Arkadi Minassian v. State

Opinion issued March 17, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-14-00966-CR
———————————
ARKADI MINASSIAN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court
Harris County, Texas
Trial Court Case No. 1300894

OPINION

A grand jury indicted Arkadi Minassian for the offense of fraudulent

possession of identifying information. See TEX. PENAL CODE ANN. § 32.51 (West

Supp. 2013). Minassian moved to suppress the evidence that law enforcement

seized at the time of his arrest, contesting both the lawfulness of that arrest and the
search of (1) the white Nissan Armada in which he was traveling at the time of his

arrest, and (2) two laptop computers found within the Nissan. The trial court

denied the motion. Minassian then pleaded guilty, and the trial court assessed his

punishment at thirty years’ confinement. On appeal, Minassian contends that

(1) his arrest was unlawful because police lacked probable cause to arrest; (2) the

police search was unlawful; and (3) he received ineffective assistance of counsel.

Finding no error, we affirm.

BACKGROUND

The United States Secret Service began investigating an organized crime

ring that placed “skimmers,” or devices that capture credit information and permit

it to be wirelessly downloaded onto a nearby laptop computer, on gas pumps at gas

stations in the Dallas area. Investigators suspected that Minassian was a

participant in the scheme. A confidential informant notified officers that

Minassian planned to travel from Dallas to Houston in connection with the scheme.

The day before Minassian’s trip, members of the Houston Police Department’s

regional interagency task force on fraud received an alert that four skimmers had

been found on gas pumps at a Valero gas station on Beamer Road in Houston.

Special Agent Charles Hutchins, Jr., with the United States Secret Service in its

Houston office, confirmed that the skimmers discovered in Houston matched the

description of ones seized in connection with a Dallas investigation.

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 On the day that Minassian’s plane was due to arrive in Houston, a Valero

technician discovered four additional skimmers at another Houston-area gas

station, on Bay Area Boulevard in Clear Lake. The technician notified the Secret

Service’s Houston Field Office of his finding.

Meanwhile, task force members began surveillance of Minassian when he

arrived at George Bush Intercontinental Airport. From the airport, Minassian and

another man drove to the Valero gas station on Bay Area Boulevard. Neither he

nor the driver attempted to pump gas. They departed from the gas station a few

minutes later. Minassian and the man then drove to the Valero gas station on

Beamer Road. Officers observed the vehicle stop at a gas station pump, but again,

neither Minassian nor the driver attempted to pump gas.

Officers arrested Minassian and the driver and searched the vehicle. An

open and powered-on laptop sat in the passenger-seat area. Police seized a second

laptop, two GPS devices, six universal keys for gas pumps, several cell phones,

double-sided tape, two thumb drives, and a USB radio receiver/transmitter device.

Minassian possessed two different California Driver’s licenses, one with his name

and photo, and a second one with the name “Ashot Aslanian” and Minassian’s

photo. The American Airlines ticket stubs in Minassian’s possession showed a

flight ticketed to Ashot Aslanian.

A Secret Service agent searched the laptops at the scene. In that search, the

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agent discovered about 10,000 credit card numbers and the names associated with

them. Six days later, a federal magistrate issued a warrant for the further search of

the laptops. The State alleged that this further search revealed 38,000 additional

names and identifying information.

At the hearing on the motion to suppress, neither Minassian nor the State

introduced testimony from live witnesses, but the trial court admitted without

objection an affidavit from Special Agent Hutchins as well as a copy of the federal

warrant and color copies of the two different California driver’s licenses. In the

affidavit, Hutchins averred in part:

2. This case originated on 03/25/11, when I was contacted
by Special Agent (SA) Troy Saria, United States Secret Service
(USSS), Dallas Field Office, regarding an on-going case in their
district involving gas pump skimmers. Through his investigation, SA
Saria determined Minassian is involved in an organized crime ring
responsible for distributing highly sophisticated gas pump skimmers
to several cities and downloading the credit card numbers, initially
thought to be through Bluetooth, but later determined to be via Zigbee
Radio technologies. The device works in the following manner: The
skimmer is installed in a gas pump and the user can download its
contents (credit card name and account number) from a laptop within
a 100 meter range. Bluetooth devices are discoverable on wireless
networks, whereas Zigbee Radio technologies are not. SA Sarria
stated he received information that Minassian would be traveling from
Dallas, TX to Houston, TX, on 03/29/11, and departing on 03/30/11.
SA Sarria stated Minassian was traveling under the alias Ashot
Aslanyan.

