                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-15-00312-CR


                             DONNIE R. CLAYTON, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 251st District Court
                                      Potter County, Texas
                   Trial Court No. 68,723-C, Honorable Ana Estevez, Presiding

                                       November 4, 2016

                               MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Donnie R. Clayton, appeals his conviction by a jury for the offense of

possession of a controlled substance, cocaine, in an amount of one gram or more, but

less than four grams,1 enhanced by the proof of two previous felony convictions.2 The

jury assessed appellant’s sentence at confinement in the Institutional Division of the

Texas Department of Criminal Justice (ID-TDCJ) for sixty years. Through his appeal,


      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010).
      2
          See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2016).
appellant contends that he received ineffective assistance of counsel at the guilt-

innocence and punishment stages of the trial proceeding. Disagreeing with appellant,

we will affirm the judgment entered by the trial court.


                           Factual and Procedural Background


       On March 13, 2014, appellant was checked into the Townhouse Motel in

Amarillo. Appellant had been driven to the motel by his mother, Verbie Parker. In route

to the motel, Parker went to another motel and picked up Kristi Rayburn.           Parker

registered appellant into the room and paid for it. While Parker was completing the

registration process, appellant and Rayburn proceeded to the room. Upon finishing the

registration, Parker went to the room and advised appellant she would pick him up

about 11:00 the next morning and gave appellant a few dollars for spending money.


       Sometime later that same day, Parker telephoned the Amarillo Police

Department and advised someone with the police department that appellant was in

room 23 at the Townhouse Motel. Parker knew that appellant had an outstanding

warrant for his arrest and called the police because she was tired of having to rent motel

rooms for appellant.


       Around 6:00 p.m., two Amarillo police officers were dispatched to room 23 of the

Townhouse Motel to arrest appellant on the outstanding warrant. Prior to going to room

23, Officer Kaleb McCarrell verified the existence of an outstanding warrant for

appellant’s arrest and viewed appellant’s photograph on his car’s computer. Corporal

Cole Thurman knocked on the door of room 23 and, after a short pause, appellant

answered the door. When appellant answered the door, he was nude and holding what


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appeared to be a crack cocaine pipe in his hand. The officers asked appellant to step

back into the room and appellant complied by sitting on one of the two beds in the room.

There was no one else in the room. The officers noticed several rocks of what they

suspected to be crack cocaine on the bed where appellant was sitting and on the

nightstand between the two beds.


      At trial, the officers testified that it was their belief that the person answering the

door at room 23 was appellant. This belief was based on McCarrell’s observations of

appellant’s photograph and having seen certain distinctive tattoos on the photograph.

They testified that the tattoos were visible when appellant answered the door. Appellant

was placed under arrest and, because he complained of medical problems, was

transported to the hospital to be examined prior to booking. Officer McCarrell collected

the evidence at the scene and took photographs depicting what was observed.


      During the trial, appellant stipulated to the authenticity and admissibility of a

Certificate of Analysis and Chain of Custody Affidavit submitted by the forensic scientist

who analyzed the drugs. The analysis showed that the drugs weighed 1.70 grams and

contained cocaine.


      The appellant did not testify at the trial. However, Parker, called by appellant,

testified that she is the one who rented the room. Further, Parker testified that, after

she paid for the room at the motel desk, she went to the room and observed Rayburn

sitting on one of the beds. Parker gave appellant five or ten dollars and left. Parker

was asked if appellant had any other money that day and stated he did not.




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       Appellant’s trial counsel pursued the theory that the cocaine belonged to

Rayburn. To buttress this point, the cross-examination of the officers seems to focus on

the fact that an ash tray, or coffee cup used as an ash tray, contained several cigarettes

in it. Appellant had no cigarettes on him and, according to Parker, does not smoke.


       During final arguments, trial counsel continued to focus on the fact that Rayburn

was the purchaser of the cocaine. Specifically, the cocaine in question, according to

one of the officers, would have cost approximately $340. Appellant did not have any

money on him other than what his mother gave him.


