                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-08-329-CR


RONNIE DURANT DEAVER                                                    APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE

                                      ------------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                      ------------

                                     OPINION

                                      ------------

      Appellant Ronnie Durant Deaver appeals his conviction for possession of child

pornography. In one issue, he argues that his trial counsel provided him with

ineffective assistance because they failed to challenge the admissibility of the video

that contained the pornography. W e affirm.
                                Background Facts

        On the morning of February 27, 2007, Fort W orth Police Officer Joe Shipp

learned that a fourteen-year-old girl named K.B. 1 ran away from her mother’s home

in Pasadena, Texas two days earlier and that her mother believed that she was at

Deaver’s home in Fort W orth. 2 Officer Shipp obtained Deaver’s phone number, his

address, and a detailed description of his truck, and then Officer Shipp went to

Deaver’s home. Deaver’s front porch lights were on, and a television was on inside

his home, but no one answered when Officer Shipp knocked on Deaver’s door.

Officer Shipp initially stayed at the home for approximately two hours, and on his

way back to the home later that day, he saw Deaver driving his truck away from the

home.

        Deaver pulled into a convenience store, and when Officer Shipp walked up to

Deaver’s truck, he saw two children inside and discovered that one of them was K.B.

and the other one was E.D. Officer Shipp saw Deaver place a cell phone in the

center console of the truck. Officer Shipp then detained Deaver in the back of his

patrol car to investigate the offense of harboring a runaway. Deaver told Officer

Shipp that he was trying to remove K.B. from an abusive relationship and that he did

not know why he had not called the police. He also told Officer Shipp that he was


        1
       To protect the privacy of the individuals involved in this appeal who are
minors, we identify them by initials only.
        2
       Deaver and his six-year-old daughter, E.D., had visited K.B. and her
mother the month before.

                                         2
asleep while Officer Shipp waited at his home for two hours, but when Officer Shipp

said that he saw Deaver’s bed inside the home (which Deaver was apparently not

lying on), Deaver said that he “didn’t know why he didn’t answer the door.” At that

time, because Officer Shipp determined that Deaver was answering his questions

falsely and because K.B. was with Deaver, he placed Deaver under arrest for

harboring a runaway.

      Because Officer Shipp concluded that K.B. needed to return to her mother in

Pasadena and that there was no one available to take care of E.D., he asked Deaver

for a number that Officer Shipp could use to contact E.D.’s mother (Deaver’s ex-wife)

so that she could come pick up E.D. Deaver said that he did not know the number,

so Officer Shipp gave Deaver his cell phone from the truck to find it. Officer Shipp

eventually retrieved Deaver’s phone and saw child pornography on it, and then Fort

W orth Police Detective Sherry Kelly told Officer Shipp to transport Deaver and both

girls to her office. 3 Detective Kelly spoke with K.B. for about an hour, and then she

spoke with Deaver. K.B. apparently told Detective Kelly about a sexual relationship

with Deaver. Deaver denied having such a relationship but told Detective Kelly

about other aspects of his relationship with K.B. and her mother, Audrey (or

“Auddie”),4 and he told Detective Kelly, among other things, that he had visited K.B.


      3
        More details about the discovery of child pornography on Deaver’s phone
are set forth below.
      4
         Deaver met Audrey on a telephone chat line a few years before his arrest
in this case. Audrey sometimes watched E.D. for Deaver before Audrey and K.B.

                                          3
and Audrey the previous weekend, that K.B. and Audrey had a strained relationship,

and that K.B. had put some videos on his cell phone but that he did not know of any

pornographic videos on his phone.

      Eventually, Detective Kelly obtained a warrant to search Deaver’s cell phone.

Fort W orth Police Detective Troy Lawrence, who testified as an expert for the State

at trial, received the warrant and extracted videos from the phone, including the

fifteen-second pornographic video at issue in this case—created one night in

January 2007—of K.B. “exposing her unclothed breasts and genitalia.” 5         K.B.,

Audrey’s older daughter named Maygan, and E.D. were in the room in Audrey’s

apartment when the video was created.

