Opinion issued August 30, 2016




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
           NOS. 01-15-00102-CR, 01-15-00103-CR, 01-15-00104-CR
                             ———————————
                  BRODRICK MICHAEL JAMES, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 149th District Court
                            Brazoria County, Texas
                   Trial Court Case Nos. 74207, 74208, 74209


                                   OPINION

      Appellant Brodrick Michael James pleaded guilty to three felony indictments

for delivery of a controlled substance.1 After a nonjury trial on punishment, the court

sentenced James to 45 years in prison on each count, to run concurrently.


1
      TEX. HEALTH & SAFETY CODE § 481.112(d).
      James appealed. He asserts that the trial court erred by refusing his request,

on the day of trial, for additional time to allow him to retain a new attorney. He also

contends that the court erred by admitting into evidence an audio recording of an

inadvertent “pocket-dialed” phone call placed to an undercover investigator. Finally,

he argues that his counsel rendered ineffective assistance by failing to assert that the

recording of the “pocket-dialed” phone call was illegal under the Fourth Amendment

and the Texas wiretap statute.

      We affirm.

                                     Background

      On three separate occasions, appellant Brodrick Michael James sold

methamphetamine to Officer M. Salinas, an undercover investigator working with

the narcotics task force of the Brazoria County Sheriff’s Office. Salinas recorded

phone calls from James regarding sales of controlled substances, and these

recordings were admitted into evidence at trial without objection.

      Salinas subsequently met James to discuss a potential cocaine sale. Another

undercover officer showed James that he had cocaine. James offered to buy two

kilograms of cocaine, and he called Salinas later that day to confirm the buy. Shortly

thereafter, Salinas received another phone call when James inadvertently pocket-




                                           2
dialed him from a Subway sandwich shop, where he was visiting with a female friend

and her children.2

      Salinas recorded both phone calls. When he received the second call, he

recognized James’s phone number and voice. Salinas also heard a female voice.

James told the woman that he planned to take the cocaine at gunpoint and kill

Salinas. The woman urged James not to kill Salinas. Upon hearing this recorded

conversation, the narcotics task force ended its interaction with James and

immediately arrested him.

      James was charged with possession of methamphetamine with intent to

distribute, in three separate indictments corresponding to three separate sales he

made to Salinas. Because he was indigent, counsel was appointed to represent him.

However, on the day of trial, he informed the court and his appointed counsel that


2
      To “pocket-dial” is to “inadvertently call (someone) on a mobile phone in
      one’s pocket, as a result of pressure being accidentally applied to a button or
      buttons        on       the       phone.”        OXFORD         DICTIONARIES,
      http://www.oxforddictionaries.com/us/definition/american_english/pocket-
      dial?q=pocket+dial (last visited Aug. 24, 2016, copy in case file); see also
      Huff v. Spaw, 794 F.3d 543, 556 (6th Cir. 2015) (“The term ‘pocket-dial’
      refers to the accidental placement of a phone call when a person’s cellphone
      ‘bump[s] against other objects in a purse, briefcase, or pocket.’”). In his
      testimony, Officer Salinas actually used a cruder (though perhaps more
      ubiquitous) version of the colloquialism, referring to this incident as a “butt
      dial.” See OXFORD DICTIONARIES, http://www.oxforddictionaries.com/
      us/definition/american_english/butt-dial?q=butt+dial (last visited Aug. 24,
      2016, copy in case file) (defining a “butt dial” as “An inadvertent call made
      on a mobile phone in one’s rear pants pocket, as a result of pressure being
      accidentally applied to a button or buttons on the phone”).

                                         3
his family had acquired some money and that he wanted to hire an attorney. He said

that his family was meeting with an attorney that same day, and that he knew “for

sure that they’re going to hire him.” He asked for “a little bit of time” to engage an

attorney because he did not “feel comfortable going to trial with the court-appointed

lawyer.” The judge stated that his appointed counsel was “a good lawyer” who “does

a good job,” and the request was denied.

      The court later held a hearing on punishment, and in addition to recordings of

phone calls relating to each of the three methamphetamine transactions, the State

offered into evidence the audio recording of the pocket-dialed call in which James

spoke of robbing and killing Salinas. Defense counsel objected to the admission of

the pocket-dialed recording, but the trial court overruled the objections and admitted

the recording.

