Affirmed and Majority and Dissenting Opinions filed August 27, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00606-CR

                SUZANNE ELIZABETH WEXLER, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1513928

                              MAJORITY OPINION

      Appellant Suzanne Elizabeth Wexler was convicted of possession of
methamphetamine with intent to distribute. See Tex. Health & Safety Code §§
481.102, 481.112(d). The trial court sentenced appellant to serve 25 years in
prison. Appellant appeals her conviction in two issues. Appellant asserts in her
first issue that the trial court erred when it overruled her objection to the admission
of a statement she made at the scene of her arrest and before she was given
Miranda warnings. See Miranda v, Arizona, 384 U.S. 436 (1966). We overrule
this issue because appellant’s statement was made before she was in custody.
Appellant argues in her second issue that she received ineffective assistance of
counsel because her trial counsel failed to request a trial continuance due to a
missing defense witness.         We overrule this issue because appellant has not
demonstrated that she was prejudiced by her trial counsel’s allegedly deficient
handling of her case. We therefore affirm the trial court’s judgment.

                                       BACKGROUND

       Jerome Hill is a narcotics detective with the South Houston Police
Department.      Hill was assigned to the Harris County Sheriff’s Department
Narcotics Task Force doing undercover narcotics work. Hill received information
from the Humble Police Department that crystal methamphetamine had been sold
from a residence located at 318 Avenue A in South Houston. Based on that
information, Hill set up surveillance of the residence by a South Houston narcotics
K-9 unit. The K-9 unit was instructed to monitor traffic in and out of the 318
Avenue A residence. The K-9 unit eventually made three traffic stops of vehicles
leaving the 318 Avenue A address where methamphetamine was discovered.1

       As a result of the three traffic stops, Hill believed that the 318 Avenue A
residence was being used to distribute drugs. According to Hill, appellant lived at
the 318 Avenue A house and she was a suspect in the investigation, in fact, she
was one of two targets of the investigation.2 Hill obtained a search warrant for the
318 Avenue A house. The plan for searching the house called for uniformed police
to initially block access to Avenue A. The Harris County Sheriff’s Office High

       1
       The traffic stops occurred on June 5, June 9, and June 12. The largest amount of
methamphetamine discovered was 73 grams found during the June 5 traffic stop.
       2
         Hill identified a second target of his investigation as “Jimmy.” Hill testified that he
“guess[ed] that it was [Jimmy’s] house.” According to Hill, Jimmy was not present at the house
during the search.

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Risk Operations Unit (“HROU”) would then surround the house, serve the warrant,
and conduct a protective sweep of the house. Only when the protective sweep was
completed, and any people in the house had been removed, would the narcotics
officers enter the house to conduct the search for narcotics.

       On June 16, 2016, the HROU, narcotics officers, and other uniformed police
units arrived on the scene. The uniformed police units blocked off both ends of the
street to prevent any traffic on the street while the warrant was being executed.
The HROU surrounded the house and announced their intention to search the home
based on a search warrant over a loud speaker.3 The HROU directed anyone in the
house to exit. Appellant came out of the house where she was detained by the
HROU and placed in the back seat of a patrol car.4 According to Hill, once
appellant was placed in the patrol car, she was detained as part of the investigation
and she was not free to leave. The HROU then began its protective sweep of the
house to ensure there were no threats present.

       While the HROU was performing its protective sweep of the house, Hill
stated the following to appellant: “Hey, we have a search warrant. We’re going to
find the drugs.     Just tell me where they are.”          Appellant responded that the
narcotics were “in her bedroom in a dresser drawer.” At the time that Hill spoke
with appellant, the actual search of the house by narcotics officers had not started,
and no illegal drugs had been found. While it is undisputed that appellant was
placed in the backseat of a patrol car for officer safety and so that police could
conduct the search of the house, there is no evidence she was handcuffed or

       3
        According to Hill, the loud speaker was on an armored vehicle that the HROU uses to
serve warrants.
       4
         A second occupant of the house, John Forster, was found in the small addition at the
back of the house with a small amount of black tar heroin. Forster was placed in the back of a
second patrol car. Forster was eventually arrested and convicted.

