                             NUMBER 13-16-00410-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

                     EX PARTE JORGE PALACIOS GARZA


                    On appeal from the 275th District Court
                          of Hidalgo County, Texas.


                         MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Contreras and Benavides
             Memorandum Opinion by Justice Contreras

       Appellant Jorge Palacios Garza appeals the trial court’s order denying his

application for post-conviction writ of habeas corpus. See TEX. CODE. CRIM. PROC. ANN.

art. 11.072 (West, Westlaw through 2017 1st C.S.). By five issues, which we construe as

four, appellant argues that the trial court erred in denying habeas relief because his trial

counsel rendered ineffective assistance when he: (1) did not file a motion to suppress

the evidence obtained from the search that resulted in appellant’s arrest; (2)

recommended that appellant enter a guilty plea before seeking to suppress that evidence;

(3) did not present exculpatory evidence in the form of a video recording; and (4) did not
raise the issue of a possible conflict of interest between appellant and one of the officers

who conducted the search. We affirm.

                                             I.    BACKGROUND

        Appellant was arrested and charged with two counts:                         (1) possession of a

controlled substance with intent to deliver cocaine, four grams or more but less than 200

grams, a first-degree felony; and (2) possession of marijuana, five pounds or less but

more than four ounces, a state jail felony. See TEX. HEALTH & SAFETY CODE ANN. §§

481.102(3)(D), 481.112, 481.115, 481.121(b)(3) (West, Westlaw through 2017 1st C.S.).

        At the time of his arrest in 2007, appellant was married to Guillermina Garza.1

However, the couple was having marital problems, and he was living in the garage of the

home they owned and shared. Two days before his arrest for the two aforementioned

charges, appellant was detained by police after showing up at Guillermina’s parents’

house.2 Fearing retaliation from appellant as a result of this detention, Guillermina asked

Mario Cavazos—her brother and a detective with the McAllen Police Department—to help

her retrieve several guns that appellant kept in the garage of the home.

        Guillermina gave consent to Detective Cavazos and responding Officer A.J. Lerma

to enter and search the garage to retrieve the weapons. Multiple guns were taken and

inventoried with the McAllen Police Department for “safe keeping” by Officer Lerma. In

the garage, the officers also found in plain view the marijuana and cocaine that are the

basis of appellant’s charges, as well as drug paraphernalia. A home surveillance system

that monitored the exterior of the home recorded the officers as they carried away the

guns.


        1   The couple has since divorced.

        2   Appellant was detained for driving recklessly and for driving without insurance and ID.
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       On advice of counsel, appellant entered into a plea agreement: he pleaded guilty

to the possession of marijuana charge and in exchange the State dismissed the charge

for possession of a controlled substance. Appellant’s trial counsel did not file a motion to

suppress or otherwise challenge the legality of the search.          Pursuant to the plea

agreement, the trial court convicted appellant and sentenced him to 180 days in state jail,

but suspended the sentence and placed him on community supervision for two years.

       Almost eight years after the entry of the judgment, appellant filed a habeas

application pursuant to Texas Code of Criminal Procedure article 11.072 contending that

his trial counsel provided ineffective assistance. See TEX. CODE. CRIM. PROC. ANN. art.

11.072. At the hearing, appellant’s trial counsel testified that: (1) he did not perceive any

conflict in Mario Cavazos’s action as a law-enforcement officer while being appellant’s

brother-in-law; and (2) he made a conscious decision not to pursue a motion to suppress

after reviewing the facts, but instead focused his efforts on seeking an agreement that

would keep appellant from serving time in jail.

       The trial court denied appellant’s application for habeas relief and issued findings

of fact and conclusions of law. This appeal followed.

                                    II.    DISCUSSION

       A. Standard of Review

       To prevail on a post-conviction writ of habeas corpus, the applicant bears the

burden of proving, by a preponderance of the evidence, the facts that would entitle him

to relief. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002); see Ex parte

Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). In reviewing a trial court’s

decision on habeas corpus relief, we review the facts in the light most favorable to the

trial court’s ruling and, absent an abuse of discretion, uphold the ruling. Ex parte Garcia,

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353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997). A trial court abuses its discretion when it acts without reference

to any guiding rules or principles or when it acts arbitrarily or unreasonably. State v.

Arizmendi, 519 S.W.3d 143, 165 (Tex. Crim. App. 2017).

       We afford almost total deference to the habeas court's determination of historical

facts that are supported by the record. Ex parte Garcia, 353 S.W.3d at 788. Likewise,

we will defer to the habeas court's rulings on “application of law to fact questions” if the

resolution of those ultimate questions turns on an evaluation of credibility and demeanor.

Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on

other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). On the other

hand, if the resolution of the ultimate question turns on an application of legal standards

absent any credibility issue, we review the determination de novo. Ex parte Peterson,

117 S.W.3d at 819.

       B. Applicable Law

       A defendant in a criminal prosecution has a Sixth Amendment right to the effective

assistance of counsel. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10). We employ the United States

Supreme Court's two-pronged Strickland3 test to determine whether counsel's

representation was inadequate so as to violate a defendant's Sixth Amendment right.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

       To prevail on a claim of ineffective assistance of counsel, appellant must prove by

a preponderance of the evidence that: (1) counsel’s performance fell below the standard

of prevailing professional norms; and (2) there is a reasonable probability that, but for


       3   See Strickland v. Washington, 466 U.S. 668 (1984).
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counsel’s deficiency, taking into account the totality of the evidence before the judge or

jury, the result of the trial would have been different. See Strickland v. Washington, 466

U.S. 668, 687 (1984); Ex parte Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011).

Failure    to   show    either   deficient   performance    or   sufficient   prejudice   under

Strickland defeats a claim for ineffective assistance. Thompson, 9 S.W.3d at 813. These

allegations must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Id.

         To show deficient performance, appellant must overcome the presumption that the

challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689

(quoting Michel v. Louisiana, 350 U.S.91, 100–01 (1955)). Thus, if there is any basis for

concluding that counsel’s conduct was strategic, then further inquiry is improper. See

Bell v. State, 867 S.W.2d 958, 961 (Tex. App.—Waco 1994, no pet.). This is because

the right to “reasonably effective assistance of counsel” does not guarantee errorless

counsel or counsel whose competency is judged by perfect hindsight. Saylor v. State,

660 S.W.2d 822, 824 (Tex. Crim. App. 1983). We judge counsel’s performance by the

totality of the representation, and isolated errors or omissions of counsel do not amount

to deficient performance. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.

2006).

         As to the prejudice prong of the test, a reasonable probability of a different outcome

is one sufficient to undermine confidence in the outcome of the proceeding. Thompson,

9 S.W.3d at 812. It is not sufficient for appellant to show “that the errors had some

conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693.

Rather, he must show that “there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

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        C. Analysis

        1. Absence of Motion to Suppress

        By his first issue, appellant argues that his trial counsel was ineffective for not filing

a motion to suppress because Guillermina could not have consented to the search.

        In order to satisfy Strickland, appellant must prove that the motion to suppress

would have been granted. See, e.g., Ex parte Martinez, 330 S.W.3d at 901; Roberson v.

State, 852 S.W.2d 508, 510–12 (Tex. Crim. App. 1993) (en banc) (holding that, unless

there is a showing that a pre-trial motion had merit and that a ruling on the motion would

have changed the outcome of the case, counsel will not be ineffective for failing to assert

the motion). In other words, to prevail on his claim of ineffective assistance of counsel,

appellant had the burden to develop facts and details sufficient for the habeas court to

conclude that there was no consent for the search or that any consent was invalid. See

Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); Ex parte Martinez, 330 S.W.3d at 901;

Valtierra v. State, 310 S.W.3d 442, 448 (Tex. Crim. App. 2010); see also TEX. CODE. CRIM.

PROC. ANN. art. 38.23(a) (West, Westlaw through 2017 1st C.S.).

        Appellant cites several cases as support for the proposition that Guillermina could

not have consented to the search. However, while these cases address issues of third-

party authority in some scenarios, they are inapplicable in a situation when, as here,

consent is granted by a defendant’s spouse.4 In fact, “it is well established in this State




         4 Appellant cites the following: (1) Becknell v. State, 720 S.W.2d 526 (Tex. Crim. App. 1986); (2)

Hubert v. State, 312 S.W.3d 554 (Tex. Crim. App. 2010); and (3) Limon v. State, 340 S.W.3d 753 (Tex.
Crim. App. 2011). Becknell involved the question of whether a father had the authority to grant consent for
a search of his son’s bedroom. Becknell, 720 S.W.2d at 528. Hubert involved the question of whether a
grandfather had the authority to grant consent for a search of his grandson’s bedroom in the home they
shared. Hubert, 312 S.W.3d at 556. Limon involved the question of whether a young teenager had
authority, actual or apparent, to admit officers into a home. Limon, 340 S.W3d at 755.
                                                    6
that a wife may consent to the search of her husband’s premises where the consent is

given without coercion.” Burge v. State, 443 S.W.2d 720, 722 (Tex. Crim. App. 1969).

       Since Guillermina could consent to the search of the garage because she was

appellant’s spouse, appellant did not prove that a motion to suppress would have been

granted. See id. Therefore, trial counsel’s decision not to file a suppression motion does

not constitute ineffective assistance. See Jackson, 973 S.W.2d at 957.

       We overrule appellant’s first issue.

       2. Guilty Plea Recommendation

       By his second issue, appellant argues that his trial counsel was ineffective for

recommending that appellant enter a guilty plea without first seeking to suppress the

search of appellant’s premises.

