                 s*o-/5*
ORIGINAL
              NJo. Pp-09%>-!5

                   W 1H£"                         RECEIVED IW
                                   '           COUOTOf CliiaALAffSAB
            COijfcT OF CMMl AfffAU
             '" OF '-TEXAS       " ~               N°V "3 ""
                                                   St nwa




                        AfplkdjJm*mr                 ^^^
                     vs.

           $yJhkJLfe&L,                            Abel Acosta, Clerk


   AfSlM^xkjnnm fvfLMSjLmm&sw^

       _XrxJppmL^.J^diQOS&-CiL
                from km
             Cov/rl of Appal;
       W Wye,, fwrjln CM(tial Prs-trrcf-


                                yyo^r^A^- Umkt>
                                De/ijot/hiV\ Ew; org re
                                TDGMD No.S»«r?7?
                                k><4 SWlcW L(/rt
                                J53LJH01
                                Wf SWkh* J/ 7^735
                 TJlVtVcbf of Y(MJ\eS (MA CQvMS&l

Pwrsyg/it *o Te^.R.App. P. $kl U); fke parto Jc 4iiJ .vu/f aft QS

 Ife^AMlN £UAS wc(sS 4ve- DefeflcUit qy\j u 4i£ Art*eJUf.

 1W State of fixo^ fy giAct flu^gjo Wfexflr Ca^fy fcjfrrcf Attorns*
  OffJ7iv \0\ IAl K/i/pya Sh; 3m An\oAio/. Je*ax 7ft?QS. pfosecM fc
 J^_anoLisjkl_A|?(?.dl£^                          .           —

         Af trial : IW. Soft Koberb
                     pM-fy flji/rf af Uw hlo.il
                     fecar lOv/fl-fy TgXflJ
        ik^^sdlJ^^
               1^v//fK (Wf of Ayyefltr Jtir \tms

  for fk^kU
       Af t»r<4: %wv fW
                  Ptxar (Wfy .ftsfr/c-f Attornsf
                  l&2l£iU$lM

                  ,yyktlUUow(g/:SBOT^ 21072^

                               UlL.
               Jg^ fl4pj, sgprtt 2WQ&i75q
               AssfeW-V iWr Gd^ Pfstr/t-f ^tforne-YJ
     £U Appgot(: Srsioi A fceJ/AppellafeSeo^/i
                 fe)car Cbv/ia-H Prsfrjtf /ftforflpy
                 Um* E. Di^vi. WOT 4 2Wfcft<gG
                .Asi&WlJ^nMiWJMo^^

^cik-Ap-p-iil(?i/iLL_
          A(: trr&l:" TqiAvv J{yv\gv\^T!I
                    SgQT fr IQfefcfcSGO
                    lli^er^iK^
                        Sw AnkMio, IX 7&2Q5-

          0,a nppgal: Ay^yla X/TWre Sm#W20llO
                         Paxil i\'aov\io IWer
                         Ifli H-R/o^q Sf,; Side 3(0
                         SaA AnMyT/^fapS
    ,Uv pedlio/i k) r

       arscreKoAQrj remV: P£in]am.v\ Ufcu; pro se



                                     LV
                       TABLE" OPCOKflTMH


OIdcn/tity Of Parties Mb cn^a                                  . Mi-iv.
l)jAiL£-QB-CaMtbK/T^- .»...---                             -        V-
:^JIltZbXJ3(LA^Jm(lL^ .. •                 •>....•.......          VV
j±)„simq^lt^^                                 •-     - — -L
_s)_Sx^xem£i^_aEjjie_CAS£ - -            ..-...-...,       . ,2
Jil^lBlJE&IJ^                               •          - •- •2~
 i) fogMMftv fog fe¥l£l/\l.. • >                  -           3
_&     figOMfl. Ffl£ Rfi/lEW /WMty (M*



         .SySfoieinrW offl/l affifi^i/^ SM70r-hV)g Qmcdg/i
          kc-m-fc^tiaau •••-->-•-•--.-•••-••                       -^
dlAl^^£ilT_AlMM|L_Q^-tr -                                      - • 3-1
1^msL-MJBM              >..•-.                                      5
 ±OJ,mmaitj)£S£M\tf'.. .--..-                                     .5
 )2) AfPfAi^iX ropMCMi - . . . . . . . . . . . . . . . >         6-/2