      In December 2007, a Tarrant County grand jury indicted Deaver with

possession of child pornography. See Tex. Penal Code Ann. § 43.26(a) (Vernon

2003).6 The parties filed various pretrial documents, and then Deaver’s trial began

in September 2008. Two attorneys appeared as Deaver’s counsel. After the jury

found Deaver guilty and heard evidence during the punishment phase of the trial




moved to Pasadena. Once they moved to Pasadena, Deaver and E.D. visited them
about once a month.
      5
         Deaver has not contested on appeal that the video at issue contained child
pornography, that it came from and was recorded by his cell phone, or that he knew
that the video was stored on his phone.
      6
        Possession of child pornography is a third-degree felony that carries a
punishment range of two to ten years’ confinement. Tex. Penal Code Ann.
§§ 12.34(a), 43.26(d) (Vernon 2003).

                                         4
about various aspects of his background, it assessed six-and-a-half years’

confinement. Deaver filed his notice of appeal.

                       Ineffective Assistance of Counsel

      In one issue, Deaver argues that his trial counsel were ineffective under the

Texas and federal constitutions because they did not object to the admission of the

video extracted from Deaver’s cell phone on the basis of an allegedly

unconstitutional search of the phone. 7       Specifically, Deaver contends that his

counsel were required to use all legal means to have the video suppressed and that

the evidence clearly indicates that Officer Shipp searched his cell phone to find the

video and did not have a warrant or any other legal justification to do so.

Standard of review and applicable law

      The standard for ineffective assistance of counsel is the same under the

Texas and federal constitutions. Hernandez v. State, 726 S.W .2d 53, 56–57 (Tex.

Crim. App. 1986); Lemmons v. State, 75 S.W .3d 513, 526 (Tex. App.—San Antonio

2002, pet. ref’d). To establish ineffective assistance of counsel, Deaver must show

by a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable probability

that, but for counsel’s deficiency, the result of the proceeding would have been

different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

      7
        After a voir dire examination of the State’s witness, Deaver’s counsel
objected to the video’s admission on nonconstitutional grounds, including the video’s
alleged noncompliance with the best evidence rule.

                                          5
(1984); Salinas v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005); Mallett v.

State, 65 S.W .3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W .3d

808, 812 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to the

totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W .3d at 813.       The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

      Review of counsel’s representation is highly deferential, and the reviewing

court indulges a strong presumption that counsel’s conduct fell within a wide range

of reasonable representation. Salinas, 163 S.W .3d at 740; Mallett, 65 S.W .3d at 63.

A reviewing court will rarely be in a position on direct appeal to fairly evaluate the

merits of an ineffective assistance claim. Thompson, 9 S.W .3d at 813–14. “In the

majority of cases, the record on direct appeal is undeveloped and cannot adequately

reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W .3d at 740

(quoting Mallett, 65 S.W .3d at 63).

      To overcome the presumption of reasonable professional assistance, “any

allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting Thompson,

9 S.W .3d at 813).    It is not appropriate for an appellate court to simply infer




                                          6
ineffective assistance based upon unclear portions of the record. Mata v. State, 226

S.W .3d 425, 432 (Tex. Crim. App. 2007).

        The second prong of Strickland requires a showing that counsel’s errors were

so serious that they deprived the defendant of a fair and reliable trial. Strickland, 466

U.S. at 687, 104 S. Ct. at 2064. In other words, Deaver must show there is a

reasonable probability that, but for his counsel’s unprofessional errors, the result of

the proceeding would have been different. See id. at 694, 104 S. Ct. at 2068. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness

of the proceeding in which the result is being challenged. Id. at 697, 104 S. Ct. at

2070.

        To succeed on his ineffective assistance claim based on counsel’s alleged

failure to attempt to suppress evidence, Deaver must rebut the presumption of

proper police conduct and prove that a motion to suppress would have been

granted. See Jackson v. State, 973 S.W .2d 954, 956–57 (Tex. Crim. App. 1998)

(affirming the appellant’s conviction when the facts surrounding the search were not

sufficiently developed) (citing Jackson v. State, 877 S.W .2d 768 (Tex. Crim. App.

1994)); see also Ortiz v. State, 93 S.W .3d 79, 93 (Tex. Crim. App. 2002), cert.

denied, 538 U.S. 998 (2003). In other words, “[t]o prevail on his claim of ineffective

assistance of counsel[,] [Deaver has] the burden to develop facts and details of the

search sufficient to conclude that the search was invalid,” and mere “questions about


                                           7
the validity of the search” are not enough. Jackson, 973 S.W .2d at 957; see Lesso

v. State, 295 S.W .3d 16, 21 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); Hollis

v. State, 219 S.W .3d 446, 456 (Tex. App.—Austin 2007, no pet.) (reiterating that the

appellant has the burden of developing facts about the search).

