Affirmed and Memorandum Opinion filed February 28, 2013.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00292-CR

                          JUSTIN WILSON, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                        Trial Court Cause No. 64700

                       MEMORANDUM OPINION

      Appellant was convicted of murder and sentenced to life imprisonment. In
two issues, we consider whether he was denied the effective assistance of trial
counsel, and whether the trial court erred by denying a request for a lesser-included
offense. We affirm the trial court’s judgment.
                                  BACKGROUND

      On the night of the incident, appellant and two other males attempted to rob
a house in which they believed drugs and money would be found. The attackers
forced their way into the home over the resistance of two male occupants. During
the ensuing struggle, appellant discharged his shotgun, causing the death of one of
the occupants. The attackers abandoned the robbery and fled the scene.

      The next day, police received a letter and a phone call, both anonymous,
linking appellant and one of his accomplices to the murder. Police investigated the
home of the accomplice, where he and appellant were both discovered. When the
two suspects were separated for questioning, police observed that appellant was
shaking and visibly nervous. Concerned for the safety of all involved, police
handcuffed appellant, placed him in the back of a patrol car, and transported him
back to the station for further questioning.

      Once at the station, the police removed appellant’s handcuffs and placed him
in an interrogation room. After waiving his constitutional rights, appellant gave a
statement to police, in which he confessed to the murder. The confession was
recorded on video. After his interview, appellant agreed to guide police to the
location where he had disposed of the murder weapon and other evidence. When
the evidence was retrieved, appellant signed a written statement admitting his
involvement in the murder.

      Prior to trial, appellant moved to suppress his confessions on the basis of
voluntariness. Appellant argued that his statements were coerced because the
officers had allegedly indicated that he would never be released without a
confession. Appellant also argued that he was so tired or under the influence of
drugs that he was unable to know what he was doing. Following an evidentiary
hearing, the trial court denied appellant’s motion to suppress. Both the recorded
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confession and the written statement were published to the jury during the trial on
the merits.

                          ASSISTANCE OF COUNSEL

      In his first issue, appellant argues that he was denied effective assistance of
trial counsel because counsel did not move to suppress his confessions on an
alternative basis—namely, that police lacked probable cause for appellant’s arrest.
We examine such claims under the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984). Under Strickland, appellant must prove that his trial
counsel’s representation was deficient and that the deficient performance was so
serious as to deprive him of a fair trial. Id. at 687. Counsel’s representation is
deficient if it falls below an objective standard of reasonableness. Id. at 688. This
deficiency will deprive appellant of a fair trial only when counsel’s performance
prejudices appellant’s defense. Id. at 691–92. To demonstrate prejudice, appellant
must show a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at 694. Failure to make
the required showing of either deficient performance or sufficient prejudice defeats
the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under
both the United States and Texas Constitutions. See Hernandez v. State, 726
S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

      Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that the attorney’s actions were reasonably
professional and were motivated by sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to trial
counsel’s strategy, we will not conclude that appellant received ineffective
assistance unless the challenged conduct was ―so outrageous that no competent
attorney would have engaged in it.‖ Goodspeed v. State, 187 S.W.3d 390, 392

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(Tex. Crim. App. 2005). Rarely will the trial record contain sufficient information
to permit a reviewing court to fairly evaluate the merits of such a serious
allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the
majority of cases, the appellant is unable to meet the first prong of the Strickland
test because the record on direct appeal is underdeveloped and does not adequately
reflect the alleged failings of trial counsel. Mata v. State, 226 S.W.3d 425, 430
(Tex. Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). ―[I]solated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for
examination.‖ McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992),
overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App.
1994). Moreover, ―[i]t 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.‖ Mata, 226 S.W.3d at 430. Rather, to establish that the
attorney’s acts or omissions were outside the range of professionally competent
assistance, appellant must show that counsel’s errors were so serious that he was
not functioning as counsel. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App.
1995).

      Appellant argues that his trial counsel was ineffective because counsel
moved to suppress his statements only on the absence of voluntariness, and not on
the basis that his statements were the fruit of an illegal arrest. This argument is



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premised on appellant’s claim that he was arrested without probable cause and not
merely detained for investigative purposes.