                                   \a_
                    IMD9C OP Av/TttOftlTlB


CoseAoiA)
 0 AUroido v. SUe, £Q(W Te^f. LW ^%1..,.....,,. *•/
 ^ [WiilKm v, Skk, 2.P03 Ik. Ay?p. L&is 7055 .•.....-•••     3
 P'Mflrhrt&t v: SWe.
      "H SjaI.SJ 1911 (,Tftc.Cnm.Ap^2QQ2)......            -.4

 4) I^Jn^RT-N/.S-k-fe^
       ftl S.W. 3d 1fTfv/ff-San Adonro AM)                   f
SfaUor^i law
T^x%p,;^a)....                           _                 ...i
 ^.OfP7vZU.„                                                .3




                          VI.
                        Mo. PP-9B2Q-JS
                            IOHL
                     COiM of oMihlAL APPirALs
                          Of TfTXAS


                          pgyi\awHA bugs
                               A^(Zeilavai:/_&iiiioiae£L
                              jfi.
                       Thg/ %k op Texas',
                               Jlppxlkt/fepoj^eiit
           Appolak/t'? petitm fiat piscieeTiQi^i^Y igrviFW

tO THE OX/ET OFC^M^ALAPPrAU'..QP..TeXM:.

    Ayp4laAb/PeHKoner re^pec^CjJI^ s\/bmfo flora Petihw tor
Oisrre^QiA%Y faift^ a^d ww&$ fLrf-wis IWoraWe {Wf Artmf
revred n£ fkis Cause, Av\d offers fk Pn[|owtNAg iW SVjyoHr WQof.
                 STATQnfls/f Rg&TOlN/C OKAL AgCiMiyf


    TU App4la/l^/ fe^'f Qi^er fwgibs oral ,amv/^ihJhJMi.S—Qa^^
 \o fW js^/ps- raised.. If is Sv/^e^4gcf -fUf c?ra( arou/mMf mew.._
 Wl|? Amplify fW.tos a,\JrWrfy ^ j.ss\/es,.__                 .,

                          IU£_M
                       STAlV/yCTf OF TUFCAse


     Appella^ w rWycl fy iW)rmafiQi/i mot ariVfng ia/M^
jnfoEftaUdl,- alUya fo We feei/v cpiwmitfea i/\ Bexar Gam^ f-exaAy
Oia Orur oW
         a\pQ^T iffy
                7ika.>j ZOoil      CCft our<x,i ft).
                        6i/ a/i j. iin               Ap|^((mf pirflww
                                                t>y> /tpp^tiairtt pleAUof
                                                                       n
jj   I'lfy/ Ma frji/rv/ ^w°l ^(m y(^y ^ ™cWW of{Mse.
f3 ftlS; 5 ^ qi) to ix\ qq), Tk Irfcit cMfr assessed
 mih'isWfl^ of ,9/V rv\on^hs/ OmWuAMf ia jfl/1, a tlfioO^AQ.
 aA cmA fflfe of MUOO. toaf fO-Tk W ftfrrf fi/rfkr
 Poua(1 fka-f fHf juW^ h/ai ^-fo-kW- fe gft M^CC/^gf 60).

 buiims^

                m&mm-Q£jmmuu\i$5om-


     Ik offW op AA5 „hVi>\ft wki ei>\4oKfCaW. 1lu AffiU(M^[Ahh'o/ier
     \M rohvrrW| oPsvgIa oljiW Oia Xh& ISfl^ 20iy aU Maltd
     fk toUvfchd*. Qia Xhi. Ir^.lOlS, fk Foi/rfJA (!fl/H"~ flf /W^J
     qPfWJ fk fQM/r;t(Qtv Mfl imofib^ fir f^anm \^S hied. On


     k) fck <U fb). Tex^ flier of Aj/^lUe [WoW
      IkStafe qi^hJUd Couh-f H Of 4k ^(Qrw\o».-f»bn/yrirrii rJiflrce /WUf
       w/1(a Obsfa/(,4iih,ft a H4\waj/.(£fcftf 4)
                      J      •'•/   (fo ' f) ,7)1
                                    V2 nP |2|
                    GiWpr m        gigyiew
                             X.

