                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-08-280-CR


JEROME CARR                                                      APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                                I. INTRODUCTION

     Appellant Jerome Carr appeals his conviction for aggravated robbery with

a deadly weapon.      After a jury found Appellant guilty and assessed his

punishment at eleven years’ confinement, the trial court sentenced him

accordingly.    In four points, Appellant argues that he received ineffective

assistance of counsel. We will affirm.



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          See Tex. R. App. P. 47.4.
                              II. F ACTUAL B ACKGROUND

      Carohn Carroll and his roommate Aaron Watkins were arrested and taken

to jail after police searched their townhome and found drug paraphernalia in it.

Watkins confessed that the drug paraphernalia was his, but police also arrested

Carroll and took both men to jail. 2

      The next day, Carroll and Watkins were released, and they returned to the

townhome. Later that same day, Watkins went to a nearby gas station to get

a money order to pay rent, and Carroll headed upstairs to shower and get ready

for work.

      Carroll heard a knock at the door and thought that Watkins had forgotten

his keys. Carroll looked out the peephole and saw a man that he recognized

but whose name he did not know; the man was later identified as Wymie.

Carroll opened the door, stepped outside, and closed the door. Carroll told

Wymie that he and Watkins had been arrested the previous night and that the

police had said that anyone who entered the townhome would go to jail. While

he was outside, Carroll saw Carr standing against the wall. Carr and Wymie

asked if Watkins was home, and Carroll opened the door and yelled Watkins’s

name to see if he had returned while Carroll had been in the shower.




      2
           Carroll testified that he was never prosecuted for this offense.

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      At that point, Carr stepped inside the townhome, lifted his shirt, pulled

out a black 9 mm handgun, cocked it, and put it to Carroll’s head. Carr pushed

the gun into Carroll’s head as he repeatedly asked, “Where’s the money at?

Where’s the weed at?” Carroll said that he did not owe Carr any money. Carr

then put the gun to Carroll’s neck, cursed a couple of times, and pulled the

trigger, but the gun did not fire. Carroll said that Carr looked at the gun like he

was shocked, while Wymie stated that he was shocked that Carr had pulled the

trigger.

      An altercation ensued, and Carroll escaped, jumping down the stairs and

running zig-zag through the parking lot so that he would not get shot. While

he was running, Carroll heard a bullet hit the ground and saw Carr and Wymie

looking at the gun. Carroll caught the assistant manager of the townhomes

walking to her car and told her that “he tried to kill me.” The assistant manager

pulled out her cell phone and called the police. While the assistant manager

was calling the police, she and Carroll saw Carr and Wymie leaving the area.

      An officer arrived “within seconds,” and Carroll gave the officer a

summary of the events and a description of Carr and Wymie. Carroll gave the

police a written statement several days after the incident. After police arrested

Carr, they videotaped an interview with him.




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      The jury heard testimony from two of the officers who worked on the

case, Carroll, and Carr’s aunt 3 and watched the videotaped interview of Carr;

the jury found Carr guilty of aggravated robbery with a deadly weapon as

charged in the indictment. After hearing the punishment evidence, the jury

assessed punishment at eleven years’ confinement, and the trial court

sentenced Carr accordingly. That same day, Carr filed his notice of appeal. 4

  III. INEFFECTIVE A SSISTANCE OF C OUNSEL C LAIMS N OT F OUNDED IN THE R ECORD

      All four of Carr’s points argue that he was denied effective assistance of

counsel under both the United States and Texas constitutions due to trial

counsels’ failure to file a motion to suppress Carr’s videotaped interview and

failure to request a limiting instruction concerning part of the interview. The

State argues that the record is insufficient to overcome the presumption that

defense counsels’ conduct fell within the wide range of professional competent

assistance.

      A.       Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsels’ representation fell below the


      3
        Carr’s aunt testified that when she lived in Arlington, Carroll had come
over to her house on several occasions to smoke marijuana and that her
boyfriend had taken food to Carroll in exchange for marijuana.
      4
           No motion for new trial was filed.

                                         4
standard of prevailing professional norms and that there is a reasonable

probability that, but for counsels’ deficiency, the result of the trial would have

been different.   Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (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 counsels’ 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 counsels’ representation is highly deferential, and the

reviewing court indulges a strong presumption that counsels’ 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

                                        5
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 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 counsels’ errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

words, appellant must show there is a reasonable probability that, but for

counsels’ unprofessional errors, the result of the proceeding would have been

different.    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.

