                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-261-CR


CARRY LAMONT TUCKER                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Carry Lamont Tucker, a pro se appellant, raises six points

challenging his conviction for aggravated robbery. In five points, Tucker argues

that his trial counsel was ineffective, and in his remaining point, Tucker

contends that the trial court erred by denying his requested article 38.23 jury

instruction. We will affirm.


      1
          … See Tex. R. App. P. 47.4.
                   II. F ACTUAL A ND P ROCEDURAL B ACKGROUND

      Robert Bauer, assistant manager of a Braum’s store in Fort Worth, was

getting in his car after closing the store one night when a man with a gun

approached him in the parking lot.       The man held the gun to Bauer and

threatened to kill him if he did not go back inside the store. Inside the store,

the man forced Bauer to open two safes in the back room and put the money

from the safes in a Braum’s bag. The man then directed Bauer to the front of

the store, where they saw a police officer in the parking lot. The man ran to

the back of the store, yelling for Bauer to come with him, but Bauer ran out the

front door toward the officer.

      The officer—Officer Seals— had stopped at the store because he saw

Bauer’s car with its drivers side door open in the parking lot. Bauer told Officer

Seals that the robber was a black male, around 5'10" and 180 pounds, wearing

a blue basketball jersey, a black hooded sweatshirt, black pants, and a blue

bandana. Officer Buchanan arrived on the scene, and Officer Seals gave him

a brief description of the robber. Officer Buchanan also talked to Bauer, who

reiterated the description of the robber. The first call that went out to the other

officers described the robber has a black male, 5'10" and 180 pounds, wearing

a basketball jersey. A second call went out minutes later that the robber was




                                        2
also wearing a black “hoodie,” and a third call added that the jersey was light

blue and that the robber wore a blue and white bandana over his face.

      Officer Brooks heard the call and drove to a nearby apartment complex

to look for the robber. He noticed a maintenance shed was partially opened and

found a black hooded sweatshirt, a black baseball cap, a Braum’s bag

containing cash and checks, and a pistol inside.

      Officer Buchanan left Braum’s, joined the search at the apartment

complex, and viewed the items in the shed. The officer saw Tucker walking in

a breeze way in the complex and observed that he was “about the same height

and weight given” and wearing a blue basketball jersey and black pants. The

officer informed Tucker that he matched the description of a robbery suspect

and detained him until Bauer arrived at the complex. Bauer recognized Tucker’s

blue basketball jersey, black pants, Nike shoes, height, weight, and voice.

      At trial, a forensic analyst testified that a DNA sample from the cuff of

the black sweatshirt contained a mixture of DNA from two or three individuals,

including Tucker. The analyst testified that she could exclude 99.9999% of the

population as contributors of the DNA but that Tucker could not be excluded.

The jury convicted Tucker of aggravated robbery, and after he pleaded true to

two felony enhancements alleged in the indictment, the trial court sentenced

him to life in prison. This appeal followed.

                                       3
                          III. A RTICLE 38.23 Instruction

      In his fifth point, Tucker argues that the trial court erred by denying his

requested jury instruction on reasonable suspicion pursuant to article 38.23 of

the code of criminal procedure. 2 That instruction would have instructed the jury

to disregard evidence obtained from Tucker’s detainment unless it found

“beyond a reasonable doubt that Officer Buchanan had reasonable suspicion,

based on articulable facts to temporarily detain the Defendant for the offense

of aggravated robbery; to wit: that the Defendant fit the description of the

robber, as Officer Buchanan believed that description to be at the point in time

that he detained the Defendant.”

      At the suppression hearing and at trial, Tucker’s trial counsel played an

audiotape recording of the police radio broadcasts from the night of the

robbery. At one point in the recording, an unidentified officer says, “This isn’t

him.” Officer Buchanan testified at the suppression hearing and at trial that the

voice was Sergeant O’Neil’s and that, after Tucker was arrested, Officer

Buchanan learned that Sergeant O’Neil had stopped Tucker and let him go

sometime before Officer Buchanan stopped him. At trial—presumably based on

Officer Buchanan’s testimony—Tucker’s trial counsel called Sergeant O’Neil to




      2
          … See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005).

                                        4
testify for the defense.    He testified that he was searching the apartment

complex for someone matching the radio description. He saw Tucker in the

complex and stopped and asked him some questions but let him go because he

was “calm, cool, and collected.” Sergeant O’Neil testified, “Well, I had plenty

of probable cause to detain him.      I made a momentarily poor decision in

judgment there based off a predisposed hunch that we were looking for

somebody that was running or hiding in or near the area.” Sergeant O’Neil

testified that he was not the one who said “[t]his isn’t him” on the audiotape,

but he recognized the voice as belonging to Corporal Alldredge.       Corporal

Alldredge did not testify at trial.

      In support of an article 38.23 jury instruction, Tucker’s trial counsel

argued that because two other officers—Sergeant O’Neil and Corporal

Alldredge—knew the description of the robber and determined that Tucker did

not fit the description, a question of fact existed as to whether Officer

Buchanan had reasonable suspicion.

      Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred. Id. If so, we must then evaluate

whether sufficient harm resulted from the error to require reversal.     Id. at

731–32.

                                       5
      Under article 38.23 of the code of criminal procedure, no evidence

obtained in violation of the federal or state constitutions or laws may be

admitted in evidence against the accused. Tex. Code Crim. Proc. Ann. art.

38.23(a). When the evidence raises an issue regarding a violation, the jury

must be instructed that if it believes, or has a reasonable doubt, that the

evidence was obtained in violation of the law, it must disregard the illegally

obtained evidence.     Id.   A defendant’s right to the submission of jury

instructions under article 38.23(a) is limited to disputed issues of fact that are

material to his claim of a constitutional or statutory violation that would render

evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509–10 (Tex. Crim.

App. 2007). To raise a disputed fact issue warranting an article 38.23(a) jury

instruction, there must be some affirmative evidence that puts the existence of

that fact into question. Id. at 513. If there is no disputed factual issue, the

legality of the conduct is determined by the trial judge alone as a question of

law. Id. at 510.

      Contrary to Tucker’s assertions, Sergeant O’Neil’s testimony and Corporal

Alldredge’s statement on the audiotape do not raise fact issues disputing

Officer Buchanan’s authority to detain Tucker.        See id.   Sergeant O’Neil

testified that he had “plenty of probable cause” to detain Tucker but that he did

not do so because Tucker’s behavior—rather than his appearance—did not fit

                                        6
O’Neil’s preconceived notion of the suspect. Regarding the audio recording, the

record does not show to whom Corporal Alldredge was referring when he said,

“This isn’t him.” Even assuming that Corporal Alldredge was talking about

Tucker, his statement does not controvert the facts supporting Officer

Buchanan’s detention of Tucker.

      The uncontroverted record evidence demonstrates that (1) the victim told

Officer Buchanan that the suspect was a black man, approximately 5'10", of

average weight, and wearing a black hoodie, a blue basketball jersey, and black

pants and that he had a pistol; (2) Officer Buchanan heard the police radio

broadcast that someone saw a man who matched the suspect’s description

running into a nearby apartment complex; (3) Officer Buchanan viewed the

items found in the shed at the apartment complex, including a black hoodie and

a gun; and (4) he saw “a black male about the same height and weight given

with a blue basketball jersey and black pants” about 100 feet from the shed

where the items were found. The evidence in the record does not dispute or

question the evidence upon which Officer Buchanan relied to detain Tucker;

that Tucker disagrees with the conclusion that reasonable suspicion was shown

as a matter of law is not the same as Tucker controverting the facts. See

Garza v. State, 126 S.W.3d 79, 86 (Tex. Crim. App. 2004). Thus, because

there was no evidence of a disputed fact warranting an article 38.23(a) jury

                                      7
instruction, we hold that the trial court did not err by denying Tucker’s

requested instruction. See id. at 513; Cate v. State, 124 S.W.3d 922, 928

(Tex. App.—Amarillo 2004, pet. ref’d). We overrule Tucker’s fifth point.

                    IV. INEFFECTIVE A SSISTANCE OF C OUNSEL

      In his first, second, third, fourth, and sixth points, Tucker contends that

he was denied his right to effective assistance of counsel. Specifically, Tucker

contends that his trial counsel (1) failed to conduct an adequate pretrial

investigation of the case; (2) failed to call an available witness at trial to

contradict the State’s evidence; (3) failed to file a motion for production of

witness statements pursuant to rule of evidence 615; and (4) failed to

adequately investigate prior void convictions and apply the correct law to those

prior convictions at the punishment phase of trial.

                            A. Standard of Review

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

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s 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);

                                        8
Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999); 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 counsel’s 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 counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s 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

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

                                          9
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 counsel’s errors

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

whose result is reliable. 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

counsel’s 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

whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.

                    B. Counsel’s Investigation of the Case

      Tucker first argues that his trial counsel was ineffective because he failed

to adequately investigate and apply pertinent facts of the case to Tucker’s

motion to suppress evidence. He claims that a proper investigation of the facts

would have shown that he did not fit the description of the robber. Tucker

does not explain how any additional investigation would have shown that he

failed to match the description of the suspect.

      In a separate point, Tucker also argues that his trial counsel was

ineffective because he failed to conduct a pretrial investigation of facts to

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support a jury instruction on reasonable suspicion pursuant to article 38.23.

Specifically, he claims that trial counsel failed to properly identify the person on

the audiotape of the police radio broadcast who said, “This isn’t him.”

      The record demonstrates that Tucker’s trial counsel thoroughly explored

the issue of whether Tucker matched the description of the suspect and

whether Officer Buchanan had reasonable suspicion to detain him. He cross-

examined Bauer and the officers who testified for the State about the specific

description of the suspect, and he called Sergeant O’Neil to testify for the

defense that he stopped Tucker but determined that he was not the suspect.