  Has tk (kr4- ftp AppaiU deparfgJ (yW. tk exkblixkea
^\j[)[)or-Hng 0. wp^jm ^r ^^ kal7
                  AR&JMEMT W/ftBER QK/b

    1a XsVre, iWrciot AIvW&tJe Mfvnofmdu^ fyiVirp^ f^
Wfk Gx/pp oP Appiak skita fk Mc^W
     Ia fk aWwc-e of a (Wlopiot irPT.o.ir.c/./_to/.e^j^lLiagJi-
      as k cJtccJt, tamer k/e3 yMfi p^esvmg,.ikapjk
      aoboiQ? M>f£ \a\®v\as oaA of a. ^kakgrc pUi -k
      fepf&S&iAJa/ip, fk cW-L ' Sp£ AW-(Qp.^
WkaP lk Owrf o^rloflk rs tk fixcf fkf App^H^k/ re-i-diot^r
ftgilLciMLJlS^^

flppeJUi/^f^^
JkR.^. P. Ill* iWlk. ^K ^°3 W                            ^ 10g
Sard yy\okA was swkm;lkol k tyv_- clerk (?f -fkCQ(/rf/o/tskrcf :
 kas Pegft whoify disregarded! fcr realms nof i/Mok ojpar i?y fk
      l^hM—aiAuic^




 ktoA^GI^
 2GQ2)^&J^^
 lO^lJlhu^
 keaciw^^d^^^
 joLdisoidi^^
      foriW^tk-tt^^
   fk Cowrie fiUiAy. HeflGfe, fk CQtyrf pPyir ia/q.Jc( f»M, kd
 more, •-Wflt/i a scinfiHa oP evrcteiAce k base fkei'r (ktisroty fin aw
 wPaAJ ftfrt kayfr IaqJ fo s^a/lafe
     lkiWhjo(LA|?^^
PetikiApr rii/iaters fka-f sard rmri \s uinienje^Jopfd ewe fo
ai/LaWs^ol^
:tkLr_jlkv^^
fynm ^k Gx/Hr of- Gr.Vv^al Appmtr oPTkar riearfy fpfferfc

coyi?iskyvV iA/iVk fk (Wis Pfe.wQUS fJiAas,


                                [H '»(? 121
                      IM9LMM&L

    JicJUiOf&S^^




                                                  .SvJ  Wtfceet.
                                   Dei/hamiyi
                                     ai
                                                Qm^p£S_se_
                                   tporip M>.wr?y

                                   i£2GJd(Lfc
                                    [^rf SfockfQ^Y 1kar 7^735

                       ChfcTiRfATr of skewer


r
     I   .'   ..L -   P »(     (     _.. I 0    .., v      A    //      A r<<.




    csJbidLAttotfi^^

limk/fe^
jk_Lfljo[^...^• ^(yVyil .^ syk'tfl fk Coi/rt- oP (WW A^epeajr
.c___^__JLaJd^^
had (ml [Q(?Y .of sfoj. Pflkw-.                                J^ga&k ^^
                             :£_o£__lil                        pCAjaty\L\AjM(0[S(ofose
LAiA f^S
      *Vi'gi'not   ____f_u_______ ___2)_   CimoWgw   _____




  AjjMQ4 fauidJ^L-kdkCoiifkolkWiLcA.             S

     See GrPi"Vacate af Wyfce




                   V of I*)
                               JfourtJ) Court of ®ppml#
                                      £>m &ntomo, ^exas;
                                  MEMORANDUM OPINION

                                         No. 04-14-00498-CR

                                           Benjamin ELIAS,
                                              Appellant

                                                  v.



                                         The STATE of Texas,
                                              Appellee

                     From the County Court at Law No. 12, BexarCounty, Texas
                                        Trial Court No. 427052
                               Honorable Scott Roberts, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: June 3,2015

AFFIRMED


           Following a single car accident, Appellant Benjamin Elias was arrested for driving while

intoxicated. The jury returned a verdict of guilty and the trial court assessed punishment at six

months' confinement in the Bexar County Jail and a $2,000.00 fine. In his sole issue on appeal,

Elias contends he received ineffective assistance of counsel based on trial counsel's failure to

pursue a pre-trial motion to suppress. We affirm the trial court'sjudgment.




