                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-065-CR


MARK GUTIERREZ                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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            FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one point, Appellant Mark Gutierrez appeals his conviction for

possession of a controlled substance over one gram but under four grams,

claiming that he received ineffective assistance of counsel at trial. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                    II. Factual and Procedural Background

      On July 31, 2007, Carrollton Police Officer John Stovall was dispatched

around midmorning to investigate a complaint about two men at the Waterford

Park Apartments.2 Officer Stovall testified that the complaint was made by the

apartment complex’s manager, maintenance man, or

      somebody who worked for the complex, [who] had called and
      apparently had some confrontation or a problem with two
      gentlemen who were there on the property that they had problems
      with on a prior occasion. And they had asked them to leave, and
      they refused to leave the property. So they contacted the police.

Officer Stovall stated that the complainant told him that he did not believe the

two men were supposed to be on the property and that “they might even have

been burglarizing an apartment or just in an apartment where they weren’t

supposed to be at.” He testified that he did not know of any other offenses

that occurred at the apartment complex.3

      When Officer Stovall arrived five minutes after receiving the dispatch call,

the two men had already departed. The complainant told Officer Stovall that




      2
      … The apartment complex is in the portion of Carrollton located within
Denton County.
      3
       … When asked whether there was any evidence that the two men had
done anything other than enter the property, Officer Stovall replied, “[A]s far
as my knowledge, I don’t know of any other offense that occurred there,” and
he stated that he did not follow up on the other allegations.

                                        2
the parties had gone and were walking south down the sidewalk; he described

them as a dark-skinned male and a light-skinned male.

      Officer Stovall left the complex, looked south, and saw the two described

individuals, one of whom was Gutierrez. Officer Stovall approached both of

them without turning on his vehicle’s overhead lights, and they made no

attempt to evade him. For safety, Officer Stovall patted both parties down for

weapons; he found none. The two men confirmed that they were involved in

a disturbance at the apartment complex, and the officer ran a warrant check

and discovered an outstanding arrest warrant issued out of Collin County for

Gutierrez.

      The officer arrested Gutierrez at Collin County’s request.          After

handcuffing Gutierrez, the officer did another pat down search and found 1.6

grams of cocaine, as well as some marijuana, in a metal container in Gutierrez’s

front right pants pocket.

      Gutierrez’s trial counsel did not file a motion to suppress the evidence

discovered during the second pat-down. Gutierrez pleaded not guilty to the

offense charged and true to the enhancement paragraphs.           A jury found

Gutierrez guilty of possession of a controlled substance over one gram but

under four grams, found that the enhancement paragraphs were true, and

assessed punishment at eight years’ confinement. This appeal followed.

                                       3
                     III. Ineffective Assistance of Counsel

      Gutierrez’s sole complaint is that he received ineffective assistance of

counsel at trial because his trial counsel failed to (1) “file a meritorious motion

to suppress” the cocaine found in Gutierrez’s pocket and (2) object to the

seized evidence at trial.

A. Standard of Review

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

                                        4
reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.            Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”       Salinas, 163 S.W .3d at 740 (quoting Mallett, 65

S.W.3d at 63).           To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

record,      and   the     record   must   affirmatively   demonstrate   the    alleged

ineffectiveness.”         Id., (quoting Thompson, 9 S.W.3d at 813).            It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In

other words, appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.    Id. at 694, 104 S. Ct. at 2068.          A reasonable probability is a

                                             5
probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.

B. Analysis

      Failure to file a motion to suppress or to object to the admission of

evidence does not demonstrate a deficiency of counsel per se. See Ortiz v.

State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied, 538 U.S. 998

(2003); Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.—Houston [14th

Dist.] 1997, no pet.).   To show that counsel’s performance was deficient,

Gutierrez was obliged to prove that the motion would have been granted or that

the objection would have been sustained. See Ortiz, 93 S.W.3d at 93 (stating

that a claim of ineffective assistance based on failure to object to the admission

of evidence must establish that the evidence was inadmissible); Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (holding that, to prevail

on a claim of ineffective assistance, appellant is “obliged to prove that a motion

to suppress would have been granted”); Roberson v. State, 852 S.W.2d 508,

510–11 (Tex. Crim. App. 1993) (holding that without a showing that a pretrial

motion had merit and that a ruling on the motion would have changed the

outcome of the case, counsel is not ineffective for failing to assert the motion).




