                                     In The

                               Court of Appeals

                   Ninth District of Texas at Beaumont

                             __________________

                             NO. 09-18-00421-CR
                             __________________

                  JOHN ROBERT MCCOMB IV, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee

__________________________________________________________________

               On Appeal from the 253rd District Court
                       Liberty County, Texas
                      Trial Cause No. CR32141
__________________________________________________________________

                         MEMORANDUM OPINION

      Appellant John Robert McComb IV appeals from the revocation of his

deferred adjudication community supervision and imposition of sentence. In issue

one, McComb complains that the trial court erred by denying his motion to suppress

evidence obtained solely based on a condition of his community supervision that

authorized a search without a warrant or probable cause in violation of his right



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against an unreasonable search and seizure. In issue two, McComb contends he

received ineffective assistance of counsel. We affirm the trial court’s judgment.

                                 BACKGROUND

      The State indicted McComb for possession of a controlled substance with the

intent to deliver. McComb pleaded guilty, and the trial court found the evidence

sufficient to find McComb guilty but deferred further proceedings and placed

McComb on community supervision for six years. The State subsequently filed a

motion to revoke McComb’s unadjudicated community supervision, alleging that

McComb violated the conditions of his community supervision by (1) committing

the offense of possession of a controlled substance with the intent to deliver during

his period of community supervision, and (2) failing to work eighty hours in the

community supervision program. After hearing evidence, the trial court found that

McComb had violated two conditions of his community supervision, found

McComb guilty, and assessed punishment at fifteen years of confinement. McComb

appealed.

                                    ANALYSIS

      In issue one McComb argues that the trial court erred by admitting evidence

obtained during a warrantless search of his hotel room. McComb contends that his

agreement to waive his right to be free of unreasonable searches and seizures as a

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condition of his community supervision violates fundamental constitutional

guarantees and public policy. According to McComb, the trial court should have

granted his motion to suppress because the search was only based on a condition of

his community supervision, and the confidential informant’s unsubstantiated tip that

McComb was allegedly selling narcotics out of his hotel room was insufficient to

provide reasonable suspicion. The State argues that McComb accepted the terms of

his community supervision as part of his plea bargain agreement, and because

McComb failed to object to the contractual terms of his community supervision

when he was placed on deferred adjudication community supervision, he waived any

rights encroached on by the terms of the agreement.

      The record shows that as part of his plea bargain agreement, McComb agreed

to the following condition:

      The defendant shall submit his or her person, place of residence, and
      vehicle to search and seizure at any time with or without a search
      warrant, whenever requested to do so by any law enforcement officer
      or Liberty/Chambers County Supervision and Corrections Department,
      for the purpose of monitoring whether the defendant is complying with
      the terms and conditions of community supervision[.]

During the revocation hearing, defense counsel argued that the evidence seized

during the search of the hotel room should be suppressed because McComb did not

waive his Fourth Amendment rights when he agreed to the conditions of his


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community supervision. The State argued that McComb agreed to the condition as

part of his plea agreement.

      The trial court heard evidence regarding the circumstance that led to the search

of McComb’s hotel room. An officer with the San Jacinto County Sheriff’s Office

testified that while working as an undercover narcotics investigator, a confidential

informant told him that McComb was selling methamphetamines out of the Best

Western Hotel in Liberty County and was making trips to Houston in a blue Corvette

to pick up drugs. The undercover narcotics officer conveyed the information to Paul

Young with the Liberty County Sheriff’s Office and then went to the hotel where he

located the blue Corvette. He explained that the hotel clerk confirmed that McComb

was staying at the hotel. According to the officer, he went to the hotel based on the

informant’s tip, and at that point, he did not think he had enough information to get

a warrant to search McComb’s room.

      Paul Young testified that he received information from Sergeant Flynt with

the San Jacinto County Sheriff’s Office that McComb was distributing

methamphetamines out of the Best Western, and that McComb was making trips in

and out of the hotel with a pickup and a Corvette. Young explained that he was

familiar with McComb and knew that he was on probation, and according to Young,

the standard terms and conditions of probation in Liberty County included a waiver

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to any search of a probationer’s person, vehicles, and residence. Young testified that

he located both of McComb’s vehicles at the hotel, and McComb complied with his

request to search his hotel room by using his key card to open the door. Young

explained that he found narcotics in the hotel room and arrested McComb for

possession of a controlled substance with the intent to deliver. Young explained that

he did not have probable cause to search McComb’s hotel room, and the search was

based solely on the condition of McComb’s probation and McComb’s agreement to

waive his right to the search.