       In the context of guilty pleas, the first half of the Strickland test is applied in the

same manner as in other contexts. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). In other

words, the defendant must show that counsel's advice “fell below an objective standard

of reasonableness.” Strickland, 466 U.S. at 687–88.

       Here, as a result of the possession of controlled substance charge, appellant was

facing a possibility of up to 99 years imprisonment. See TEX. HEALTH & SAFETY CODE ANN.

§§ 481.102, 481.112(d); TEX. PENAL CODE ANN. §12.32 (West, Westlaw through 2017 1st

C.S.). The record shows that appellant’s trial counsel, in light of the potential of a life

sentence, was focused on keeping appellant out of jail rather than pursuing pretrial

matters as to which appellant would be unlikely to prevail. See Burge, 443 S.W.2d at

722.

       In his efforts, trial counsel was able to negotiate a deal where the controlled-

substance charge was dismissed in its entirety, and appellant did not have to serve time

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in jail for the possession of marijuana charge. The record also shows that trial counsel

considered the merits of a motion to suppress, as well as the possible consequence of

raising such a motion on plea negotiations. Appellant’s counsel believed that filing a

motion to suppress might completely erase the possibility of a plea deal, which greatly

increased the risk that appellant would face time behind bars. All of this indicates that the

decision to enter a plea was reasonable. Further, as noted, a motion to suppress the

search would likely have been denied.

       We conclude that trial counsel’s advice that appellant plead guilty was the product

of strategy rather than inexperience, lack of knowledge, or lack of diligence in

representation of his client, and that it did not fall beyond an objective standard of

reasonableness. See Strickland, 466 U.S. at 689; Bell, 867 S.W.2d at 961.

       We overrule appellant’s second issue.

       3. Home Video

       By his third issue, appellant argues that his trial counsel was ineffective for not

presenting to the State a video recording which appellant claims was exculpatory.

Appellant argues that the video could have been used to show the police report contained

false statements; the video shows officers carrying away multiple rifles, while the police

report states that only three rifles were removed.

       We do not need to analyze the two prongs of Strickland in any particular order,

and we turn to the prejudice prong first.            Ex parte Martinez, 330 S.W.3d at

901. Exculpatory evidence is evidence which tends to justify, excuse or clear the

defendant from alleged fault or guilt. Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim.

App. 1992) (en banc).      Impeachment evidence is that which is offered to dispute,

disparage, deny, or contradict a witness’ testimony or other evidence. Id.

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       Here, the video recording shows the officers carrying away from the house more

rifles than the three reported in the police report. However, the video has no audio, no

footage of the interior of the garage or of the entryway the officers used to access the

garage, and no footage of any interaction between Guillermina and the responding

officers as to consent—the determinative issue in the admission of the drugs that were

the basis of appellant’s charges.

       Given that Guillermina did not prepare the police report, the video has no bearing

on her credibility, and it does not clear appellant from fault or guilt. Thus, while the video

may have some impeachment value as to Officer Lerma or maybe Detective Cavazos,

we cannot conclude that the video contains exculpatory evidence. Harm v. State, 183

S.W.3d 403, 408 (Tex. Crim. App. 2006) (en banc) (“Exculpatory evidence may justify,

excuse, or clear the defendant from fault, while impeachment evidence is that which

disputes or contradicts other evidence.”).        Therefore, appellant cannot satisfy the

“likelihood of a different outcome” prong under Strickland to prevail on his ineffective

assistance claim. See Strickland, 466 U.S. at 689.

       We overrule appellant’s third issue.

       4. Possible Conflict of Interest

       By his fourth issue, appellant claims that his trial counsel was ineffective for not

raising an issue about a possible conflict of interest between appellant and Detective

Cavazos. Appellant claims that a conflict of interest existed because appellant’s arrest

and conviction would have benefited Detective Cavazos’ sister, Guillermina, in a divorce

action against appellant.

       However, appellant does not cite any authority in support of this proposition or for

the proposition that a law-enforcement officer is barred from assisting a family member in

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the officer’s official capacity. Additionally, the record shows that: (1) trial counsel did not

perceive any conflict of interest between appellant and Detective Cavazos; (2) trial

counsel considered Cavazos’s relationship to appellant to be a potential advantage for

appellant; and (3) the trial court found that trial counsel was “familiar with the law in all

areas that applied in the case at bar.” Therefore, appellant has not established his right

to relief based on this claim. See Strickland, 466 U.S. at 687; Ex parte Richardson, 70

S.W.3d at 870; see also Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (holding that a stop

or search that is objectively reasonable is not vitiated by the fact that the officer’s real

reason for making the stop or search has nothing to do with the validating reason).

       We overrule appellant’s fourth issue.

                                     III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                          DORI CONTRERAS
                                                          Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of January, 2018.




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