Analysis

      Deaver’s contention that his trial counsel should have moved to suppress the

cell phone video because it was discovered during an allegedly unauthorized search

is, of course, dependent on his establishing that a search in fact occurred. See

Jackson, 973 S.W .2d at 957. The State asserts, in part, that the record does not

provide sufficient evidence that Officer Shipp searched Deaver’s phone. W e agree

with the State.

      A “search” occurs when an expectation of privacy that society is prepared to

consider reasonable is infringed. Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct.

2038, 2042 (2001); United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652,

1656 (1984). If an item is in plain view, neither its observation nor its seizure

involves any invasion of privacy. Hill v. State, 303 S.W .3d 863, 873 (Tex. App.—Fort

W orth 2009, pet. ref’d); see Walter v. State, 28 S.W .3d 538, 541 (Tex. Crim. App.

2000); see also McCall v. State, 540 S.W .2d 717, 720 (Tex. Crim. App. 1976)

(stating that it “is simply not a search to observe that which is open to view”); Duhig

v. State, 171 S.W .3d 631, 636–37 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)

(explaining that a “search implies a prying into hidden places for that which is


                                          8
concealed” and holding that a plain-view observation of marijuana and drug

paraphernalia was not a search).

      The rationale of the plain view doctrine is that if contraband is in open view

and is observed by a police officer from a lawful vantage point, there has been no

invasion of a legitimate expectation of privacy and thus no “search” within the

meaning of the Fourth Amendment. Hill, 303 S.W .3d at 873; see Illinois v. Andreas,

463 U.S. 765, 771, 103 S. Ct. 3319, 3324 (1983). An object is seized in plain view

if three requirements are met. Hill, 303 S.W .3d at 873; see Keehn v. State, 279

S.W .3d 330, 334 (Tex. Crim. App. 2009). First, law enforcement officials must

lawfully be where the object can be “plainly viewed.” Keehn, 279 S.W .3d at 334

(citing Horton v. California, 496 U.S. 128, 136, 110 S. Ct. 2301, 2311 (1990)).

Second, the “incriminating character” of the object in plain view must be

“immediately apparent” to the officials. Id. Third, the officials must have the right to

access the object. Id.

      Officer Shipp’s testimony during the State’s direct examination at trial

concerning what happened when he gave Deaver’s cell phone to Deaver to find

E.D.’s mother’s number is as follows:

             Q.     And at that point what did he do?

            A.    He said he was going to get me the phone number so I
      could contact the mother. He started punching the buttons on it like
      what I thought was scrolling through a phone list to get a phone
      number. This went on for about 45 seconds.



                                           9
            Q.    Okay. Did you become concerned that something was
      being deleted or making contact? W ere you concerned?

            A.    Yes, ma’am. I -- I looked back there and it looked -- when
      someone is going through a phone list, they are hitting a phone list over
      and over and over, and he was hitting multiple buttons. . . .

             ....

             A.      At that point I was afraid he may have been making a text
      message to someone in regards to, “I’m being arrested” or something
      like that, looking for outside help. So for officer safety reasons, I went
      to get the phone from him.[ 8 ]

           Q.     When you got the phone back, did you discover there were
      images on the phone?

             A.     Yes, ma’am.[9 ] [Emphasis added.]

As can be seen, this evidence does not explicitly reveal what actions Officer Shipp

took, if any, between the time that he regained control of Deaver’s phone and the

time that he discovered pornography on the phone.




      8
       Deaver has not contested the legal justification of Officer Shipp’s retrieval
of Deaver’s cell phone for officer safety reasons or his counsel’s trial strategy or
conduct with respect to that retrieval.
      9
          The State concedes that the “images” that Officer Shipp saw were
pornographic. Although the record does not explicitly state that Officer Shipp saw
pornography on Deaver’s cell phone, the record does reveal that after seeing the
“images” on Deaver’s phone, Officer Shipp seized the phone and directed dispatch
to call the Crimes Against Children Unit. Detective Kelly, who was assigned to that
unit, told officers to transfer Deaver, E.D., and K.B. to the unit in separate vehicles
because she had concerns of “additional abuse” involving K.B. that were unrelated
to her being a runaway. Detective Kelly then asked Deaver about nude images of
K.B. during Deaver’s interrogation.

