                                  NO. 07-07-0139-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                  OCTOBER 10, 2008

                          ______________________________


                             BYRON E. SIRES, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2006-412540; HONORABLE JIM BOB DARNELL, JUDGE

                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Following a not guilty plea, Appellant, Byron E. Sires, was convicted by a jury of

possession of methamphetamine with intent to deliver, enhanced.1 Punishment was

assessed by the trial court at forty-five years confinement. Appellant raises four issues.



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          § 481.112(a) Tex. Health & Safety Code Ann. (Vernon 2003).
By his first three issues, Appellant questions whether trial counsel was ineffective for (1)

neither filing a motion to suppress the contraband, nor objecting to its admission at trial;

(2) neither filing a motion to suppress his oral statements regarding the contraband, nor

objecting to their admission into evidence; (3) neither filing a motion to suppress his oral

statements regarding the contraband under article 38.22, § 3(a) of the Texas Code of

Criminal Procedure, nor objecting to their admission into evidence. By his fourth and final

issue, Appellant questions whether the trial court erred in refusing trial counsel’s request

that the jury be charged pursuant to article 38.23 of the Texas Code of Criminal Procedure.

We affirm.


                                       Background


       On March 28, 2006, Appellant voluntarily went to the Lubbock Police Department

to meet with Corporal Walter Scott and ATF agent, Gary Styers, concerning his agreement

to serve as a confidential informant in undercover investigations of illicit drug activity.

Appellant, Scott, and Styers engaged in a short, general conversation about the basics of

the proposed working arrangement in one of the police interview rooms. However, no

agreement was fully formalized nor had a written agreement been executed during the

conversation.


       According to Styers, during the course of that conversation, Scott asked Appellant,

“[d]o you have anything on you? I need you to stand up and empty your pockets.”

Appellant responded, “[o]h, I didn’t know I was going to be searched,” and then reached

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into his pocket and pulled out a baggie containing a substance that when tested, amounted

to 4.5 grams of methamphetamine. When Appellant was asked by Scott why he was in

possession of methamphetamine, he replied that he needed money and selling drugs was

the only way he had to make money.


       Scott recalled the events somewhat differently. He could not recall asking Appellant

to empty his pockets but admitted it was possible. Scott’s recollection was that he advised

Appellant that he needed to pat him down for weapons and contraband.                 Scott

remembered Appellant saying, “[o]h man. I didn’t know I was going to be searched.” Scott

also recalled Appellant saying, “I have to do something to make money.“


       When the meeting commenced, Appellant was not in custody nor was he being

detained. Although the evidence shows that Appellant did not engage in any conduct

necessitating a search, the officers testified that the primary reason Appellant was

“searched” was for safety concerns. Other reasons offered were routine procedure,

unwritten policy, and to protect the integrity of a drug investigation. According to the

officers, after Appellant placed the contraband on the table, he was arrested. Both Styers

and Scott testified they were “shocked” that Appellant came to a meeting at the police

department carrying an illegal substance.




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                                        Article 38.23


       Addressing Appellant’s issues in a logical rather than sequential order, we begin

with issue four. By his fourth issue, Appellant challenges the trial court’s denial of defense

counsel’s request that the charge include an instruction pursuant to article 38.23 of the

Texas Code of Criminal Procedure. Article 38.23 provides, in relevant part, as follows:


       (a) No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.


          In any case where the legal evidence raises an issue hereunder, the jury
       shall be instructed that if it believes, or has a reasonable doubt, that the
       evidence was obtained in violation of the provisions of this Article, then and
       in such event, the jury shall disregard any such evidence so obtained.


Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).


       During oral submission of this appeal, the State confessed that a fact issue existed

regarding whether Appellant was asked to empty his pockets or whether he was told he

was going to be searched. Notwithstanding the State’s concession, we conclude that the

facts presented do not implicate a “violation of any provisions of the Constitution or laws

of the State of Texas, or of the Constitution or laws of the United States of America.” Thus,

the trial court did not err in refusing to give the requested instruction.