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otherwise restrained by officers. In addition, there is no evidence that officers
pointed firearms at appellant or threatened her. There was also no evidence that
Hill was hostile in tone when he addressed appellant. While Hill considered
appellant a suspect at the time of the search, he did not tell appellant that she was a
suspect.

      Once HROU had completed the protective sweep of the house, the narcotics
officers entered to conduct the search. The house had two bedrooms and a small
addition had been added to the back. Inside appellant’s bedroom, officers found
female clothing, drug paraphernalia, several cell phones, scales, and marijuana
individually bagged for sale. Additionally, the narcotics officers found 25.077
grams of methamphetamine in appellant’s dresser drawer.              Along with the
methamphetamine, the police found “a bunch of plastic baggies and some
currency.” Police also found handgun ammunition and magazines. According to
Hill, the items that the narcotics officers found inside the house were consistent
with the sale of narcotics. Once the search of the house had been completed, Hill
placed appellant under arrest.

      During trial appellant objected to the admission of her statement made in
response to Hill’s question. In appellant’s view, Hill’s question was a custodial
interrogation and she should have received the warnings required by Miranda and
article 38.22 of the Code of Criminal Procedure before being questioned. Because
she was not given those warnings, appellant argued that her statement should be
excluded.    After allowing appellant’s trial counsel to conduct a voir dire
examination of Hill outside the presence of the jury, the trial court overruled
appellant’s objection and admitted appellant’s statement.

      During her case, appellant called a single witness to testify, Jimmy Sherlock.
Sherlock testified that he had been friends with appellant for about twenty years.

                                          4
According to Sherlock, appellant had moved out of the Avenue A house in April
and was living with him. Sherlock explained that appellant had broken up with her
boyfriend, Jimmy McCullough, and had decided to move out of his house.
Sherlock testified McCullough was a drug dealer and that he believed the drugs
found in the house were his. Sherlock further testified that he went with appellant
to the Avenue A house on June 16, 2016 to pick up the last of her possessions.
When they arrived at the Avenue A house, Sherlock dropped appellant off and he
left. During cross-examination, Sherlock revealed that he had been previously
convicted of burglary and robbery. Sherlock also admitted that appellant was a
close friend.

         The jury found appellant guilty and she was sentenced to serve 25 years in
prison.     Appellant moved for a new trial claiming that her trial counsel was
ineffective for, among other things, failing to request a continuance in order to
compel John Forster to appear to testify.         The trial court held a hearing on
appellant’s motion. During the motion for new trial hearing, appellant did not call
Forster, or produce any evidence related to Forster’s availability to testify during
appellant’s trial, or his prospective testimony. Appellant instead relied on Forster’s
affidavit that had been previously secured by appellant’s trial counsel. The trial
court denied appellant’s motion. This appeal followed.

                                       ANALYSIS

I.       The trial court did not commit reversible error when it overruled
         appellant’s objection and admitted appellant’s statement into evidence.
         Appellant argues in her first issue that the trial court committed reversible
error when it overruled her objection to the admission of her statement made at the
scene.     In appellant’s view, she was in custody when she was placed in the
backseat of a patrol car, she should have received the warnings required by

                                           5
Miranda and article 38.22 of the Code of Criminal Procedure before Hill
questioned her, and because she did not, the trial court should have sustained her
objection and excluded the statement.

      Appellant did not file a pre-trial motion to suppress her statement. She
instead objected to its admissibility during trial. After appellant objected, the trial
court allowed appellant’s trial counsel to question Hill outside the presence of the
jury. The trial court then heard argument from appellant’s counsel as well as the
State before overruling appellant’s objection. Because a motion to suppress is
simply a specialized objection to the admissibility of evidence, we shall apply the
same standard of review to the trial court’s custody determination as if appellant
had moved to suppress her statement. See Kuether v. State, 523 S.W.3d 798, 807,
n.10 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

      In reviewing a trial court’s ruling on a motion to suppress, an appellate court
applies an abuse-of-discretion standard and will overturn the trial court’s ruling
only if it is outside the zone of reasonable disagreement. Martinez v. State, 348
S.W.3d 919, 922 (Tex. Crim. App. 2011). We view the evidence in the light most
favorable to the trial court’s ruling. Weide v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007). At a suppression hearing, the trial judge is the sole trier of fact and
assesses the witnesses’ credibility and decides the weight to give that testimony.
Id. at 24–25. If a trial court has not made a finding on a relevant fact, we imply the
finding that supports the trial court’s ruling, so long as it finds some support in the
record. State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006). We will
sustain the trial court’s ruling if it is reasonably supported by the record and is
correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d
587, 590 (Tex. Crim. App. 2006).

