Affirmed and Memorandum Opinion filed February 12, 2019.




                                           In The

                        Fourteenth Court of Appeals

                                   NO. 14-17-00418-CR

                          KEVIN DEVON BATTS, Appellant
                                            V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 180th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1499409

                    MEMORANDUM                      OPINION


      Appellant Kevin Devon Batts appeals his conviction for aggravated assault
with a deadly weapon.1 Appellant brings one issue, asserting ineffective assistance
of counsel because his trial counsel failed to move to suppress or object to
identifying evidence obtained from a legal citation found during a warrantless
search and failed to object to the in-court identifications of appellant by three

      1
          Tex. Penal Code § 22.02(a)(2).
eyewitnesses.    We conclude that appellant has not demonstrated ineffective
assistance of counsel because the record is silent as to trial counsel’s strategy for
not moving to suppress or object to the identifying evidence obtained from the
citation and because appellant has not demonstrated that the result of the
proceeding would have been different. We also conclude that appellant has not
demonstrated ineffective assistance of counsel in failing to object to the in-court
identifications of appellant because the record is silent as to counsel’s strategy and
because the identifications were admissible. Counsel cannot be deemed ineffective
for failing to object to admissible evidence. We, therefore, affirm the trial court’s
judgment.

                                    BACKGROUND

      The State presented evidence that around February 9, 2016, appellant
purchased a stereo amplifier from the complainant, Deandra Walls. Appellant and
Walls lived in the same apartment complex and Walls knew appellant, whom he
knew by the name of “Kelbo,” from seeing him around the complex. On February
11, 2016, just before 3:00 p.m., appellant was apparently unsatisfied with his
purchase of the amplifier and went to Walls’ apartment to ask for his money back.
Walls, who was sitting on his front porch with a few other people, refused.
Appellant then went to his apartment and a few minutes later returned with a
woman who was carrying the amplifier. Appellant again asked Walls to return his
money. Walls agreed this time and gave appellant the money. Walls told the
woman holding the amplifier to put it down on a nearby mattress. Instead, the
woman slammed the amplifier on the concrete ground, possibly breaking it. Walls
then took the money back out of appellant’s hand.

      Appellant returned to his apartment and a few minutes later came back to
Walls’s front porch holding a gun. At that time, Walls was sitting on his front

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porch, along with his brother and long-time girlfriend Brandi Tillman. In front of
Walls’s brother and Tillman, appellant demanded his money back and while doing
so pointed the gun at Walls’s head and pulled the trigger a few times, but the gun
jammed. Appellant then adjusted the gun and pointed towards Walls’s leg, at
which point appellant discharged the gun, shooting Walls in the left thigh. Walls
said “you just shot me Kelbo.” Walls then told appellant he would get him his
money. Walls limped into his apartment bedroom to get the money, with appellant
following him inside. Appellant took the money from Walls and then ran out of
the apartment towards a waiting vehicle in a nearby parking lot and left the scene.
An ambulance transported Walls to the hospital where he was treated for a flesh
wound to his thigh.

      Meanwhile, Tillman, along with several other people, had called 9-1-1
asking for help.      Police were nearby and quickly arrived to investigate the
shooting. Officer T. Hernandez, a responding officer from the Houston Police
Department, spoke with bystanders, who told him the suspect had fled to his
apartment and pointed Hernandez to appellant’s apartment.          Police set up a
perimeter around the apartment and then went in without a warrant. Once inside,
police verified that no one was at the apartment and while doing so, Hernandez’s
fellow officer observed a gun and ammunition sitting on a shelf in the closet. The
second officer also found a legal citation issued to appellant next to the gun and
ammunition. Hernandez used the citation to obtain appellant’s driver’s license
number and a photograph of appellant.        He then showed the photograph of
appellant to the bystanders, who confirmed it was a picture of the shooter.