3. On 03/28/11, Sgt. Gorski, HPD and Houston Area Fraud
Task Force (HAFTF) member, was notified 4 skimmers were found in
4 different gas pumps at a Valero gas station located at 11499 Beamer
Rd., Houston, TX 77089. Sgt. Gorski, SA Russell Sparks, and I met

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with Valero technician James Henderson and observed the gas pump
skimmers in 4 different pumps. The skimmers are described as a
black hard plaster square block with connection cables to the card
reader and key pad of the gas pump attached to the pump with double
sided tape. Each skimmer was labeled with a name believed to be a
city. I confirmed with SA Sarria the description of these skimmers
matched the skimmers seized in Dallas throughout their investigation.

4. On 03/29/11, Valero technician James Henderson
notified the USSS Houston Field Office that he conducted an
inspection of another Valero gas station, located at 2404 Bay Area
Blvd., Clear Lake, TX 77058. Henderson discovered 4 additional
skimmers at 4 separate gas pumps at this Valero gas station. All
skimmers are in the custody of the USSS.

5. Continuing on 03/29/11, members of the HAFTF
conducted surveillance of Minassian upon his arrival into Bush
Intercontinental Airport. Minassian departed the airport riding in the
passenger seat of a white Nissan Armada, California License Plate
(LP) 5GRC174, registered to Arvin Mehrabian. Minassian and the
driver, later determined to be Arin Mehrabian, drove directly to the
Valero gas station, located at 2404 Bay Blvd. Neither the driver nor
the passenger attempted to get gas, and approximately 2-3 minutes
later, the Nissan Armada departed the scene in an erratic behavior and
at a high rate of speed. Mobile surveillance was discontinued.

6. Continuing on this date, members of the HAFTF
conducted stationary surveillance at the Valero gas station, located at
11499 Beamer Rd. The Nissan Armada, LP 5GRC74, was observed
driving up to the gas station pump and again neither the driver, nor the
passenger, attempted to pump gas. Members of the HAFTF arrested
Minassian and Meharbian without incident. Search incident to arrest
revealed an open, powered on, laptop in the passenger seat area, an
additional laptop, 2 GPS devices, 6 universal keys for gas pumps,
several cell phones, double sided tape, 2 thumb drives, and a USB
radio receiver/transmitter device. Mehrabian also possessed notebook
paper containing a list of addresses, including the addresses to both
gas stations which contained the skimmers. Due to the risk of losing
the data stored on the computers, the laptops were immediately
examined by SA Sparks. Approximately 10,000 credit card numbers

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 and names associated with these numbers were discovered. Efforts
are on-going to examine the 8 skimmers found at the aforementioned
gas pumps.

After the hearing, the court denied Minassian’s motion to suppress the

evidence seized in connection with his arrest. Minassian subsequently pleaded

guilty. The trial court admonished him about the potential range of punishment

and other consequences of his plea; it then accepted Minassian’s plea and assessed

his punishment at thirty years’ confinement.

Minassian moved for a new trial, contending that he had received

ineffective assistance of counsel. At the hearing on the motion for a new trial,

Minassian introduced a transcript of the suppression hearing and its accompanying

exhibits, as well as his own declaration and affidavits from his wife and an attorney

representing him in California describing the circumstances of the plea. In

opposition, the State introduced an affidavit from Minassian’s former counsel, who

had withdrawn from the representation. The court denied the motion for new trial.

