                                  NO. 07-10-00500-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                          PANEL A

                                   JANUARY 31, 2013


                      DAVID HAROLD GREER, JR., APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                   NO. 59,244-B; HONORABLE ABE LOPEZ, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

       A jury found appellant, David Harold Greer, Jr., guilty of the offense of

possession with intent to deliver four hundred grams or more of a controlled substance,

phencyclidine (PCP), and assessed his punishment at ninety-nine years’ confinement in

prison and a fine of $250,000. 1     Through two issues appellant challenges the trial

court’s ruling on his pretrial motion to suppress and argues his trial counsel rendered

ineffective assistance. We will affirm.


       1
        See Tex. Health & Safety Code Ann. § 481.102(8) (West 2010) and §
481.112(a), (f) (West 2010) (specifying range of punishment for possession of 400
grams or more).
                                      Background

       Appellant was the driver of a Chevrolet Impala, and was stopped for speeding by

a Texas Department of Public Safety trooper on Interstate 40, in Potter County.

Appellant presented a Washington state driver’s license and a two-way rental contract

for the vehicle in his name. Accompanying him were Eric Harris and Timothy Freeman.

Appellant identified Harris as his cousin. The trooper expressed an intention to issue

appellant a warning ticket.

       The trooper spoke with appellant and Harris separately.              He detected

inconsistencies in their responses to his questions, and found some of the facts

surrounding their trip to be suspicious. The trooper requested a computer information

check on appellant as well as on Harris and Freeman. The return of appellant’s criminal

history indicated several prior arrests. Appellant explained to the trooper the report was

not his criminal history but that of another cousin with the same name and date of birth.

Harris indicated to the trooper he and appellant were not related. Appellant accounted

for this inconsistency between his story and Harris’s with the explanation that he

sometimes referred to others as “cousin.”

       Before he had issued the planned warning ticket, the trooper requested

permission to search the trunk of appellant’s vehicle.        Appellant agreed.     While

retrieving the key fob to open the trunk, the trooper smelled ether inside the vehicle and

noticed in “plain view” on the passenger side floorboard a bottle of what he believed

was PCP. The trooper arrested appellant and his passengers. Two additional bottles of

PCP were discovered through later searches of the vehicle.



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       Appellant filed a pretrial motion to suppress the PCP evidence which the trial

court denied. At trial, a DPS chemist testified the substance contained in the three

bottles discovered in appellant’s vehicle was PCP.

       The jury found appellant guilty of the charged offense and assessed the noted

sentence. This appeal followed.

                                         Analysis

       By his two issues on appeal, appellant first contends the trial court abused its

discretion by denying his motion to suppress the contraband. Second, he argues his

trial counsel rendered ineffective assistance by failing to properly investigate the case.


Issue One: Motion to Suppress the Contraband


       Appellant does not contest the validity of the trooper’s initial traffic stop. Rather,

he complains the trooper lacked an articuable basis for prolonging the detention beyond

the completion of the traffic stop and lacked an objective “legal justification to request a

search” of appellant’s vehicle.


       By signed written order, the trial court denied appellant’s motion to suppress.

When a defendant files a pretrial motion to suppress evidence and obtains a ruling on

the admissibility of the evidence, he need not object each time the evidence is offered in

order to preserve error.    Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App. 2004)

(quoting Ebarb v. State, 598 S.W.2d 842 (Tex.Cirm.App. 1980)). However, our review

of the record indicates at trial, when the State offered into evidence the PCP attributed

to appellant, trial counsel responded “no objection.” A “defendant waives any complaint

on appeal concerning the admissibility of evidence when he affirmatively states, ‘No

                                             3
objection,’ at the time the evidence is offered.” Holmes v. State, 248 S.W.3d 194, 201

(Tex.Crim.App. 2008); Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988) (“When

an accused affirmatively asserts during trial that he has ‘no objection’ to the admission

of the complained of evidence, he waives any error in the admission of the evidence

despite the pretrial ruling”). By stating “no objection,” appellant forfeited his complaint;

his first issue is not preserved for our review. Tex. R. App. P. 33.1(a).


       Even had error been preserved, moreover, the record does not show the trial

court abused its discretion in denying appellant=s pretrial motion to suppress.          As

noted, the record supports a conclusion appellant gave the trooper permission to search

the trunk of the vehicle before a warning ticket had been issued.            Thus, before

completion of the traffic stop permission to search was obtained and appellant does not

contend his consent was involuntary. 2 See Kothe v. State, 152 S.W.3d 54, 63-64, 65

(Tex.Crim.App. 2004) (traffic-stop investigation “fully resolved” only after computer

check of license and warrant status and “officer knows that this driver has a currently

valid license, no outstanding warrants, and the car is not stolen”).




