Opinion filed September 28, 2018




                                                In The


            Eleventh Court of Appeals
                                            __________

                                     No. 11-15-00313-CR
                                         __________

                         IVAN GARAY LOPEZ, Appellant
                                     V.
                         THE STATE OF TEXAS, Appellee

                          On Appeal from the 35th District Court
                                  Brown County, Texas
                             Trial Court Cause No. CR21310

                          MEMORANDUM OPINION
        Ivan Garay Lopez entered an open plea of guilty to two drug possession
charges. This appeal concerns only one of those charges—the conviction arising
from trial court cause no. CR21310—for possession of more than four grams but
less than 200 grams of methamphetamine with intent to deliver in a drug-free zone. 1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(d), .134(c) (West 2017). The

        1
         In trial court cause no. CR21461, Appellant was indicted for delivery of a controlled substance in
a drug-free zone. The jury assessed Appellant’s punishment in cause no. CR21461 at confinement for a
term of twenty-five years. However, the trial court granted Appellant’s motion for new trial in cause
no. CR 21461 and ordered a new trial on punishment.
jury assessed Appellant’s punishment at confinement for a term of thirty-five years
in the Institutional Division of the Texas Department of Criminal Justice. In two
issues on appeal, Appellant asserts that he received ineffective assistance of counsel.
We affirm.
                                 Background Facts
      Early Police Detective Shawn Dibrell testified that he was conducting a
narcotics investigation regarding methamphetamine distribution in parts of Brown
County.      His investigation led him to two individuals suspected of selling
methamphetamine, Toni Killinger and Melissa Marshall. The investigation and
information provided by a confidential informant helped officers identify Appellant
as a distributor of methamphetamine.
      On November 25, 2010, Detective Dibrell used an informant to set up a
controlled buy. Detective Dibrell sent the informant to purchase $200 worth of
methamphetamine from Killinger. Detective Dibrell testified that he parked his
vehicle across the street to observe the transaction. After the informant arrived at
Killinger’s house, Appellant pulled up to the house in his vehicle, which had the
name “Lopez” displayed across the rear window. Detective Dibrell observed
Killinger approach Appellant’s vehicle, stay there for about thirty seconds, and then
immediately go get into the passenger seat of the informant’s vehicle. After the buy
was completed, Detective Dibrell followed the informant back to the office and
requested patrol officers to stop Appellant’s vehicle for identification purposes. The
informant provided Detective Dibrell with the drugs, information, and recordings.
The bags containing the drugs that the informant received were distinctly marked
with a Superman logo.
      Later that evening, Detective Dibrell set up another controlled buy based on
the informant’s knowledge that Killinger planned to acquire more drugs. Both
Killinger and Marshall arrived in a different vehicle, and the informant purchased
                                          2
another $200 worth of methamphetamine. Even though Appellant was not present
during the second controlled buy, the baggies of methamphetamine that were
purchased were imprinted with the same Superman logo.                     Subsequently,
Detective Dibrell formulated a plan to shut down Appellant’s operation.