      Police eventually located and arrested appellant for the shooting. The State
charged appellant with aggravated assault with a deadly weapon, a second-degree
felony.   Appellant pleaded “not guilty” and waived his right to a jury trial,

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choosing to submit the case to the bench. During the trial, appellant’s trial counsel
moved to suppress evidence of the gun and ammunition found on the shelf in the
closet, arguing that the items were found during a warrantless search and were not
within the plain-view exception to a warrantless search. The trial court found that
the warrantless entry fell within the emergency doctrine and was reasonable under
the circumstances. Because the officer that first located the items during the search
was unavailable to testify as to exactly what items were in plain view, the trial
court granted the motion to suppress the firearm, the magazine, and the contents of
the magazine. Trial counsel did not expressly include in the motion to suppress,
nor did he object to testimony regarding, the citation located next to the gun and
ammunition, from which the police obtained appellant’s name and photograph.2

       The State called five witnesses at trial, three of whom testified as
eyewitnesses to the shooting. Walls, his girlfriend Tillman, and his brother each
testified that they saw the shooting happen and identified appellant as the shooter. 3
The trial court found appellant guilty as charged in the indictment. The trial court
also found the enhancement paragraph in the indictment to be true and sentenced
appellant to confinement in the Institutional Division of the Texas Department of
Criminal Justice for fifteen years. This appeal followed.

                                            ANALYSIS

       Appellant argues in his sole issue that he received ineffective assistance of

       2
        We note that counsel did move during the suppression hearing to suppress “the items of
evidence that are on that shelf.”
       3
          Walls, Tillman, and Walls’s brother each identified the man they saw shoot Walls
sitting in the courtroom wearing an orange shirt. The prosecutor did not ask the trial court to
have the record reflect that each witness pointed to and identified the defendant. The trial court,
on its own, noted in the record that “each witness was asked by the prosecutor if they could
identify the person in court that they had seen committing the shooting, each of those persons
identified the charged defendant in this case, Kevin Batts.” The court later stated “[a]ll three
unambiguously indicated this defendant sitting next to [trial counsel] at trial.”

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counsel based on: (1) the failure to move to suppress the identifying information
found in the legal citation located next to the gun and ammunition or to object to
Hernandez’s identification testimony based on that citation; and (2) failing to
object to the in-court identifications by Walls, Tillman, and Walls’s brother. We
address each claimed error in turn.

I.    Standards of review and law of ineffective assistance of counsel

      An accused is guaranteed the right to assistance of counsel under both the
United States Constitution and the Texas Constitution. U.S. Const. amend. VI;
Tex. Const. art. 1, § 10; McCurdy v. State, 550 S.W.3d 331, 338 (Tex. App.—
Houston [14th Dist.] 2018, no pet.). This right to counsel includes the right to
effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 685–
86 (1984); Ex Parte Jimenez, 364 S.W.3d 866, 882–83 (Tex. Crim. App. 2012). In
assessing claims of ineffective assistance, we apply the two-prong test set forth in
Strickland.   Jimenez, 364 S.W.3d at 883.        The Strickland test requires the
defendant to prove, by a preponderance of the evidence, that (1) counsel’s
performance was deficient because it fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s
deficient performance, the result of the trial would have been different.       See
Jimenez, 364 S.W.3d at 883.

      Courts indulge a strong presumption that trial counsel’s actions fell within
the wide range of reasonable professional behavior and sound trial strategy. Prine
v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (citing Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999)).           To defeat this presumption, a
defendant must show ineffectiveness firmly founded in the record and the record
must affirmatively demonstrate the alleged ineffectiveness. Id.; McCurdy, 550
S.W.3d at 339. If, as in most direct appeals, the record is undeveloped, counsel

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will be found ineffective only if his conduct was so outrageous that no competent
attorney would have engaged in it. See Prine, 537 S.W.3d at 117; McCurdy, 550
S.W.3d at 339 (“In the face of a silent record, we cannot know trial counsel’s
strategy, so we will not find deficient performance unless the challenged conduct
was so outrageous that no competent attorney would have engaged in it.” (internal
quotation marks omitted)).

