720, 725 (Tex, Crim. App. 2007); Ford v. State, 158
S.W,3d 488, 493 (Tex. Crim, App. 2005). We do not engage in our own factual review; rather,
the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to
be given to their testimony. St. George, 237 S.W.3d at 725. We give almost total deference to a
trial court’s determination of historical facts, particularly when the trial court’s findings are
based on an evaluation of credibility and demeanor. Id.; Guzrnan v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). We also afford the same deference to mixed questions of law and fact if
resolving those questions turns on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89. We apply a de novo review to all other mixed questions of law and fact as well as
to the trial court’s application of search and seizure law. State v. Garcia-Cantu, 253 S.W.3d 236,
241 (Tex. Crim. App. 2008); Guzman, 955 S.W.2d at 89.
A police officer may arrest a person without a warrant only if he has probable cause
regarding the person and the arrest falls within a statutory exception to the warrant requirement.
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irrc’ V. Slate. I 82 S.W.3d %99, 001 (Tex. Crim. App. 2005). Probable cause 1(3 arrest exists if,
at the moment of the arrest, the facts and circumstances within the ollicer’s knowledge and of
which he had reasonably trustworthy information were sufficient for a prudent person to believe
the arrested person had committed or was committing an offense, Parker v. State, 206 S.W.3d
593, 596 (Tex. Crim, App. 2006).
A motion to suppress is nothing more than a specialized objection to the admissibility of
evidence. Black i. Stale, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012); Pomih r.Staie, 148
S.W.3d 402, 413 (Tex. App.—Houston 14th l)ist.I 2004. no pet.). A motion to suppress
therefore must meet all of the rule 33.1(a)(1)(A) requirements; that is, it must he timely and
sufficiently speeific to inform the trial court of the complaint. Porath, 148 S.W.3d at 413; see
(1/SO TEX, R. APP. P. 33.1(a)(l)(A). Specifically, a motion to suppress must identify the items
that the defendant seeks to suppress. Ainador v. Stale. 275 S.W.3d 872, 874 n.3 (Tex. Crim.
App. 2009) (quoting W. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FouRTh
AMENDMENT § II .2(a) at 35 (4th ed. 2004)). In the absence of such identification, the State and
the trial court are left unaware of how the defendant was harmed by the allegedly illegal
government activity. Id.
Analysis
Armstead claimed in his motion to suppress that he “was arrested without lawful warrant,
probable cause or other lawful authority in violation of the rights of [Armstead] pursuant to the
Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution ... land]
Article I, Section 9, 10, and 19 of the Constitution of the State of Texas.” Armstead’s motion
includes a list of matters to be suppressed, including: “[a]ny and all tangible evidence seized by
law enforcement officers or others in connection” with the investigation of this case, “including
but not limited to Video and audio recordings. and any testimony by the law enforcement
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authorities or any other law enlrcenient ollicers or others concerning such evidence”: “. any
and all evidence which relates to the arrest, and any testimony by the law enlorcement authorities
or any other law en! rcement olhcers or others concerning any action of I Amistead I while in
(leteiltion or under arrest ....“:
“
aj 11 written and oral statements made by I Armstead j to any law
enforcement officers or others in connection with this case”; “[flield sobriety Itlests”; and “lalny
other matters that the Court finds should he suppressed upon hearing of this motion.” Beyond
these statements, Armstead never identified in the trial court record, the hearing on the motion to
suppress, or his appellate brief what particular testimony or evidence he was asking the trial
court to exclude.
Armstead’ s written motion contains only a general “boilerplate” description that fails to
provide any specificity regarding what evidence he requests he suppressed. When a defendant
fails to state what evidence, if any. was obtained as a result of an alleged unlawful seizure, he
cannot show trial court error in overruling his motion to suppress. Brennan i’. State, 140 S.W.3d
779, 781 (Tex. App.—Houston [14th Dis(.j 2004, pet. ref’d); see also Johnson v. State, 548
S.W.2d 700, 706 (Tex. Crim, App. 1977) (“Since the appellant fails to state what evidence, if
any, was obtained as a result of the alleged unlawful arrest and what evidence, if any, obtained
incident to the alleged unlawful arrest was introduced, we perceive no error in the overruling of
his motion to suppress.”). Without more specificity, both the trial court and this Court are left to
presume what evidence Armstead claims should be suppressed. For example, Countryman
testified that he asked Armstead how many beers he had when he arrived at the accident, and
Armstead responded he had had one beer; he later changed his answer to two. Countryman also
testified that, upon first arriving at the scene and speaking to Armstead, he noticed his slurred
speech, bloodshot eyes, the smell of alcohol, and the fact that Arrnstead lost his balance when he
got out of his car. These were the officer’s initial observations, and Armstead does not argue he
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was under arrest at that point. Without specifying what evidence Armstead claims should be
suppressed, we are left to guess regarding the scope of Armstead’s motion, As the Fourteenth
Court of Appeals noted in a similar situation, the appeals court’s role is to evaluate the grounds
of error presented by the appellant, not to develop them for him. Brennan, 140 S.W.3d at 781.