      Detective Dibrell received a tip that Appellant was coming into town on
December 9 to deliver $1,000 worth of methamphetamine to Killinger. The tip
indicated what time Appellant was expected to arrive, the specific address, the
direction he would be traveling from, the car he would be driving, and the quantity
of methamphetamine to be delivered. Officers were put in place, and Appellant
arrived as scheduled and headed toward Killinger’s house.           Officer Amanda
Williams and Officer Steven Means then initiated a traffic stop of Appellant’s
vehicle. The officers asked Appellant to step out of the vehicle so that they could
conduct a weapons check after they noticed that Appellant had a screwdriver in the
front seat. Shortly thereafter, Detective Dibrell arrived on the scene.
      Detective Dibrell asked Appellant where he was going.                In response,
Appellant said that he was going to give a ride to a friend—a girl whose name
Appellant did not know.          Unable to extract any details from Appellant,
Detective Dibrell confronted Appellant and told him that Detective Dibrell already
knew that Appellant was going to Killinger’s house with a “load of dope.”
Detective Dibrell asked Appellant if there was anything he wanted to surrender, and
Appellant responded that he did not have anything. After Appellant initially refused
consent to search the vehicle, a canine unit was called, which caused Appellant to
become nervous. Appellant subsequently gave consent for the search of his vehicle.
However, the officers elected to wait for the arrival of the canine unit before
searching Appellant’s vehicle.
      Detective Dibrell testified that Deputy James Stroope of the Brown County
Sheriff’s Office arrived with his police dog. Detective Dibrell testified that the
                                          3
police dog performed a free-air sniff around the vehicle and alerted by barking. After
the dog alerted on the vehicle, Detective Dibrell and other officers searched the
vehicle for approximately thirty minutes without success. Officers then transported
the vehicle back to the sheriff’s office to search the vehicle in a covered garage with
better lighting. Detective Dibrell testified that he informed Appellant of his right to
leave and that Appellant was about to leave with his girlfriend when the
methamphetamine was found.
      Using the screwdriver that officers found in the front seat, Deputy Stroope
unscrewed     the    stereo    and     found      twenty-seven   small    bags   containing
methamphetamine. The bags contained a little more than nine and one-half grams
of   methamphetamine.          Officers     arrested    Appellant   for    possession    of
methamphetamine.
      Subsequently, Appellant told a jailer that he wanted to speak with
Detective Dibrell. After being informed of his Miranda 2 rights, Appellant admitted
to “selling or bringing methamphetamine to Brown County” approximately fourteen
times over a four-month period. Appellant told Detective Dibrell that he delivered
roughly $1,000 worth of methamphetamine each time and generally delivered
around $5,000 to $6,000 worth of methamphetamine per month. Appellant stated
that he had only delivered the methamphetamine to two people.                    Based on
Appellant’s statements, Detective Dibrell estimated that Appellant had delivered
approximately seven ounces of methamphetamine over that period. Appellant
estimated that he had delivered approximately a “key” of methamphetamine, which
is equal to approximately 2.2 pounds of methamphetamine.
      Following his arrest, Appellant was charged with possession of a controlled
substance with intent to deliver in a drug-free zone. The indictment alleged that, on


