



ex parte owens                                                      



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-92-491-CR



EX PARTE: LEX DALE OWENS,


	APPELLANT

 


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 100,707, HONORABLE JON N. WISSER, JUDGE PRESIDING

 


	Appellant, Lex Dale Owens, appeals from a district-court order, rendered following
a hearing on his post-conviction application for writ of habeas corpus, denying his request for a
new trial based on claims of ineffective assistance of counsel.  We will affirm the district court's
order.


FACTUAL AND PROCEDURAL BACKGROUND
	On October 20, 1989, Austin police officers James Wolsch and Richard Gauldin
were at the Robert Mueller Airport in Austin, screening luggage with a narcotics-detection dog. 
The dog "alerted" on a suitcase with a name tag reflecting "Lex Owens."  Officer Gauldin
initialed the claim check, and the bag was forwarded to the baggage-claim area.  After appellant
retrieved the suitcase in the baggage-claim area, both officers spoke with him and requested
permission to search the suitcase.  Appellant refused.  Thereafter, Officer Wolsch informed
appellant that he intended to obtain a search warrant for the suitcase.  Appellant was instructed
to accompany the officers to an office at the airport while a warrant was obtained.
	After the search warrant was obtained, officers searched appellant's suitcase and
discovered marihuana.  Appellant was placed under arrest.  Incident to appellant's arrest, the
officers searched his carry-on bag and discovered tablets, later identified as "ecstasy," a form of
methamphetamine.  Appellant was later indicted for possession of this controlled substance.
	In October 1990, a jury found appellant guilty of possession of a controlled
substance; the district court sentenced him to six years' confinement, probated, and a $3000 fine. 
Appellant failed to timely perfect an appeal from this conviction.  Subsequently, appellant filed
in the district court his application for writ of habeas corpus, in which he argued that he was
denied effective assistance of counsel at trial and requested a new trial.  After issuing the writ and
conducting a hearing, the district court denied appellant's requested relief for a new trial and,
instead, granted appellant an out-of-time appeal.  Feeling that an out-of-time appeal would not
allow him to develop the record he needs to prove his ineffective-assistance-of counsel claim,
appellant appeals from this order.  We will affirm the order.