      The trial court found that in his plea agreement, McComb agreed to the search

of his person, property, and residence, and the court followed the plea agreement by

placing McComb on probation and including that agreement in the terms and

conditions of his community supervision. The trial court found that McComb is

bound by those terms and conditions, which are sufficiently set out, and that

McComb knew he was waiving his constitutional right against unreasonable search

and seizure.

      We review a trial court’s ruling on a motion to suppress using a bifurcated

standard of review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013).

We give almost total deference to the trial court’s determination of historical facts

and mixed questions of law and fact that rely on credibility determinations if they

                                          5
are supported by the record. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.

App. 1997). However, we review de novo questions of law and mixed questions of

law and fact that do not rely on credibility determinations. Kerwick, 393 S.W.3d at

273. At a hearing on a motion to suppress, the trial court is the exclusive trier of fact

and judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve any part

of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

We must uphold the trial court’s ruling on a motion to suppress if the ruling was

supported by the record and was correct under any theory of law applicable to the

case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).

      An award of community supervision is a contractual privilege, and the

conditions are terms of the contract entered between the trial court and the defendant.

Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). When a condition is not

objected to, it is affirmatively accepted as a term of the contract. Id. A defendant,

who enters into the contractual relationship without objection, affirmatively waives

any rights encroached upon by the terms of the contract. Id. “[A] defendant who is

fairly notified of the conditions of community supervision at a hearing at which he

has an opportunity to object forfeits any later complaint about those conditions, as



                                           6
long as those conditions do not involve a systemic right or prohibition.” Dansby v.

State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014).

      A condition of community supervision that generally authorizes a search and

seizure at any time requested by any law enforcement officer, without further

restriction, is unreasonable and invalid. Tamez v. State, 534 S.W.2d 686, 690, 692

(Tex. Crim. App. 1976). However, if a condition of community supervision

authorizing a search is reasonably restricted to promote the purposes of community

supervision, it does not violate the Fourth Amendment’s or the Texas Constitution’s

prohibition against unreasonable searches and seizures. Cochran v. State, 563

S.W.3d 374, 379 (Tex. App.—Texarkana 2018, no pet.); see also U.S. Const. amend.

IV; Tex. Const. art. I, § 9. In support of his contention that the condition authorizing

a warrantless search is too broad and improperly allows the State to violate his

Fourth Amendment right, he cites Tamez. See Tamez, 534 S.W.2d at 690–93.

      We hold that Tamez is distinguishable, because the probationary condition in

that case allowed a search of Tamez’s person, residence, and vehicle, at any time by

any law enforcement officer, for any purpose, and without any individualized

suspicion. See id. at 692. Unlike Tamez, the condition here subjects McComb’s

person, vehicle, and residence to a warrantless search “for the purpose of monitoring

whether the defendant is complying with the terms and conditions of community

                                           7
supervision[.]” McComb had been placed on deferred adjudication community

supervision for possession of a controlled substance with the intent to deliver, and

another condition of McComb’s community supervision required him to refrain from

possessing drugs. Because McComb’s condition is reasonably restricted to promote

the purposes of community supervision, we hold that it does not violate the Fourth

Amendment or the Texas Constitution. See Cochran, 563 S.W.3d at 379.

      While McComb argues that reasonable suspicion was required to support the

search even considering the term of his community supervision, we are not

persuaded that his argument is supported by United States v. Knights, 534 U.S. 112

(2001). In Knights, the Court did not decide that reasonable suspicion was required

even if a defendant waived his Fourth Amendment rights, because the Court

concluded that, irrespective of the condition of probation, reasonable suspicion

supported the search. Knights, 534 U.S. at 114, 118, 121–22. The State argues that

the Supreme Court decided the issue of whether reasonable suspicion was required

when a search is solely predicated on a condition of probation in Samson v.

California, 547 U.S. 843, 849–50 (2006).