      2
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                                  4
or about December 9, 2010, Appellant knowingly possessed, with intent to deliver,
between four and two hundred grams of methamphetamine within 1,000 feet of
Early Elementary School in Early, Texas. As stated above, Appellant entered an
open plea of guilty to the offense, and ultimately, the jury sentenced Appellant to
confinement for thirty-five years.
                                  Procedural History
      This appeal has a somewhat unusual procedural history. The trial court
sentenced Appellant on November 2, 2011.               However, Appellant did not
immediately appeal his conviction.        On March 19, 2015, Appellant filed an
application for a writ of habeas corpus based upon allegations that his trial counsel
rendered ineffective assistance of counsel. In the application, Appellant alleged
seven instances of ineffective assistance of counsel, including a claim that his trial
counsel had failed to inform him of the proper procedures for preserving appellate
rights. In compliance with an order from the Texas Court of Criminal Appeals, the
trial court held a hearing on Appellant’s application for a writ of habeas corpus.
After the trial court submitted its findings, the Court of Criminal Appeals granted
Appellant permission to file an out-of-time appeal.
      Subsequently, Appellant filed a motion for new trial.            He also alleged
ineffective assistance of trial counsel in his motion for new trial. The trial court held
a hearing on Appellant’s motion for new trial on September 1, 2016. The trial court
denied the motion for new trial. This appeal followed.
                                       Analysis
      Appellant presents two issues on appeal, asserting that his trial counsel
rendered ineffective assistance of counsel. In his first issue, Appellant asserts that
trial counsel was ineffective for failing to file a motion to suppress the fruits of an
illegal canine search of Appellant’s vehicle. As set forth below, this is a contention
that Appellant litigated at the hearing on his application for writ of habeas corpus
                                           5
and in his motion for new trial. In Appellant’s second issue, he asserts that trial
counsel was ineffective for failing to adequately inspect Appellant’s cell phone prior
to trial.
       In order to establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668,
687–88 (1984). A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id. at 694; Hernandez v. State, 726 S.W.2d
53, 55–57 (Tex. Crim. App. 1986). We must indulge a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and Appellant must overcome the presumption that, under the circumstances, the
challenged action could be considered sound trial strategy. Strickland, 466 U.S. at
689; Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). An allegation of
ineffective assistance of counsel must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Prine, 537 S.W.3d at
117 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).
       Appellant premises his first issue on the contention that officers performed an
illegal canine search. He contends that the canine search was illegal because the
canine officer “orchestrated the dog’s entry into the vehicle.” We note that a canine
“sniff” of the exterior of a vehicle is not a “search” for Fourth Amendment purposes.
See Illinois v. Caballes, 543 U.S. 405, 410 (2005). As set out later in this opinion, a
canine sniff of the interior of a vehicle can be a search in some instances. Appellant
asserts that the canine alert from inside his vehicle constituted an illegal search and
that his trial counsel should have filed a motion to suppress the search.
       Because Appellant presented the contention that he asserts in his first issue in
his motion for new trial, we must determine whether the trial court erred in denying
                                            6
the motion for new trial. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.
2012), overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim.
App. 2018). “An appellate court reviews a trial court’s denial of a motion for new
trial for an abuse of discretion, reversing only if the trial judge’s opinion was clearly
erroneous and arbitrary.” Id. “A trial court abuses its discretion if no reasonable
view of the record could support the trial court’s ruling.” Id. “This deferential
review requires the appellate court to view the evidence in the light most favorable
to the trial court’s ruling.” Id. “The appellate court must not substitute its own
judgment for that of the trial court and must uphold the trial court’s ruling if it is
within the zone of reasonable disagreement.” Id.
      Appellant and his trial counsel testified at the hearing on Appellant’s motion
for new trial. Appellant testified that the dog never alerted to the outside of the car
because Deputy Stroope opened the vehicle’s door and waved the dog inside.
Appellant additionally testified that he would not have pleaded guilty to the charge
if he would have known that a motion to suppress could have been filed.
      Appellant’s trial counsel testified that he “looked closely at the police reports
and the videos, statements of law enforcement . . . [and] the investigation of
[Appellant] that they had conducted over the course of a period of, I think, a few
weeks.” After reviewing all of the evidence, trial counsel formulated a strategy to
stress Appellant’s youth and lack of a criminal record so “that a jury would have
mercy on him and not send him to the penitentiary.” Specifically, the strategy
revolved around Appellant taking responsibility for his conduct, pleading guilty, and
going to the jury for punishment. Trial counsel also testified that he does not like to
file frivolous motions that waste the trial court’s resources.
      At the hearing on the motion for new trial, the trial court took judicial notice
of the previous hearings conducted in the case, including the hearings on Appellant’s
application for writ of habeas corpus. Appellant’s trial counsel testified at a habeas
                                           7
hearing that his analysis of the case and evidence led him to believe that the stop of
Appellant’s vehicle was lawful. When questioned about the canine search, trial
counsel testified that he did not remember anything being wrong with the search.
He testified that his “objective” was to keep Appellant out of prison and that he did
not think a motion to suppress would have been granted. On cross-examination, trial
counsel testified that his trial strategy was for Appellant to take responsibility for his
actions by pleading guilty in the hope that such action would persuade the jury to
assess a lenient punishment, emphasizing Appellant’s young age and nonexistent
criminal history. Trial counsel also testified that the officers’ reports detailed facts
that he believed gave them probable cause to stop Appellant.
       The Honorable Sam Moss, 3 the assistant district attorney that prosecuted
Appellant, also testified regarding Appellant’s trial counsel’s representation.
Regarding the viability of a motion to suppress, Judge Moss testified that there was
not a motion to suppress that Appellant could prevail on. Judge Moss testified: “I
think [trial counsel] did everything he could under a terrible set of facts for his client
and him to deal with, when you’re in a county with juries who don’t look favorably
on people who sell drugs.”
       At the conclusion of the habeas hearing, the trial court determined that
Appellant’s trial counsel denied him his right to a direct appeal by terminating his
representation without notice to the trial court or Appellant. Therefore, the trial court
concluded that counsel was ineffective in failing to timely file a notice of appeal and
that Appellant was prejudiced as a result. However, the trial court did not find that
trial counsel was ineffective for failing to file a motion to suppress. Based upon the
trial court’s recommendation, the Court of Criminal Appeals granted Appellant an
opportunity to file an out-of-time appeal.

       3
         Judge Sam Moss is now the judge of the Brown County Court at Law. Therefore, we will refer to
him as Judge Moss.