       After final arguments, the jury returned a verdict of guilty and the trial proceeded

to the punishment phase. During the State’s punishment case, the State proved up the

two felony convictions alleged in the enhancement portion of the indictment. The State

called Officer James Peeples of the Amarillo Police Department as a fingerprint

examiner to link appellant to the two convictions. Peeples testified as to his experience

and training in the area of comparing known to unknown fingerprints. Peeples was

proffered to the trial court as a fingerprint expert.


       In addition to the two prior felony convictions alleged in the enhancement portion

of the indictment, the State provided evidence that appellant had a total of twenty-one

prior convictions.     Some were felony convictions and some were misdemeanor

convictions. Further, the State provided evidence that appellant was on parole at the

time of the instant offense.


       Appellant’s trial counsel offered no witnesses during the punishment portion of

the trial. Rather, counsel focused on cross-examination of the State’s witnesses.


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      After final arguments on the issue of punishment, the jury returned a sentence of

sixty years in the ID-TDCJ. Following the trial, appellant filed a motion for new trial.

However, the motion for new trial did not contain any allegations regarding ineffective

assistance of counsel and was overruled by operation of law.


      This appeal followed the overruling of the motion for new trial by operation of law.

Appellant presents two issues, each of which contain allegations of ineffective

assistance of counsel. The first issue contends that trial counsel provided ineffective

assistance of counsel during the guilt-innocence phase of the trial. The second issue

contends that trial counsel provided ineffective assistance of counsel during the

punishment phase of the trial. For the reasons hereinafter set forth, we overrule both of

appellant’s issues.


                        Standard of Review and Applicable Law


      The United States Constitution’s guarantee of the right to counsel encompasses

the right to effective assistance of counsel.    U.S. CONST. amend. VI; Strickland v.

Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).                In

determining whether counsel’s representation was so inadequate as to violate a

defendant’s Sixth Amendment right to counsel, Texas courts apply the two-pronged test

enunciated in Strickland. See Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986) (en banc). Judicial review of an ineffective assistance of counsel claim must be

highly deferential, and there is a strong presumption that trial counsel’s conduct fell

within the wide range of reasonable professional assistance. See Strickland, 466 U.S.

at 689. An appellant claiming ineffective assistance of counsel bears the burden of



                                            5
proving by a preponderance of the evidence that (1) counsel’s representation fell below

an objective standard of reasonableness, and (2) the deficient performance prejudiced

the appellant. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Failure to

make the required showing of either deficient performance or sufficient prejudice is fatal

to an ineffectiveness claim. See id.


       “The ‘right to effective assistance of counsel merely ensures the right to

reasonably effective [not perfect] assistance.’” Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006) (quoting, with alteration, Ingham v. State, 679 S.W.2d 503,

509 (Tex. Crim. App. 1984) (en banc)). This right does not mean errorless or perfect

counsel whose competency of representation is to be judged by hindsight. Ingham, 679

S.W.2d at 509.     “Isolated instances in the record reflecting errors of omission or

commission do not render counsel’s performance ineffective, nor can ineffective

assistance of counsel be established by isolating one portion of trial counsel’s

performance for examination.” Robertson, 187 S.W.3d at 483 (quoting McFarland v.

State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992) (en banc)). Counsel’s performance

is judged by “the totality of the representation,” and “judicial scrutiny of counsel’s

performance must be highly deferential” with every effort made to eliminate the

distorting effects of hindsight.   Id.   The Strickland court cautioned us to avoid an

intrusive post-trial inquiry into attorney performance because such an inquiry would

encourage the proliferation of ineffectiveness challenges. Id. (citing Strickland, 466 U.S.

at 690). Additionally, claims of ineffective assistance of counsel must be firmly rooted in

the record and the record must affirmatively demonstrate the meritorious nature of the

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


                                             6
                                  Guilt-Innocence Phase


       By his first issue, appellant complains about two parts of trial counsel’s

representation during the guilt-innocence phase of the trial. First, appellant seems to

contend that trial counsel fell below the standards of adequate representation when they

did not contest the police officers’ initial entry into appellant’s motel room. According to

appellant, the officers forced their way into the room without a warrant for that location

and without proper identification of appellant as the party named on the arrest warrant.