      In Samson, the Court concluded that a parole officer’s suspicionless search of

a parolee did not violate the Fourth Amendment because the parolee did not have an

expectation of privacy that society would recognize as legitimate. Samson, 547 U.S.

                                         8
at 846, 852. The Samson Court noted that in deciding Knights, it observed that

probationers do not enjoy the absolute liberty to which every citizen is entitled, and

that in concluding Knights’ expectation of privacy was significantly diminished, it

considered the fact that Knights’ probation order clearly set out the probation search

condition and Knights was clearly informed of the condition. Id. at 848–49. The

Samson Court recognized the State’s interest in reducing recidivism and promoting

reintegration among probationers and parolees warrants privacy intrusions that

would otherwise not be tolerated and concluded that the Fourth Amendment does

not prohibit a police officer from conducting a suspicionless search of a parolee. Id.

at 853, 857.

      We hold that the terms and conditions of McComb’s community supervision

alone supported the search because the trial court found that: (1) McComb agreed to

the condition of his community supervision authorizing the search of his person,

place of residence, and vehicle; (2) the court followed the plea agreement by

including that agreement in the terms and conditions of his community supervision

and by placing McComb on probation; (3) McComb is bound by those terms and

conditions, which are sufficiently set out; and (4) McComb knew he was waiving

his constitutional right against unreasonable search and seizure. See id. at 857;

Cochran, 563 S.W.3d at 382. Because the valid condition of McComb’s community

                                          9
supervision authorized the warrantless search of his hotel room, we conclude that

the trial court did not err by denying McComb’s motion to suppress. See Kerwick,

393 S.W.3d at 273. We overrule issue one.

      In issue two, McComb contends he received ineffective assistance of counsel

at the hearing on the motion to revoke his unadjudicated community supervision.

Specifically, McComb argues that trial counsel failed to produce evidence to

substantiate counsel’s argument that McComb was medically unfit to participate in

community service. McComb contends that his counsel failed to subpoena records

regarding his cancer diagnosis and hernia, which would have provided the trial court

with sufficient evidence to find that McComb was unable to complete his community

service hours. According to McComb, his counsel failed to (1) raise an argument

based on the doctrine of impossibility, (2) present evidence of his medical condition

and request a waiver of his community service hours, (3) complain that the State’s

allegation concerning his failure to work eighty hours of community service violated

due process by failing to fully and completely set forth in more detail how he violated

the condition that McComb maintains had been orally modified, and (4) call any

witnesses or develop evidence necessary to advance his defensive theory that his

physical condition prevented him from completing his community service.



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      To prevail on a claim of ineffective assistance of counsel, McComb must

satisfy a two-pronged test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
      fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Texas courts have held that Strickland

requires an appellant to show a reasonable probability that, but for his counsel’s

errors, the outcome of his trial would have been different. Bone v. State, 77 S.W.3d

828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s

representation is highly deferential and presumes that counsel’s actions fell within

the wide range of reasonable and professional assistance.” Id. McComb must prove

that there was no plausible professional reason for specific acts or omissions of his

counsel. Id. at 836. In addition, “[a]ny allegation of ineffectiveness must be firmly

grounded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)

(citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Because

the reasonableness of counsel’s decisions and strategy often involves facts that do

                                         11
not appear in the appellate record, the record on direct appeal is generally insufficient

to support a claim of ineffective assistance. See id. at 813–14.

      Nothing in the appellate record supports McComb’s claims. McComb did not

file a motion for new trial to develop a record supporting his ineffective assistance

claim. Therefore, this Court has no explanation as to the reasons for counsel’s

decisions at the revocation hearing. See Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005) (explaining that an appellate court generally will not find

counsel ineffective when there is no record to show that counsel had the opportunity

to explain himself). Nothing in the appellate record demonstrates that any available

witnesses would have offered testimony benefitting McComb, nor does the record

demonstrate that counsel was ill-prepared. McComb has not demonstrated that

counsel was ineffective. See Thompson, 9 S.W.3d at 813. Accordingly, we overrule

issue two. Having overruled each of McComb’s issues, we affirm the trial court’s

judgment.

      AFFIRMED.

                                               ______________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice
Submitted on October 2, 2019
Opinion Delivered October 23, 2019
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.
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