Tucker’s trial counsel also introduced into evidence the audio recording of the

police description of the suspect and of an officer saying, “This isn’t him.”

Tucker seems to argue that had his trial counsel identified Corporal Alldredge

as the speaker on the audio recording before trial, he could have called the

corporal to testify at trial, but Tucker fails to show how he would have

benefitted from the corporal’s testimony.3 See Wilkerson v. State, 726 S.W.2d

542, 551 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987) (holding




      3
       … Even if Corporal Alldredge would have testified that he also stopped
Tucker and determined that he did not fit the description of the suspect, we
have already explained in section III above how this testimony would not create
a fact issue regarding Officer Buchanan’s basis for reasonable suspicion to
detain Tucker.

                                        11
that absent a showing that a potential witness would have benefitted the

defense, counsel’s failure to call the witness is of no moment). Tucker fails to

overcome the presumption of reasonable professional assistance.              See

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

                    C. Failure to Call Available Witnesses

      Tucker also argues that trial counsel was ineffective because he failed to

call Officer Seals—the first officer to arrive at Braum’s the night of the

robbery— to testify at trial. Tucker contends that Officer Seals would have

contradicted the State’s evidence but fails to show what Officer Seals’s

testimony would have been or that Tucker would have benefitted from his

testimony.4   Again, without this showing, Tucker fails to overcome the

presumption that his trial counsel provided reasonable professional assistance.

See Simms v. State, 848 S.W.2d 754, 758 (Tex. App.—Houston [1st Dist.]

1993, pet. re’d) (citing Wilkerson, 726 S.W.2d at 551).

              D. Motion for Production of Witness Statements




      4
        … The police call sheet admitted at trial contains the description of the
robber as broadcasted by Officer Seals over the police radio. Tucker argues
that because the call sheet does not include “black pants” in the description of
the robber, Officer Seals would have controverted Officer Buchanan’s testimony
that the robber was described as wearing black pants. But Officer Buchanan
testified that the victim himself told him that the robber wore black pants.

                                       12
      Tucker further contends that he received ineffective assistance at trial

because his trial counsel failed to file a motion for production of Bauer’s written

statement to police.    Texas Rule of Evidence 615(a) requires that after a

witness has testified on direct examination, a trial court, on motion of a party

who did not call the witness, shall order the production of the witness’s written

statement relating to the matter testified. Tex. R. Evid. 615(a). The record

shows that Bauer went to the police station after the robbery and spoke with

a detective, but there is no evidence that he provided a written statement.

Additionally, the record is silent as to why trial counsel did not request any

written statements. Therefore, Tucker fails to rebut the presumption that this

decision was reasonable. See Thompson, 9 S.W.3d at 814.

            E. Admission of Prior Convictions During Punishment

      Tucker finally argues that trial counsel was inadequate because he failed

to adequately investigate Tucker’s prior void convictions and apply the correct

law to those prior convictions at the punishment phase of trial. Specifically,

Tucker argues that his prior conviction for assault on a correctional officer

should not have been used for enhancement purposes because his sentence for




                                        13
that conviction did not begin to run until after his sentence for a prior

aggravated robbery conviction ceased to operate.5

      Nothing in the record supports Tucker’s contention.      His indictment

included a habitual offender notice based on two prior convictions—one in

December 1999 for assault on a correctional officer and one in November 1994

for an aggravated robbery. The State introduced a pen packet containing the

judgment and sentence for the prior offenses. This information was sufficient

to satisfy section 12.42(d) of the penal code.    See Tex. Penal Code Ann.

§ 12.42(d) (Vernon Supp. 2008) (providing for enhanced punishment upon

showing that defendant was finally convicted of two felony offenses and that

the second previous felony conviction was for an offense that occurred

subsequent to the first previous conviction having become final); Langston v.

State, 776 S.W.2d 586, 587 (Tex. Crim. App. 1989) (holding copies of

judgment and sentence was proof of prior conviction).      The finality of the

convictions does not hinge on whether the sentence for the second previous

felony conviction ran consecutively or concurrently with the first previous




      5
       … Tucker also complains of a third prior conviction contained in the pen
packet introduced at trial, but the State did not rely on this conviction to
enhance Tucker’s range of punishment. Thus, Tucker’s argument that this
conviction should not have been used for enhancement purposes is without
merit.

                                      14
felony conviction. The record demonstrates that the prior convictions were

properly considered for enhancement purposes.

      Having disposed of each of Tucker’s ineffective assistance arguments, we

hold that he failed to overcome the strong presumption that his trial counsel

rendered adequate assistance and overrule his first, second, third, fourth, and

sixth points. See Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

                                V. C ONCLUSION

      Having overruled Tucker’s six points, we affirm the trial court’s judgment.

                                                 PER CURIAM

PANEL: WALKER, J.; CAYCE, C.J.; and LIVINGSTON, J.

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

DELIVERED: November 13, 2008




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