Affirmed and Opinion filed April 4, 2013.




                                    In The

                   Fourteenth Court of Appeals

                            NO. 14-11-01100-CR
                            NO. 14-11-01104-CR



                  LEROY DEWAIN MCCOOK, Appellant,

                                      V.

                     THE STATE OF TEXAS, Appellee.

                  On Appeal from the 262nd District Court
                              Harris County
                 Trial Court Cause Nos. 1303398 & 1303399


                               OPINION

      Appellant Leroy Dewain McCook appeals his convictions for possession of
marijuana and possession of a firearm by a felon. A jury found McCook guilty of
the two offenses and the trial court assessed punishment in each case at seven
years‘ confinement in the Texas Department of Criminal Justice, Institutional
Division, with the sentences to run concurrently. On appeal, McCook raises the
same two arguments in each case. First, he contends that he received ineffective
assistance of counsel. Second, he contends that he was egregiously harmed by the
trial court‘s failure to sua sponte instruct the jury as provided by Code of Criminal
Procedure article 38.23 because a factual dispute existed regarding the probable
cause forming the basis for the search warrant that lead to his arrest. We affirm.

                                               I

       Officers Jones and Strawder were working undercover when Jones was
informed that he could buy marijuana from ―Wayne‖ at the back door of a nearby
house at 2915 Sauer Street. As Strawder watched, Jones went to the back door of
the house and found the burglar bars closed, but the back door open. Jones yelled
for ―Wayne.‖ McCook, who goes by the name ―Wayne,‖ came to the back door
and sold Jones marijuana in exchange for $20. During the transaction, Jones could
see a small handgun in McCook‘s waistband.

       Based on this encounter, Strawder prepared an affidavit and request for a
search warrant for the house at 2915 Sauer. A magistrate granted the request,
authorizing a ―no-knock‖ search warrant.1

       When the search warrant was executed several days later, Strawder and a
team of officers drove to the house and used their van to pull the burglar bars off
the door. The team entered the house and found marijuana, digital scales, and other
drug paraphernalia, along with a shotgun. They also found surveillance cameras
showing the front and back of the house, similar to surveillance systems drug
dealers use to alert them when police are coming. The surveillance system was
connected to the house next door at 2913 Sauer by wires running between the two

       1
         Jones testified that a ―no-knock‖ search warrant allows officers to break down the door
and search the premises without knocking or announcing themselves. Jones explained this type
of warrant was requested because Jones had seen McCook with a weapon.

                                               2
houses. This arrangement allowed the cameras to be monitored from either 2915 or
2913 Sauer.

         As the team entered through the back door, McCook and another man were
seen going out the front door and walking to the porch of the house at 2913 Sauer.
When officers detained McCook, they found a key for the front door of 2913 Sauer
in his pocket. Officers then obtained a search warrant for the house at 2913 Sauer
and searched that house. Inside, officers found ecstasy pills and a firearm. The
firearm was the same one McCook had in his waistband when he sold marijuana to
Jones.

         At trial, McCook testified in his defense. He denied ever selling drugs out of
his residence at 2915 Sauer. On cross-examination, McCook admitted to prior
drug-related convictions in 2007, 2006, and 2002.

                                               II

         In his first issue, McCook contends that his counsel was ineffective for
failing to object to the prosecutor‘s inquiry into McCook‘s 2002 conviction for
marijuana possession. McCook argues that admission of this prior conviction
violates Texas Rule of Evidence 609(a) because the prejudicial effect of the
admission outweighed any probative value under Theus v. State, 845 S.W.2d 874
(Tex. Crim. App. 1992).2




         2
         In Theus, the Court of Criminal Appeals articulated a non-exclusive list of factors that
courts should use to weigh the probative value of a conviction against its prejudicial effect.
Theus, 845 S.W.2d at 880. These factors include (1) the impeachment value of the prior crime,
(2) the temporal proximity of the past crime relative to the charged offense and the witness's
subsequent history, (3) the similarity between the past crime and the charged offense, (4) the
importance of the witness's testimony, and (5) the importance of the witness's credibility. Id.
                                               3
                                          A

      An accused is entitled to reasonably effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984); King v. State, 649 S.W.2d 42,
44 (Tex. Crim. App. 1983); Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref‘d). In reviewing claims of ineffective assistance
of counsel, we apply a two-prong test. See Strickland, 466 U.S. at 687; Thompson
v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish ineffective
assistance, an appellant must prove by a preponderance of the evidence that (1) his
trial counsel‘s representation 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. Strickland, 466 U.S.
at 687; Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001). The
appellant bears the burden of proving by a preponderance of the evidence that
counsel was ineffective. Thompson, 9 S.W.3d at 813 (citing Cannon v. State, 668
S.W.2d 401, 403 (Tex. Crim. App. 1984)).