      B.       Trial Counsels’ Objections

      During the State’s direct examination of Detective Danny Nutt, the State

offered into evidence the videotaped interview of Carr. Before the State played

the videotape, defense counsel objected based on the Fifth Amendment,

arguing that Carr had not taken the stand and might not take the stand. The

                                            6
trial court overruled this objection, and the videotape was played for the jury.

After the jury watched the video, defense counsel asserted a hearsay objection

to Detective Nutt’s statements about what Wymie had said and requested an

instruction to the jury to disregard these statements. The trial court overruled

this objection.

      The State then concluded its direct examination of Detective Nutt. After

defense counsel cross-examined the detective, passed the witness, and

Detective Nutt was excused, defense counsel indicated her desire to “in an

abundance of caution,” “put on the record” “our concern about the officer

referring to information given to him by someone else.” When the trial court

stated that it had already ruled on this issue, defense counsel complained that

“we don’t have an opportunity to confront, is our main concern.” The trial

court again indicated that it had already ruled on this issue.

      C.    Strickland Analysis

      In his first and second points, Carr argues that his trial counsel provided

ineffective assistance by failing to file a pretrial motion to suppress the video.

Trial counsels’ failure to file a motion to suppress is not per se ineffective

assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 384, 106

S. Ct. 2574, 2587 (1986); Hollis v. State, 219 S.W.3d 446, 456 (Tex.

App.—Austin 2007, no pet.). Counsel is not required to engage in the filing of

                                        7
futile motions. Hollis, 219 S.W.3d at 456 (citing Mooney v. State, 817 S.W.2d

693, 698 (Tex. Crim. App. 1991)). Rather, to satisfy the Strickland test and

prevail on an ineffective assistance claim premised on counsels’ failure to file

a motion to suppress, an appellant must show by a preponderance of the

evidence that the result of the proceeding would have been different—i.e., that

the motion to suppress would have been granted and that the remaining

evidence would have been insufficient to support his conviction. Id. (citing

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

      Carr argues that if a motion to suppress had been filed, it would have

been granted; although Detective Nutt read Carr his rights, although Carr

indicated that he understood his rights, and although Carr then proceeded to

answer the questions propounded by Detective Nutt, Carr points out that he did

not affirmatively waive his rights before he made the statements. He contends

that the statements were involuntary under article 38.22 of the code of criminal

procedure for this reason. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3

(Vernon 2005).    An express, affirmative verbal statement from an accused

indicating that he waives his rights is not required in order for a custodial, oral

statement to be admissible under article 38.22, section 3. See, e.g., Etheridge

v. State, 903 S.W.2d 1, 18 (Tex. Crim. App. 1994), cert. denied, 516 U.S.

920 (1995); Barefield v. State, 784 S.W.2d 38, 40–41 (Tex. Crim. App.

                                        8
1989), overruled on other grounds by Zimmerman v. State, 860 S.W.2d 89

(Tex. Crim. App. 1993) and cert. denied, 497 U.S. 1011 (1990). Instead, in

measuring the voluntariness of a confession, courts look to the totality of the

circumstances surrounding the making of the statement. See, e.g., Griffin v.

State, 765 S.W.2d 422, 427 (Tex. Crim. App. 1989). Frequently, when a

defendant has been advised of his rights, indicates that he understands his

rights, and then chooses to proceed to answer questions, from the totality of

these circumstances it may be inferred that the accused waived his rights. See

Hargrove v. State, 162 S.W.3d 313, 318–19 (Tex. App.—Fort Worth 2005,

pet. ref’d); State v. Oliver, 29 S.W.3d 190, 193 (Tex. App.—San Antonio

2000, pet. ref’d); Gomes v. State, 9 S.W.3d 373, 381 (Tex. App.—Houston

[14th Dist.] 1999, pet. ref’d).    Thus, because Carr received the required

statutory warnings, indicated that he understood them, and proceeded to

answer Detective Nutt’s questions, he has not established that a motion to

suppress—alleging the involuntariness of his statements based on the lack of

an affirmative waiver of his rights, if filed—would have been granted. See,

e.g., Etheridge, 903 S.W.2d at 18; Hargrove, 162 S.W.3d at 318–19; Oliver,

29 S.W.3d at 193.

      Moreover, as mentioned above, Carr did not file a motion for new trial;

therefore, no record exists establishing defense counsels’ reasons for failing to

                                       9
file a motion to suppress. 5 Nor does the record establish what evidence the

State would have presented had defense counsel filed a motion to suppress.

