                             NUMBER 13-07-00220-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CISTO RIOS,                                                                  Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


 On appeal from the 103rd District Court of Cameron County, Texas.


                          MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
               Memorandum Opinion by Justice Garza
       Appellant, Cisto Rios, was convicted of possession of more than four grams but less

than 200 grams of cocaine, and was sentenced to seven years’ imprisonment. See TEX .

HEALTH & SAFETY CODE ANN . § 481.115(d) (Vernon 2003). Rios now appeals, contending

that (1) he was the victim of an unlawful search and seizure, and (2) his trial counsel was

ineffective for not raising his motion to suppress. We modify the trial court’s judgment and

affirm the judgment as modified.

                                     I. BACKGROUND

       On July 6, 2006, Cameron County Sheriff’s Deputy Osvaldo Garcia and Investigator

Alvaro Guerra were investigating a burglary of a habitation call in which the suspect’s
vehicle was described as a gray four-door passenger vehicle.              Deputy Garcia and

Investigator Guerra observed a gray four-door Dodge Neon with tinted windows driving at

a high rate of speed. Deputy Garcia pulled the Neon over at the 2500 block of Rancho

Viejo in Cameron Park and then made contact with the driver, Rios. Rios stated that he

had no driver’s license but instead produced identification in the form of a Social Security

Card. When Deputy Garcia walked back to his patrol unit to run a driver’s license check

on Rios, Investigator Guerra, who had previously arrived in his own vehicle, approached

the Neon.

       Investigator Guerra observed on the front passenger seat of the Neon what he
believed to be a small marihuana cigarette that had been chewed up and spit out. At that

point, Investigator Guerra asked Rios to step out of the vehicle, and advised Rios that he

was not under arrest, but that for his safety and the officers’ safety, he should sit inside the

patrol unit. Before placing Rios in the patrol unit, Investigator Guerra conducted a pat

down of Rios and noticed a bulge in Rios’s right rear pocket—Guerra discovered that this

bulge was a clear plastic bag containing a green leafy substance which later would test

positive as marihuana. According to the Criminal Case Report listed as State’s exhibit

number two in the clerk’s record, Rios admitted at that time that he owned the marihuana

found on his person.

       At that point, Deputy Angel Perez arrived at the scene and assisted the officers by

conducting an inventory of Rios’s vehicle. Deputy Perez discovered another clear plastic

bag tucked in between the driver’s seat and the center console. This bag contained 3.5

grams of a substance that was later confirmed to be cocaine. Deputy Perez also found,

in another location in the car, a second clear plastic bag containing twelve smaller clear

plastic bags also containing cocaine. In all, 6.29 grams of cocaine and 8.65 grams of

marihuana were seized.

       On October 18, 2006, a Cameron County grand jury indicted Rios for the offense

of possession with intent to deliver more than four grams but less than 200 grams of a

controlled substance, a first-degree felony. See id. § 481.112(d) (Vernon 2003). On
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January 26, 2007, the trial court held a plea hearing at which Rios pleaded guilty to an

amended indictment. The amended indictment struck the words “with intent to deliver,”

rendering the charged offense a second-degree felony. See id. § 481.115(d). Rios’s guilty

plea was based on a plea agreement in which the State offered five years’ imprisonment

and waiver of Rios’s pre-sentence investigation.

        At the plea hearing, the trial court inquired as to Rios’s criminal history. Rios

explained that he previously served five years and ten months of a seven-year sentence

for aggravated assault, and that he was released in 2004. Upon hearing this information,

the trial court announced that it was not accepting the plea agreement, but instead was
assessing punishment at seven years in the Texas Department of Criminal

Justice–Institutional Division. After being advised of this sentence and of his option to

withdraw his guilty plea, Rios chose to maintain the guilty plea. The trial court rendered

its judgment of conviction on February 22, 2007 stating that Rios was convicted of a “1st

degree felony.”1 This appeal ensued.2

                                                II. DISCUSSION

A.      Search and Seizure

        Rios alleges that he was arrested without probable cause and that the search and

seizure at the time of his arrest were made without probable cause, and were therefore in

violation of the United States Constitution, the Texas Constitution, and the code of criminal

procedure. See U.S. CONST . amend. IV, V, XIV; TEX . CONST . art. I, §§ 9, 10, 19; TEX . CODE