       2
          Even could it be said that the traffic stop was completed upon the return of
appellant’s background check, the trooper immediately requested and received
appellant’s consent to search the trunk of his vehicle. On these facts, the detention was
not unlawfully prolonged. See Robledo v. State, 175 S.W.3d 508, 510 (Tex.App.--
Amarillo 2005, no pet.) (defendant was not impermissibly detained when consent to
search his vehicle was requested “seconds” after purpose of traffic stop was
effectuated); James v. State, 102 S.W.3d 162, 173 (Tex.App.--Fort Worth 2003, pet.
refused) (citing Leach v. State, 35 S.W.3d 232, 235 (Tex. App.--Austin 2000, no pet.) (“It
is not unreasonable per se to request consent after completion of a traffic stop”).

                                             4
         Appellant’s contention the trooper did not possess an “objective legal justification

to request a search of the vehicle” is without merit. An officer may request permission

to search a vehicle even absent reasonable suspicion of criminal activity. Johnson v.

State, 912 S.W.2d 227, 235 (Tex.Crim.App. 1995); Spight v. State, 76 S.W.3d 761, 767-

68 (Tex.App.—Houston [1st Dist.] 2002, no pet.).


         Appellant’s first issue is overruled.


Second Issue: Ineffective Assistance of Counsel


         Appellant next asserts he did not receive effective assistance of counsel at trial

because his counsel failed to interview Harris. We understand appellant to argue that

had trial counsel interviewed Harris he would have discovered evidence favorable to

appellant. Harris could then have been summoned to testify on appellant’s behalf at

trial.


         Strickland v. Washington is the seminal case setting forth the standard for

ineffective assistance of counsel claims under the United States Constitution. 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court in Strickland established a two-

pronged test for analyzing a claim of ineffective assistance of counsel.           Reversal

requires an appellant to demonstrate (1) counsel’s representation fell below an objective

standard of reasonableness and (2) the deficient performance prejudiced the appellant.

466 U.S. at 687, 104 S.Ct. at 2064. See also Hernandez v. State, 726 S.W.2d 53, 54-

55 (Tex.Crim.App. 1986) (applying Strickland standard under Texas constitution).




                                                 5
      The first prong of the Strickland test requires an appellant to prove that counsel

made such serious errors he did not function as the “counsel” guaranteed by the Sixth

Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Appellant must show that

counsel’s performance was unreasonable under prevailing professional norms and that

the challenged action was not sound trial strategy. 466 U.S. at 689-90, 104 S.Ct. at

2065-66. The second Strickland prong requires an appellant to “show a reasonable

probability that, but for his counsel’s unprofessional errors, the result of the proceeding

would have been different.”     Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.

2002). “Reasonable probability” means probability of a degree sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.


      An appellant bears the burden of proving ineffective assistance of counsel by a

preponderance of the evidence.      Mitchell, 68 S.W.3d at 642.      Review of counsel’s

performance is highly deferential and a strong presumption exists that counsel’s

conduct fell within the wide range of reasonable professional assistance. Mallett v.

State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); see Strickland, 466 U.S. at 689, 104

S.Ct. at 2065 (noting there are countless ways to provide effective assistance in any

given case). To overcome the presumption of reasonable professional assistance, any

allegation of ineffectiveness must be firmly rooted in the record. Thompson v. State, 9

S.W.3d 808, 813-14 (Tex.Crim.App. 1999).


      The record on direct appeal is ordinarily not sufficiently developed to establish an

ineffective assistance of counsel claim. See Rylander v. State, 101 S.W.3d 107, 110

(Tex.Crim.App. 2003) (“[w]e have previously stated that the record on direct appeal will

                                            6
generally not be sufficient to show that counsel’s representation was so deficient as to

meet the first part of the Strickland standard as the reasonableness of counsel's choices

often involves facts that do not appear in the appellate record”). This is particularly true

in instances where no hearing on a motion for new trial was held and trial counsel had

no opportunity to explain the trial strategy. Thus, the better course is to pursue the

claim through a petition for writ of habeas corpus. Mitchell, 68 S.W.3d at 642.


        The attorney’s failure to investigate or present witnesses provides a basis for

establishing ineffective assistance of counsel only where it is shown that the witnesses

would have been available and that the presentation of the evidence would have

benefitted appellant. Pinkston v. State, 744 S.W.2d 329, 332 (Tex.App.--Houston [1st

Dist.] 1988, no pet.).


        Even assuming Harris was available to testify at trial, nothing shows the

substance of the anticipated testimony and how this testimony would have benefited

appellant or brought about a different outcome at trial.            Appellant’s ineffective

assistance claim is unsustainable on this record. We overrule his second issue.


                                        Conclusion


        Having overruled appellant’s two issues on appeal, we affirm the judgment of the

trial court.


                                                 James T. Campbell
                                                      Justice


Do not publish.

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