Second, appellant contends that the efforts of trial counsel to set up a defense that the

drugs actually belonged to Rayburn demonstrates a lack of knowledge of the law on the

part of trial counsel relating to possession of a controlled substance.       This lack of

knowledge, according to appellant’s theory, is demonstrative of ineffective assistance of

counsel as applicable to the case.


       Turning to the question regarding the police officers’ entry into the room and

seizure of the cocaine, we note that the record is clear that the officers were at the

motel room pursuant to an arrest warrant for appellant. Appellant did not challenge the

arrest warrant at trial and has not challenged the validity of the arrest warrant in his

brief. We are left with the conclusion that the arrest warrant was a valid arrest warrant.

See TEX. CODE CRIM. PROC. ANN. art. 15.01 (West 2015). So, to prevail on the current

claim that trial counsel was ineffective because he did not challenge the seizure of the

cocaine, appellant must prove that a motion to suppress would have been granted in

order to satisfy the second prong of Strickland. See Jackson v. State, 973 S.W.2d 954,

957 (Tex. Crim. App. 1998) (per curiam). Based upon the record before the Court,

appellant could not prevail if such a motion had been filed. The record is clear that the

                                             7
officers were executing a warrant for the arrest of appellant. Prior to knocking on the

door at the motel room, the picture of appellant had been displayed on McCarrell’s in-

car computer. In the picture, certain distinctive tattoos were visible. When appellant

answered the door in the nude, he was first recognized from his picture but he was also

recognized from his tattoos. Accordingly, the officers had the right to take him into

custody pursuant to the warrant. See TEX. CODE CRIM. PROC. ANN. art. 15.01. Upon

entering the motel room to clothe appellant and take him into custody, the cocaine was

visible in plain view on the bed and on the night table adjacent to the bed. See Walter

v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000). We find no merit in the first

alleged incident of ineffective assistance of counsel.


       The next part of trial counsel’s representation that appellant contends falls below

the objective standard of reasonableness deals with trial counsel’s attempt to lay

ownership of the cocaine on Rayburn. Appellant’s theory is that, because possession

has been defined as knowing care, custody, or control, said possession can be joint.

See Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005).              This,

according to appellant’s theory, demonstrates that trial counsel was not familiar with the

law and thus was ineffective.


       While the proposition may sound as if it has merits, it suffers from two major

flaws. First, it ignores the facts of the case regarding the discovery of the contraband

pursuant to an arrest warrant for appellant. As we described above, an attempt to

suppress the seizure would not have been successful. The second flaw is more telling

in the arena of ineffective assistance of counsel claims. There is nothing in the record



                                             8
to establish the exact strategy trial counsel was attempting to pursue by presenting

Rayburn as the primary culpable individual.


       When reviewing claims of ineffective assistance of counsel, we must be highly

deferential and there is a strong presumption that trial counsel’s conduct fell within the

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

Additionally, claims of ineffective assistance of counsel must be firmly rooted in the

record and the record must affirmatively demonstrate the meritorious nature of the

claim. Goodspeed, 187 S.W.3d at 392.


       There was no motion for new trial hearing where appellant’s claims of ineffective

assistance of counsel were tested with trial counsel being given the opportunity to

explain the strategy they were pursuing. See id. We, therefore, do not know what

strategy trial counsel had in mind. A record such as this, that is, one that is silent about

trial counsel’s reasons for his actions is insufficient to overcome the presumption that

counsel’s actions were the product of reasonable professional judgment. See Rylander

v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).             We find no merit in

appellant’s second claim of ineffective assistance of counsel during the guilt-innocence

phase of the trial.