                                       Cl of 1^1
                                                                                       04-14-00498-CR



                             Ineffective Assistance of Counsel

A.      Standard of Review


       In order to establish that trial counsel rendered ineffective assistance, Elias must "establish

two components by a preponderance of the evidence: deficient performance of trial counsel and

harm resulting from that deficiency that is sufficient to undermine the confidence in the outcome

of the trial." Exparte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)); accord Menefield v. State, 363 S.W.3d 591, 592 (Tex.

Crim. App. 2012). To establish the first prong, deficient performance, Elias must prove that his

attorney's performance '"fell below an objective standard of reasonableness' under prevailing

professional norms and according to the necessity of the case." Exparte Moore, 395 S.W.3d at

157 (quoting Strickland, 466 U.S. at 687-88). To establish harm, Elias "must demonstrate that he

wasprejudicedby his attorney's performance or that 'there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at

158 (citations omitted) (quoting Strickland, 466 U.S. at 694).

       "An appellate court looks 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). "There is a strong presumptionthat counsel's conduct

fell within the wide range of reasonable professional assistance." Id. Therefore, Elias '"must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.'" Exparte Moore, 395 S.W.3d at 157 (quoting Strickland, 466

U.S. at 689).

       "A substantial risk of failure accompanies an appellant's claim of ineffective assistance of

counsel on direct appeal." Thompson, 9 S.W.3d at 813. "In the majority of instances, the record

on direct appeal is simply undevelopedand cannot adequately reflect the failings of trial counsel."

                                                -2-


                                           j> of yi]
                                                                                         04-14-00498-CR



Id. at 813-14. "[Tjrial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107,111 (Tex. Crim. App.

2003).

         In the absence of a developed record, we will not "speculate as to the reasons why trial

counsel acted as he did, rather [we] must presume that the actions were taken as part of a strategic

plan for representing the client." Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San

Antonio 2010, pet. ref d). Moreover, an "appellate court should not find deficient performance

unless the challenged conduct was 'so outrageous that no competent attorney wouldhaveengaged

in it.'" Menefield, 363 S.W.3d at 593 (quoting Goodspeedv. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005)).

B.       Arguments of the Parties

         Elias contends that his trial counsel committed unprofessional errors by failing to pursue a

pretrialmotionto suppressevidenceobtainedfrom an allegedlyillegal arrest,based on the officer's

erroneous and unreasonable belief that Elias was intoxicated at the scene of the accident.

         The State counters that Elias failed to establish that counsel's performance was deficient

or that there is a reasonable probabilitythe motion to suppress wouldhave been granted.

C.       Analysis

         At the onset, we note that "[t]he failure to file pre-trial motions is not categorically deemed

ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as

part of his trial strategy." Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001,

pet. refd); see also Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991) (reiterating

trial "[c]ounsel is not required to engage in the filing of futile motions"). Rather, to satisfy the

Strickland test and prevail on an ineffective assistance claim premised on counsel's failure to file

a motion to suppress, Elias was required to show, by a preponderance of the evidence, that the

                                                  -3-


                                              ~<\ of W]
                                                                                     04-14-00498-CR



motion to suppress would have been granted and that the remaining evidence would have been

insufficient to support hisconviction. See Jackson v. State, 973 S.W.2d 954,957 (Tex. Crim. App.

1998); accord Carmen v. State, 358 S.W.3d 285, 295 (Tex. App.—Houston [1st Dist] 2011, pet.

refd). This requirement includes producing sufficient evidence to defeat the presumption of

proper police conduct. Jackson, 973 S.W.2d at 957; accord Carmen, 358 S.W.3d at 295.

        We therefore turn to an analysis of the'record.

        1.         Testimony at Trial

        The jury heard two days of testimony from multiple witnesses, including three different

police officers.

        San Antonio Police Officer Matthew Flores testified that he came across the scene of the

accidentat approximately 3:30 in the morning on May 24, 2013. OfficerFlores noted significant

damage to the vehicle, but Elias did not appear to be injured. According to Officer Flores, there

were no other vehicles in the vicinity and no other individuals at the scene.

        Officer Gary Nel testified that he drove up shortly after the accident and Elias's vehicle

was blocking oncoming lanes of traffic. Officer Nel did not see Elias drive the vehicle, but he did

"[observe Elias] walking from the driver's side door towards the barrier on the right-hand side [of

the vehicle]." Officer Nel did not see any ether individuals or vehicles at the scene and Elias did

not mention any people involved in the accident. Additionally, Officer Nel testified that an

arrogant Elias reported he was run off the road by another vehicle, but Elias could not provide

either a make, model, or color of the other vehicle.