      Conscious decisions not to move to suppress or object to evidence are not
insulated from review, and they typically are based on trial strategy. See McCurdy,
550 S.W.3d at 339.       Strategic decisions typically require courts to evaluate
counsel’s reasons for making the decision, thus requiring a developed record in
most cases. Id. “The record on direct appeal is generally insufficient to show that
counsel’s performance was deficient.” Prine, 537 S.W.3d at 117; Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002).

A.    Failure to move to suppress evidence of the citation and object to the
      identification.
      A trial counsel’s failure to file a motion to suppress is not per se ineffective
assistance of counsel. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). To prove ineffective assistance of counsel for failing to
move to suppress evidence, appellant is required to show that the motion to
suppress would have been granted and that the remaining evidence would have
been insufficient to support his conviction. See Jackson v. State, 973 S.W.2d 954,
957 (Tex. Crim. App. 1998) (per curiam) (to satisfy Strickland appellant is obliged
to prove that motion to suppress would have been granted); Wert, 383 S.W.3d at
753. To demonstrate that the failure to object amounted to ineffective assistance,
appellant first must show that the trial court would have erred in overruling such an
objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).


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      Appellant filed a motion for new trial, but the motion did not include
ineffective assistance of counsel as a ground or any evidence and was overruled by
operation of law without a hearing. The record is thus silent as to why appellant’s
trial counsel chose not to move to suppress evidence of the legal citation or failed
to object to Hernandez’s resulting identification. To satisfy the first prong of
Strickland on a silent record, it must be apparent “that counsel's performance fell
below an objective standard of reasonableness as a matter of law, and that no
reasonable trial strategy could justify trial counsel's acts or omissions, regardless of
[counsel’s] subjective reasoning.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011); see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005) (conduct “so outrageous that no competent attorney would have engaged in
it”) (internal quotation marks omitted).

      This is not such a case. There are plausible reasons for not objecting to
inadmissible testimony. See Thompson, 9 S.W.3d at 814 (holding the presumption
of strategy was not rebutted when record was “silent as to why appellant's trial
counsel failed to object to the State’s persistent attempts to elicit inadmissible
hearsay”). The record from trial reflects that appellant pursued theories of self-
defense and that he did not intend to cause bodily injury. Both theories are based
on appellant acting as the shooter, rather than a complete lack of his identity as the
shooter. Thus, it is plausible that trial counsel did not move to suppress or object
to Hernandez’s testimony regarding the identification because appellant’s
defensive theories depended upon appellant’s identification as the shooter. The
record does not reflect that the failure to move to suppress or object to the evidence
from the citation was so outrageous that no reasonable attorney would have failed
to object. In the absence of a developed record regarding counsel’s strategy, we
cannot conclude counsel was ineffective. See McCurdy, 550 S.W.3d at 339.


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       Even assuming the trial court would have granted the motion to suppress
evidence of the legal citation and resulting identification by Hernandez for the
same reason it suppressed evidence of the gun and ammunition, appellant has not
met the prejudice prong required for an ineffective-assistance claim.           Three
eyewitnesses, including the complainant himself, testified that appellant was the
person who shot Walls. That remaining evidence would have been sufficient to
support the trial court’s verdict of guilty.     See Martinez, 330 S.W.3d at 902
(appellant failed to meet the prejudice prong of Strickland test because even
disregarding inadmissible evidence, the remaining evidence against defendant, in
its totality, was strong and would support a jury’s finding of guilt); Straight v.
State, 515 S.W.3d 553, 567–68 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)
(appellant failed to show result of proceeding would have been different even had
trial counsel moved to suppress where officers also relied on other eyewitness
identification and distinctive features to identify defendant).

B.     Failure to object to the in-court identifications

       Appellant also challenges the failure of his trial counsel to object to the in-
court identifications of appellant. Appellant argues the in-court identifications of
appellant as the shooter were tainted by the illegally obtained evidence and were
unduly suggestive because appellant was the only person on trial and sitting at
counsel table with his attorney. We disagree.

