                                  NO. 12-14-00073-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JOSEPH MICHAEL PIERCE,                           §      APPEAL FROM THE 114TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
          Joseph Michael Pierce appeals his conviction for possession of more than four hundred
grams of methamphetamines, for which he was sentenced to imprisonment for seventy years and
a fine of $250,000.00. In two issues, Appellant argues that the trial court erred by overruling his
motion to suppress evidence, and that his trial counsel rendered ineffective assistance. We
affirm.


                                          BACKGROUND
          Texas State Trooper Jeremy Frazier stopped Appellant on Interstate 20 in Smith County
for driving on the improved shoulder.       During his investigation, Trooper Frazier became
suspicious of possible criminal activity.     He requested consent to search the vehicle, but
Appellant refused. Trooper Frazier then called for a K-9 sniff of the vehicle. The dog alerted.
Trooper Frazier and another trooper searched the vehicle and located a large amount of
methamphetamine inside a backpack in the back seat.
          Appellant was charged by indictment with possession of four hundred grams or more of
methamphetamine. He filed a motion to suppress the evidence, challenging the initial stop of the
vehicle and his extended detention. After a hearing, the trial court denied the motion to suppress.
       Appellant then pleaded “not guilty,” and the matter proceeded to a jury trial. The trial
court submitted a jury instruction under Texas Code of Criminal Procedure Article 38.23
regarding reasonable suspicion for the initial stop. The jury found Appellant “guilty” as charged
and assessed his punishment at imprisonment for seventy years and a fine of $250,000.00. This
appeal followed.


                                      MOTION TO SUPPRESS
       In his first issue, Appellant argues that the trial court erred in denying his pretrial motion
to suppress. Although he challenged both the initial stop and his extended detention in the trial
court, he challenges only the initial stop on appeal.
Standard of Review
       We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Carmouche v. State, 10
S.W.3d 323, 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 273
S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
determination of historical facts, especially if those determinations turn on witness credibility or
demeanor, and review de novo the trial court’s application of the law to facts not based on an
evaluation of credibility and demeanor. Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App.
2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact
and judge of the witnesses’ credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
       When a trial court does not make express findings of fact, we view the evidence in the
light most favorable to the trial court’s ruling and assume the trial court made implicit findings of
fact that support its ruling as long as those findings are supported by the record. Lujan v. State,
331 S.W.3d 768, 771 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to “the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn from
that evidence.” State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). When all
evidence is viewed in the light most favorable to the trial court’s ruling, an appellate court is
obligated to uphold the ruling on a motion to suppress if that ruling is supported by the record



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and is correct under any theory of law applicable to the case. See Ross, 32 S.W.3d at 856;
Carmouche, 10 S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
Governing Law
       A routine traffic stop closely resembles an investigative detention. Powell v. State, 5
S.W.3d 369, 375 (Tex. App.—Texarkana 1999, pet. ref’d); see also United States v. Brigham,
382 F.3d 500, 506 (5th Cir. 2004). Because an investigative detention is a seizure that implicates
the United States and Texas Constitutions, the traffic stop must be reasonable. U.S. CONST.
amend. IV; TEX. CONST. art. I, § 9; Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App.
1996). To determine the reasonableness of an investigative detention, we conduct the inquiry set
forth by the United States Supreme Court in Terry v. Ohio and determine (1) whether the
officer’s action was justified at its inception and (2) whether it was reasonably related in scope to
the circumstances that initially justified the interference. See Terry v. Ohio, 392 U.S. 1, 19-20,
88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968); Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim.
App. 1997).
       Under the first part of the inquiry, an officer’s reasonable suspicion justifies an
investigative detention. Davis, 947 S.W.2d at 242-43. Specifically, the officer must have a
reasonable suspicion that some activity out of the ordinary is occurring or has occurred. Id. at
244 (citing Garza v. State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989)). A law enforcement
officer may stop and briefly detain a person for investigative purposes on less information than is
constitutionally required for probable cause to arrest. Foster v. State, 326 S.W.3d 609, 613 (Tex.
Crim. App. 2010) (citing Terry, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889). An officer has
reasonable suspicion to detain a person if he has specific, articulable facts that, combined with
rational inferences from those facts, would lead him reasonably to conclude that the person
detained is, has been, or soon will be engaged in criminal activity. State v. Elias, 339 S.W.3d
667, 674 (Tex. Crim. App. 2011). This is an objective standard. Id. Thus, when an officer has a
reasonable basis for suspecting that a person has committed an offense, the officer may legally
initiate an investigative stop. See Powell, 5 S.W.3d at 376 (citing Drago v. State, 553 S.W.2d
375, 377-78 (Tex. Crim. App. 1977)).
       Under the second part of the inquiry, the “investigative stop can last no longer than
necessary to effect the purpose of the stop.” Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App.
2004). The issue is “whether the police diligently pursued a means of investigation that was



