Opinion filed May 27, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                             No. 11-14-00142-CR
                                    __________

                 RANDY DESHON COLLIER, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 25088A


                                  OPINION
      The jury convicted Appellant of possession of four grams or more but less
than two hundred grams of cocaine with the intent to deliver. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112(d) (West 2010). The trial court assessed punishment
at confinement for eighteen years in the Institutional Division of the Texas
Department of Criminal Justice.
      Appellant filed a motion for new trial asserting that he received ineffective
assistance of counsel at trial. The trial court held a hearing on the motion, wherein
both Appellant and his trial counsel testified. The trial court denied the motion. In
two issues on appeal, Appellant asserts that the trial court abused its discretion by
denying his motion for new trial based on ineffective assistance of counsel (1) as a
result of trial counsel’s failure to pursue what Appellant characterizes as an available
defense and (2) as a result of the cumulative effect of trial counsel’s alleged errors.
We affirm.
                                  Background Facts
      On March 23, 2012, Agent Chad Jenkins and Agent Scott Ferrell of the
Abilene Police Department obtained a warrant to search the curtilage of a house
located on Mesquite Street.       Before executing the search warrant, the agents
conducted surveillance of the house beginning at 2:30 p.m. The agents observed
that a vehicle stopped in front of the house on two occasions. Each time, they
observed Appellant speak to and receive money from an occupant of the vehicle.
Appellant then retrieved cocaine from a pill bottle hidden under a child’s four-
wheeler next to the house. Appellant handed the cocaine to a female who delivered
it to the vehicle. After approximately thirty minutes of surveillance, the agents
executed the search warrant and arrested Appellant. They seized the pill bottle
containing the cocaine from the side of the house.
                                        Analysis
      In both of his issues on appeal, Appellant alleges that the trial court erred in
denying his motion for new trial based upon his claims of ineffective assistance of
counsel. An appellate court reviews a trial court’s denial of a motion for new trial
for an abuse of discretion, reversing only if the trial court’s opinion was clearly
erroneous and arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012)
(analyzing a motion for new trial premised on a claim of ineffective assistance of
counsel). A trial court abuses its discretion if no reasonable view of the record could
support the trial court’s ruling. Id.
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      In order to establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668
(1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v.
State, 9 S.W.3d 808 (Tex. Crim. App. 1999).            Courts must indulge a strong
presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance, and Appellant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.
Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.
2000). “[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.”
Strickland, 466 U.S. at 690.
      In Appellant’s first issue, he asserts that the trial court abused its discretion by
denying his motion for new trial based upon a claim that he characterizes as the
“failure to pursue an available defense.” The matter that Appellant references as an
“available defense” is his allegation that trial counsel failed to attempt to discredit
the investigating officers’ testimony with an omission in their reports that they
immediately found the cocaine when they reached the premises. He supports this
allegation with the contention that trial counsel failed to timely discover the claim
that Agent Ferrell went immediately to the child’s four-wheeler at the beginning of
the execution of the search warrant.
      Appellant premises his first issue in part on the contention that trial counsel
should have filed a motion to suppress the evidence seized from the execution of the
search warrant. He does not allege that a motion to suppress would have resulted in




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the evidence being suppressed.1 Instead, he alleges that a hearing on a motion to
suppress would have provided trial counsel with testimony from at least one of the
investigating officers that would have led trial counsel to discover that the cocaine
was immediately discovered.
        Trial counsel testified that she did not think that a motion to suppress would
have been beneficial. She further testified that she knew prior to trial that the officers
claimed to have discovered the cocaine immediately after executing the search
warrant. See Wert v. State, 383 S.W.3d 747, 756–57 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (noting that the failure to file discovery motions is not per se
ineffective assistance of counsel when there is no showing that relevant evidence
was not disclosed through informal discovery). Accordingly, there is evidence
supporting the trial court’s denial of Appellant’s ineffective assistance claim with
respect to the allegation that trial counsel should have filed a motion to suppress.
        The remainder of Appellant’s first issue focuses on trial counsel’s decision to
not attempt to discredit the officers with the absence from their reports of any
reference to the claim that the cocaine was immediately discovered and the fact that
Appellant was not booked into jail until over two hours after they executed the search
warrant. Trial counsel testified that it might have been beneficial to raise these
matters in the cross-examination of the officers to discredit their testimony.
However, trial counsel also testified as follows regarding whether or not the booking
records from the jail would have been beneficial:
                I don’t know that it would have [been beneficial] because our
        trial strategy was to carefully present to the jury not that the police were
        lying, but that they had a misperception, that they had thought they saw