DISCUSSION

I. Probable Cause to Arrest

Minassian first contends that law enforcement lacked probable cause to

arrest him and therefore violated his constitutional right to be free of unreasonable

seizures. See Brown v. State, 481 S.W.2d 106, 109 (Tex. Crim. App. 1972)

(probable cause is a prerequisite to warrantless arrest). He argues that he was not

6
in a suspicious place when he was taken into custody and exigent circumstances

did not require his arrest without first obtaining a warrant. See TEX. CODE CRIM.

PROC. ANN. art. 14.03(a)(1) (West Supp. 2015) (warrantless arrest permitted when

person is found in a suspicious place under circumstances that reasonably show he

is guilty of a felony); Swain v. State, 181 S.W.3d 359, 366 (Tex. Crim. App. 2005)

(warrantless arrest under Section 14.03(a)(1) requires showing of exigent

circumstances). He further contends that his lawyer failed to effectively challenge

the validity of the arrest, which directly led to his plea agreement.

A. Standard of Review

We review the trial court’s ruling on a motion to suppress for abuse of

discretion. Castleberry v. State, 425 S.W.3d 332, 334 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d). We defer to the trial court’s assessment of the credibility

of witnesses and determination of historical facts. Dixon v. State, 206 S.W.3d 613,

616 (Tex. Crim. App. 2006); Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim.

App. 2005). As the trial court did not file findings of fact, we view the evidence in

a light most favorable to the trial court’s ruling. Torres, 182 S.W.3d at 902. We

review the trial court’s application of the law de novo when deciding whether there

is probable cause for a warrantless search or seizure. Id. We review the ultimate

question of whether a particular search is reasonable or supported by probable

cause de novo as well. Baldwin v. State, 278 S.W.3d 367, 371 (Tex. Crim. App.

7
2009); Dixon, 206 S.W.3d at 616. The trial court’s implicit conclusion that

Minassian was in a suspicious place at the time of his warrantless arrest is subject

to the same standard of review as the probable cause determination. E.g., State v.

Parson, 988 S.W.2d 264, 267 (Tex. App.—San Antonio 1998, no pet.).

B. Analysis

1. Informant Corroboration

Probable cause for an arrest exists when the totality of the circumstances

show that law enforcement has “reasonably trustworthy information sufficient to

warrant a reasonable person to believe a particular person has committed or is

committing an offense.” Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App.

1997). While probable cause requires “a relatively high level of suspicion,” it is

“far short of a preponderance of the evidence standard.” Baldwin, 278 S.W.3d at

371; accord Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013)

(preponderance of the evidence “is a much higher standard” than probable cause).

And it requires “far less evidence” than is necessary to support a finding under a

preponderance of the evidence. Guzman, 955 S.W.2d at 87. Under this standard,

information from a confidential informant that has been corroborated through

independent investigation by law enforcement may supply probable cause for an

arrest. See Angulo v. State, 727 S.W.2d 276, 278–80 (Tex. Crim. App. 1987).

Minassian first contends that his arrest resulted from a confidential

8
informant’s tip alone without evidence that the informant was credible and reliable.

See Lowery v. State, 843 S.W.2d 136, 140–41 (Tex. App.—Dallas 1992, pet. ref’d)

(probable cause lacking where information supplied by informant was not shown

to be reliable or credible). Thus, he contends, the trial court erred in denying his

motion to suppress.

But the record shows that Minassian’s arrest was not based solely on an

informant’s tip. The informant told law enforcement that Minassian would fly

from Dallas to Houston on a particular date. The accuracy of the informant’s

information was verified when Minassian traveled to Houston on the day in

question, using an assumed name and fake driver’s license. There, law

enforcement observed Minassian travel directly from the airport to a gas station,

and then later observed him at another gas station. Officers previously had

determined that skimmers like those discovered in the Dallas area had been

installed in pumps at both of these gas stations. Minassian and his companion

drove to both of these stations directly from the airport; neither one attempted to

pump gas at either gas station.