      Before being condemned as unprofessional or incompetent, counsel is
normally afforded an opportunity to explain his actions, such as through
testimonial evidence in a hearing on a motion for new trial or with the filing of an
affidavit. See Bone, 77 S.W.3d at 836. Appellant filed no motion for new trial in
this case, and the record contains no explanation regarding counsel’s reasons for
not moving to suppress the confessions on an alternative basis. Any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). Because the record here is
underdeveloped, appellant has not rebutted the strong presumption that counsel’s
actions were the product of sound trial strategy.

      Assuming that counsel’s performance was constitutionally deficient,
appellant must still carry his burden of showing that the motion to suppress would
have been granted had it been properly presented. See Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998) (noting that in the context of a complaint
that counsel failed to pursue a motion to suppress, the defendant can only show
prejudice under Strickland if he proves that the motion to suppress would have
been granted). Appellant contends that he meets this standard for prejudice,
arguing that his incriminating statements would have been suppressed as ―fruit of
the poisonous tree‖ because they were obtained from an arrest made unlawful for
lack of probable cause. See Tex. Code Crim. Proc. art. 38.23 (providing that
evidence must be excluded if obtained in violation of state or federal law); Wong
Sun v. United States, 371 U.S. 471, 484–85 (1963) (providing that physical and
verbal evidence must generally be excluded if obtained from an illegal arrest).

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However, the record supports a finding that appellant was not under arrest when he
made his incriminating statements; he had only been detained.

      An investigative detention constitutes a seizure under the Fourth
Amendment, but it is characterized by a lesser amount of restraint than an arrest.
See Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996). It occurs when
an officer stops an individual for questioning and the individual is not free to leave,
at least for some period of time. Id. Unlike an arrest, an officer is not required to
have probable cause to stop an individual. Rather, to conduct a lawful temporary
detention, he need only have a reasonable suspicion to believe that the individual
actually is, has been, or soon will be engaged in criminal activity. See Ford v.
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if
the officer has specific, articulable facts that, when combined with rational
inferences from those facts, would lead him to reasonably conclude that the
individual is involved in crime. Id. This is an objective standard that disregards any
subjective intent of the officer making the stop and looks solely to whether an
objective basis for the stop exists. Id.

      A reasonable-suspicion determination is made by considering the totality of
the circumstances. Id. at 492–93. Courts have considered the following factors
when conducting this analysis:

      [T]he amount of force displayed, the duration of a detention, the
      efficiency of the investigative process and whether it is conducted at
      the original location or the person is transported to another location,
      the officer’s expressed intent—that is, whether he told the detained
      person that he was under arrest or was being detained only for a
      temporary investigation, and any other relevant factors.

State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008) (footnotes
omitted). There is no bright-line test providing that the use of handcuffs is always


                                           6
the equivalent of an arrest. See Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim.
App. 1997). As much as a bright-line rule would be desirable, courts must consider
the reasonableness of the detention, and reasonableness is judged from the
perspective of a reasonable officer at the scene. Id. ―[C]ommon sense and ordinary
human experience must govern over rigid criteria.‖ Id. (citing United States v.
Sharpe, 470 U.S. 675, 685 (1985)).

      In this case, police received two anonymous tips—one letter, and one phone
call—identifying appellant and another individual as possible suspects in the
murder. The tips were received less than twenty-four hours after the crime was
committed. When police went to the home of the other individual, both suspects
were found together. Police separated the two men, with appellant being removed
to an outside porch. As he waited for police to finish their investigation inside,
appellant was observed to be nervous and visibly shaking. During the suppression
hearing, one officer testified that he grew concerned for the safety of everyone
involved at the scene after witnessing appellant’s shaking and mannerisms. The
officer testified that because of this concern, he ―grabbed [appellant] and put him
in handcuffs, [and] advised him he was being detained.‖ Police then transported
appellant to a police station where they interrogated him without handcuffs or any
other physical restraints.

