Opinion issued December 1, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00053-CR, 01-15-00054-CR
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DAMIAN SCOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1410122, 1410123
MEMORANDUM OPINION
Damian Scott pleaded guilty to felony possession of a weapon and evading
arrest. He was sentenced to six years’ confinement for felony possession of a
weapon 1 and four years’ for evading arrest.2 In his single issue, Scott claims he
1
TEX. PENAL CODE ANN. § 46.04(a) (West 2011).
received ineffective assistance of counsel because his attorney did not file a motion
to suppress his statement to the police that he had a “crack pipe” in his jacket
pocket. We affirm.
Background
One night, while patrolling a “high crime” area, two police officers observed
Scott commit three separate bicycle-related traffic violations: first, he was riding
his bicycle without a headlamp at night; second, he was “swerv[ing] back and forth
in the lanes”; and third, he did not make the required hand signal when turning.
After seeing these violations, the officers stopped Scott.
One of the officers testified that he asked Scott his name, identification, and
“if [he had] anything illegal on [him], primarily any kind of narcotics or any kind
of weapons. At which point, [Scott] advised [the officer] . . . that he had a crack
pipe on him, which is illegal. . . . He said it was in his jacket pocket in the front.”
The officer then searched Scott’s jacket pocket and found the crack pipe.
“At that point,” the police tried to arrest Scott. When the first officer
attempted to handcuff Scott’s hands behind his back, the second officer “observed
a gun” and asked Scott, “What’s this?” The first officer “looked over his shoulder”
to see what the second officer was asking about, and Scott “took off running.”
After “a brief chase,” the police caught Scott and arrested him.
2
TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2015).
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Following Scott’s arrest, Scott’s counsel filed a motion to suppress the crack
pipe and gun, arguing that Scott was “detained and arrested . . . without a warrant
and contrary to chapter 14 of the Texas Code of Criminal Procedure. The fruits of
this arrest and detention [the gun and crack pipe] and subsequent evading arrest on
foot charge should be suppressed . . . .” This motion did not attempt to suppress
Scott’s statement that he had a crack pipe in his pocket. The trial court denied the
motion. Scott pleaded guilty to both charges.
Ineffective Assistance of Counsel
Scott argues that he received ineffective assistance of counsel because his
attorney failed to file a motion to suppress his statement to the police that he had a
crack pipe. He contends in his brief that: “The officers’ show of authority, in
addition to [] asking appellant if he ‘had a crack pipe on him,’ constituted an
investigative detention requiring the officers apprise him of his rights under the
Fourth Amendment prior to questioning him . . . . Failure to attempt to suppress the
statement was deficient on its face and undermines confidence in the outcome of
the proceeding.”
The State responds that the statement “was not the product of custodial
interrogation” and thus, the police were not required to give Scott Miranda
warnings. “Moreover, [Scott] filed a Motion to Suppress the ‘fruits of [his] arrest
and detention.’”
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A. Standard of review
To be entitled to a new trial based on a claim of ineffective assistance of
counsel, a defendant must show, by a preponderance of the evidence, that
(1) counsel’s performance was so deficient that he was not functioning as
acceptable counsel under the Sixth Amendment and (2) the deficient performance
prejudiced the defendant: there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984) and
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)).
The defendant “bears the burden of proving by a preponderance of the
evidence that counsel was ineffective.” Thompson, 9 S.W.3d at 813. “When
handed the task of determining the validity of a defendant’s claim of ineffective
assistance of counsel, any judicial review must be highly deferential to trial
counsel and avoid the deleterious effects of hindsight.” Id. (citing Ingham v. State,
679 S.W.2d 503, 509 (Tex. Crim. App. 1984)). We “will not use hindsight to
second guess a tactical decision made by trial counsel, which does not fall below
the objective standard of reasonableness.” Hammond v. State, 942 S.W.2d 703, 710
(Tex. App.—Houston [14th Dist.] 1997, no pet.). The defendant must satisfy its
burden to show that, under the circumstances, the challenged action could not be
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considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2064;
Thompson, 9 S.W.3d at 812. “In the majority of instances, the record on direct
appeal is simply undeveloped and cannot adequately reflect the failings of trial
counsel.” Thompson, 9 S.W.3d at 813–14.
B. Failure to file a motion to suppress
“[A]n attorney’s failure to file a motion to suppress evidence does not
demonstrate a deficient performance by counsel per se.” Cotton v. State, No. 01-
14-00444-CR, 2015 WL 6933719, at *2 (Tex. App.—Houston [1st Dist.] Nov. 10,
2015, no pet. h.). Counsel “may decide not to file pretrial motions as part of his or
her trial strategy” or may decide not to pursue certain motions “because rulings on
the motions may not have assisted with the defense.” Hudson v. State, 128 S.W.3d
367, 381 (Tex. App.—Texarkana 2004, no pet.).
In general, even if some circumstances “reasonably raise questions as to the
wisdom of and rationale for certain trial preparation and trial strategy decisions,”
the trial attorney “should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107,
110–11 (Tex. Crim. App. 2003). An attorney may fail to file a motion to suppress
as part of a larger trial strategy, because the motion may not be legally correct, or
because it is not strictly necessary because the attorney may make a
contemporaneous objection at trial. Thus, because that failure does not establish
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deficiency per se, counsel should be afforded an opportunity to explain the strategy
implemented and address why certain arguments were omitted from a motion to
suppress. See Collins v. State, No. 01-00-00309-CR, 2001 WL 722844, at *1 (Tex.
App.—Houston [1st Dist.] June 28, 2001, pet. ref’d) (holding that, because “the
record is silent as to the reasons trial counsel” failed to file motion to suppress,
defendant “has not rebutted the presumption trial counsel made all significant
decisions in the exercise of reasonable professional judgment”).
This case is one of the “majority of instances” in which the “record on
appeal is simply undeveloped and cannot adequately reflect the failings of trial
counsel.” Thompson, 9 S.W.3d at 813–814. “The record in the case at bar is silent”
as to why Scott’s trial counsel did not raise the arguments Scott now believes
should have been advanced. Id. at 814. Scott did not provide an affidavit from his
attorney or file a motion for a new trial with supporting evidence explaining the
reasoning behind the attorney’s strategy in not arguing to suppress the statement
about the crack pipe. Because the record does not provide Scott’s attorney’s
rationale for failing to pursue the strategy Scott suggests on appeal, and because
this failure does not demonstrate a deficiency of counsel per se, to hold that Scott
received ineffective assistance “would call for speculation, which we will not do.”
Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no
pet.).
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Scott’s trial counsel filed a motion to suppress certain evidence, set the
motion for a hearing, and questioned two police officers as well as Scott himself to
support the argument that the challenged evidence should be suppressed. Rather
than argue, like Scott suggests in this appeal, that the statement that Scott had a
crack pipe in his pocket was obtained without a Miranda warning, Scott’s trial
counsel pursued the strategy of arguing that the crack pipe and gun should be
suppressed because they were fruits of an illegal detention. Either strategy, though
not mutually exclusive, would have been effective in Scott’s defense, if successful.
Scott presented no evidence of his counsel’s rationale for pursuing one strategy
over the other. This record does not overcome the presumption that counsel used
sound trial strategy.
Accordingly, we overrule Scott’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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