The information from a confidential informant in the Dallas area thus was

independently corroborated by firsthand surveillance of Minassian’s activities by

law enforcement in the Houston area. Probable cause may arise from such a

combination of sources. E.g., Angulo, 727 S.W.2d at 280 (anonymous tip with

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independent police corroboration and surveillance based on prior investigation

provided probable cause). Accordingly, the trial court acted within its discretion in

denying Minassian’s motion to suppress on this ground.

2. Suspicious Circumstances

In addition to probable cause, law enforcement officers also must have

statutory authorization to make a warrantless arrest. Parker v. State, 206 S.W.3d

593, 596–97 (Tex. Crim. App. 2006). Section 14.03(a)(1) of the Texas Code of

Criminal Procedure authorizes law enforcement to arrest “persons found in

suspicious places and under circumstances which reasonably show that such

persons have been guilty of some felony . . . or are about to commit some offense

against the laws.” This section requires “the legal equivalent of constitutional

probable cause.” Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991).

Places seldom, if ever, are suspicious in and of themselves. Dyar v. State,

125 S.W.3d 460, 464–65 (Tex. Crim. App. 2003). Instead, whether a given place

is suspicious requires a fact-specific analysis and turns on the totality of the

circumstances. Id. at 468. The proper inquiry focuses not on whether a particular

activity is innocent or criminal standing alone, but rather on the degree of

suspicion that the activity engenders when viewed in the totality of the

circumstances. Guzman, 955 S.W.2d at 87; Hall v. State, 795 S.W.2d 195, 197

(Tex. Crim. App. 1990) (per curiam). Innocent activities can provide probable

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cause when they are coupled with prior knowledge by law enforcement that

indicates a criminal offense is occurring. Stull v. State, 772 S.W.2d 449, 451–52

(Tex. Crim. App. 1989). With that knowledge, a place “may become suspicious”

and raise a reasonable belief that the person has committed a crime. Swain, 181

S.W.3d at 366; see also Goldberg v. State, 95 S.W.3d 345, 363 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d). The same facts that support a finding of

probable cause may also support a finding that a defendant was in a suspicious

place. E.g., Dyar, 125 S.W.3d at 467–68 (same facts supported findings of

probable cause and that the defendant was in a suspicious place).

The facts in this case support a finding that the police arrested Minassian in

a suspicious place under suspicious circumstances, i.e., upon leaving the second of

two minutes-long visits to gas stations with skimmers like the ones discovered in

Dallas, and without attempting to purchase gas at either location. Minassian

argues that traveling to the two Houston-area gas stations is as consistent with

innocent activity as it is with criminal conduct. See Torres, 868 S.W.2d at 802–03

(probable cause does not exist when a defendant’s activities are as consistent with

innocent conduct as criminal conduct). He posits, for example, that he could have

visited a gas station to look at a map or GPS.

Minassian’s argument is tenable only if one considers his gas-station visits

in isolation from the remainder of the record, rather than in context. Law

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enforcement had identified the two stations that Minassian visited as locations at

which skimmers had been installed, confirmed that these skimmers were of the

same type as those associated with an organized crime ring’s activities in the

Dallas area, suspected that Minassian was a member of this ring, and learned that

he was travelling from Dallas to Houston in apparent furtherance of the ring’s

scheme. Law enforcement surveilled Minassian when he arrived in Houston, and

observed that he went directly to one of the two stations at issue but made no

attempt to pump gas. He later went to the second station and again made no

attempt to pump gas.

Taken as a whole, the facts are not as consistent with innocent activity as

criminal conduct, and they support a finding that Minassian was arrested in a

suspicious place under circumstances that raised a reasonable belief that he had

committed a crime. See Dyar, 125 S.W.3d at 464–85 (a place may become

suspicious when circumstances raise a reasonable belief that a person has

committed a crime there); Hall, 795 S.W.2d 197 (the proper inquiry is not limited

to whether the actual activity observed is innocent or criminal but instead concerns

the degree of suspicion reasonably aroused by the observed activity); Lunde v.

State, 736 S.W.2d 665, 667 (Tex. Crim. App. 1987) (holding that another statutory

provision authorizing warrantless arrest was satisfied despite that fact that law

enforcement did not observe overtly criminal conduct). Thus, the trial court did

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not abuse its discretion in denying the motion to suppress on this ground.