                                                 3
likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain
the defendant.” Id. at 64-65 (quoting United States v. Sharpe, 470 U.S. 675, 685-86, 105 S. Ct.
1568, 1569, 84 L.Ed.2d 605 (1985)). With regard to a traffic stop, an officer can conduct a
license and warrants check. Id. at 63. An officer also may ask the driver to exit the vehicle. See
Strauss v. State, 121 S.W.3d 486, 491 (Tex. App.—Amarillo 2003, pet. ref’d).
Analysis
       Appellant argues that the evidence found after the initial stop should be suppressed
because Trooper Frazier’s testimony regarding that instance was based solely on his memory and
his report, which was written five days after the event. Appellant notes that the first alleged
instance of Appellant driving on the improved shoulder was not recorded by Trooper Frazier’s
video camera. He further notes that the video recording only shows the vehicle’s tires on the line
and not on the improved shoulder itself.
       Under the transportation code, a driver may drive on an improved shoulder only if he can
do so safely and as necessary for one of seven enumerated purposes. See TEX. TRANSP. CODE
ANN. § 545.058(a) (West 2011). At the suppression hearing, Trooper Frazier testified that he
was parked sideways, or northbound, at the scale house on eastbound Interstate 20 in Smith
County when he first saw Appellant’s vehicle. He testified that he saw Appellant’s vehicle cross
over the white line on the right side that divides the interstate from the shoulder.
       Trooper Frazier stated that Appellant’s vehicle crossed the line by a distance of about half
the width of the vehicle. The video does not show this action because of the direction the
trooper’s vehicle was facing at the time. Trooper Frazier pulled out behind Appellant and
followed him a short distance. He testified that as he was approaching Appellant’s vehicle,
Appellant “rode on top of the white line.”
       The video shows the vehicle very far right in the lane, but does not clearly show the tires’
exact relationship to the white line. The video shows no apparent necessity for the vehicle to be
on or across the white line. After Trooper Frazier stopped Appellant, the video shows him
asking Appellant if he had had anything to drink. Trooper Frazier testified that he asked that
question because the vehicle had “crossed over the shoulder several times.”
       Based on our review of the record, we conclude that the record supports the trial court’s
implied finding that Trooper Frazier saw Appellant driving on the improved shoulder. The trial
court’s determination of this historical fact turned on Trooper Frazier’s credibility and demeanor.



                                                  4
The trial court was the exclusive trier of fact and judge of the witness’s credibility. Maxwell, 73
S.W.3d at 281. Accordingly, the trial court was free to choose to believe or disbelieve all or any
part of his testimony. See Ross, 32 S.W.3d at 855. Therefore, we give almost total deference to
the trial court’s determination of that fact. See Neal, 256 S.W.3d at 281. Having given due
deference to the trial court’s ruling, we hold that the trial court did not abuse its discretion by
denying Appellant’s motion to suppress. Accordingly, we overrule Appellant’s first issue.


                              INEFFECTIVE ASSISTANCE OF COUNSEL
       In his second issue, Appellant contends that he received ineffective assistance of counsel
and asks this court to grant a new trial.
Standard of Review and Applicable Law
       In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant
must “show that counsel’s representation fell below an objective standard of reasonableness.”
Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
       Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712.   A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.
       Review of a trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is



                                                5
Appellant’s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any
allegation of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). Rarely is the record on direct appeal sufficiently developed to fairly
evaluate the merits of a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002).
       Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove
both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong,
25 S.W.3d at 712.
Analysis
       Appellant argues that his trial counsel was ineffective because he failed to request
findings of fact and conclusions of law following the suppression hearing. He contends that
without these findings and conclusions, trial counsel was unable to adequately prepare for his
cross examination of Trooper Frazier at trial. However, the record shows that trial counsel
performed a very thorough cross examination of Trooper Frazier, and Appellant does not explain
how the trial court’s findings of fact and conclusions of law might have changed it.
       Appellant further contends that without findings of fact and conclusions of law, appellate
counsel is unable to adequately challenge the suppression ruling on appeal.            However,
Appellant’s burden is to “show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” See Strickland,
466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. Appellant has not shown any
reasonable probability that a request for findings of fact and conclusions of law would have
changed the outcome of his trial. See id.
       Furthermore, the record is silent as to counsel’s possible strategic reasons for not
requesting findings of fact and conclusions of law. Therefore, we conclude that the record is not
sufficiently developed to fairly evaluate whether counsel was ineffective for this omission. See
Bone, 77 S.W.3d at 833. Accordingly, we overrule Appellant’s second issue.




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                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice


Opinion delivered April 30, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 30, 2015


                                         NO. 12-14-00073-CR


                                   JOSEPH MICHAEL PIERCE,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0648-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.

                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