                                                  8
       A trial counsel’s failure to file a motion to suppress is not per se ineffective
assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Ex parte
Jones, 473 S.W.3d 850, 854 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d).
Counsel is not required to engage in the filing of futile motions. Mooney v. State,
817 S.W.2d 693, 698 (Tex. Crim. App. 1991); Ex parte Jones, 473 S.W.3d at 854.
To satisfy the Strickland test and prevail on an ineffective-assistance claim premised
on counsel’s failure to file a motion to suppress, an appellant must show that a
motion to suppress would have been granted. Jackson v. State, 973 S.W.2d 954,
956–57 (Tex. Crim. App. 1998). Therefore, an appellant must develop facts and
details of the search sufficient to conclude that the search was invalid. Id. at 957.
We note that Appellant has litigated his claim of an illegal canine search on two
occasions before the same trial court and the same trial judge that would have ruled
on a motion to suppress had trial counsel originally filed one. After both the habeas
hearing and the motion for new trial, the trial court declined to find that a motion to
suppress based upon a claim of an illegal canine search would have been successful.
        Appellant bases his claim of an illegal canine search on the dash-cam video
of the canine search and a line of federal cases holding that a dog’s instinctive jump
into a car does not violate the Fourth Amendment as long as the canine enters the
vehicle on its own initiative and is neither encouraged nor placed into the vehicle by
law enforcement. See, e.g., U.S. v. Sharp, 689 F.3d 616, 618–20 (6th Cir. 2012).
With respect to the video, Appellant contends that it depicts Deputy Stroope
prompting the canine to enter the vehicle’s open window “by pointing/gesturing
directly at the window.” 4 However, the video does not unequivocally establish that
Deputy Stroope prompted the canine to enter the vehicle through the open window.
When Deputy Stroope directed the dog’s attention to the open window, the dog

       4
        Contrary to Appellant’s assertion at the hearing on the motion for new trial, Deputy Stroope did
not open a door to the vehicle prior to the canine’s entry into the vehicle.