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       The triggering mechanism for an article 38.23 instruction is complex.            See

Oursbourn v. State, 259 S.W.3d 159, 177 (Tex.Crim.App. 2008). A defendant must

establish the following requirements: (1) the evidence must raise an issue of fact; (2) the

evidence on that fact must be affirmatively contested; and (3) the contested factual issue

must be material to the lawfulness of the challenged conduct in obtaining the evidence

sought to be excluded. Id. This factual dispute can be raised only by affirmative evidence,

not by mere cross-examination questions or argument. Id.


       Agent Styers testified during direct examination that Corporal Scott told Appellant,

“I need you to stand up and empty your pockets.” During direct examination, Scott testified

that he told Appellant he needed to pat him down for weapons or contraband. Although

Scott could not recall asking Appellant to empty his pockets, that fact alone does not create

a fact question. Furthermore, assuming arguendo, that a fact issue existed as to whether

or not Appellant was asked to empty his pockets, that issue was never affirmatively

contested. Most importantly though, however, resolution of that issue was not material to

the lawfulness of the challenged conduct in obtaining the evidence.


       Appellant’s position is predicated on the assumption that his production of the

contraband was in response to a police “search” within the context of a constitutional right

to be free from an unreasonable search or seizure. He raises lack of probable cause,

exigent circumstances, and Miranda warnings in support of his argument that he was

harmed by the trial court’s refusal to grant an article 38.23 instruction in the jury charge


                                             5
because the evidence established that the methamphetamine and his statements were

obtained illegally. We disagree.


       The protections against unreasonable searches and seizures afforded by the United

States Constitution, Article I, § 9 of the Texas Constitution, and article 38.23 are not

implicated under the facts of this case. Appellant voluntarily went to the police station to

speak with officers about becoming a confidential informant. He was not in custody nor

was he the subject of an investigative detention. Situations that may constitute custody

include (1) when a suspect is physically deprived of his freedom in any significant way; (2)

when a law enforcement officer tells a suspect he cannot leave; (3) when law enforcement

officers create a situation that would lead a reasonable person to believe that his freedom

of movement has been significantly restricted; and (4) when there is probable cause for

arrest and law enforcement officers do not tell the suspect that he is free to leave. See

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex.Crim.App. 1996).               None of these

circumstances apply.


       Appellant went to the police department to cooperate with law enforcement as a

confidential informant investigating drug activity.          Whether he removed the

methamphetamine from his pocket in response to Scott’s question to empty his pockets

or whether he did so in response to being told he would be searched, his conduct was not

in response to an exercise of police authority. Appellant’s conduct was voluntary and it

could be considered implied consent. A person impliedly consents to a search by


                                             6
engaging in certain activities that, by their very nature, involve a diminished expectation of

privacy. Brown v. State, 856 S.W.2d 177, 181 (Tex.Crim.App. 1993). Voluntarily agreeing

to work with the police as a confidential informant clearly invokes a diminished expectation

of privacy. We conclude that the material fact issue raised by the evidence in this case

was not material to the lawfulness of the challenged conduct in obtaining the evidence.

Thus, Appellant was not entitled to an article 38.23 instruction, and the trial court did not

err in refusing to grant one. Issue four is overruled.


                            Ineffective Assistance of Counsel


       By issues one, two, and three, Appellant contends defense counsel was ineffective

in failing to file a motion to suppress certain evidence and in failing to object to introduction

of that evidence. We disagree.


       A claim of ineffectiveness is reviewed under the standard set out in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a

defendant must establish that (1) counsel’s performance was deficient (i.e., fell below an

objective standard of reasonableness), and (2) there is a reasonable probability that but

for counsel’s deficient performance, the result of the proceeding would have been different,

a reasonable probability being a probability sufficient to undermine confidence in the

outcome. Ex parte Ellis, 233 S.W.3d 324, 330 (Tex.Crim.App. 2007); Rylander v. State,

101 S.W.3d 107, 110 (Tex.Crim.App. 2003).               In other words, a defendant must

demonstrate by a preponderance of the evidence that the deficient performance prejudiced

                                               7
his defense. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Thompson v.

