                         NUMBER 13-11-00637-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JESSE DAVID BRISTER,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 284th District Court
                       of Montgomery County, Texas.


                         MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
              Memorandum Opinion by Justice Rose Vela
      Appellant, Jesse David Brister, entered into an open plea of guilty to the offense of

fraudulent possession of identifying information, a second-degree felony.        See TEX.

PENAL CODE ANN. § 32.51(c)(3) (West Supp. 2011). Following a punishment hearing, the

trial court sentenced him to ten years' imprisonment. By a single issue, appellant argues

he was denied his right to effective assistance of counsel as guaranteed by the Sixth

Amendment to the United States Constitution and Article 1, Section 10 of the Texas
Constitution because his defense counsel did not file a motion to suppress evidence

which was discovered during an inventory detention in violation of the Fourth Amendment

to the United States Constitution and Article 1, Section 9 of the Texas Constitution. We

affirm.1

                                             I. DISCUSSION

A. Standard of Review

        "The Sixth Amendment to the United States Constitution, and section ten of Article

1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a

criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires

more than the presence of a lawyer; it necessarily requires the right to effective

assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v.

Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right to

errorless counsel,[ 2 ] but rather to objectively reasonable representation."                Id. (citing

Strickland v. Washington, 466 U.S. 668, 686 (1984)).

        "A defendant has a Sixth Amendment right to effective assistance of counsel in

plea proceedings." Ex parte Niswanger, 335 S.W.3d 611, 614 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim.

App. 2010)). "A guilty plea is not considered knowingly and voluntary if it is made

because of ineffective assistance of counsel." Id. at 614–15 (citing Ex parte Burns, 601

S.W.2d 370, 372 (Tex. Crim. App. 1980)).


        1
          This appeal was transferred from the Ninth Court of Appeals pursuant to a docket-equalization
order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
        2
            Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
                                                    2
       "To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Lopez,

343 S.W.3d at 142. "Appellant must show that (1) counsel's representation fell below an

objective standard of reasonableness, and (2) the deficient performance prejudiced the

defense." Id. (citing Strickland, 466 U.S. at 689). "Unless appellant can prove both

prongs, an appellate court must not find counsel's representation to be ineffective." Id.

(citing Strickland, 466 U.S. at 687). "In order to satisfy the first prong, appellant must

prove, by a preponderance of the evidence, that trial counsel's performance fell below an

objective standard of reasonableness under the prevailing professional norms." Id. "To

prove prejudice, appellant must show that there is a reasonable probability, or a

probability sufficient to undermine confidence in the outcome, that the result of the

proceeding would have been different." Id. (citing Strickland, 466 U.S. at 687).

       In order to satisfy the prejudice prong in the context of a guilty plea, a defendant

"must show that there is a reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474

U.S. 52, 58–59 (1985). A defendant "'need not show that his case would have received

a more favorable disposition had he gone to trial.'" Ex parte Niswanger, 335 S.W.3d at

615 (quoting Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005)).

       "An appellate court must make a 'strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance.'" Lopez, 343 S.W.3d at

142 (quoting Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing

Strickland, 466 U.S. at 689)). "In order for an appellate court to find that counsel was

ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record; the

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court must not engage in retrospective speculation." Id. (citing Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999)). "'It is not sufficient that appellant show, with

the benefit of hindsight, that his counsel's actions or omissions during trial were merely of

questionable competence.'" Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430

(Tex. Crim. App. 2007)). "When such direct evidence is not available, we will assume

that counsel had a strategy if any reasonably sound strategic motivation can be

imagined." Id. at 143 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001)). "In making an assessment of effective assistance of counsel, an appellate court

must review the totality of the representation and the circumstances of each case without

the benefit of hindsight." Id. (citing Robertson, 187 S.W.3d at 483).

       The court of criminal appeals "has repeatedly stated that claims of ineffective

assistance of counsel are generally not successful on direct appeal and are more

appropriately urged in a hearing on an application for a writ of habeas corpus." Id. (citing

Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State, 68

S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131 (Tex.

Crim. App. 2004). "On direct appeal, the record is usually inadequately developed and

'cannot adequately reflect the failings of trial counsel' for an appellate court 'to fairly

evaluate the merits of such a serious allegation.'" Id. (quoting Bone, 77 S.W.3d at 833).

B. Analysis

       The issue is whether defense counsel was ineffective for failing to file a motion to

suppress incriminating evidence, 3 which a police officer seized from appellant's

backpack. The First Court of Appeals addressed this issue in Broussard v. State, 68

       3
          The incriminating evidence consisted of W2 forms, showing the victims' names and social
security numbers.
                                               4
S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd), wherein the defendant

argued his defense counsel was ineffective for failing to move to suppress the cocaine

found in his home. Id. at 199. In overruling this argument, the court of appeals stated:

              While we would not characterize such a motion as a "hands-down"
       winner, we cannot address the ineffectiveness question because of the
       state of the record.

              Although [the defendant] filed a motion for new trial asserting
       ineffective assistance of counsel, he never raised the ground he now
       asserts on appeal. Thus, the record is silent as to why his counsel might
       have acted as he did. In such circumstances, our duty is clear—we must
       presume counsel made all significant decisions in the exercise of
       reasonable professional judgment. The Court of Criminal Appeals has
       repeatedly held that without a sufficient record, an appellant cannot
       overcome this presumption, and we cannot conclude counsel was
       ineffective.

Id. (citations omitted).

       In the instant case, appellant filed a motion for new trial, but he did not assert

ineffective assistance of counsel. The trial court did not hold a hearing on the motion for

new trial. Because the record is silent with respect to why defense counsel acted as he

did, we must presume defense counsel made all significant decisions in the exercise of

reasonable professional judgment. See id.; see also Chuong Duong Tong v. State, 25

S.W.3d 707, 714 (Tex. Crim. App. 2000) (holding that "without some explanation as to

why counsel acted as he did, we presume that his actions were the product of an overall

strategic design").

       Even assuming trial counsel was deficient for failing to file a motion to suppress,

appellant has failed to satisfy the prejudice prong of Strickland v. Washington by showing

a reasonable probability that, but for counsel's error, he would not have pleaded guilty

and would have insisted on going to trial. See Hill, 474 U.S. at 58–59. The record is not

                                            5
developed regarding the alleged prejudice. Appellant did not provide live testimony or

any specific evidence regarding the rationale of how defense counsel's failure to file the

motion to suppress impacted his decision to plead guilty. See Ex parte Moody, 991

S.W.2d 856, 858 (Tex. Crim. App. 1999) (holding applicant established prejudice based

on applicant's own testimony and that of his plea counsel).            Compare Ex parte

Tanklevskaya, 361 S.W.3d 86, 97 (Tex. App.—Houston [1st Dist.] 2011, pet. filed)

(holding applicant's testimony was alone sufficient to establish prejudice), with Jackson v.

State, 139 S.W.3d 7, 21 n.10 (Tex. App.—Fort Worth 2004, pet. ref'd) (stating in dicta that

affidavit alone was insufficient to demonstrate prejudice). The sole issue for review is

overruled.

                                      II. CONCLUSION

       The judgment of the trial court is affirmed.




                                                      ROSE VELA
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
16th day of August, 2012.




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