      When evaluating a claim of ineffective assistance, the appellate court looks
to the totality of the representation and the particular circumstances of the case
without the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011); Thompson, 9 S.W.3d at 813. There is a strong presumption that trial
counsel‘s actions and decisions were reasonably professional and were motivated
by sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005). It is not sufficient that an 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. Instead, in order for an appellate court
to find that counsel was ineffective, counsel‘s deficiency must be affirmatively
demonstrated in the trial record and the court must not engage in retrospective

                                          4
speculation. Id. at 142.

      Absent specific explanations for counsel‘s decisions, a record on direct
appeal will rarely contain sufficient information to evaluate this aspect of an
ineffective-assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). When direct evidence is not available, we will assume that counsel had a
strategy if any reasonably sound strategic motivation can be imagined. Lopez, 343
S.W.3d at 143. Trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective. Menefield v. State, 363
S.W.3d 591, 593 (Tex. Crim. App. 2012). If trial counsel is not given that
opportunity, then the appellate court should not find deficient performance unless
the challenged conduct was so outrageous that no competent attorney would have
engaged in it. Id.

      If a criminal defendant can prove trial counsel‘s performance was deficient,
he still must prove he was prejudiced by his counsel‘s actions. Thompson, 9
S.W.3d at 812. This requires the defendant to demonstrate a reasonable probability
that the result of the proceeding would have been different if the trial counsel had
acted professionally. Id. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Mallett, 65 S.W.3d at 63.

                                         B

      Although McCook filed a motion for new trial, he did not raise the issue of
ineffectiveness of counsel and no evidence was developed regarding his trial
counsel‘s strategy. In the absence of a record, we cannot conclude that counsel‘s
action in failing to object to the admission of McCook‘s 2002 marijuana conviction
was so outrageous that no competent attorney would have engaged in it. See
Menefield, 363 S.W.3d at 593. An attorney is not necessarily ineffective for failing
to object to inadmissible evidence. See DeLeon v. State, 322 S.W.3d 375, 381

                                         5
(Tex. App.—Houston [14th Dist.] 2010, pet. ref‘d).

      For example, counsel may have allowed the testimony in an effort to make
McCook appear more honest and truthful, to avoid drawing unwanted attention to
the impeachment, or to prevent the impression that he was objecting at every
opportunity as a means of stonewalling evidence. See Huerta v. State, 359 S.W.3d
887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Martin v. State,
265 S.W.3d 435, 444–45 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding
that trial counsel did not render ineffective assistance for not filing Theus motion
when admission of prior convictions by counsel appeared to be strategic attempt to
appear open and honest to jury and to lessen impact of any impeachment on issue).
It is equally possible that there were no strategically sound reasons for counsel‘s
conduct. See Menefield, 363 S.W.3d at 593; Bone, 77 S.W.3d at 836. But on this
record, McCook has failed to overcome the presumption that counsel was
motivated by sound trial strategy in declining to object to the arguably
inadmissible prior conviction. See Lopez, 343 S.W.3d at 143–44; Thompson, 9
S.W.3d at 814–15.

      Even assuming counsel‘s representation fell below an objective standard of
reasonableness, McCook has failed to demonstrate that a reasonable possibility
exists that, but for counsel‘s unprofessional error, the result of the proceeding
would have been different. See Strickland, 466 U.S. at 694. Excluding the
complained-of prior offense, the evidence amply supports McCook‘s conviction in
each case. An officer bought marijuana from McCook at his residence. During this
transaction, the officer saw a gun in McCook‘s waistband. When searching
McCook‘s house, officers found marijuana and a shotgun, along with other items
of drug paraphernalia. There was also a surveillance system wired to monitors in
both McCook‘s house and the house next door. In the house next door, officers

                                         6
found more drugs and the gun McCook had in his waistband during the earlier
drug transaction.

      It is likely that informing the jury of McCook‘s 2002 marijuana conviction
would have made little difference because McCook also told the jury that he was
convicted of possessing cocaine in 2007 and possessing a controlled substance in
2006. McCook does not complain about the admission of the latter two prior
felony convictions, nor does he challenge the sufficiency of the evidence
supporting his convictions. The jury was already aware that McCook was a
convicted felon, and it is doubtful that informing the jury of an additional
marijuana conviction would have had any significant impact.

      Additionally, the jury charge in each case admonished the jury that evidence
of any crimes other than those charged ―cannot be considered by you against the
defendant as any evidence of guilt in this case. Said evidence was admitted before
you for the purpose of aiding you, if it does aid you, in passing upon the weight
you shall give his testimony, and you will not consider the same for any other
purpose.‖ Absent evidence to the contrary, the jury is presumed to have followed
the instructions set forth in the trial court‘s charge. Hutch v. State, 922 S.W.2d 166,
172 (Tex. Crim. App. 1996); Haro v. State, 371 S.W.3d 262, 267 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref‘d).

      On this record, McCook has not shown that, but for the conduct of trial
counsel he claims was ineffective, the result of the trial would have been different.
See Thompson, 9 S.W.3d at 812; Haro, 371 S.W.3d at 267. We hold that McCook
has failed to satisfy either prong of Strickland, and we overrule his first issue.




