Affirmed as Reformed and Memorandum Opinion filed December 23, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00630-CR

                     LASH ADARRIN SCOTT, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1371641

                 MEMORANDUM                      OPINION


      In two issues, appellant Lash Adarrin Scott appeals his conviction for
possession with intent to deliver a controlled substance, a first-degree felony. See
Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.112(a) (West 2010). The
first issue is whether appellant’s trial counsel provided the effective assistance
required by the Sixth Amendment. Because the record contains no evidence
rebutting the presumption that trial counsel’s performance fell within the wide
range of reasonably professional assistance, we overrule appellant’s first issue. The
second issue is whether this court can modify the trial court’s judgment. Because
the judgment incorrectly states that appellant pleaded “guilty” to the charged
offense, we sustain appellant’s second issue.

      Accordingly, we reform the judgment to correctly reflect appellant’s plea of
“not guilty” and affirm the judgment as reformed.

                  I.    FACTS AND PROCEDURAL BACKGROUND

      On December 19, 2012, in response to complaints from a concerned citizen
regarding possible narcotics transactions occurring on the 2700 block of Winbern
Street in Houston, Harris County, Texas, officers from the Houston Police
Department initiated a “jump-out” operation. Sergeant Haney, Officer Weiner,
Officer Matson, Officer Delasbour, Officer Penrod, and Officer Amador were part
of the operation. Sergeant Haney testified that he and the other officers drove to the
location in question to reconnoiter the area. Sergeant Haney and Officer Matson
observed appellant meeting with a black female. Sergeant Haney testified that the
female had money in her hand and appellant was in the process of exchanging
something for the money. At that point, the officers drove their van towards
appellant and the female, stopped approximately thirty feet from appellant and the
female, and jumped out of the vehicle.

      The officers ordered appellant to show his hands. Appellant did not comply.
Believing that appellant might be armed, the officers ordered appellant and the
female to lie on the ground. Officer Delasbour secured appellant and conducted a
pat-down search. During the pat-down search of appellant, Officer Delasbour
found a baggy that appeared to contain approximately 33 rocks of crack cocaine.
Officer Penrod field-tested the contents of the baggy. The contents tested positive
for cocaine.
                                          2
      Appellant was indicted for felony possession with intent to deliver a
controlled substance. The indictment alleged two prior convictions. On June 27,
2013, the day of trial, appellant’s trial counsel filed a motion to suppress the
cocaine on the grounds that the seizure and arrest violated appellant’s
constitutional rights. The trial court did not hold a separate hearing or explicitly
rule on the motion to suppress. On the day of trial, appellant also signed a
stipulation of evidence, in which he stated:

      I, the Defendant in the above entitled and numbered cause, in open
      court, agree to stipulate the evidence in this case and I waive the
      appearance, confrontation, and cross-examination of witnesses. I
      consent to the oral stipulation of evidence and to the introduction of
      affidavits, written statements of witnesses and other documentary
      evidence. I waive my right against self-incrimination and confess the
      following facts:
      1. The controlled substance that is marked State’s Exhibit number 1
         is, in fact, cocaine and is a controlled substance. That same State’s
         Exhibit is the same controlled substance that I was in possession of
         on December 19, 2012 in Harris County, Texas.
      2. The controlled substance that is marked as State’s Exhibit number
         1 is weighs [sic] more than 4 grams and less than 200 grams by
         aggregate weight, including any adulterants and dilutants.
      3. The Laboratory Report that is marked as State’s Exhibit number 2
         is a correct analysis of the controlled substance and all of the
         methods of testing were done accurately and correctly.

Appellant pleaded “not guilty” to the charged offense. Appellant pleaded “true” to
the two prior offenses.

      The case was tried to the court. During trial, the State introduced as Exhibit
Number 1 the crack cocaine that was discovered during the pat-down search of
appellant. Appellant’s counsel did not object to the admission of this evidence. In
closing argument for the guilt-innocence phase of the trial, defense counsel argued
that the cocaine was seized in violation of appellant’s Fourth Amendment rights.
                                          3
The trial court ultimately found appellant guilty of the charged offense. Appellant
was sentenced to twenty-five years in the Institutional Division of the Texas
Department of Corrections. Appellant timely appealed.