      The court assessed punishment at 45 years in prison for each offense, and

James appealed.

                                      Analysis

      On appeal, James argues that the trial court erred by denying his right to

counsel of his choosing. He challenges the admission of the recording of the pocket-

dialed phone call. Finally, James argues that he received ineffective assistance of




                                           4
counsel during the punishment hearing because his attorney did not make the proper

objections to the admission of the audio recording.3

I.    Denial of continuance to retain and substitute defendant’s choice of
      counsel

      James argues that the trial court violated his Sixth Amendment right to be

represented by counsel of his choosing. On the day of trial, James told the court that

he did not “feel comfortable” going to trial with the court-appointed attorney, but he

did not explain why. The trial setting had been scheduled over three months earlier,

and James had been waiting in jail for “going on six months.” He told the trial judge

that his family “recently” had acquired “a substantial amount of money” enabling

them to retain an attorney, and that they would be meeting with an attorney that very

day. James said, “I know for sure that they’re going to hire him,” and he asked for

“a little bit of time” to engage the new lawyer.

      “The right to counsel of one’s choice is not absolute, and may under some

circumstances be forced to bow to ‘the general interest in the prompt and efficient

administration of justice.’” Rosales v. State, 841 S.W.2d 368, 374 (Tex. Crim. App.

1992) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). For



3
      In an additional issue, James challenged the certification of his right to appeal.
      The State agreed that the certification was defective, and the trial court has
      since corrected it. See TEX. R. APP. P. 25.2, 34.5(c), 37.1; Dears v. State, 154
      S.W.3d 610, 613 (Tex. Crim. App. 2005).


                                           5
example, “an accused may not wait until the day of trial to demand different counsel

or to request that counsel be dismissed so that he may retain other counsel.” Webb

v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). The denial of a continuance

resulting in an appellant claiming a deprivation of his counsel of choice is reviewed

for abuse of discretion. See Rosales, 841 S.W.2d at 374.

      Despite conceding in his brief that “a defendant in a criminal case may not

switch counsel at the last minute or do anything to manipulate or delay the trial

through his choice of counsel,” he nevertheless asserts that his request for a “little

bit of time” to hire a new attorney was “unreasonably and arbitrarily denied.” His

brief does not discuss the nonexclusive factors outlined by the Court of Criminal

Appeals to inform a decision whether to grant a continuance due to the absence of

counsel of defendant’s choice:

      (1) the length of delay requested; (2) whether other continuances were
      requested and whether they were denied or granted; (3) the length of
      time in which the accused’s counsel had to prepare for trial; (4) whether
      another competent attorney was prepared to try the case; (5) the
      balanced convenience or inconvenience to the witnesses, the opposing
      counsel, and the trial court; (6) whether the delay is for legitimate or
      contrived reasons; (7) whether the case was complex or simple;
      (8) whether the denial of the motion resulted in some identifiable harm
      to the defendant; and (9) the quality of legal representation actually
      provided.

Id. (quoting Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim. App. 1982) (en

banc)).




                                          6
      Considering these factors as applied to this case, we observe that: (1) James

did not specify the length of delay he sought, which he characterized as a “little bit

of time” to retain new counsel; (2) no prior motions for continuance had been filed;

(3) appointed counsel had represented James for approximately four months; (4) no

other attorney had been engaged or was prepared to try the case, and James waited

until the day of trial to attempt to replace his appointed counsel; (5) the trial setting

had been in place for over three months and appointed counsel and the State were

ready for trial, but the record is otherwise silent as to the balance of convenience to

the witnesses, counsel, and the trial court; (6) the stated reason for the delay in

seeking to retain counsel was that James’s family had recently acquired funds to hire

an attorney, but there was no specific objection to James’s lawyer who was ready to

try the case; (7) although the charges were serious, the case was not particularly

complex; (8) the record does not show that the court’s denial of the request for “a

little time” resulted in any identifiable harm to James; and (9) despite James’s

allegation of ineffective assistance of counsel, addressed below, his appointed

attorney had adequate time to prepare for trial, locate and present witnesses, and

cross-examine the State’s witnesses on his behalf.