DISCUSSION

 In a single point of error, appellant complains that he should be granted a new trial
because he received ineffective assistance of counsel at trial.  Appellant asserts that his trial
counsel made two related errors that constitute ineffective assistance.  First, his counsel did not
object when the prosecution elicited testimony regarding appellant's refusal to allow the police to
search his bags for drugs.  Second, his counsel did not object to the prosecutor's jury argument
that asked the jury to consider appellant's refusal to consent to a search as evidence of knowledge
of possession of a controlled substance.  Appellant contends that his trial counsel's ignorance of
the law regarding the use of a defendant's refusal to consent as evidence of guilt led to these
errors and constitutes ineffective assistance of counsel.
	Initially we note that appellant has the burden to prove that counsel's assistance was
ineffective.  Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).  An ineffective-assistance claim is evaluated under the well-established two-prong test articulated in Strickland
v. Washington, 466 U.S. 668 (1984), which requires appellant to demonstrate (1) that counsel's
representation was deficient, in that counsel made such serious errors that counsel was not
functioning effectively as the counsel constitutionally guaranteed to a criminal defendant; and (2)
that the deficient performance prejudiced the defense such that appellant was deprived of a fair
trial.  Id. at 687; see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)
(adopting Strickland test).
	The State contends that the appropriate standard for appellate review of the district
court's determination of this ineffective-assistance claim is a "clearly erroneous" standard.  We
disagree.  A district court's underlying factual findings are reviewed based on such a standard. 
Sterling v. State, 681 S.W.2d 680, 683 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd).  On
the ultimate issue of whether the representation accorded appellant by counsel passes constitutional
muster, however, we must make an independent determination, because the inquiry under both
the deficiency and prejudice prongs of the Strickland test constitute mixed questions of fact and
law.  Martin v. McCotter, 796 F.2d 813, 817 (5th Cir. 1986), cert. denied, 479 U.S. 1057
(1987); Ricalday v. Procunier, 736 F.2d 203, 206 (5th Cir. 1984); Vela v. Estelle, 708 F.2d 954,
961 (5th Cir. 1983), cert. denied, 464 U.S. 1053 (1984).
	Under the first prong, the defendant must show that counsel's representation fell
below an objective standard of reasonableness based on prevailing professional norms. 
McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992).  Under this standard, "a
criminal defense lawyer must have a firm command of the facts of the case as well as governing
law."  Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).  The Strickland
standard, however, "has never been interpreted to mean that the accused is entitled to perfect or
errorless counsel."  McFarland, 845 S.W.2d at 843.  Appellant bears a heavy burden to prove
his ineffective-assistance claim.  Counsel is strongly presumed to have provided adequate
assistance and to have made all significant decisions in the exercise of reasonable professional
judgment.  Strickland, 466 U.S. at 690.  We must not look at the errors of counsel in a vacuum. 
As a general rule, isolated instances in the record reflecting errors of omission or commission do
not necessarily render counsel's representation ineffective.  McFarland, 845 S.W.2d at 843. 
Rather, counsel's performance is to be judged by the "totality of representation" provided.  Id.;
Strickland, 466 U.S. at 690.  
	Judging counsel's performance in the present case based on this standard, it appears
that although counsel failed to object to testimony and argument regarding appellant's refusal to
consent, counsel performed adequately in all other aspects of representation.  The record reflects
that appellant's trial counsel attempted to suppress evidence of the methamphetamine and
succeeded in suppressing testimony regarding statements made by appellant after he was in police
custody; trial counsel repeatedly objected to other evidence presented by the State; and trial
counsel presented rebuttal evidence to the State's claim that appellant had knowledge of possession
of a controlled substance.
	We will assume for purposes of this discussion that counsel's failure to object to
testimony and jury argument regarding appellant's refusal to consent to a search in the present
case constitutes a mistake. (1)  Whether counsel's failure to object under these circumstances
constitutes a mistake does not, however, resolve the issue before us.  Rather, we must decide
whether this single error rises to the level of deficient performance, i.e., whether such conduct
falls outside the range of professionally competent assistance in defending appellant.  
	Although counsel's performance must be judged on a "totality of representation"
standard, we note that in some circumstances a single error may be sufficient to establish deficient
performance under the first prong of the Strickland test.  See McFarland, 845 S.W.2d at 844; Ex
parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991).  In both McFarland and Zepeda,
however, counsel failed to assert their clients' rights on basic and fundamental issues that were
well settled under Texas law.  See McFarland, 845 S.W.2d at 844 (counsel's single error in
failing to object to jury argument involving impermissible comment on appellant's post-arrest
silence or his subsequent failure to testify was sufficient to meet first prong of Strickland test);
Zepeda, 819 S.W.2d at 876-77 (where only testimony linking defendant with murder was
testimony of accomplice witnesses, counsel's single error in failing to request instruction