        1
         To prevail on an ineffective-assistance-of-counsel claim based on counsel’s failure to file a motion
to suppress, the defendant would ordinarily have to show that the motion to suppress would have been
granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Ex parte Jones, 473 S.W.3d
850, 854 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).

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       something that they didn’t. So, to me what you’re suggesting is an
       argument that the police were lying.
Trial counsel asserted in closing argument that the officers’ ability to observe the
property from their vantage point was compromised by distance and obstructions in
their field of vision. Additionally, trial counsel also emphasized to the jury that
another person was the target of the search warrant.
       We disagree with Appellant’s contention that trial counsel’s failure to cross-
examine the police officers about the omission in their reports constituted the failure
to pursue an available defense. The decision to cross-examine officers about
perceived deficiencies in their reports is a matter of trial strategy. It is not far-fetched
to envision a scenario where the jury might view the defense in a negative light for
asserting that police officers were lying because their reports were inaccurate or
incomplete. Trial counsel testified that her strategy at trial was not to show that the
officers were lying but, rather, to show that they were mistaken about what they
observed.    Her decision to not cross-examine the officers about the omission
supported her trial strategy. Accordingly, we conclude that the trial court did not
abuse its discretion in rejecting Appellant’s claim of ineffective assistance of counsel
based upon trial counsel’s failure to cross-examine the police officers about their
omission in their reports of finding the cocaine immediately.                We overrule
Appellant’s first issue.
       In his second issue, Appellant asserts that the trial court erred by denying
Appellant’s motion for new trial based on ineffective assistance of counsel as a result
of the cumulative effect of trial counsel’s alleged errors. Appellant asserts that trial
counsel was ineffective when she (1) failed to pursue an available defense (which
we addressed in Appellant’s first issue), (2) failed to object to Agent Jenkins’s
inadmissible testimony, and (3) failed to request an instruction to disregard improper
jury argument. Appellant points to the instances set out in the following two