                                 II.    DISCUSSION

A.    Appellant did not meet his burden to overcome the strong presumption
      that trial counsel’s performance fell within a wide range of reasonably
      professional assistance.
      In his first issue, appellant contends that he received ineffective assistance of
counsel because his trial counsel did not object to the admission of the crack
cocaine found by the police during the pat-down search.

      The Constitution guarantees effective assistance of counsel. Ex parte Moore,
395 S.W.3d 152, 157 (Tex. Crim. App. 2013). To prevail on a claim of ineffective
assistance of counsel, a defendant “must show that (1) counsel’s representation fell
below an objective standard of reasonableness, and (2) the deficient performance
prejudiced the defense.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). Under the first prong, a defendant 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. Under the second
prong, a defendant must show that there is a reasonable probability that, but for the
counsel’s deficient performance, the result of the proceeding would have been
different. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A
“reasonable probability” is a probability sufficient to undermine confidence in the
outcome. Id.

      Our review of the reasonableness of trial counsel’s conduct is highly
deferential. Id. at 101. We view trial counsel’s conduct in context and indulge a
strong presumption that trial counsel’s performance fell within a wide range of

                                          4
reasonably professional assistance. Lopez, 343 S.W.3d at 142; Andrews, 159
S.W.3d at 101. “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.” Lopez , 343 S.W.3d at 142–43. Rather, “allegations of
ineffectiveness must be based on the record, and the presumption of a sound trial
strategy cannot be overcome absent evidence in the record of the attorney’s
reasons for his conduct.” Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim.
App. 2011). When the record is silent on trial counsel’s reasons for failing to take
the action identified by appellant, as it is here, we can only hold counsel’s
performance deficient if the challenged conduct was so outrageous that no
competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). When direct evidence demonstrating trial
counsel’s deficiency is not available, we must assume that counsel had a strategy if
any reasonably sound strategic motivation can be imagined. Lopez, 343 S.W.3d at
143; see McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d). The kind of record necessary for a defendant to meet his or her
burden to rebut the presumption is best developed in a hearing on an application
for a writ of habeas corpus or a motion for new trial. Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003); Perez v. State, 56 S.W.3d 727, 731 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d).

      In this case, appellant did not file a motion for new trial, and the trial record
is silent as to why trial counsel did not object to the admission of the drug
evidence. Appellant signed a stipulation of evidence that was admitted at trial prior
to the admission of the actual cocaine. Therefore, it is possible that appellant’s trial
counsel may have reasonably decided, in this bench trial, to attack the pat-down
search of appellant on Fourth Amendment grounds rather than generally


                                           5
challenging the admissibility of the cocaine. Counsel did not object to the
admission of the cocaine but did assert in final argument that the cocaine was
unlawfully seized in violation of the Fourth Amendment. Only further inquiry
would provide the information necessary to properly determine whether counsel
provided the effective assistance envisioned under the Sixth Amendment. See
Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

      Appellant has failed to rebut the presumption that trial counsel’s actions
resulted from a reasonable decision and has therefore failed to meet his burden on
the first prong of Strickland. See Aldaba v. State, 382 S.W.3d 424, 434 (Tex.
App.—Houston [14th Dist.] 2009, pet. ref’d). As a result, we need not consider
whether appellant met his burden with respect to the second prong of Strickland.
See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim. App. 2011) (declining to
analyze first prong of Strickland when applicant’s claim failed under second
prong).

      We overrule appellant’s first issue.

B.    Modification of the trial court’s judgment is appropriate because the
      judgment incorrectly states that appellant pleaded guilty to the charged
      offense.
      In his second issue, appellant contends the trial court’s written judgment of
conviction erroneously states that he pleaded guilty to the charged offense. The
State concedes that the judgment is incorrect in this regard.

      “An appellate court has the power to correct and reform the trial court’s
judgment to make the record speak the truth when it has the necessary data and
information to do so.” Peyronel v. State, — S.W.3d —, —, No. 01-13-00198-CR,
2014 WL 4109589, at *7 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, pet.
granted); see Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.

                                          6
Crim. App. 1993). Here, during his arraignment, appellant pleaded “not guilty” to
the charged offense. The trial court’s judgment, however, states that appellant
pleaded “guilty.”

      We therefore sustain appellant’s second issue and reform the trial court’s
judgment to reflect that appellant pleaded “not guilty” to the charged offense.

                                III.   CONCLUSION

      We affirm the trial court’s judgment as reformed.




                                       /s/       Marc W. Brown
                                                 Justice



Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                             7
