                                 NO. 07-11-00450-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                SEPTEMBER 26, 2012


                         LEONARD JAY KANE, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


                FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;

                NO. 8890; HONORABLE STEVEN RAY EMMERT, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


          Appellant Leonard Jay Kane appeals his conviction of possession of

methamphetamine and resulting sentence of forty years of imprisonment. Through one

issue, appellant contends he received ineffective assistance of counsel at trial. We will

affirm.
                                      Background


      Appellant was indicted in May 2011 for possession of methamphetamine in an

amount of more than one gram but less than four grams. 1 The indictment also included

two enhancement paragraphs setting forth appellant’s two previous felony convictions.

At trial, appellant plead “true” to each enhancement.


      The State called several witnesses at trial to show appellant possessed

methamphetamine in April 2010. Officers testified the Pampa police crime stoppers

coordinator received a tip regarding narcotics at a local residence. Testimony showed

officer Chad Johnson went to the residence to check on the possible presence of a

methamphetamine lab. Johnson saw appellant and his sister, Jane, sitting on the porch

of the residence along with two other individuals. By the time Johnson left his vehicle,

everyone had gone inside.      He went to the door and knocked.      Jane and another

individual answered the door. After Johnson explained he was there to investigate a tip

that a methamphetamine lab was present in the home, Jane let Johnson into the house

and took him back to appellant’s room. Appellant and two other people were in the

room. There, Johnson saw drug paraphernalia including pipes. He also heard drawers

opening and shutting and doors closing in other areas of the house. As a result, he

asked everyone to leave the home.


      Jane told Johnson appellant and his brother Jerry lived at the house. She also

said she herself lived there at times and she confirmed she owned the house. Jane

provided the officer with oral and written consent to search the house. Officers smelled
      1
          Tex. Health & Safety Code Ann. § 481.115(c) (West 2011).

                                            2
chemicals in appellant’s room and located items consistent with the manufacture of

methamphetamine there. Officers also found a bag with pink residue believed to be

methamphetamine in the bathroom near appellant’s bedroom. Photographs showing

the rooms and the items found there were admitted at trial. Appellant told officers

everything in the house was his.


       The defense rested without presenting evidence at either the guilt-innocence or

punishment stages of trial. The jury convicted appellant as charged in the indictment

and punishment was assessed as noted. This appeal followed.


                                             Analysis


       Appellant asserts his trial counsel rendered ineffective assistance because he did

not adequately prepare and present appellant’s defense. He argues his trial counsel

should have filed a motion to suppress the evidence found during the search of the

residence because Jane did not have authority to consent to the search and it was his

trial counsel’s duty to bring that inquiry to the trier of fact.


       The adequacy of defense counsel's assistance is based on the totality of the

representation rather than isolated acts or omissions. Thompson v. State, 9 S.W.3d

808, 814 (Tex.Crim.App. 1999). Although the constitutional right to counsel ensures the

right to reasonably effective counsel, it does not guarantee errorless counsel whose

competency or accuracy of representation is judged by hindsight. Robertson v. State,

187 S.W.3d 475, 483 (Tex.Crim.App. 2006).




                                                 3
      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 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).


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

made such serious errors that he did not function as the "counsel" guaranteed by the

Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 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 a wide range of reasonable professional assistance.

                                            4
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, 9 S.W.3d at

813-14. In the majority of cases, the record on direct appeal is inadequate to show that

counsel's conduct fell below an objectively reasonable standard of performance; thus,

the better course is to pursue the claim in habeas proceedings. Mitchell, 68 S.W.3d at

642. Absent evidence of counsel's reasons for the challenged conduct, we will not

conclude the challenged conduct constituted deficient performance unless the conduct

was so outrageous that no competent attorney would have engaged in it. Garcia v.

State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001).


         The record before us does not demonstrate counsel’s performance fell below an

objective standard of reasonableness. Appellant’s trial counsel cross-examined some

of the State’s witnesses and made appropriate objections and argument during trial.

The failure to file a suppression motion does not necessarily constitute ineffective

assistance of counsel. Yuhl v. State, 784 S.W.2d 714, 717 (Tex.App.—Houston [14th

Dist.] 1990, pet. ref’d); Ellis v. State, 677 S.W.2d 129, 134 (Tex.App.—Dallas 1984, writ

ref’d). The same is true of a decision not to make a particular argument before the jury.

See generally Ramirez v. State, 229 S.W.3d 725, 730-31 (Tex.App.—San Antonio

2007, no pet.) (substance of counsel’s argument is inherently a trial strategy).




                                             5
       The record does not explain why trial counsel did not file a motion to suppress or

present to the jury the argument Jane did not have authority to consent to the search. 2

Johnson v. State, 233 S.W.3d 109, 116 (Tex.App.—Houston [14th Dist.], 2007, no pet.).

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

Thompson, 9 S.W.3d at 813. Such a decision is not outside the range of reasonable

professional assistance and nothing in the record suggests otherwise. We also do not

know whether trial counsel was aware of other evidence not presented or knew of other

factors bearing on the admissibility of the seized evidence that would have made

fruitless the pursuit of a motion to suppress or a lack of authority to consent argument

We will not speculate on the reasons behind trial counsel’s actions. Jackson v. State,

877 SW.2d 768, 771 (Tex.Crim.App. 1994).


       Other Texas courts have declined to find ineffective assistance of counsel in

similar circumstances. In Greene v. State, 124 S.W.3d 789, 791-92 (Tex.App.--Houston

[1st Dist.] 2003, pet. ref'd), the court concluded that because there was nothing in the

record to show why counsel chose not to attempt to have the in-court identification

suppressed, appellant could not meet the first prong of the Strickland test. Greene, 124

S.W.3d at 791-92, citing Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App. 2002). The


       2
          Appellant does not discuss the necessity of a jury instruction pursuant to Article
38.23 of the Code of Criminal Procedure for the jury to be able to consider any fact
questions concerning the search and Jane’s authority to consent to it. See Tex. Code
Crim. Proc. Ann. art 38.23 (West 2011) (providing “[i]n any case where the legal
evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has
a reasonable doubt, that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such evidence so obtained”);
Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App. 2007).

                                             6
same conclusion was reached in Davis v. State, 930 S.W.2d 765, 769 (Tex.App.--

Houston [1st Dist.] 1996, pet. ref'd), in which the court held that appellant failed to

satisfy the first prong of Strickland because, without testimony by trial counsel, the court

could not meaningfully address his reasons for not filing a motion to suppress. See also

Whitney v. State, 190 S.W.3d 786, 788 (Tex.App.--Fort Worth 2006, no pet.) (finding

appellant failed to meet the first prong of Strickland where the record was silent

regarding counsel’s reasons for failing to request transcription of record of the

punishment hearing); Hardin v. State, 951 S.W.2d 208, 211 (Tex.App.—Houston [14th

Dist.] 1997, no pet.) (rejecting claim for ineffective assistance when trial counsel failed

to request article 38.23 instruction).


       Appellant has not overcome the presumption that trial counsel made the

decisions of which he complains in the exercise of reasonable professional judgment.

Appellant thus has not met the first prong of the Strickland test. 3          We overrule

appellant's issue and affirm his conviction and sentence.




                                                 James T. Campbell
                                                     Justice
Do not publish.




3
 We need not examine both Strickland prongs if one cannot be met. Blumenstetter v.
State, 135 S.W.3d 234, 242 (Tex.App.—Texarkana 2004, no pet.), citing Strickland, 466
U.S. at 697.

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