                                          10
      Detective Lawrence and Deaver’s expert—Daniel Fitzgerald—testified that

there is no pornography on the first frame of the video at issue, so the pornographic

nature of the video would not be immediately discernable if someone was just

scrolling through the various videos on Deaver’s phone. In other words, to find that

the video contains pornography, it must actively be played. Deaver asserts that this

is evidence that Officer Shipp could not have seen the pornographic video without

searching the phone to play the video. But the evidence does not preclude the

possibility that Deaver played the video—advertently or inadvertently (for instance,

while trying to delete the video before giving the phone back to Officer Shipp, as the

State theorizes) 10 —and that Officer Shipp immediately saw the video playing upon

retrieving the phone from Deaver. The experts could not testify that Officer Shipp

searched Deaver’s phone because they were not present when Officer Shipp saw

the child pornography. The crux of the experts’ testimony is only that the cell phone

video had to be played to see pornography; the experts could not determine who

played the video.

      If Officer Shipp was initially justified in gaining control over Deaver’s phone for

safety reasons (Deaver has not argued that he was not), and if Officer Shipp

immediately saw the pornographic video upon controlling the phone (as may or may



      10
        The evidence showed that Deaver’s cell phone saved videos in numerical
sequential order. The pornographic video at issue was “Video 002.” Video 001
(which had undeterminable content) was not on the phone when Officer Shipp
regained control of it.

                                          11
not have happened based on the limited, unclear record), 11 then a motion to

suppress would not have succeeded because the video was in plain view, no

invasion of Deaver’s privacy could be shown, and no search could have therefore

occurred. See Keehn, 279 S.W .3d at 334; Walter, 28 S.W .3d at 541; Hill, 303

S.W .3d at 873. Because Deaver therefore cannot demonstrate, on this ambiguous

record, that his counsel’s motion to suppress would have been successful, we

overrule his sole issue of ineffective assistance. See Strickland, 466 U.S. at 687,

104 S. Ct. at 2064; Jackson, 973 S.W .2d at 956–57; see also Mata, 226 S.W .3d at

432 (explaining that we cannot infer ineffective assistance from unclear portions of

the record).

                                    Conclusion

      Having overruled Deaver’s only issue, we affirm the trial court’s judgment.



                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DAUPHINOT, J. filed a concurring opinion.

PUBLISH

DELIVERED: April 22, 2010


      11
          Officer Shipp might in fact have found the video while combing through
all parts of Deaver’s phone upon gaining control of it to look for evidence regarding
the harboring of a runaway offense, to relieve his safety concerns, or for other
reasons. However, the record at trial is simply too undeveloped to prove that this
occurred. See Jackson, 973 S.W .2d at 956–57.

                                         12
                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                   NO. 2-08-329-CR


RONNIE DURANT DEAVER                                                       APPELLANT

                                            V.

THE STATE OF TEXAS                                                                STATE

                                        ------------

      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

                                        ------------

                           CONCURRING OPINION

                                        ------------

      The only evidence before this court is that the State and the defense experts

viewed the pornographic images at the same time. There is no evidence that Officer

Shipp ever viewed pornographic images, only images. Officer Lawrence viewed the

contents of the cell phone pursuant to a search warrant, which was never

challenged. I would therefore hold that the record is inadequate to show that trial

counsel rendered ineffective assistance of counsel. Trial counsel had no opportunity

to explain his trial strategy, but it is certainly reasonable that a lawyer would not want

to call the jury’s attention to the existence of pornography when the State had not
proved its existence.    Nor did trial counsel have the opportunity to explain his

strategy regarding the absence of a motion to suppress. But it is reasonable trial

strategy to wait until trial to object to evidence because the State has no appeal of

an evidentiary ruling made during trial.

      Because the trial record is inadequate to support a claim of ineffective

assistance of counsel, I would not assume what the record does not clearly reflect.

I therefore concur in the result only.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PUBLISH

DELIVERED: April 22, 2010




                                           2