3. Exigent Circumstances

So long as probable cause to make the arrest exists, a warrantless felony

arrest made in a public place need not be supported by exigent circumstances in

order to pass constitutional muster. Milton v. State, 549 S.W.2d 190, 192 (Tex.

Crim. App. 1977). Minassian contends without elaboration that no exigency

required his immediate arrest.

Hutchins’ affidavit permits a reasonable inference that Minassian and his

driver were pulled over and arrested at the second gas station or on a nearby

roadway. Both of these locations are public places. Accordingly, regardless of

any exigency, Minassian’s arrest was not constitutionally infirm, because there was

probable cause. Milton, 549 S.W.2d at 192. Section 14.03(a)(1) of the Texas Code

of Criminal Procedure, requires exigent circumstances to make a warrantless arrest

premised on suspicious activity in a suspicious place. Swain, 181 S.W.3d at 366.

Even if not in public, the possibility of escape and immediate erasure of any

evidence of wrongdoing provides the necessary exigency for an immediate arrest.

Coyne v. State, 485 S.W.2d 917, 919 (Tex. Crim. App. 1972). Thus, the trial court

did not abuse its discretion in denying the motion to suppress on this ground.

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II. Standing to Challenge the Search

Minassian next contends that law enforcement violated his Fourth

Amendment rights when they conducted a search of the laptops found within the

vehicle without a warrant. See Brown, 481 S.W.2d at 109 (probable cause is a

prerequisite to warrantless search). He relies on Riley v. California to argue that a

fact-specific basis for a search must be shown in support of any invocation of the

exception for exigent circumstances when undertaking a computer search. 134 S.

Ct. 2473, 2493–95 (2014). The State responds that Minassian lacks the standing

necessary to challenge this search and that sufficient exigent circumstances existed

for the initial search.

A. Standard of Review

To challenge the constitutionality of a search, a defendant must have “a

legitimate expectation of privacy in the place invaded.” Villarreal v. State, 935

S.W.2d 134, 138 (Tex. Crim. App. 1996). Absent a legitimate expectation of

privacy, a defendant lacks standing to raise this issue and we may not consider the

substance of his complaint. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App.

2004).

A defendant has the burden of showing his standing to challenge a search by

“proving facts establishing a legitimate expectation of privacy.” Villarreal, 935

S.W.2d at 138. Allegations in a motion to suppress are not “self-proving” and are

14
insufficient to establish standing without proof. Calloway v. State, 743 S.W.2d

645, 650 (Tex. Crim. App. 1988); accord Handy v. State, 189 S.W.3d 296, 299

(Tex. Crim. App. 2006) (assertion made in motion to suppress that the residence

searched belonged to the defendant held insufficient as “he presented no proof of

such claim”). Evidence must prove both that the defendant “exhibited an actual

subjective expectation of privacy” and that society recognizes this expectation as

an objectively reasonable one under the circumstances. Villareal, 935 S.W.2d at

138.

We consider a variety of factors to determine whether a defendant has

standing to challenge a search. See e.g., State v. Granville, 423 S.W.3d 399, 406–

08 (Tex. Crim. App. 2014) (listing multiple considerations). For example, a

defendant typically has standing to challenge the search of places and objects he

owns, including a car. Id. at 406–07. But he does not have standing to challenge

the search of a vehicle in which he is a passenger absent additional facts

demonstrating a reasonable expectation of privacy. Jones v. State, 119 S.W.3d

766, 787 (Tex. Crim. App. 2003) (fact that the defendant was a passenger in the

vehicle and had driven it on prior occasions did not suffice to prove reasonable

expectation of privacy). Proximity to the place or item searched does not confer

standing absent other indicia of ownership or other reasonable expectation of

privacy. Rawlings v. Kentucky, 448 U.S. 98, 100–06, 100 S. Ct. 2556, 2559–62

15
(1980) (examining the facts in the record to ascertain whether the defendant had a

reasonable expectation of privacy in a companion’s purse that was located between

the defendant and his companion).