      Some of these factors weigh in favor of granting the requested continuance,

such as the fact that there had been no prior delays. However, the record supports

the conclusion, implied from the trial court’s ruling denying the continuance, that



                                           7
most of the factors favored that determination, particularly the timing of the request

(morning of trial) and the absence of specific complaints about the appointed lawyer

(who was prepared to try the case that day) or specific reasons for substituting a new

lawyer (who had not yet been retained). Accordingly, we conclude that the court

acted within its discretion to deny the request for “a little time” to retain a new

lawyer, which was made on the day of trial, and we overrule this issue. See id.; see

also Webb, 533 S.W.2d at 784.

II.   Admission of pocket-dialed phone call into evidence

      James argues that the trial court erred by admitting into evidence the audio

recording of the pocket-dialed phone call to Officer Salinas. After the undercover

agents “flashed” a kilogram of cocaine in a meeting with James, he agreed to buy

two kilos. Salinas testified that afterwards he recorded a phone call in which James

confirmed the transaction. After James “hung up the phone,” he “called back” while

Salinas’s recorder was still running. Salinas testified without objection that when he

listened to the recording, he heard James “talking about meeting back up, as far as

purchasing the kilograms, but said he was going to rip us off and pull out his gun

and . . . when he draws down on me, then it was going to be time to kill.” Salinas

testified that to “draw down” means to “pull a gun on somebody.” He further testified

that he heard a female voice respond, saying “is it really worth my life killing

somebody else. ‘My life’ meaning me, my life.”



                                          8
      The State then offered the recording into evidence. Defense counsel objected

to the recording on the grounds that the State had failed to lay a proper predicate

because the witness had “no personal knowledge,” and that the probative value of

the evidence was outweighed by its prejudicial effect. Counsel also likened the

interception of the phone call to eavesdropping on a private conversation.

      On appeal, James argues that the audio recording of his conversation was

obtained in violation of the Fourth Amendment and the Texas wiretapping statute,

Penal Code section 16.02. However, at the time the recording was offered into

evidence, Salinas already had testified without objection that James could be heard

on the audio recording planning to rob and kill the undercover narcotics officers. To

preserve error, a defendant must make a timely objection in the trial court, and to the

extent the substance of the challenged evidence already had been admitted without

objection, James’s objections were waived. See, e.g., TEX. R. APP. P. 33.1; Valle v.

State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).

      Moreover, to preserve error for appellate review, the issue on appeal must

comport with the objection made at trial. Clark v. State, 365 S.W.3d 333, 339 (Tex.

Crim. App. 2012). Even constitutional errors may be waived if a party fails to

properly object at trial. Id. When “the correct ground for an objection is obvious to

the judge and opposing counsel, no waiver results from a general or imprecise

objection.” Id. (citing Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App.



                                          9
1977)). Rather, to avoid waiver of an appellate issue, a party must let the trial judge

know what he wants and why he thinks he is entitled to it, and he must do so clearly

enough for the judge to understand him at a time when the judge can do something

about it. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). “In

determining whether a complaint on appeal comports with a complaint made at trial,

we look to the context of the objection and the shared understanding of the parties

at the time.” Clark, 365 S.W.3d at 339 (citing Lankston v. State, 827 S.W.2d 907,

911 (Tex. Crim. App. 1982) (en banc)).

      When defense counsel objected at trial, she specifically stated: “We would

object to State’s Exhibit No. 9. One, on predicate, that he has no personal

knowledge.” This objection has been abandoned on appeal. Trial counsel then stated:

“This was, by [Salinas’s] own admission, an accidental phone call that was

intercepted, similar to someone eavesdropping on a private conversation.” The

objection at trial mentioned nothing about the wiretapping statute or the Fourth

Amendment. The record does not demonstrate that it was “obvious to the judge and

opposing counsel” that counsel’s analogy to “eavesdropping” was intended to

suggest a legal objection based on the wiretapping statute, which was never

mentioned. The Fourth Amendment was never mentioned, either directly or

indirectly. Accordingly, we conclude that this issue is waived because the objections




                                          10
made at trial were not timely made and do not comport with the arguments on appeal.

See TEX. R. APP. P. 33.1(a)(1); Clark, 365 S.W.3d at 339.

III.   Ineffective assistance of counsel

       In his final issue, James argues that he received ineffective assistance of

counsel because his trial counsel failed to object to the admission of the audio

recording of the pocket-dialed phone call, on the basis that it violated the Fourth

Amendment and the Texas wiretap statute.