It is entirely possible that in this case defense counsel may have made a

strategic decision not to file a motion to suppress when they knew that it was

unlikely to be granted. See, e.g., Hollis, 219 S.W.3d at 456. Thus, Carr’s

claim of ineffective assistance of counsel based on a failure to file a motion to

suppress cannot be sustained on this record. See Thompson, 9 S.W.3d at

813–14; Jackson, 973 S.W.2d at 957 (holding that appellant’s claim of

ineffective assistance could not be sustained based on the record before the

appellate court because appellant failed to develop facts and details of the

search sufficient to show that the search was invalid).

      In his third and fourth points, Carr argues that his trial counsel provided

ineffective assistance by not properly objecting to Carr’s videotaped statement

before it was admitted into evidence and by failing to request a limiting

instruction with regard to Detective Nutt’s hearsay statements that Wymie had

corroborated Carroll’s version of the events, including that Carr had a pistol.

In the absence of evidence of trial counsels’ reasons for the challenged

conduct, an appellate court “commonly will assume a strategic motivation if



      5
        The record reveals that defense counsel had notice from the State
regarding the videotape approximately four months before trial.

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any can possibly be imagined.” See Andrews v. State, 159 S.W.3d 98, 101

(Tex. Crim. App. 2005); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001), cert. denied, 537 U.S. 1195 (2003).           We will not conclude the

challenged conduct constituted deficient performance unless the conduct was

so outrageous that no competent attorney would have engaged in it.             See

Thompson, 9 S.W.3d at 814.

      While many attorneys might have prudently objected and requested such

a limiting instruction, it is equally possible that other reasonable and

conscientious attorneys would not have objected or requested a limiting

instruction in order to avoid drawing further attention to Wymie’s statements.

See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (explaining

failure to request limiting instruction fell within the wide range of reasonable

professional assistance and that because such conduct might be sound trial

strategy, silent record did not satisfy appellant’s burden under first Strickland

prong); Bryant v. State, 282 S.W.3d 156, 171 (Tex. App.—Texarkana 2009,

pet. ref’d) (holding record did not support ineffective assistance claim when

appellate court could imagine a reasonable, strategic reason to explain trial

counsel’s failure to request a limiting instruction).     Nothing in the record

indicates what defense counsels’ trial strategy was. Therefore, we cannot say

that the alleged ineffectiveness is firmly founded in the record or that the record

                                        11
affirmatively demonstrates the alleged ineffectiveness.          See Thompson, 9

S.W.3d at 814. Consequently, Carr has not met his heavy burden to defeat the

strong presumption that trial counsels’ actions fell within the wide range of

reasonable professional assistance. See Andrews, 159 S.W.3d at 101.

        We therefore hold that the record is insufficient to demonstrate that

Carr’s trial counsel rendered ineffective assistance on the grounds alleged by

Carr.6 And because we have held that trial counsels’ conduct was not deficient

under Strickland’s first prong, we need not address the second prong of the

Strickland test. See Andrews, 159 S.W.3d at 101; Rylander v. State, 101

S.W.3d 107, 110–11 (Tex. Crim. App. 2003) (both stating that a failure to




        6
             As noted by the court in Jackson, this is not unusual in cases of this
sort:

        Experience has taught us that in most instances where the claim of
        ineffective assistance of counsel is raised, the record on direct
        appeal is simply not in a shape, perhaps because of the very
        alleged ineffectiveness below, that would adequately reflect the
        failings of trial counsel. Indeed, in a case such as this, where the
        alleged derelictions primarily are errors of omission de hors the
        record rather than commission revealed in the trial record, collateral
        attack may be . . . the vehicle by which a thorough and detailed
        examination of alleged ineffectiveness may be developed and
        spread upon a record.

973 S.W.2d at 957.

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make a showing under either prong of the Strickland test defeats a claim of

ineffective assistance of counsel). We therefore overrule Carr’s four points.

                               IV. C ONCLUSION

      Having overruled Carr’s four points, we affirm the trial court’s judgment.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 17, 2009




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