As with Minassian’s challenges to his arrest, we defer to the trial court’s

factual findings and review the legal issue of standing de novo. Kothe, 152 S.W.3d

at 59.

B. Analysis

Law enforcement searched the vehicle in which Minassian was a passenger

incident to his arrest. See State v. Tereco, 467 S.W.3d 1, 5 (Tex. App.—Houston

[1st Dist.] 2015, pet. ref’d) (referring to search incident to an arrest as a well-

established exception to the warrant requirement). We have concluded that the

arrest was lawful. The search-incident-to-arrest exception to the warrant

requirement, however, does not render an immediate, warrantless search of the

laptops found in the car constitutional, and it is this further search that Minassian

challenges. See Riley, 134 S. Ct. at 2493–95.

One of the two laptops was discovered in the passenger area of the vehicle in

which Minassian was traveling as a passenger, and the other was located elsewhere

within the vehicle. In the trial court, Minassian asserted in a footnote to his motion

to suppress that the computers “were both personal computers, with personal

information, under his control.” But Minassian did not introduce any evidence in

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support of this allegation at the suppression hearing. Nor is there any evidence of

ownership of the laptops elsewhere in the record. The argument of counsel, as

opposed to evidence, is not enough to show standing. Handy, 189 S.W.3d at 299;

Calloway, 743 S.W.2d at 650. The fact that Minassian was seated near one laptop

is not proof of ownership without evidence linking him to it. Rawlings, 448 U.S. at

100–06, 100 S. Ct. at 2559–62.

In sum, Minassian failed to carry his burden to prove a legitimate

expectation of privacy in the laptops. We hold that he failed to establish standing

to challenge law enforcement’s search of them. Granville, 423 S.W.3d at 405.

Accordingly, the trial court did not abuse its discretion in denying Minassian’s

motion to suppress on this ground. Thus, we do not reach the State’s further

contention that sufficient exigent circumstances existed for the search.

III. Ineffective Assistance

Finally, Minassian contends that his trial counsel rendered ineffective

assistance at the suppression hearing. He points to two deficiencies: (1) counsel

should have objected to introduction of the federal affidavit that detailed the results

of the search of the laptops, because this information was unlawfully obtained; and

(2) counsel erroneously advised him about the potential range of punishment.

A. Standard of Review

When, as here, ineffective assistance claims are raised in a motion for new

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trial, rejected by the trial court, and reasserted on appeal, we “analyze the

ineffective assistance of counsel issue as a challenge to the denial of the motion for

new trial.” Starz v. State, 309 S.W.3d 110, 118 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). We review the trial court’s ruling on ineffectiveness for an abuse

of discretion, viewing the evidence in a light favorable to the trial court’s ruling.

Id.

To prevail on his claim of ineffective assistance, Minassian must prove that

his lawyer’s performance fell below an objective standard of reasonableness and

that this deficiency prejudiced his defense. Lopez v. State, 343 S.W.3d 137, 142

(Tex. Crim. App. 2011). He bears the burden of proof on both issues, and failure

to make either showing by a preponderance of the evidence will defeat his

ineffectiveness claims. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).

Ineffective assistance may render a plea involuntary. Labib v. State, 239

S.W.3d 322, 332 (Tex. App.—Houston [1st Dist.] 2007, no pet.). “In determining

whether a plea is voluntary, we consider the record as a whole.” Id. When the

record shows that a trial court properly admonished the defendant, the

admonishment is prima facie evidence of voluntariness, and shifts the burden to the

defendant “to show that he entered the plea without understanding the

consequences.” Id.

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 We begin with a presumption that a lawyer performed within professional

norms. See Lopez, 343 S.W.3d at 142–43. We do not assume that counsel lacked

a sound reason for making the choices he did, rather the defendant must

demonstrate that no plausible reason exists for a particular act or omission. Bone

v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Without testimony from

counsel, we cannot meaningfully assess his strategic reasons for making the

choices he did. Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d); see also Lagaite v. State, 995 S.W.2d 860, 864 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d) (“When the record is silent as to

counsel’s reasons for his actions, we will not speculate as to counsel’s trial

strategy.”).