State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Thompson, 9 S.W.3d at 814, citing Strickland, 466 U.S. at 700.


      The adequacy of defense counsel’s assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel. Thompson, 9

S.W.3d at 814.     Although the constitutional right to counsel ensures the right to

reasonably effective counsel, it does not guarantee errorless counsel whose competency

or accuracy of representation is to be judged by hindsight. Robertson v. State, 187

S.W.3d 475, 483 (Tex.Crim.App. 2006). Appellate review of trial counsel’s representation

is highly deferential and presumes that counsel’s conduct fell within the wide range of

reasonable and professional representation. See Andrews v. State, 159 S.W.3d 98, 101

(Tex.Crim.App. 2005). See also Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.

2002). To defeat 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.        See Mallett v. State, 65 S.W.3d 59, 63

(Tex.Crim.App. 2001). See also Thompson, 9 S.W.3d at 813-14. However, where the

alleged derelictions are errors of omission de hors the record rather than commission

revealed in the trial record, collateral attack may be the vehicle by which to develop a

detailed record of the alleged ineffectiveness. See Freeman v. State, 125 S.W.3d 505,

506-07 (Tex.Crim.App. 2003). See generally Massaro v. United States, 538 U.S. 500,

                                            8
123 S.Ct. 1690, 1694 155 L.Ed.2d 714 (2003) (stating that when a claim of ineffectiveness

is raised on direct appeal, a trial record is usually not sufficiently developed to establish

such a claim).


       The claims of ineffectiveness raised by Appellant on appeal are all alleged errors

of omission beyond the record. No motion for new trial was filed alleging ineffective

assistance of counsel. When ineffective assistance of counsel claims are raised on direct

appeal, the record is undeveloped and cannot adequately reflect the motive behind trial

counsel’s actions. Mallett, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). “Trial counsel should

ordinarily be afforded an opportunity to explain [her] actions before being denounced as

ineffective.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting

Rylander, 101 S.W.3d at 111). Absent such an opportunity, an appellate court should not

find counsel’s performance deficient unless her conduct was “so outrageous that no

competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440

(Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030

(2003).


       Appellant alleges trial counsel was ineffective in failing to file a motion to suppress

the methamphetamine and his statements that he intended to sell the methamphetamine

to make money. He also contends there could not have been a sound trial strategy for

failing to attempt to have the evidence suppressed. An allegation of ineffective assistance

in failing to file a motion to suppress places the burden on an appellant to prove that the


                                              9
motion would have been granted in order to satisfy the Strickland prongs. See Jackson

v. State, 998 S.W.2d 954, 957 (Tex.Crim.App. 1998). See also Roberson v. State, 852

S.W.2d 508, 510-12 (Tex.Crim.App. 1993) (unless there is a showing that a pretrial

motion had merit and that a ruling on the motion would have changed the outcome of the

case, counsel will not be ineffective for failing to assert the motion). Having previously

held that the methamphetamine and Appellant’s statements were lawfully obtained, it is

unlikely that Appellant would have prevailed on a motion to suppress.


       Appellant further alleges that trial counsel was ineffective in failing to object to the

admission into evidence of the methamphetamine and his statements. When alleging

ineffective assistance of counsel for failure to object, an appellant must demonstrate that

the trial court would have erred in overruling an objection if defense counsel had made

one. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). Appellant does

not argue or demonstrate in his brief that had trial counsel objected to the admission of

the methamphetamine and his statements, the trial court would have erred in overruling

the objections.


       Without a motion for new trial or other opportunity for counsel to defend her

strategy, we decline to find her performance deficient. Based on the totality of the

representation, we are unable to conclude that Appellant has demonstrated that defense

counsel’s performance fell below an objective standard of reasonableness or that

counsel’s conduct was so outrageous that no competent attorney would have engaged


                                              10
in it. Appellant has failed to meet the first prong of Strickland.   Issues one, two, and

three are overruled.


       Accordingly, the trial court’s judgment is affirmed.



                                                 Patrick A. Pirtle
                                                     Justice



Campbell, J., concurring.


Do not publish.




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