      In Miranda, the Supreme Court of the United States held that “the

                                          6
prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
384 U.S. at 444. Texas codified these safeguards in article 38.22 of the Texas
Code of Criminal Procedure. Section 3(a) of article 38.22 provides that no oral
statement of an accused “made as a result of custodial interrogation” shall be
admissible against him in a criminal proceeding unless an electronic recording of
the statement is made, the accused is given all specified warnings, including the
Miranda warnings, and he knowingly, intelligently, and voluntarily waives the
rights set out in the warnings. Tex. Code Crim. Proc. art. 38.22 § 3(a).

      Miranda warnings and article 38.22 requirements are mandatory only when
there is a custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex.
Crim. App. 2007). The meaning of “custody” is the same for purposes of both
Miranda and article 38.22. Id. The State has no burden to show compliance with
Miranda unless and until the record as a whole “clearly establishes” that the
defendant’s statement was the product of a custodial interrogation. Id. When
considering whether a person is in custody for Miranda purposes, we apply a
reasonable person standard. Our custody inquiry includes an examination of all the
objective circumstances surrounding the questioning. Herrera, 241 S.W.3d at 525.
The subjective belief of law enforcement officers about whether a person is a
suspect does not factor into the custody determination unless that officer’s
subjective belief has been conveyed to the person being questioned. Id. at 525–26.

      There are four general situations which may constitute custody: (1) when the
suspect is physically deprived of his freedom of action in any significant way, (2)
when a law enforcement officer tells the suspect that he cannot leave, (3) when law
enforcement officers create a situation that would lead a reasonable person to

                                         7
believe that his freedom of movement has been significantly restricted, and (4)
when there is probable cause to arrest and law enforcement officers do not tell the
suspect that she is free to leave. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.
Crim. App. 1996). Both state and federal courts recognize three categories of
interaction between police and citizens: encounters, investigative detentions, and
arrests. Ortiz v. State, 421 S.W.3d 887, 890 (Tex. App.—Houston [14th Dist.]
2014, pet. ref’d). Both detention and arrest involve a restraint on one’s freedom;
the difference is in the degree. Id. An arrest places a greater restraint on an
individual’s freedom of movement than does an investigative detention.                        Id.
Persons temporarily detained for purposes of investigation are not in custody for
Miranda purposes, and thus the right to Miranda warnings is not triggered during
an investigative detention. Hauer v. State, 466 S.W.3d 886, 893 (Tex. App.—
Houston [14th Dist.] 2015, no pet.).                There is no bright line rule dividing
investigative detentions and custodial arrests. State v. Sheppard, 271 S.W.3d 281,
291 (Tex. Crim. App. 2008). When called upon to make that determination, courts
examine several factors including “the 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.” Id.

      Appellant argues that she was in custody when Hill asked her where in the
house the drugs were located. In making this argument, appellant emphasizes the
level of force present at the scene of the search. Specifically, appellant points out
(1) the large number of officers on the scene,5 (2) the presence of an HROU

      5
          There is no evidence in the record establishing the exact number of police on the scene.
                                                8
armored vehicle, (3) the police had blocked the street prior to the search, and (4)
had potentially surrounded the house. Appellant also relies on the fact that the
police placed her in the backseat of a patrol car as well as Hill’s trial testimony that
she was not free to leave. Appellant also points out that she “was not told that she
was not under arrest.”        Finally, appellant asserts that Hill “expressed to the
appellant his suspicion that the appellant possessed drugs through his only question
to the appellant.”

