                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00186-CR



  DARRIAN DE’ANTHONY DAVIS-SANDERS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 336th District Court
                Fannin County, Texas
            Trial Court No. CR-12-24246




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                      MEMORANDUM OPINION
         Darrian De’Anthony Davis-Sanders pled guilty to delivery of less than one gram of cocaine

within a school zone. Pursuant to a negotiated plea agreement, the trial court deferred a finding of

guilt, placed Davis-Sanders on community supervision for a ten-year period, and ordered him to

pay $140.00 in restitution. Subsequently, the State alleged that Davis-Sanders violated the terms

and conditions of his community supervision by possessing methamphetamine and a firearm and

moved the trial court to adjudicate his guilt. Finding the State’s allegations “true,” the trial court

revoked Davis-Sanders’ community supervision, adjudged him guilty of the underlying offense,

and sentenced him to ten years’ imprisonment. On appeal from the judgment adjudicating his

guilt,1 Davis-Sanders argues that his counsel rendered ineffective assistance by failing to question

the legality of the search that led police officers to the discovery of the methamphetamine and

firearm. We disagree.

         “Ineffective assistance of counsel claims are evaluated under the two-part test formulated

in Strickland, requiring a showing of both deficient performance and prejudice.” Johnson v. State,

432 S.W.3d 552, 555 (Tex. App.—Texarkana 2014, pet. ref’d) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Fox v.

State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana 2005, pet. ref’d)). “To prevail on his



1
 In our cause numbers 06-14-00187-CR, 06-14-00188-CR, and 06-14-00189-CR, Davis-Sanders also appeals from
(1) a judgment adjudicating him guilty of delivery of less than one gram of cocaine within a school zone, sentencing
him to ten years’ imprisonment, and ordering him to pay $102.00 in restitution; (2) a judgment adjudicating him guilty
of possession with intent to deliver four or more grams, but less than 200 grams of cocaine within a school zone,
sentencing him to sixty years’ imprisonment, and ordering him to pay a $1,450.00 fine; and (3) a judgment
adjudicating him guilty of delivery of less than one gram of cocaine within a school zone, sentencing him to ten years’
imprisonment, and ordering him to pay $140.00 in restitution.

                                                          2
ineffective assistance claims, [Davis-Sanders] must prove by a preponderance of the evidence that

(1) his counsel’s representation fell below an objective standard of reasonableness and (2) the

deficient performance prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687; Tong v.

State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)). A Strickland claim must be “firmly founded

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); Lopez v. State, 343 S.W.3d

137, 142–43 (Tex. Crim. App. 2011). “Failure to satisfy either prong of the Strickland test is

fatal.” Johnson, 432 S.W.3d at 555 (citing Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim.

App. 2006)). Thus, we need not examine both Strickland prongs if one cannot be met. Id.

       As for the first Strickland prong, “[w]e indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable, professional assistance and that it was motivated by

sound trial strategy.” Id. (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)).

“‘If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility

that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and

deny relief on an ineffective assistance claim on direct appeal.’” Id. (quoting Ortiz v. State, 93

S.W.3d 79, 88–89 (Tex. Crim. App. 2002)). “Rarely will a reviewing court be provided the

opportunity to make its determination on direct appeal with a record capable of providing an

evaluation of the merits of ineffective assistance claims.” Id. (citing Thompson, 9 S.W.3d at 813).

“‘In the majority of instances, the record on direct appeal is simply undeveloped and cannot

adequately reflect’ the reasoning of trial counsel.” Id. (quoting Thompson, 9 S.W.3d at 813–14).

“Only in the rare case ‘in which trial counsel’s ineffectiveness is apparent from the record, may

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the appellate court ‘address and dispose of the claim on direct appeal.’” Id. (quoting Lopez, 343

S.W.3d at 143).

       At the hearing on the motion to adjudicate guilt, Gary Van, an officer with the Garland

Police Department, testified that he drove to a motel known for high drug activity and prostitution

based on two separate tips from informants that two black males holding handguns were selling

methamphetamine in the parking lot. From the motel owner, Van learned that a room was recently

rented by Brittany Guignard. Guignard had outstanding warrants for her arrest.

       After backup arrived, Van knocked on the door of Guignard’s room and watched as Davis-

Sanders, who matched the description of one of the methamphetamine sellers, peeked out from the

blinds. Van testified that when Guignard opened the door, he immediately smelled “a lot of”

marihuana smoke and saw marihuana on the table. Van noticed that Davis-Sanders was no longer

in the bedroom and “[h]eard some rustling around inside the bathroom,” which made Van “[f]ear[]

that some drugs were being disposed of at the time.” After Guignard advised Van that she had a

firearm, officers conducted a protective sweep of the room.

       As a result of the protective sweep, Van located another male and female who were hiding

underneath a pile of clothing. As he exited the bathroom, Van “for [officer] safety” asked Davis-

Sanders whether he had a firearm. According to Van, Davis-Sanders pointed to a backpack,

claimed it as his, and stated that his handgun was in the large compartment of the backpack. Van

found the loaded handgun and testified that underneath the handgun, “in plain view . . . there was

a clear white plastic baggy that contained a crystal-like substance which [he] recognized from [his]



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training and experience to be methamphetamine.”2                 At that point, Van searched the other

compartments of the backpack and located other bags containing methamphetamine, empty plastic

bags, scales, and a list of ingredients used to make methamphetamine.

        Davis-Sanders argues that his trial counsel was ineffective because he failed to file a

motion to suppress the evidence found during the search of the backpack. Yet, nothing in the

record explains why trial counsel declined to file such a motion. Counsel could have determined

the motion to be pointless if he had knowledge that the confidential informants, or even co-

defendants, were willing to testify, if necessary, that they saw Davis-Sanders possessing a firearm

and selling methamphetamine in the parking lot. Counsel could have concluded that (1) as a non-

registered guest in the motel room, Davis-Sanders had no expectation of privacy, and, thus, could

not complain about the entry and search of Guignard’s room, or (2) Van had a right to enter the

room to arrest Guignard on her outstanding warrants. See generally Ex parte Moore, 395 S.W.3d

152 (Tex. Crim. App. 2013); see Green v. State, 78 S.W.3d 604, 611 (Tex. App.—Fort Worth

2002, no pet.). Counsel also could have determined that it would not be an abuse of discretion for

the trial court to find that Van legally searched the backpack given the facts of this case, including

Van’s immediate sighting of the marihuana, the presence of a lot of marihuana smoke, his belief

that Davis-Sanders was disposing of contraband, the informant’s tips that a person matching

Davis-Sanders’ physical description was armed and selling methamphetamine, and Davis-

Sanders’ actions in directing Van to the backpack.



2
 Brooke Harrison, a forensic scientist with the Texas Department of Public Safety, testified that she tested the
substance and determined that it was methamphetamine.
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       The Texas Court of Criminal Appeals has said that “[t]rial counsel ‘should ordinarily be

afforded an opportunity to explain his actions’ before being denounced as ineffective.” Menefield

v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed, 187 S.W.3d at 392).

Where an appellate record is silent as to why trial counsel failed to take certain actions, the

appellant has “failed to rebut the presumption that trial counsel’s decision was in some way—be

it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007);

see Thompson, 9 S.W.3d at 814. We find that Davis-Sanders has failed to meet the first Strickland

prong. Accordingly, we overrule his sole point of error.

       We affirm the trial court’s judgment.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:       July 22, 2015
Date Decided:         August 4, 2015

Do Not Publish




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