       Having reviewed both of appellant’s claim of ineffective assistance of counsel

during the guilt-innocence phase of the trial and finding them unpersuasive, we overrule

appellant’s first issue.




                                              9
                                     Punishment Phase


       Appellant contends that trial counsel was ineffective during the punishment

phase for several reasons. First, appellant contends that trial counsel’s actions were

ineffective when counsel failed to object to the State’s exhibits regarding the previous

felony convictions of appellant. Next, appellant complains that trial counsel did not file

any objections to or request a hearing on the fingerprint expert.       Finally, appellant

contends that the failure to call any witnesses during the punishment phase was

ineffective assistance.


       Turning to appellant’s first contention, in fact, trial counsel voiced several

procedural objections to the testimony of the expert witness, Peeples, based upon the

proper foundation having not been established. When the proper foundations were

established and the two exhibits were offered into evidence, trial counsel said “I don’t

have an objection.”       Appellant contends that, after he had pleaded not true to the

enhancement allegations and after trial counsel had pointed out the flaws in the

evidence of the previous convictions, trial counsel then waived any error by his

statement about not having any objections to the exhibits.       Appellant misreads the

record because, as stated above, the original objections were procedural in nature

about the proper foundation or predicate not having been set forth for the introduction of

the exhibits. These objections were corrected in the testimony of the expert and then

the exhibits were offered into evidence.


       Moreover, the true flaw in appellant’s contention arises from a lack of any

explanation on the part of appellant about why these exhibits were not admissible. As



                                             10
we pointed out in the previous discussion, to sustain appellant’s contention that is

centered on the admissibility of the exhibits, there must be a showing that such an

objection was well founded. See Rivers v. State, No. 07-06-00058-CR, 2008 Tex. App.

LEXIS 1356, at *14 (Tex. App.—Amarillo Feb. 25, 2008, no pet.) (mem. op., not

designated for publication) (failure to object to punishment exhibits). As applied to the

facts before us, there is nothing in the record to support the proposition that the exhibits

would not have been admitted. See Goodspeed, 187 S.W.3d at 392.


       Appellant next complains that his trial counsel filed no objection to, nor requested

a hearing out of the presence of the jury regarding, the qualifications of the fingerprint

expert. A review of the record demonstrates that the expert, Peeples, had many years

of experience and considerable training in the area of fingerprint comparison. Further,

Peeples testified about the procedure of taking a known print and comparing it to an

unknown print at considerable length. As the State suggests, any action regarding

attempting to discredit Peeples could have been viewed as “grasping at straws.” More

importantly, the record provides us with no guidance about what trial counsel’s strategy

was in not attacking Peeples or his qualifications.        See id.   When we apply the

presumption that trial counsel’s actions were reasonable, we are left with nothing in the

record to overcome that presumption. See Rylander, 101 S.W.3d at 110-11.


       Finally, appellant faults trial counsel for not calling any witnesses during the

punishment phase of the trial proceeding. The failure to call witnesses on behalf of a

criminal defendant can constitute ineffective assistance. See Rivers, 2008 Tex. App.

LEXIS 1356, at *14-15.      However, there must be a showing that potential defense

witnesses were available and that their testimony would have benefited appellant. See

                                            11
Rodriquez v. State, 74 S.W.3d 563, 566 (Tex. App.—Amarillo 2002, pet. ref’d) (citing

Wilkerson v. State, 726 S.W.2d 542, 550-51 (Tex. Crim. App. 1986)). Inasmuch as we

have no such demonstration regarding who the potential witnesses were, whether they

were available, and what their testimony would have been, we do not find appellant’s

trial counsel provided ineffective assistance of counsel by failing to call any punishment

witnesses. See id.


         Having determined that each of appellant’s allegations regarding ineffective

assistance of counsel during the punishment stage of the trial were not sustainable, we

overrule appellant’s second issue.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                       Mackey K. Hancock
                                                          Justice


Do not publish.




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