informing jury that additional corroborating evidence tending to link defendant to murder was
necessary to convict rendered counsel's performance deficient under first prong of Strickland test).
	The circumstances of the present case are distinguishable.  That a defendant's
refusal to consent to search may not be used as evidence of guilt, however logical it may seem in
hindsight, is not a proposition that can be considered well established in state or federal law; nor
is it so basic and fundamental a proposition as to compel the conclusion that any counsel who fails
to perceive it is "not functioning effectively as the counsel constitutionally guaranteed to a
criminal defendant."  With regard to state law, appellant points us to only one Texas court of
appeals case that stands for this proposition, Powell v. State, 660 S.W.2d 842, 845 (Tex. App.El
Paso 1983, no pet.) ("[t]he invocation of constitutional rights such as assistance of counsel,
silence, or freedom from unreasonable searches may not be relied upon as evidence of guilt"). 
While we tend to agree with the general rule stated in Powell, we do not believe that a rule of law
articulated in one lower appellate-court case may definitively establish the standard for the
knowledge that a Texas attorney operating under prevailing professional norms must possess.  The
only other cases to which appellant directs us are from other jurisdictions.  See Commonwealth
v. Welch, 585 A.2d 517 (Pa. Super. Ct. 1991); Garcia v. State, 712 P.2d 1375 (N.M. 1986);
Gomez v. State, 572 So.2d 952 (Fla. Dist. Ct. App. 1990).  Although these cases may provide
persuasive authority that Texas should adopt a similar rule, such case law certainly does not
establish that any Texas attorney who fails to assert this rule is operating below the prevailing
professional norms.
	Appellant directs us to no federal law indicating that a defendant's refusal to
consent may not be used as evidence of guilt.  Our research has revealed only two cases directly
on point.  See United States v. Prescott, 581 F.2d 1343, 1350-51 (9th Cir. 1978); Anable v. Ford,
653 F.Supp. 22, 36 (W.D. Ark. 1985).  Neither Anable or Prescott has been cited in subsequent
cases for the proposition at issue in this case.  Again, we do not believe that a handful of cases
from other jurisdictions establish the standard for knowledge that a Texas attorney operating under
prevailing professional norms must possess.
	We further note that even in the jurisdictions indicating that this general rule has
been adopted, the circumstances in which such a rule should be applied are still developing. 
Although appellant contends that this general rule is simple, arguing that a defendant's refusal to
consent may never be used as evidence of guilt, the case law does not necessarily support this
broad assertion.  For example, in Anable, the court stated that "a refusal to consent to a search
cannot lead to an inference of guilt unless the search is initially authorized by the Fourth
Amendment."  635 F.Supp. at 36 (emphasis added).  Further, in Gomez the court indicated that
the defendant's refusal to consent could not lead to an inference of guilt because there was no
probable cause to search at the time defendant refused consent.  572 So.2d at 953. (2)
	In addition to the case-law exceptions identified above, the State in the present case
points out another exception that may be applicable to the general rule: the issue of custody.  The
State contends that the rule articulated in Powell was applied where the defendant refused consent
while in custody, whereas appellant in this case was not in custody at the time consent was
refused.  Accordingly, the general rule articulated in Powell may not be as broad as appellant
contends.
	Based on our research of the general rule that a defendant's refusal to consent may
not be used as evidence of guilt, we conclude that this rule of law and the circumstances in which
it applies is still a developing area of the law.  Because of the relative dearth of case law on this
point, we cannot conclude that a Texas attorney operating under prevailing professional norms
must have appreciated this general rule in order to have provided effective assistance.  In other
words, we conclude that this general rule, even if it ultimately proves to be a correct statement
of the law, is not yet such a basic, fundamental, and well-established rule under Texas or federal
law that a single error establishes ineffective assistance of counsel.  Although it may have been
more prudent for appellant's trial counsel to have asserted the right under these circumstances,
we cannot say that failing to assert it in the two instances complained of here constitutes deficient
performance under the first prong of the Strickland test.
	Because we conclude that appellant did not meet his burden with respect to the first
prong of the Strickland test, we need not address the second prong of the test, and we overrule
appellant's single point of error.  


CONCLUSION

	The order of the district court is affirmed.
 


  
					J. Woodfin Jones, Justice
[Before Chief Justice Carroll, Justices Aboussie and Jones]
Affirmed
Filed:   August 25, 1993
[Publish]
1.        The State conceded in its brief to this Court that it "does not contend that comment at trial
on a person's exercise of constitutional rights is a recommended procedure for prosecutors."  
2.        We note that a positive "alert" by a dog properly trained to sniff for drugs can provide
probable cause for arrest.  See Florida v. Royer, 460 U.S. 491, 506 (1983); Walsh v. State, 743
S.W.2d 687, 689 (Tex. App.Houston [1st Dist.] 1987, no pet.).  Thus, the possibility that the
"exception" recognized by Anable and Gomez will be adopted in Texas provides additional
grounds for our conclusion that the failure of appellant's trial counsel to object to evidence of
refusal to consent does not amount to an "error" constituting defective representation.
