      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00222-CR



                                Michael Lee Richard, Appellant

                                                v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 69106, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After a jury indicted Michael Lee Richard of the felony offense of driving while

intoxicated (third offense), Richard pled guilty without a plea-bargain agreement, executed a

written judicial confession, and pled true to two prior DWI convictions. See Tex. Penal Code Ann.

§§ 49.04, 49.09 (West Supp. 2012).1 The district court found Richard guilty as charged and assessed

punishment at nine years in prison. Richard challenges his conviction in a single issue, contending

that his counsel was ineffective in failing to file a motion to suppress the intoxication evidence

obtained after his traffic stop. We will affirm the judgment of conviction.




       1
          Because recent amendments to the penal code did not change the substance of the statutes
relevant to this appeal, we cite to their current version.
                                         BACKGROUND

               At his punishment hearing, Richard testified that before he was pulled over by police

on the night of his arrest, he and his four-year-old son had been at his sister’s home. Richard decided

to leave the residence because his sister’s boyfriend was drunk and started a fight with him. Richard

woke his son “out of a dead sleep” and put him in the car to remove him from “a volatile situation.”

Richard’s son was still with him in the car when Richard was pulled over. Richard acknowledged

that he might have made a different decision if he had not been drinking.

               The court also heard evidence that Richard had over a dozen prior convictions,

including three DWIs. Richard testified about his various health issues and the hardship that his

incarceration would impose on those residing with him, including his son, his fiancée, and his

disabled ex-wife. Counsel for Richard sought to have the court suspend imposition of any sentence

and place Richard on community supervision. The district court found Richard guilty as charged and

assessed punishment at nine years’ imprisonment. This appeal ensued.


                                            ANALYSIS

               Relying only on the information in an arrest affidavit issued in support of the

complaint, Richard argues that the stop of his vehicle was unlawful and that his trial counsel was

ineffective in failing to file a motion to suppress intoxication evidence obtained after the stop.

               Detective Richard Murray of the Bell County Police Department executed the

affidavit, which stated that he had conducted an investigation into Richard’s offense and reviewed

offense reports made in connection with the investigation. The affidavit, fairly summarized, stated

that on the night in question Officer Priori was dispatched to the area of 16771 Tex Ann Lane

in Belton, Bell County, Texas after a call reporting a domestic disturbance involving alcohol. The

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caller stated that Richard left the residence in a maroon Ford pickup truck, taking a young child with

him. After Officer Priori saw the vehicle traveling in the area of G. Wilson and W. Highway 190,

he initiated a traffic stop, made contact with the driver identified as Richard, and observed a small

child sitting in the passenger seat. Richard admitted drinking three to five beers, had slurred speech,

exhibited intoxication clues on a standardized field-sobriety test, and was arrested for DWI.

Richard also gave a breath specimen showing he had “.132 and .131 grams of alcohol per 210 liters

of breath.” On appeal, Richard argues the circumstances of his stop—as stated in this affidavit

alone—constitute proof of his counsel’s ineffectiveness in failing to file a motion to suppress.

               To prevail on a claim of ineffective assistance of counsel, appellant must prove by

a preponderance of the evidence that counsel’s performance fell below the standard of prevailing

professional norms and but for counsel’s deficiency, there is a reasonable probability that the result

of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is one

sufficient to undermine confidence in the outcome of the proceeding. Thompson, 9 S.W.3d at 812.

Our review of counsel’s representation is highly deferential, and we presume that counsel’s action

fell within the wide range of reasonable and professional assistance. Ex parte Chandler, 182 S.W.3d

350, 354 (Tex. Crim. App. 2005); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

Allegations of ineffective assistance of counsel must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Typically,

the record on direct appeal will not be sufficient to show that counsel’s representation was so

deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that

counsel’s conduct was reasonable and professional. Bone, 77 S.W.3d. at 833. Further, “trial counsel


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should ordinarily be afforded an opportunity to explain his actions before being denounced as

ineffective.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Rylander

v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Without that opportunity, we should not

find counsel’s performance deficient unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001)).

                Further, trial counsel’s failure to file a motion to suppress does not establish per se

ineffective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Hollis

v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no pet.). As this Court has noted, “to

satisfy the Strickland test and prevail on an ineffective assistance claim premised on counsel’s failure

to file a motion to suppress, an appellant must show by a preponderance of the evidence that the

result of the proceeding would have been different—i.e., that the motion to suppress would

have been granted and that the remaining evidence would have been insufficient to support

his conviction.” Hollis, 219 S.W.3d at 456 (citing Jackson v. State, 973 S.W.2d 954, 956-57

(Tex. Crim. App. 1998)).

                On this limited record, we cannot conclude that Richard has demonstrated

his counsel’s ineffectiveness. See Thompson, 9 S.W.3d at 813 (requiring assessment of whether

defendant received effective assistance of counsel to be made on facts of each case and counsel’s

ineffectiveness to be firmly demonstrated by record). Richard has not shown, on the basis of the

affidavit alone, that “a motion to suppress would have been granted and that the remaining evidence

would have been insufficient to support his conviction.” Hollis, 219 S.W.3d at 456. Nothing in

this record shows what evidence the State might have offered in response to a motion to suppress


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if it had been filed. See Berry v. State, Nos. 05-05-01104-CR, 05-05-01105-CR, 05-05-01106-CR,

2006 Tex. App. LEXIS 6127, at *5 (Tex. App.—Dallas July 17, 2006, pet. ref’d) (mem. op.,

not designated for publication). The record is silent as to why counsel did not file a motion to

suppress, Richard filed no motion for new trial, and nothing indicates that Richard’s counsel had an

opportunity to explain his actions.

               We cannot conclude from this silent record that counsel’s decision not to file a

motion to suppress was, as Richard contends, “so outrageous that no competent attorney would have

engaged in it.” See Goodspeed, 187 S.W.3d at 392; see also Robinson v. State, 22 S.W.3d 631, 636

(Tex. App.—Waco 2000, pet. ref’d) (noting that court could not speculate about reasons for

counsel’s decision not to file motion to suppress evidence from allegedly illegal traffic stop because

record was silent as to counsel’s trial strategy). Accordingly, we overrule Richard’s sole issue.


                                          CONCLUSION

               Having overruled Richard’s sole issue, we affirm the district court’s judgment of

conviction.




                                               Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: August 31, 2012

Do Not Publish



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