B. Analysis

1. Failure to object and to adduce evidence of standing

Reciting the results of law enforcement’s search of the laptops, Minassian

contends that his counsel should have objected to the admissibility of the part of

the federal affidavit in which Agent Hutchins avers that law enforcement

discovered about 10,000 credit card numbers in an initial search and the names

associated with them. Minassian maintains that this proof was obtained as a result

of his unlawful arrest. See Wong Sun v. United States, 371 U.S. 471, 484–88, 83 S.

Ct. 407, 415–17 (1963) (evidence illegally obtained must be excluded).

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 Minassian’s trial counsel argued to the trial court that the results that were

obtained from the laptop in the initial search were inadmissible. Counsel thus

made the trial court aware of Minassian’s objection to the admissibility of the

information from the laptop at the suppression hearing. We have held, however,

that Minassian did not establish standing to contest that search and that

Minassian’s arrest was lawful. In the context of a motion to suppress, a defendant

must develop the facts that show that the motion would have been granted. See

Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002); Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998).

The record here does not detail any facts to support such a conclusion. The

State submitted an affidavit made by Minassian’s trial counsel. In that affidavit,

counsel avers that, while on bond in this case, Minassian had been “charged with

felony theft by charging thousands of dollars on someone else’s credit card.”

There was also an allegation by the State that a second search of the laptops

pursuant to a federal search warrant revealed an additional 38,000 names and

identifying information. Counsel’s affidavit does not address the laptops or

suppression-related arguments concerning them or any consequences of admitting

ownership or possession of the laptops. Absent evidence of counsel’s strategy, we

cannot assess his reasons for his decisions in connection with the motion to

suppress or whether those reasons were deficient. Crawford, 355 S.W.3d at 199.

20
In sum, Minassian has not shown that the motion to suppress would have been

granted absent deficient performance. See Ortiz, 93 S.W.3d at 93; Jackson, 973

S.W.2d at 957. We therefore hold that the trial court did not abuse its discretion by

denying Minassian a new trial on this ground.

2. Voluntariness of the plea

Minassian alleges that his lawyer advised him that the trial court would

assess punishment of less than 20 years, and it would be more severe if he was

convicted after a trial. Minassian introduced his own declaration and affidavits

made by his wife and a lawyer representing him in California.

Minassian’s trial counsel denies these allegations. In addition, the record as

a whole controverts Minassian’s claim of involuntariness. The trial court

admonished Minassian on the record. Among other things, the court informed

Minassian that the range of punishment was not less than five years nor more than

99 years or life. It also confirmed that no one had coerced Minassian to plead

guilty, and ensured that he understood that the court would consider the full range

of punishment. Minassian initialed and signed written admonishments that

included the potential range of punishment. Minassian executed a written

confession in which he stipulated that he pleaded guilty without a recommendation

from the prosecutor regarding punishment and that the trial court would consider

the full range of punishment. The trial court signed this plea-related paperwork.

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These admonishments present a prima facie showing of voluntariness. Labib, 239

S.W.3d at 332.

In connection with his motion for new trial, Minassian contradicted his own

representations to the court that he understood that it would consider the full range

of punishment. As the fact-finder, the trial court was entitled to weigh the

credibility of these witnesses—even though their averments were made by

declaration and affidavit—and draw its own conclusions. Id. at 334. By denying

Minassian’s motion for new trial, the court implicitly found that the version of

events averred by Minassian’s counsel was more credible, and we defer to this

implicit finding. Id. Accordingly, we hold that the trial court did not abuse its

discretion in denying Minassian a new trial on this ground.

CONCLUSION

We hold that the trial court did not abuse its discretion in denying

Minassian’s motion to suppress or his motion for new trial. We therefore affirm

the judgment of the trial court.

Jane Bland
Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Publish. TEX. R. APP. P. 47.2(b).

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