        The next officer called to testify was Officer Chad Bendele. Officer Bendele testified that

he was called to the accident scene based on Officer's Nel's suspicion of Elias's ingestion of

intoxicants. Officer Bendele reported Elias was very confused as to his location, where he had

been, and where he was headed. After several questions, Elias acknowledged spending the last



                                           (10 of 12-3
                                                                                      04-14-00498-CR



several hours at the Thirsty Horse Bar. Elias, however, did not know how much he had consumed.

Officer Bendele testified that Elias had a strong odorof intoxicants, slurred speech, andbloodshot,

glassy eyes.

       Officer Bendele explained to Elias his right to refuse the field sobriety tests, but Elias was

cooperative and agreed to perform the tests. Officer Bendele testified that Elias exceeded the

allowable markers on the horizontal gaze nystagmus, the walk and turn test, andthe one-leg stand.

He also testified that Eliasagreed to provide a breath specimen. This test was laterinterpreted by

State's witness Debbie Stephens—who testified Elias's first specimen registered a blood alcohol

concentration of 0.14 and his second registered a 0.129.

       2.      Alleged Defects byDefense Counsel

       Elias points to trial counsel's failure to pursue a pretrial motion. Our analysis, however, is

conducted based on a review of the entire record. See Thompson, 9 S.W.3d at 813. The record

reflects that defense counsel conducted extensive voir dire and cross-examination of all the

witnesses during two days of trial. Elias's complaints about the video and lack of physical

evidence were all addressed during the cross-examinations.

       In a hearing on a motion to suppress, "the trial court is the sole trier of fact and judge of

the credibility of the witnesses and the weight to be given their testimony." State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000). Therefore, just like the jury, the trial court could have

reasonably resolved the conflicting testimony in favor of the State. See id. at 855-56. Elias

therefore failed to show the motion to suppress would have been granted. The fact that other

counsel may have tried the case differently does not show ineffective assistance. See Bonev. State,

77 S.W.3d 8.28, 833 (Tex. Crim. App. 2002).

       This court is bound by the strong presumption that defense counsel's conduct was

reasonable and professional and could be considered sound trial strategy. Id. Trial counsel's



                                            [Uoft&l
                                                                                     04-14-00498-CR



reasons for not pursuing the motion to suppress are not firmly founded in the record and we will

not engage in retrospective speculation. Id. at 835; Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994) (holding appellate court will not indulge in speculation concerning trial

counsel's decision-making process); see also Ex parte Moore, 395 S.W.3d at 157. We presume

that trial counsel exercised reasonable professional judgment inexercising a decision not topursue

a pretrial motionto suppress, and we do not speculateas to counsel's reason for that decision. See

Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. refd)

(involving anineffective assistance ofcounsel claim for failure tofile a pretrial motion to suppress

evidence relatedto officer's traffic stop).

                                              Conclusion


       Upon review ofthe entire record, weconclude Eliasfailed to affirmatively demonstrate his

ineffective assistance of counsel claim. Ex parte Moore, 395 S.W.3d at 157; Menefield, 363

S.W.3d at 592; Jackson, 973 S.W.2d at 957; accord Carmen, 358 S.W.3d at 295. More

specifically, Elias failed to demonstrate that a motion to suppress would have been successful.

Likewise, given that the officer's testimony supports reasonable suspicion for making the arrest,

Elias failed to demonstrate that the outcome of trial probably would have been different had his

trial counsel pursued a motion to suppress. See Carmen, 358 S.W.3d at 295.

       Because we conclude that Elias failed to show counsel's performance was deficient, we

need not address prejudice. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

Accordingly, we overrule Elias's claim of ineffective assistance of counsel.


                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




                                                 -6-


                                              [\2 oP 12]
1 -<• > i                                                      £3- o g

                                                                 3"" H:3>



                                                                -•51:



                                                                        °v



                     r   -




            ->   c__> }r~5 o   5>

            *    2       $• T~ 7~



            Ss1




                                          J . •r'7//////k/.i


                                    \ „^ •, :• mi illiliilii