CRIM . PROC . ANN . art. 38.23 (Vernon 2005). Rios previously made these allegations in a

“Motion to Suppress Illegally Seized Evidence” filed on November 13, 2006; however, this

motion was not presented to the trial court and the trial court did not rule upon it. Still, Rios




        1
          Neither party disputes the fact that this was an error, and that the judgm ent of conviction should read
that Rios was convicted of a second-degree felony. This error is discussed m ore fully herein.
          2
            The State does not dispute that Rios has the right to appeal the judgm ent of the trial court because
the trial court did not accept the plea agreem ent executed by Rios and the State. See T EX . R. A PP . P. 25.2(b).
                                                        3
contends that the motion remains “open” and, as such, this Court should have jurisdiction

to consider it on appeal.

       Texas Rule of Appellate Procedure 33.1(a) provides that, as a prerequisite to

presenting a complaint for appellate review, the record must show that a comprehensive

complaint was made to the trial court in accordance with rules of procedure and that the

trial court either: (A) explicitly or implicitly ruled on the complaint; or (B) refused to rule on

the complaint and the complaining party objected to the refusal. TEX . R. APP. P. 33.1(a)(2).

Rios contends that the trial court “implicitly denied” his motion to suppress by sentencing

him without addressing the motion. We disagree.
       It is a long-standing rule that absent an adverse ruling of the trial court which

appears in the record, there is no preservation of error. Ramirez v. State, 815 S.W.2d 636,

643 (Tex. Crim. App. 1991); Darty v. State, 709 S.W.2d 652, 655 (Tex. Crim. App. 1986).

Although some courts have found an implicit denial when a trial court fails to formally rule

on a motion to suppress, these courts relied upon an explicit indication in the record that

the motion had been disposed of. See Castro v. State, 202 S.W.3d 348, 352 (Tex.

App.–Fort Worth 2006, pet. granted) (finding an implicit denial of motion to suppress where

trial court stated “I’m relatively sure that you’re going to appeal the Court’s ruling on the

Motion to Suppress, so for purposes of the record, you do have the Court’s consent to

appeal that decision”); see also Kercho v. State, No. 14-01-01176-CR, 2007 Tex. App.

LEXIS 4369, at *20-22 (Tex. App.–Houston [14th Dist.] May 31, 2007, no pet.) (mem. op.,

not designated for publication) (finding an implicit denial of supplemental motion to

suppress where trial court stated “I’m not going to rule on your Supplemental Motion to

Suppress, I feel those are questions for the jury and not for the court. Those go to the

weight and not admissibility, it’s [for] the jury to decide those issues.”); Yanez v. State, 187

S.W.3d 724, 731 (Tex. App.–Corpus Christi 2006, pet. ref’d) (finding implicit denial of

motion to suppress when court declined to grant pre-trial hearing on motion). Here, the

record contains no reference by the trial court to Rios’s motion to suppress. Additionally,

Rios did not request that the trial court hear his motion to suppress at the January 26, 2007
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plea hearing. Instead, after the trial court announced the rejection of the plea agreement,

Rios consulted with his trial counsel and agreed to plead guilty anyway. Rios did not

pursue his motion to suppress to an adverse ruling.

       Because the record does not show that the trial court explicitly or implicitly ruled on

Rios’s motion to suppress, or that the trial court refused to rule on the motion and Rios

objected to that refusal, we conclude that the issues raised in the motion have not been

preserved for appeal. See TEX . R. APP. P. 33.1(a). Rios’s first issue is overruled.

B.     Ineffective Assistance of Counsel

       By his second issue, Rios contends that the failure of his trial counsel to reassert
his motion to suppress after the trial court rejected his plea agreement amounts to

ineffective assistance of counsel.