Armstead, by failing to identify what evidence he requests be suppressed, presents nothing for
our review. See Amador v. State, 275 S,W,3d at 874 n.3; Brennan, 140 S.W.3d at 781.
We also conclude any error in the admission of the unspecified evidence was harmless.
Assuming Armstead showed error, we would be required to conduct a harm analysis to
determine whether the error required reversal of the judgment. TEX, R. APP. P. 44.2. The harm
analysis for the erroneous admission of evidence obtained in violation of the Fourth or Fifth
Amendment is rule 44.2(a)’s constitutional standard. See Hernandez v. State, 60 S.W.3d 106,
108 (Tex. Crim. App. 2001) (Fourth Amendment); Newbrough v. State, 225 S.W.3d 863, 867
(Tex. App.—El Paso 2007, no pet.) (same); Ramos v. State, 245 S,W.3d 410, 419 (Tex. Crim.
App. 2008) (analyzing Fifth Amendment violation under TEx. R. APP. P. 44.2(a)). Under that
standard, we must reverse a judgment of conviction unless we determine beyond a reasonable
doubt that the error did not contribute to the conviction. See TEx. R. APP. P. 44.2(a).
It is well settled that inadmissible evidence can be rendered harmless if other evidence at
trial is admitted without objection and it proves the same fact as the inadmissible evidence. See,
e.g., Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986); Ross v. State, 763 S.W.2d
897, 903 (Tex. App.—Dallas 1988, pet. ref’d) (applying rule in Anderson to evidence allegedly
the fruit of illegal search and seizure). The presence of overwhelming evidence supporting the
fact in question can be a factor in the harmless error evaluation. Wesbrook v. State, 29 S.W.3d
103, 119 (Tex. Crim. App. 2000).
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According to the jury instructions, the jury had to find, in part, that Arrnstead was driving
a motor vehicle in a public place while intoxicated to find him guilty of DWI. See TEx, PENAL
CODE ANN, § 49.04. “Intoxicated” is defined in both the jury instructions and penal code as “not
having the normal use of mental or physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of the two or more of those
substances, or any other substance into the body, or having an alcohol concentration of 0.08 or
more.” Id. §49,01.
Armstead took the stand in his own defense. He admitted that, on the day of the offense,
he took three hydrocodone at work and another “four to four and a half hydrocodone” later that
day. At 10 milligrams apiece, this was approximately 70-75 milligrams of hydrocodone, a
controlled substance. See TEx. HEALTH & SAFETY CODE ANN. § 48 1.002, 48 1.102, 48 1.104
(West 2010). He also admitted this was “too much medication” and that taking this much
hydrocodone caused him to become “light-headed” and “thick-tongued.” He also claimed he
was lost, a fact which the medication did not help. The jury charge authorized the jury to convict
Armstead because he lacked the normal use of his physical faculties, a claim to which Armstead
confessed. We therefore conclude admission of the unspecified evidence—even if Armstead
was able to show that it was admitted in error—was harmless because Armstead admitted at trial
to facts proving the elements of his DWI charge. We thus overrule Armstead’s first three issues.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth issue, Armstead argues that his Sixth Amendment right to effective
assistance of counsel was violated when his trial counsel failed to properly communicate a plea
bargain by the State “on terms and conditions favorable to him.” According to Armstead’s brief,
the State offered him a probation plea bargain of one year to avoid trial. He claims his defense
counsel at trial did not communicate this plea bargain “on terms and conditions favorable to
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him.” He argues that ii he would have been offered effective assistance of counsel, he would
have accepted the plea bargain. It is not clear from Armstead’s brief whether he is claiming his
trial counsel failed to make him aware that the State had offered him a plea bargain or whether
his trial counsel communicated the plea bargain to him but failed to do so “on terms and
conditions favorable to” Armstead. Whatever he claims the facts to be, Armstead opines that his
trial counsel seems to have reasoned that federal and state constitutional grounds “provided him
the best opportunity of avoiding a guilty plea.”