        We disagree appellant has established that she was in custody when Hill
asked her about the location of the drugs. We turn first to Hill’s testimony that
appellant was not free to leave once she was placed in the patrol car. The fact that
appellant’s freedom of movement was restricted does not establish that she was
under custodial arrest because a person temporarily detained for purposes of
investigation also has her freedom of movement restricted. See Ortiz, 421 S.W.3d
at 890 (“Both detention and arrest involve a restraint on one’s freedom of
movement; the difference is the degree.”). “If the degree of incapacitation appears
more than necessary to simply safeguard the officers and assure the suspect’s
presence during a period of investigation, this suggests the detention is an arrest.”
Id. at 891 (internal quotation marks omitted). While there were numerous police
officers on the scene, there is no evidence appellant was aware of that number.
There is also no evidence appellant was aware that the police had blocked access to
the street, or that there was an armored vehicle on the scene. Even if she was, this
evidence goes to only one of the factors listed in Sheppard, the amount of force
used.

        There is no evidence in the record that the police used physical force to


Hill did testify that there were between 20 and 25 HROU officers on the scene. Hill offered no
testimony on the number of narcotics officers or uniformed patrol officers on the scene.

                                              9
remove appellant from the house, handcuffed her at any time, threatened her,
displayed a firearm, or even spoke to her in a hostile tone. See Ortiz, 421 S.W.3d
at 891 (“The defendant bears the initial burden of demonstrating that a statement
was the product of custodial interrogation, and the State has no burden to show
compliance with Miranda until the defendant meets the initial burden.”). There is
however, evidence in the record that an investigation was under way when
appellant was detained. See Mount v. State, 217 S.W.3d 716, 724 (Tex. App.—
Houston [14th Dist.] 2007, no pet.) (“Whether a person is under arrest or subject to
a temporary investigative detention is a matter of degree and depends upon the
length of the detention, the amount of force employed, and whether the officer
actually conducts an investigation.”). Further, there was evidence that appellant
was detained so the HROU could perform a protective sweep of the house. See
Sheppard, 271 S.W.3d at 290 (concluding officer’s handcuffing of defendant was
temporary detention, not an arrest, because it was done, in part, to enable officer to
make protective sweep of scene).        There was also evidence that appellant’s
detention was relatively brief and that the police did not remove appellant from the
scene prior to Hill’s question. See id. at 291. Hill was the only officer to talk with
appellant and he did not inform her that she was under arrest or even a suspect.
See Herrera, 241 S.W.3d at 525–26 (“The subjective belief of law enforcement
officials about whether a person is a suspect does not factor into our ‘custody’
determination unless an official’s subjective belief was somehow conveyed to the
person who was questioned.”). Finally, it was undisputed that illegal drugs had not
been found in the house at the time Hill asked appellant where the drugs were
located and thus Hill did not have probable cause to arrest appellant at that
moment. See Hernandez v. State, 107 S.W.3d 41, 47 (Tex. App.—San Antonio
2003, pet. ref’d) (“An officer who lacks probable cause but whose observations
lead to a reasonable suspicion that a particular person has committed, is
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committing, or is about to commit a crime, may detain that person briefly in order
to investigate the circumstances that provoke that suspicion.”). We conclude that
the record supports the trial court’s implied conclusion that appellant was
temporarily detained, not under arrest, when Hill asked her where the drugs were
located. As a result, Hill was not obligated to provide appellant the warnings
required by Miranda and article 38.22 of the Code of Criminal Procedure.
Therefore, the trial court did not err when it overruled appellant’s objection and
admitted her statement into evidence. We overrule appellant’s first issue.

II.   Appellant did not establish that she received ineffective assistance of
      counsel.
      Appellant asserts in her second issue that her trial counsel was ineffective
because he did not ask for a continuance to compel Forster to appear to testify
during her trial.

      A.     Standard of review and applicable law

      An accused is entitled to reasonably effective assistance of counsel. King v.
State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Bradley v. State, 359 S.W.3d
912, 916 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). However, reasonably
effective assistance of counsel does not mean error-free representation. Ex parte
Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Isolated 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. Wert v. State,
383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore,
when evaluating a claim of ineffective assistance, the appellate court looks to the
totality of the representation and the particular circumstances of the case without



                                        11
the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App.
2011); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      To establish ineffective assistance of counsel, a defendant must prove that
(1) trial counsel’s representation fell below the standard of prevailing professional
norms, and (2) there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d
53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to claims of
ineffective assistance under the Texas Constitution). Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the claim of
ineffective assistance. Strickland, 466 U.S. at 697. If a criminal defendant can
prove trial counsel’s performance was deficient, he still must prove he was
prejudiced by his trial counsel’s actions. Thompson, 9 S.W.3d at 812. This
requires the defendant to demonstrate a reasonable probability that the result of the
proceeding would have been different if trial counsel had acted professionally. Id.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Malett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). “If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
. . . that course should be followed.” Cox v. State, 389 S.W.3d 817, 819 (Tex.
Crim. App. 2012).