       To establish a claim for ineffective assistance of counsel, Rios must show (1) his

attorney’s representation fell below an objective standard of reasonableness, and (2) there

is a reasonable probability that, but for his attorney’s errors, the result of the proceeding

would have been different.       Strickland v. Washington, 466 U.S. 668, 684 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been

met is to be judged on appeal by the totality of the representation, not by any isolated acts

or omissions. Jaynes, 216 S.W.3d at 851. The burden is on the appellant to prove

ineffective assistance of counsel by a preponderance of the evidence. Id. Our review of

counsel’s representation is highly deferential, and we will find ineffective assistance only

if the appellant overcomes the strong presumption that his counsel’s conduct fell within the

wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689;

Jaynes, 216 S.W.3d at 851. The acts or omissions that form the basis of appellant’s claim

of ineffective assistance must be evidenced by the record. See Thompson v. State, 9

S.W.2d 808, 814 (Tex. Crim. App. 1999); Jaynes, 216 S.W.3d at 851. In most cases, a

silent record which provides no explanation for counsel’s actions will not overcome the


                                              5
strong presumption of reasonable assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001); Thompson, 9 S.W.3d at 813-14.

        Rios claims that his trial counsel should have requested a hearing on his motion to

suppress because he was the victim of an unreasonable investigatory stop. See generally

Hoag v. State, 728 S.W.2d 375, 380 (Tex. Crim. App. 1987) (stating that “a police officer

may briefly stop a suspicious individual in order to determine his identity or to maintain the

status quo momentarily while obtaining more information,” but that in such a case “the

officer must have specific articulable facts which, in light of his experience and personal

knowledge, together with inferences from those facts, would reasonably warrant the
intrusion on the freedom of the citizen stopped for further investigation.”). Specifically, Rios

asserts that the police officers pulled his car over simply because it was gray—the same

color as the car being driven by the suspect in the burglary case being investigated by the

officers—and that the stop was therefore unreasonable.3

        Without determining whether the investigative stop was reasonable, we note that

it was far from certain that a potential hearing on Rios’s motion to suppress would have

resulted in the suppression of any evidence. Therefore, it was not unreasonable for Rios

to plead guilty to the amended indictment knowing that he would receive a sentence of

seven years imprisonment, which is far more lenient than that permitted by law. See TEX .

PENAL CODE ANN . § 12.33(a) (Vernon 2003) (stating that the maximum term of

imprisonment for a second-degree felony conviction is twenty years). We find nothing in

the record suggesting that pleading guilty, without requesting a suppression hearing, was

anything other than a reasonable trial strategy.

        Moreover, an essential requisite to successfully attacking a guilty plea on ineffective

assistance grounds is that the appellant must show that the alleged deficiencies caused

his plea to be unknowing and involuntary. Rodriguez v. State, 899 S.W.2d 658, 666 (Tex.



        3
          W e note that the record reflects that the burglary suspect’s car was a four-door gray passenger
vehicle, and so was Rios’s car. Further, Rios was only asked to sit in the officers’ vehicle when Investigator
Guerra saw what he believed to be a chewed-up m arihuana cigarette on the car’s front passenger seat.
                                                      6
Crim. App. 1995). Here, Rios does not argue that the alleged deficiencies of his trial

counsel’s representation caused his plea to be unknowing and involuntary. We therefore

conclude that Rios has not shown that his trial counsel provided ineffective assistance. We

overrule Rios’s second issue.

                               III. REFORMATION OF JUDGMENT

          We note that both parties to this appeal have filed notices to this Court of the

necessity to reform the trial court’s judgment of conviction. As stated above, the trial

court’s judgment of conviction stated that the offense for which Rios was convicted was a

“1st degree felony.” It is undisputed, however, that this was erroneous. Although Rios was
originally indicted for a first-degree felony (possession with intent to deliver more than four

grams but less than 200 grams of a controlled substance), the indictment was eventually

amended and Rios was convicted of only a second-degree felony (possession of more

than four grams but less than 200 grams of a controlled substance). See TEX . HEALTH &

SAFETY CODE ANN . §§ 481.112(d) (providing that the offense of possession with intent to

deliver more than four grams but less than 200 grams of cocaine is a first-degree felony),

481.115(d) (providing that the offense of possession of more than four grams but less than

200 grams of cocaine is a second-degree felony). We therefore modify the judgment of

conviction to reflect that Rios was convicted of a second-degree felony, not a first-degree

felony.

                                       IV. CONCLUSION

          We modify the judgment of the trial court and, having overruled Rios’s two issues

on appeal, we affirm the judgment as modified.




                                                   DORI CONTRERAS GARZA,
                                                   Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 22nd day of May, 2008.

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