Standard of Review and zipplicahle Law
The United States Supreme Court has held that, as a general rule, defense counsel has the
duty to communicate formal offers from the prosecution to accept a plea en terms and conditions
that may be favorable to the accused. Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012). Claims of
ineffective assistance of counsel in the plea bargain context are governed by the two-part test of
Strickland v. Washington, 466 U.S. 668. 687 (1984). See Frye, 132 S. Ct. at 1405.
To prevail on an ineffective assistance of counsel claim, appellant must show by a
preponderance of the evidence both deficient performance and prejudice. Strickland, 466 U.S. at
687; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). Appellant must
demonstrate under the first prong that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms . Strickland, 466 U.S. at 687—88; Ex porte
Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). To meet the second prong, appellant has to
show the existence of a reasonable probability, sufficient to undermine confidence in the
outcome, that but for counsel’s deficient performance, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694; Ex porte Lane, 303 S.W.3d at 707. More
specifically, to show prejudice from ineffective assistance of counsel where a plea offer has
lapsed or been rejected because of counsel’s deficient performance, Armstead must demonstrate
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a reasonable probability he would have accepted the plea offer had he been afforded effective
assistance of counsel. Frye, 1 32 S. Ci. at 1309. lIe must also demonstrate a reasonable
probability the plea would have been entered without the prosecution canceling it or the trial
court refusing to accept it, if state law allowed the prosecution or the trial court that discretion.
Id. An appellant’s failure to satisfy one prong of the Strickland standard negates our need to
consider the other prong. Willia,ns. 301 S.W.3d at 67.
In determining whether Armstead met his burden, we consider the totality of the
representation and the particular circumstances of this case. Ev porte Lane. 303 S.W.3d at 707.
We presume counsel’s conduct fell within the wide range of reasonable professional assistance
and do not judge counsel’s actions in hindsight. Strickland, 466 U.S. at 689; Ex pane Lane, 303
S.W.3d at 707. The fact that another attorney might have pursued a different strategy at trial is
not sufficient to prove counsel was ineffective. Sc1iewiette i’. State. 144 S.W.3d 503, 509 (Tex.
Crim. App. 2004).
The record must demonstrate affirmatively the deficient performance Armstead
challenges. See Thompson i’. State, 9 S.W,3d 808, 813 (Tex. Crim. App. 1999). Without
evidence of counsel’s considerations, we will presume sound trial strategy. See Rylander v.
State, 101 S,W.3d 107, 111 (Tex. Crim, App. 2003). We commonly assume a strategic motive if
any can be imagined and find counsel’s performance deficient only if the conduct was so
outrageous that no competent attorney would have engaged in it. Andrews v. State. 159 S.W.3d
98, 101 (Tex. Crim. App. 2005).
The court of criminal appeals has stated previously that the record on direct appeal
generally will not be sufficient to show that counsel’s representation was so deficient as to meet
the first part of the Strickland standard and thus a writ of habeas corpus is the more appropriate
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vehicle to raise ineffective assistance of counsel claims. Rykmder, 101 S,W.3d at 110 n, I.
(internal (juolation omitted).
Anal sis
Armstead has failed to bring us any record supporting his claim of ineffective assistance
of counsel. The record contains no mention that the StaLe of lered a plea bargain to Armstead or
that Anustead’s trial counsel either conveyed or failed to convey the offi.r to Armstead. Even if
there was mention of a plea bargain, the record is silent as to trial counsel’s strategy or
reasoning. In most cases, a silent record will not overcome the strong presumption of counsel’s
reasonable assistance, See id. at 1 10l 1, A basic corollary is that counsel should be given the
opportunity to explain any actions or inactions before being adjudged incompetent. Id. at 111.
This has not occurred, and Armstead has not shown that this case is one of those extraordinary
situations in which the face of the record shows counsel’s challenged conduct 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) (citing Thompson, 9 S.W.3d at 814). We overrule Armstead’s
fourth issue and affirm the trial court’s judgment.
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.
MARY MURPHY
JUSTICE
Do Not Publish
TEx. R. APP. P.47
1 10966F.U05
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JUDGMENT
KENNETH D. ARMSTEAD, Appellant On Appeal from the County Court at Law
No. 1. Kaufman County. Texas
No. 05-11 -00966-CR V. Trial Court Cause No. 1OCL-0720-02.
Opinion delivered by Justice Murphy,
THE STATE OF TEXAS, Appellee Justices Bridges and O’Neill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
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Judgment entered this (lay of March, 2013.
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MARY MURPHY
JUSTICE