      When, as here, an appellant raises an ineffective-assistance claim in a
motion for new trial, we analyze the issue on appeal as a challenge to the trial
court’s denial of the motion for new trial. See Charles v. State, 146 S.W.3d 204,
208 (Tex. Crim. App. 2004) (holding appropriate standard of review for claim of
ineffective assistance of counsel brought forth in motion for new trial is abuse of
discretion); Robinson v. State, 514 S.W.3d 816, 823 (Tex. App.—Houston [1st

                                         12
Dist.] 2017, pet. ref’d).   In those circumstances, we review the trial court’s
application of the Strickland test through an abuse-of-discretion standard. Charles,
146 S.W.3d at 208. Generally, applying this standard means that we must decide
whether the trial court’s ruling was arbitrary or unreasonable. See Webb v. State,
232 S.W.3d 109, 112 (Tex. Crim. App. 2007). As a reviewing court, we must
afford “almost total deference” to a trial court’s determination of historical facts
and its application of the law to fact questions the resolution of which turns on an
evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). In the absence of express findings, we presume that the
trial court made all findings, express and implied, in favor of the prevailing party.
Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). We therefore
view the evidence in the light most favorable to the trial court’s ruling, and we will
uphold that ruling if it was within the zone of reasonable disagreement. See Webb,
232 S.W.3d at 112.

      B.     Appellant has not shown that she was prejudiced by her trial
             counsel’s decision to not ask for a continuance.
      Appellant asserts in her second issue that her trial counsel’s performance
was deficient because he failed to ask for a continuance of the trial in order to
compel Forster to appear and testify on her behalf. Appellant goes on to argue that
she was prejudiced by this deficient performance because Forster’s testimony
would have been beneficial to her defense. According to appellant, if her trial
counsel had sought a continuance, Forster, who was found in the house during the
search with black tar heroin, would have “been able to testify consistently with
some of the items that Mr. Sherlock testified to, such as the appellant moving out
of the residence in early April [and that appellant] was only present at the
residence during the raid to retrieve a few of her remaining items from the
residence.” Appellant also asserts that Forster would have been able to testify that
                                         13
the methamphetamine found in the bedroom “dresser was not the appellant’s, but
Jimmy’s.”     Appellant concludes by arguing that Forster’s testimony was
“necessary and crucial to the defense” because “it would have helped to
corroborate the testimony of Mr. Sherlock, whose credibility was damaged by the
State due to his prior conviction and would have provided testimony from someone
who was actually present during the raid of the residence.”

      Appellant has not demonstrated that she was prejudiced by her trial
counsel’s failure to request a continuance because, by her own admission, Forster’s
proposed testimony was cumulative of Sherlock’s testimony. See Ex parte Flores,
387 S.W.3d 626, 638 n.53 (Tex. Crim. App. 2012) (“Applicant cannot show
prejudice for failure to call a witness whose testimony would be cumulative of an
expert who did testify.”); Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (trial counsel was not ineffective for failing to
call a passenger who was in defendant’s car because defendant did not identify any
fact to which witness would testify that trial court had not already heard from
another witness); Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet.
ref’d) (defendant’s trial counsel was not ineffective for failing to call certain
witnesses when proposed witnesses’ testimony would have been cumulative of
other testimony). Because appellant has not established the second Strickland
prong, we conclude that the trial court did not abuse its discretion when it denied
appellant’s motion for new trial. We overrule appellant’s second issue.




                                          14
                                     CONCLUSION

      Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.




                                       /s/    Jerry Zimmerer
                                              Justice



Panel consists of Justices Wise, Zimmerer, and Hassan (Hassan, J., dissenting).
Publish — TEX. R. APP. P. 47.2(b).




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