      The evidence supports a finding that police had reasonable suspicion to
detain appellant for further questioning. Police had received tips linking appellant
and another individual to the murder, and both suspects were found together
shortly after the crime. Appellant was visibly distraught and shaking when police
first arrived to conduct their investigation. This court has justified an investigatory
detention based on similar evidence in the past. See Kelley v. State, 807 S.W.2d
810, 814 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (―Furtive gestures can

                                          7
be a valid indicia of mens rea when coupled with reliable information or other
suspicious circumstances.‖); see also Illinois v. Wardlow, 528 U.S. 119, 124
(2000) (―[N]ervous, evasive behavior is a pertinent factor in determining
reasonable suspicion.‖); Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App.
2002) (holding that officer had reasonable suspicion to detain suspect who was
exhibiting nervous behavior in the early morning hours after reports of gun fire).
The temporary use of handcuffs did not convert the detention into an arrest, nor did
the fact that appellant was taken to a police station for questioning. See Dowthitt v.
State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (―Stationhouse questioning
does not, in and of itself, constitute custody.‖). An individual may be placed in
handcuffs for officer protection, and in this case, the officer who applied the
handcuffs even informed appellant that he was being ―detained,‖ not arrested. See
Rhodes, 945 S.W.2d at 117–18 (noting that an officer’s testimony that he was not
arresting appellant when he handcuffed him is another factor to be considered
when determining whether an arrest has taken place).

      Based on the totality of the circumstances, the record supports a finding that
appellant was detained under reasonable suspicion. He was not under arrest at the
time of his statement, and police did not require probable cause to hold him for
questioning. Accordingly, appellant cannot show a reasonable probability that the
trial court would have granted a motion to suppress based on a theory that his
statements were the fruit of an illegal arrest. Appellant’s first issue is overruled.

                         LESSER-INCLUDED OFFENSE

      In his second issue, appellant argues that the trial court erred by refusing to
instruct the jury on the lesser-included offense of manslaughter.

      We review the trial court’s decision on the submission of a lesser-included
offense for an abuse of discretion. Jackson v. State, 160 S.W.3d 568, 575 (Tex.
                                            8
Crim. App. 2005). The trial court abuses its discretion when its decision is
arbitrary, unreasonable, or without reference to guiding rules or principles. Makeig
v. State, 802 S.W.2d 59, 62 (Tex. Crim. App. 1990). Because the trial court has no
discretion in determining the applicable law, the trial court also abuses its
discretion when it fails to analyze the law correctly and apply it to the facts of the
case. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).

      We apply a two-prong test when determining whether a defendant is entitled
to an instruction on a lesser-included offense. Rousseau v. State, 855 S.W.2d 666,
672 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim.
App. 1981); Penaloza v. State, 349 S.W.3d 709, 711 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d). First, the lesser-included offense must be included within
the proof necessary to establish the charged offense. See Tex. Code Crim. Proc. art.
37.09; Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). Second, some
evidence must exist in the record that would permit a jury to rationally find that if
the defendant is guilty, he is guilty of only the lesser-included offense. Aguilar v.
State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). Courts have recognized that
manslaughter is a lesser-included offense of murder. See, e.g., Cardenas v. State,
30 S.W.3d 384, 392 (Tex. Crim. App. 2000). Thus, the first prong is satisfied.

      A person commits manslaughter if he recklessly causes the death of an
individual. Tex. Penal Code § 19.04. A person acts recklessly if he engages in
conduct and is aware of but consciously disregards a substantial and unjustifiable
risk associated with that conduct. Id. § 6.03(c). In support of his requested
instruction, appellant cites to evidence in the record affirmatively showing that
discharge of the weapon may have been reckless. However, even if his actions
were reckless, appellant admitted that the weapon was discharged during the
course of a robbery, which would preclude a rational jury from finding that he was

                                          9
guilty of only manslaughter. When a homicide is committed in the course of a
robbery, evidence of recklessness at most raises the issue of felony murder, not
manslaughter. See Ross v. State, 861 S.W.2d 870, 876 (Tex. Crim. App. 1992) (op.
on reh’g); Gadsden v. State, 915 S.W.2d 620, 623 (Tex. App.—El Paso 1996, no
pet.). Accordingly, appellant was not entitled to an instruction on manslaughter,
and the trial court did not abuse its discretion in denying his request. Appellant’s
second issue is overruled.

                                 CONCLUSION

      The judgment of the trial court is affirmed.



                                /s/           Adele Hedges
                                              Chief Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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