                                                   9
immediately jumped through it into the car. Deputy Stroope did not testify at trial
or at the two subsequent hearings. Accordingly, the record is silent as to whether
his hand gesture was an instruction to the canine to enter the car.
      Moreover, even if Deputy Stroope prompted the canine to enter the vehicle,
Appellant consented to the canine’s entry into the vehicle. As we noted previously,
Appellant gave officers consent to search his vehicle after the canine unit was called.
Furthermore, as Deputy Stroope approached Appellant’s vehicle with the canine,
Appellant gave the officers instructions on how to open the doors to his vehicle. We
conclude that the recording establishes that Appellant unequivocally consented to a
search of his vehicle.
      Thus, there are multiple bases upon which the trial court could have concluded
that a motion to suppress premised on the canine search would have been futile.
Accordingly, the trial court did not abuse its discretion in denying Appellant’s
motion for new trial with respect to the allegation that counsel was ineffective for
not challenging the canine search. See Riley, 378 S.W.3d at 457. We overrule
Appellant’s first issue.
      In his second issue, Appellant contends that his trial counsel was ineffective
for failing to investigate and request a pretrial inspection of text messages stored on
Appellant’s cell phone. Appellant asserts that this failure caused his trial counsel to
“advance a defense theory and a version of the facts in opening statement that was
contradicted and undermined” by the text-message evidence. Appellant did not raise
this claim of ineffective assistance of counsel in his motion for new trial or in his
habeas hearing.
      Generally, ineffective-assistance-of-counsel claims raised for the first time on
appeal will fail to satisfy the first prong of the Strickland test because the record is
“inadequate to show that counsel’s conduct fell below an objectively reasonable
standard of performance.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.
                                          10
2005). However, “when no reasonable trial strategy could justify the trial counsel’s
conduct, counsel’s performance falls below an objective standard of reasonableness
as a matter of law, regardless of whether the record adequately reflects the trial
counsel’s subjective reasons for acting as she [or he] did.” Id.
      Trial counsel must make an independent investigation of the facts of the case.
McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996). However, the
duty to investigate is not absolute since trial counsel may “make a reasonable
decision that makes particular investigations unnecessary.” Id. (quoting Strickland,
466 U.S. at 691). “In any ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691;
see also Ex parte Bowman, 533 S.W.3d 337, 350 (Tex. Crim. App. 2017).
      In his opening statement, Appellant’s trial counsel described the inception of
Appellant’s drug involvement.       Trial counsel stated that Appellant met some
individuals at school who told Appellant: “You can buy this package right here, here
in Waco Texas, it’s already divided up, you don’t have to even do anything. You
don’t have to touch it. I mean, the actual drugs. And basically, you’re a mule.”
Appellant’s trial counsel argued that it is from these individuals that Appellant
learned that the drug business was “like buying and selling stock.” Appellant then
found a person in the market for methamphetamine, and he started bringing it to
Brown County from Waco.
      During trial, Detective Dibrell testified that he seized Appellant’s cell phone
to confirm that Appellant was communicating with Killinger, which would establish
that Appellant was traveling to Killinger’s house on December 9. The State sought
to introduce individual photographs of the text messages Appellant received as
evidence of his involvement in distributing drugs to other individuals. Detective
Dibrell’s investigation revealed that, contrary to Appellant’s previous admission,
                                          11
Appellant had conducted business with more than just two customers. The evidence
showed that Appellant received text messages from five different people regarding
methamphetamine.
        While Appellant’s trial counsel did not address the investigation issue raised
in this appeal during either the writ hearing or the hearing on the motion for new
trial, he did address it during the punishment phase of trial. When the State sought
to offer the photographs of Appellant’s cell phone, his trial counsel requested a
recess to review the evidence. He stated that a recess was necessary because the
photographs the State furnished to him during discovery were small and illegible.
Trial counsel advised the trial court that he mistakenly assumed that his copies of
the photos were the same as the State’s copies and would therefore be illegible as
well.    After reviewing the photos, Appellant’s trial counsel lodged numerous
objections, some of which were successful.
        Assuming without deciding that trial counsel was deficient for not requesting
legible copies of the text messages, Appellant has not shown prejudice. To prove
ineffective assistance of counsel, an appellant “must show that prejudice occurred
with a probability ‘sufficient to undermine confidence in the outcome.’” Ex parte
Rogers, 369 S.W.3d 858, 862–63 (Tex. Crim. App. 2012) (quoting Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). Regarding alleged ineffective
assistance during the punishment phase of trial, an appellant must “prove that there
is a reasonable probability that, but for counsel’s errors, the sentencing jury would
have reached a more favorable verdict.” Id. at 863 (quoting Ex parte Cash, 178
S.W.3d 816, 818 (Tex. Crim. App. 2005)). “It is not enough to show that trial
counsel’s error had some conceivable effect on the outcome of the punishment
assessed.” Id.
        As noted previously, Appellant contends that trial counsel’s alleged
deficiency caused trial counsel to advance a theory in his opening statement that was
                                          12
contradicted by the text-message evidence offered at trial. The text messages
established that Appellant was dealing a large amount of methamphetamine to more
than two people. However, this evidence was cumulative of other evidence admitted
prior to the admission of the text messages. Specifically, the jury had already
received evidence that Appellant freely admitted to delivering a “key” or 2.2 pounds
of methamphetamine to Brown County, but he only admitted to delivering
approximately 140 grams to Killinger and her associates. Detective Dibrell testified
that he “believed that the additional weights [Appellant] was referring to went
somewhere else.” The jury could have feasibly believed that Appellant was selling
methamphetamine to other individuals based on this inconsistency. Additionally,
the jury heard testimony that Appellant was selling methamphetamine to pay for
college.   The jury could have considered that more customers would further
Appellant’s alleged business purpose. In light of the other incriminating evidence,
we cannot say that the text-message evidence significantly undermined trial
counsel’s strategy for Appellant to admit his guilt and seek forgiveness.
      The jury sentenced Appellant to confinement for a term of thirty-five years
for his conviction for possession of methamphetamine with intent to deliver in a
drug-free zone in an amount that was greater than four grams but less than 200
grams. The punishment range for this first-degree felony was “for life or for any
term of not more than 99 years or less than 5 years” and a potential fine not to exceed
$10,000. TEX. PENAL CODE ANN. § 12.32 (West 2011); see HEALTH & SAFETY
§ 481.112(d). The drug-free zone enhancement increased the minimum term of
confinement to ten years and doubled the potential fine.          HEALTH & SAFETY
§ 481.134(c). This is a serious offense. See Sneed v. State, 406 S.W.3d 638, 643
(Tex. App.—Eastland 2013, no pet.). Under these circumstances, Appellant has not
shown that but for trial counsel’s allegedly deficient performance, the jury would
have reached a more favorable verdict on punishment. To hold otherwise would be
                                          13
an impermissible exercise in conjecture and speculation. See Cash, 178 S.W.3d at
818–19. We overrule Appellant’s second issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE

September 28, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 5;
and Wright, S.C.J.6

Willson, J., not participating.




        5
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        6
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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