       Claims that a defendant received ineffective assistance of counsel are

governed by the standard announced by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland mandates

a two-part test: (1) whether the attorney’s performance was deficient, i.e., whether

counsel made errors so serious that he or she was not functioning as the “counsel”

guaranteed by the Sixth Amendment, and if so, (2) whether that deficient

performance prejudiced the party’s defense. 466 U.S. at 687, 104 S. Ct. at 2064.

“The defendant has the burden to establish both prongs by a preponderance of the

evidence; failure to make either showing defeats an ineffectiveness claim.” Shamim

v. State, 443 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)

(citing Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)). The adequacy

of attorney performance is judged against what is reasonable considering prevailing

professional norms. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. There is a strong



                                           11
presumption that, considering the circumstances, a lawyer’s choices were reasonably

professional and motivated by sound trial strategy. Id. at 689, 104 S. Ct. at 2065;

Nava v. State, 415 S.W.3d 289, 307–08 (Tex. Crim. App. 2013). In the face of this

presumption, a criminal defendant has the burden of showing by a preponderance of

the evidence that his attorney failed to provide constitutionally adequate

representation. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

      “When an ineffective assistance claim alleges that counsel was deficient in

failing to object to the admission of evidence, the defendant must show, as part of

his claim, that the evidence was inadmissible.” Ortiz v. State, 93 S.W.3d 79, 93 (Tex.

Crim. App. 2002). Article 38.23 of the Code of Criminal Procedure prohibits the use

at trial of evidence obtained in contravention of state or federal law, the U.S.

Constitution, or the Texas Constitution. TEX. CODE CRIM. PROC. art. 38.23(a). Thus,

if the audio recording was obtained in violation of the Constitution or a statute, then

it would be inadmissible. However, if the audio recording was admissible, then the

first prong of Strickland would not be satisfied.

      We look to “the totality of the representation and the particular circumstances

of each case in evaluating the effectiveness of counsel.” Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). Viewing the totality of the representation in this

case provides particularly important context to the ineffective assistance claim. In

the course of presenting evidence of the three drug transactions that were the basis



                                          12
of the charges, Officer Salinas testified that he recorded telephone calls with James

“as part of the investigation.” For each of those three transactions, the State offered

into evidence recordings of telephone conversations between Salinas and James. In

each instance, defense counsel made no objection to the evidence. All of these

recordings were entered into evidence before the State offered to admit the recording

of the pocket-dialed call.

      The unlawful interception of an oral communication is prohibited by Penal

Code section 16.02(b). However, it is an affirmative defense to prosecution under

that provision that “a person acting under color of law intercepts . . . a wire, oral, or

electronic communication, if the person is acting under the authority of

Article 18.20, Code of Criminal Procedure.” TEX. PENAL CODE § 16.02(c)(3)(B).

Article 18.20 authorizes a judge to “issue an order authorizing interception of wire,

oral, or electronic communications only if the prosecutor applying for the order

shows probable cause to believe that the interception will provide evidence of the

commission of” certain offenses, such as certain felonies under Health and Safety

Code Chapter 481, including those committed by James. TEX. CODE CRIM. PROC.

art. 18.20, § 4(2)(A).

      “An ineffective-assistance claim must be firmly founded in the record and the

record must affirmatively demonstrate the meritorious nature of the claim.”

Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). In this case, James



                                           13
does not contend, and the record does not establish, that in the course of the

investigation, neither Salinas nor any other member of the narcotics task force

obtained an order authorizing the recording of phone conversations with James as

evidence of the drug sales made to undercover police officers.

      The record is also silent as to trial counsel’s reasons for failing to make a

Fourth Amendment or wiretapping objection. If it were the case that the police

actually had complied with the procedural rules for obtaining authorization to record

phone conversations with James, and defense counsel knew that, it would explain

why counsel did not object to the recording of the pocket-dialed call, or any of the

other recordings, as illegally intercepted oral communications.

      With respect to a Fourth Amendment objection, the pocket-dialed call is

different from the other recorded calls to the extent it was inadvertent, as opposed to

an intentional phone communication. James argues that the Fourth Amendment

safeguards an individual’s legitimate privacy expectation from “unreasonable

governmental intrusions,”4 and from that premise he reasons that evidence “obtained

by governmental intrusion” can be challenged if a defendant “had a legitimate

expectation of privacy in the place invaded.”5 He contends he had a reasonable


4
      E.g., Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993).
5
      See Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 430 (1978); see also
      Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 2042 (2001) (even in


                                          14
expectation of privacy “in a private conversation with another individual without

governmental eavesdropping and recording of that conversation.”