                                        6
      Gutierrez complains that Officer Stovall had no reasonable suspicion to

detain him and that he should not have been detained. He argues that the

arrest warrant did not attenuate the subsequent illegal search resulting from his

unlawful detention and that, because he was illegally detained, his trial

counsel’s failure to file a motion to suppress the evidence discovered during the

illegal detention amounted to ineffective assistance of counsel. We disagree.

      Reasonable suspicion exists when, based on the totality of the

circumstances, the officer has specific, articulable facts that when combined

with rational inferences from those facts, would lead him to reasonably

conclude that a particular person is, has been, or soon will be engaged in

criminal activity. Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App.

2005). Based on Officer Stovall’s testimony, Gutierrez’s trial counsel and the

trial court, if counsel had presented a motion to suppress, could have believed

that the officer had information sufficient to develop a reasonable suspicion of

criminal activity based on the specific, articulable facts that he testified about

at trial—that an apartment complex employee informed him of a confrontation

or problem, including trespassing and possibly burglary, with some individuals

who had refused to leave the property; 4 gave him a description of the two


      4
      … See, e.g., Tex. Penal Code Ann. § 30.02 (Vernon 2003) (burglary); id.
§ 30.05 (Vernon Supp. 2008) (criminal trespass).

                                        7
individuals involved; and told him in which direction the individuals had gone

and that they had just left. See Terry v. Ohio, 392 U.S. 1, 21–22, 88 S. Ct.

1868, 1880 (1968); Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim.

App. 2000); see also Hoag v. State, 728 S.W.2d 375, 380–81 (Tex. Crim.

App. 1987) (stating that a police officer may briefly stop a suspicious individual

in order to determine his identity or to maintain the status quo momentarily

while obtaining more information and may conduct a limited search for weapons

where it is reasonably warranted for his safety).         Based on these facts,

Gutierrez cannot show that the motion to suppress would have been granted

or that an objection to the evidence would have been sustained.

      Additionally, the discovery of an outstanding warrant during the detention

broke the connection between the primary taint of the alleged unlawful

detention, if any, and the subsequently discovered evidence. See Johnson v.

State, 496 S.W.2d 72, 74 (Tex. Crim. App. 1973); see also Lewis v. State,

915 S.W.2d 51, 54 (Tex. App.—Dallas 1995, no pet.) (holding that discovery

of outstanding warrants and the legal arrest under those warrants were

intervening circumstances which attenuated the connection between any illegal

detention and the discovery of heroin); Reed v. State, 809 S.W.2d 940, 947

(Tex. App.—Dallas 1991, no pet.) (holding that the second, legal arrest under

the outstanding warrant purged the taint of any illegality from the initial arrest).

                                         8
But see St. George v. State, 197 S.W.3d 806, 824 & n.71 (Tex. App.—Fort

Worth 2006) (op. on reh’g en banc) (declining to address attenuation where the

State did not raise it), aff’d, 237 S.W.3d 720 (Tex. Crim. App. 2007).5

Therefore, even if Gutierrez’s trial counsel had filed a motion to suppress,

Gutierrez has failed to show a reasonable probability that the result of the

proceeding would have been any different. See Strickland, 466 U.S. at 694,

104 S. Ct. at 2068. We overrule Gutierrez’s sole point.




      5
       … Several courts have mentioned the policy issues that are problematic
in drawing a line between deterring unlawful seizures on one hand and allowing
a suspect with outstanding warrants for his arrest to go free. See Fletcher v.
State, 90 S.W.3d 419, 421 (Tex. App.—Amarillo 2002, no pet.); Neese v.
State, 930 S.W.2d 792, 802–03 (Tex. App.—Beaumont 1996, pet. ref’d);
Reed, 809 S.W.2d at 948 n.3. However, those issues involve facts that are
not pertinent to the instant case.
      Furthermore, while Gutierrez cites Sims v. State, 84 S.W.3d 805 (Tex.
App.—Houston [1st Dist.] 2002, no pet.), for the proposition that he should not
have been detained in the first place, we note that even though the Sims court
concluded that there was an unlawful detention, it also held, as we do here,
that any taint from an initial illegality became attenuated upon discovery of an
outstanding warrant, a legal arrest based on that warrant, and the discovery of
evidence subsequent to that arrest. Id. at 807, 810.

                                       9
                              IV. Conclusion

     Having overruled Gutierrez’s sole point, we affirm the trial court’s

judgment.

                                        BOB MCCOY
                                        JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

WALKER, J. concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 15, 2009




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