       As with the failure to move to suppress or object to evidence of the
identification made from the legal citation, the record is silent as to trial counsel’s
reasons for not objecting to the in-court identifications.        For the same reasons
described above, the absence of a developed record regarding counsel’s strategy
precludes a finding that counsel was ineffective. See McCurdy, 550 S.W.3d at
339.

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      In addition, appellant has not demonstrated that an objection to the in-court
identifications would have been granted.          Appellant contends the in-court
identifications of the three eyewitnesses were tainted by the allegedly illegally
obtained evidence from the legal citation, but he provides no evidence showing a
causal link between the two.       A defendant, as the party seeking to exclude
evidence, has the burden of establishing a causal connection between the violation
of his rights and the evidence obtained. See Pham v. State, 175 S.W.3d 767, 774
(Tex. Crim. App. 2005) (“. . .the burden is on the defendant, as the moving party in
a motion to suppress evidence obtained in violation of the law under Art. 38.23, to
produce evidence demonstrating the causal connection. . .”); State v. Callaghan,
222 S.W.3d 610, 616 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (burden is
on defendant to prove that causal connection exists). Here, there was no testimony
establishing that the identification of appellant obtained from the legal citation was
actually shown to or used by any of the three eyewitnesses to identify appellant as
the shooter. Hernandez testified only that he showed the photo to the bystanders.
The testifying eyewitnesses each had independent knowledge of appellant’s
identity through their prior interactions with him or through seeing the shooting
itself. See Pichon v. State, 683 S.W.2d 422, 426 (Tex. Crim. App. 1984) (en banc).

      Appellant also argues the in-court identifications “were tainted by the
illegally obtained evidence because appellant was the only person on trial, and the
only other person sitting at counsel table with his attorney.” We construe this as an
argument that the in-court identifications were impermissibly or unduly suggestive.
In-court identifications of a defendant are inadmissible when they have been
tainted by an impermissibly suggestive pretrial identification. Solomon v. State,
469 S.W.3d 641, 643 (Tex. App.—Houston [14th Dist.] 2015, no pet.).                To
succeed on a challenge to the in-court identification, appellant must show by clear


                                          9
and convincing evidence that: (1) the pre-trial identification procedure was
impermissibly suggestive; and (2) that the suggestive procedure gave rise to a very
substantial likelihood of irreparable misidentification. Id.

      “When it is established that the witness had an independent basis for
identification, the in-court identification will not be reversible error without
substantial evidence that the identification was influenced by seeing the defendant
at defense counsel’s table.” Bradley v. State, 359 S.W.3d 912, 918 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d). As long as the record clearly reveals
sufficient evidence of an independent origin for the identification, such as a
witness’s prior observation, the in-court identification is admissible. See id. (citing
Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983) (en banc)). The
evidence in this case revealed that each of the witnesses providing an in-court
identification of appellant as the shooter had a sufficient independent basis for the
identification. Walls knew appellant from seeing him at the apartment complex
and had just a few days prior to the shooting sold appellant the amplifier. Tillman
and Walls’s brother both testified that they were outside with Walls at the time of
the shooting and saw appellant approach with the gun and shoot Walls. The
witnesses were in close proximity to appellant, were able to look at him from many
angles, and were near him throughout the encounter. See Bradley, 359 S.W.3d at
918. The offense took place during daylight hours, allowing for ample opportunity
to see appellant. See Jackson, 657 S.W.2d at 129 (providing that witness had an
adequate opportunity to view defendant for an hour at their home and engage him
in conversation).     The in-court identifications were thus admissible. “Trial
counsel’s failure to object to admissible evidence does not constitute ineffective
assistance of counsel.” Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—Houston
[14th Dist.] 1997), pet. dism’d, improvidently granted, 991 S.W.2d 803 (Tex.


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Crim. App. 1998) (citing Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.—
Houston [1st Dist.] 1986, pet. ref’d)).

      We overrule appellant’s sole issue on appeal.

                                     CONCLUSION

      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s
judgment.




                                          /s/    Jerry Zimmerer
                                                 Justice



Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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