      James does not present any legal argument, however, to support his assumed

premise that the challenged evidence in this case resulted from an unreasonable

governmental “intrusion” prohibited by the Fourth Amendment, instead relying

solely on the contention that he had a reasonable expectation of privacy in his

conversation. Yet the record is undeveloped with respect to the reasonableness of

his privacy expectations6 and whether the circumstances permitted the officer to


      the absence of a trespass, “a Fourth Amendment search occurs when the
      government violates a subjective expectation of privacy that society
      recognizes as reasonable”). James presents no argument that he was subjected
      to an unconstitutional physical intrusion. See, e.g., Silverman v. United States,
      365 U.S. 505, 510, 81 S. Ct. 679, 682 (1961) (distinguishing permissible
      police eavesdropping which “had not been accomplished by means of an
      unauthorized physical encroachment within a constitutionally protected area,”
      with impermissible warrantless physical intrusion of a “spike mike” that made
      physical contact with a heating duct serving a house under police
      investigation).
6
      Cf. Huff, 794 F.3d at 551 (observing that “a person exposes his activities and
      statements, thereby failing to exhibit an expectation of privacy, if he
      inadvertently shares his activities and statements through neglectful use of a
      common telecommunication device,” noting that the pocket-dialer admitted
      his awareness of the risk of inadvertent pocket-dialed calls). As Justice Alito
      recently observed, this is not a simple or static analysis:

            Dramatic technological change may lead to periods in which
            popular expectations are in flux and may ultimately produce
            significant changes in popular attitudes. New technology may
            provide increased convenience or security at the expense of


                                         15
listen to or record the exposed conversation without offending the Fourth

Amendment.7

      In the face of a sparse record and thin legal analysis supporting the allegation

of ineffective assistance, we observe that the record does show that the recorded

conversation was not exposed by any intrusive investigative police tactics, but

instead by operation of an electronic device under James’s own control. Officer

Salinas was investigating James’s criminal drug activity. The two had just finished

a telephone conversation about a proposed sale of cocaine, when Salinas received an

incoming telephone call that he testified he recognized as coming from James, the

suspect under investigation. At the moment he answered, Salinas had no way of

knowing that it was not an intentional call following up on the planned drug sale, as




             privacy, and many people may find the tradeoff worthwhile. And
             even if the public does not welcome the diminution of privacy
             that new technology entails, they may eventually reconcile
             themselves to this development as inevitable.

      United States v. Jones, 132 S. Ct. 945, 962 (2012) (Alito, J., concurring); see
      also Note, 129 HARV. L. REV. 1436, 1440 (2016) (observing that the Supreme
      Court recently “found longstanding precedent inapplicable given the personal
      privacy interests implicated by and the sheer ubiquity of the modern cell
      phone”) (citing Riley v. California, 134 S. Ct. 2473, 2484–85 (2014)).
7
      Cf. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516 (1967)
      (Harlan, J., concurring) (“conversations in the open would not be protected
      against being overheard, for the expectation of privacy under the
      circumstances would be unreasonable”).


                                         16
opposed to an unintentional “pocket dial.” James does not suggest that the Fourth

Amendment prohibited Salinas from answering his phone, and he presents no legal

analysis to establish why the Fourth Amendment would require the officer to

terminate the phone call upon the realization that a suspect might be exposing,

carelessly but unintentionally, evidence of his criminal plan.

      Limitations of the record often render a direct appeal inadequate to raise a

claim of ineffective assistance of counsel. See Goodspeed v. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005). Often, “the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions.” Mallett v.

State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Ordinarily, trial counsel should be

“afforded an opportunity to explain his actions before being denounced as

ineffective.” Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).

We conclude that the record in this case does not affirmatively demonstrate the

meritorious nature of the ineffective-assistance claims. See Menefield, 363 S.W.3d

at 592. Accordingly, we overrule James’s final issue on appeal.




                                         17
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Chief Justice Radack, Justice Massengale, and Justice Brown.

Publish. TEX. R. APP. P. 47.2(b).




                                        18