                                           7
                                         III

      In his second issue, McCook contends that ―[e]gregious harm resulted when
the trial court failed to provide jury instructions sua sponte pursuant to Article
38.23 of the Code of Criminal Procedure‖ because ―a factual dispute existed
regarding the probable cause that formed the basis of the warrant to search the
residence at 2915 Sauer Street.‖ Before the trial, McCook had filed a motion to
suppress in which he alleged that the affidavit supporting the search warrant was
insufficient to support a finding of probable cause. The trial court denied the
motion at the close of the guilt-innocence phase of the trial. On appeal, McCook
does not challenge the trial court‘s ruling on his motion to suppress; his argument
is limited to alleged charge error.

      Under article 38.23, ―[n]o evidence obtained by an officer . . . in violation of
any provisions of the Constitution or laws . . . shall be admitted in evidence against
the accused‖ at trial. Tex. Code Crim. Proc. art. 38.23(a); Robinson v. State, 377
S.W.3d 712, 719 (Tex. Crim. App. 2012). When evidence presented before the jury
raises a question of whether the fruits of a police-initiated search or arrest were
illegally obtained, ―‗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.‘‖ Robinson, 377 S.W.3d at 719 (quoting Tex. Code Crim. Proc. art.
38.23(a)). The trial court is required to include a properly worded article 38.23(a)
instruction in the jury charge only if there is a factual dispute as to how the
evidence was obtained. Id.

      McCook argues that he was entitled to an article 38.23 jury instruction
because there was a factual dispute regarding whether McCook sold marijuana to
Jones from the residence at 2915 Sauer. At trial, Jones testified that on April 12,

                                          8
2011, he went to the back door of the residence and purchased marijuana from
McCook, while McCook denied ever selling drugs to anyone from the back door of
the residence. As McCook acknowledges, however, this purported fact issue is
directed to the allegations in the probable-cause affidavit used to obtain the search
warrant for McCook‘s residence, which then led to the discovery of the marijuana
and the firearm.3

      Whether the affidavit contained sufficient facts for a neutral and detached
magistrate to conclude there was probable cause is a legal question, and any
dispute regarding the facts contained in the affidavit was for the trial court to make
under the appropriate standard of review. See Griggs v. State, 352 S.W.3d 297, 301
(Tex. App.—Houston [14th Dist.] 2011, pet. ref‘d) (trial court‘s duty is to ensure
that the magistrate had a substantial basis for concluding that probable cause
existed). When the trial court is determining whether probable cause exists to
support the issuance of a search warrant, ―there are no credibility determinations‖
as the court ―is constrained to the four corners of the affidavit.‖ State v. McLain,
337 S.W.3d 268, 271 (Tex. Crim. App. 2011).

      Allegations of deliberate falsehood or reckless disregard for the truth by the
search-warrant affiant should be pursued through a Franks hearing. See Franks v.
Delaware, 438 U.S. 154, 156 (1978); Cates v. State, 120 S.W.3d 352, 355 n.3
(Tex. Crim. App. 2003). Specific allegations and evidence must be apparent in the
pleadings for a trial court to even entertain a Franks proceeding. See Harris v.
State, 227 S.W.3d 83, 85–86 (Tex. Crim. App. 2007). When a defendant
challenges the warrant affidavit on the ground that it contains known falsehoods,
the trial court is not limited to the four corners of the affidavit. Cates, 120 S.W.3d
at 355 n.3.

      3
          The affidavit supporting the search warrant is not in our record.

                                                  9
      Here, McCook‘s contention that he was entitled to an article 38.23
instruction arises from his argument that the affidavit supporting the search warrant
was false. But the affidavit supporting the search warrant was not offered into
evidence and McCook made no argument at trial that any of the evidence offered
against him was illegally obtained. In his motion to suppress, McCook argued only
that ―[t]he search warrant at issue is not lawful because affiant was not truthful in
their[sic] descriptions‖ and the affidavit suffered from material omissions. It
appears from the record that the trial court considered the evidence presented at
trial before ruling on McCook‘s motion to suppress, rather than holding a separate
pretrial hearing. On appeal, however, McCook seeks to circumvent the trial court
and have the jury separately conduct a Franks analysis, arguing that had the jury
been given an article 38.23 instruction, it ―could have determined that Officer
Jones committed perjury and the illegal act of perjury resulted in the unlawful
search of Mr. McCook‘s house.‖ McCook cites no case law applying article 38.23
for such a purpose.

      On this record, we cannot hold that the trial court should have sua sponte
submitted an article 38.23 instruction to the jury. We therefore overrule McCook‘s
second issue.

                                       ***

      Having overruled McCook‘s issues, we affirm the trial court‘s judgment.


                                /s/           Jeffrey V. Brown
                                              Justice

Panel consists of Justices Frost, Brown, and Busby.
Publish — TEX. R. APP. P. 47.2(b).



                                         10