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paragraphs to show that trial counsel was ineffective. Because we already found that
trial counsel did not err in failing to pursue the defense suggested by Appellant in
his first issue, we will not consider it as part of our cumulative error analysis. See
Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999).
      Without objection, Agent Jenkins testified that the Mesquite Street house had
“been known as an area where crack cocaine is sold.” Similarly, he testified, “I
received information about several males there that were selling crack cocaine, and
they were concealing the crack cocaine in the yard at [the Mesquite Street house]. I
was able to obtain a search warrant for that residence on that same date.” He also
testified, “Basically my information was [the cocaine] was being concealed outside
the residence in the yard,” and “Like I said, I received information that my
confidential informant described the person to me and that’s why we were there
because I received information that they had observed him in possession of cocaine.”
      On cross-examination, Appellant’s trial counsel asked Agent Jenkins, “Also
in your affidavit asking for the search warrant you stated that within the past 48
hours your confidential informant has been at the described suspected place, which
is [the Mesquite Street house], and observed the suspected party in possession of an
off white rock-like substance with the suspected party reported to have crack
cocaine; is that right?” In final argument, the prosecutor stressed the evidence that
the Mesquite Street house had “been known as an area where crack cocaine is sold.”
The prosecutor stated: “This is three-generations -- three generations of a family
that’s been involved in cocaine. The testimony is replete there.” The trial court
sustained defense counsel’s objection that the prosecutor’s statement was “not in
evidence,” but defense counsel did not request the trial court to instruct the jury to
disregard the argument.
      Appellant asserts that trial counsel should have objected to Agent Jenkins’s
testimony of what he heard from a confidential informant on the ground that it
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violated Appellant’s right to confrontation. See Langham v. State, 305 S.W.3d 568,
580–82 (Tex. Crim. App. 2010) (holding that a statement from a confidential
informant can be subject to the Confrontation Clause if its primary purpose is
testimonial in nature). The Confrontation Clause bars the admission of out-of-court
testimonial statements of a witness unless (1) the witness is unavailable to testify
and (2) the defendant had a prior opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 53–54 (2004); Render v. State, 347 S.W.3d
905, 917 (Tex. App.—Eastland 2011, pet. ref’d). “Post-Crawford, the threshold
question in any Confrontation Clause analysis is whether the statements at issue are
testimonial or nontestimonial in nature.”2 Render, 347 S.W.3d at 917. Appellant
further asserts that trial counsel should have requested that the trial court instruct the
jury to disregard the prosecutor’s argument.
      Appellant asserts that all of trial counsel’s errors taken together prejudiced his
defense. We disagree. In Ex parte Welborn, the Court of Criminal Appeals
recognized that, while individual instances of deficient performance may not
prejudice the defense, deficient performance taken as a whole can compel such a
holding. See Ex parte Welborn, 785 S.W.2d 391, 396 (Tex. Crim. App. 1990). In a
concurring opinion in Linney v. State, Justice Cochran provided a useful outline of
the cumulative error doctrine:
            We have long recognized that “a number of errors may be found
      harmful in their cumulative effect,” even if each error, considered
      separately, would be harmless. However, cumulative error is an
      independent ground for relief, separate from the underlying instances
      of error. A string of harmless errors does not arithmetically create
      reversible, cumulative error. Instead, we look for “multiple errors [that]
      synergistically achieve ‘the critical mass necessary to cast a shadow
      upon the integrity of the verdict.’”

      2
       We note that trial counsel testified that she was not aware of the landmark decision in Crawford.

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Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J.,
concurring in refusal of pet.) (alteration in original) (footnotes omitted).
      Even if we assume that trial counsel erred in failing to object to
Agent Jenkins’s testimony, Appellant has failed to show that such error prejudiced
his defense to the point that there is a reasonable probability that the result would
have been different but for counsel’s alleged errors.                       Much of the testimony
concerned information that Agent Jenkins had received from a confidential
informant who had actually implicated someone else who was present at the
Mesquite Street house the day Appellant was arrested.                            This testimony was
consistent with trial counsel’s strategy of showing that someone else was the actual
perpetrator of the charged offense.               Additionally, even if we assume that the
prosecutor’s jury argument was improper, it was not evidence that the jury could
have considered based upon the instructions provided to the jury.3 Even if we were
to assume that trial counsel’s performance was deficient in each of these instances,
Appellant has failed to show that they “synergistically achieve the critical mass
necessary to cast a shadow upon the integrity of the verdict.” Linney, 413 S.W.3d
at 767 (internal quotation marks omitted).
      There was overwhelming evidence of Appellant’s guilt. Agent Jenkins and
Agent Ferrell both testified that, although there were six people in the yard, they
were all wearing different clothing and that Appellant was wearing a bright yellow
shirt and a green baseball cap. Agent Jenkins also testified that he saw no person
other than Appellant manipulating the bottle that contained cocaine and that he saw
no person other than Appellant walk to the area where the cocaine was concealed.
Accordingly, Appellant has failed to show that the trial court abused its discretion in
determining that there was not a reasonable probability that the outcome of


      3
       The trial court pointed this fact out at the hearing on the motion for new trial.

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Appellant’s trial would have been different but for trial counsel’s alleged errors. We
overrule Appellant’s second issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


May 27, 2016
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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