      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00202-CR



                                Robert Saint James, Appellant

                                                v.

                                 The State of Texas, Appellee




    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
        NO. 3040112, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The jury convicted appellant Robert Saint James of the offense of felony murder. See

Tex. Pen. Code Ann. § 19.02(b)(3) (West 2003). Punishment was assessed at fifty years’

confinement. In five issues on appeal, Saint James challenges the district court’s denial of his

motion to suppress his confession and asserts ineffective assistance of counsel. We will affirm.


                                        BACKGROUND

               The jury heard evidence that, between 12:30 and 1:00 a.m. on November 20, 1982,

the body of 20-year-old Dallas resident Mark Dougherty was found along IH-35 near the Slaughter

Creek overpass in Austin. Police officers who discovered Dougherty testified that he was bloodied

and barely alive when they found him, and that he was ultimately “pronounced dead on the scene.”
One of the officers testified that Dougherty was found covered in “scrub-type brush” that indicated

to him that someone had tried to hide the body. An autopsy revealed that Dougherty died from

massive loss of blood from stab wounds to his neck.

               During their investigation into Dougherty’s death, police began looking for Saint

James and Don Bouldrey, two individuals who allegedly were supposed to meet with Dougherty on

the night he was murdered. Officers first interviewed Bouldrey, but determined that they lacked

“enough probable cause” to arrest him.

               Sergeant Jerry Fearn of the Austin Police Department testified that, on December 3,

1982, he received a phone call from Saint James, who volunteered that “our investigation was going

in the wrong direction, that we were looking for the wrong people and that he could straighten us

up.” Saint James then asked to meet with Fearn at a restaurant the next morning “to give his version

of what happened.” Fearn testified that Saint James refused to meet with him at the police station.

               Fearn explained that, when he met with Saint James the next day, Saint James told

him that “he was a broker. He put people together and admitted that normally these contacts that he

arranged were for drug deals.” Fearn testified that Saint James also told him that “Don Bouldrey was

wanting to expand his business as a drug dealer” and that Bouldrey “was trying to put together a deal

with Mark Dougherty” and “Dougherty was supposed to be coming to Austin to buy drugs for his

customers in Dallas.” Saint James went on to tell Fearn that Dougherty had planned on flying from

Dallas to Austin and meeting Saint James at the airport, but that the meeting never happened. Saint

James also told Fearn that he had been at his girlfriend’s house the night of the murder, and that he

had learned from Bouldrey the next day that Dougherty had been murdered. Fearn testified that



                                                 2
when he asked Saint James if he thought Bouldrey had been involved in the murder, Saint James

responded that “Don wasn’t the kind of person that could do something like that.”

               On December 21, 1982, Sergeant Fearn was contacted a second time by Saint James.

This time Saint James told Fearn “that he had been out investigating this murder and had all the

information and evidence that we needed to arrest, indict and prosecute Don Bouldrey for Mark

Dougherty’s murder.” This evidence supposedly included a knife that was the murder weapon and

a bloody boot that belonged to Bouldrey. Fearn testified that Saint James wanted to be paid $5,000

for this evidence. Believing that this “evidence” would probably be inadmissible at trial, Sergeant

Fearn declined the offer. Fearn testified that, on December 23, Saint James called him again and

asked for the phone number of Dougherty’s father. It appeared to Fearn that Saint James was

interested in selling the evidence to Dougherty’s family. Fearn did not give Saint James the family’s

phone number. This was the last time Fearn had contact with Saint James. After that, information

about Dougherty’s murder “cease[d] to come in” and the case, although never closed, was set aside.

               In 1986, Detective Dusty Hesskew, who had assisted with the murder investigation

in 1982, decided to follow up on some leads. Hesskew ran a criminal history check on Saint James

and discovered that he was in a penitentiary in Colorado. Hesskew testified that he spoke with

Gregory Boodakian, a counselor at the Colorado Department of Corrections, who told him that Saint

James had been talking to him about Dougherty’s murder. Boodakian took a taped statement from

Saint James, transcribed it, and sent it to Hesskew. In the statement, Saint James explained his

version of the events surrounding Dougherty’s murder, giving a “very graphic description of the




                                                 3
crime scene” and acknowledging that he was present when the crime occurred. In the statement,

Saint James also admitted to assisting Bouldrey in hiding some of the evidence related to the murder.

Based on the contents of this statement, Hesskew “put the case together and . . . presented it to the

District Attorney’s Office for their review.” Hesskew thought he had enough information to “get

the case before a grand jury.” Hesskew did not know what happened to the case after he turned the

evidence over to the district attorney’s office. It is undisputed that the district attorney’s office

decided not to prosecute the case at that time.

               The case was later reviewed in 2001 by the Austin Police Department’s cold case

unit. Detective Rick Blackmore examined Saint James’s 1986 statement and began looking for him.

He found Saint James in Arizona. Detective Donald Byers, a police detective with the City of Mesa,

Arizona, was asked by Blackmore to speak with Saint James about Dougherty’s murder. Byers

asked Saint James to come into the Mesa police station and make a statement, which he did on

December 15, 2002. The statement was recorded and sent to Austin. Based on the information in

the statement, Detective Blackmore decided to go to Arizona and interview Saint James himself.

               Detective Blackmore and his partner Detective Hardesty first interviewed Saint James

on February 12, 2003. Blackmore testified that Saint James “voluntarily came to the Mesa, Arizona

Police Department” and gave a statement about his involvement in the murder. The meeting lasted

“about seven-and-a-half hours.” Blackmore testified that, although there were some differences

between Saint James’s statement to Detectives Blackmore and Hardesty and his 1986 statement to

Boodakian, “It was still a relatively consistent story in that he was negotiating the sale of this MDA




                                                  4
product or love drug that he and Mr. Bouldrey had begun producing and was trying to negotiate that

sale to Mr. Dougherty.” When asked about the inconsistencies in the statements, Blackmore

testified:


        A lot of it involved—from my perspective, a lot of it involved the discussion between
        Mr. Bouldrey and Mr. Saint James. And at some point on the first day Mr. Saint
        James told us that Mr. Bouldrey told Saint James that he was going to get Mark’s
        money. And that began sounding more to me as though they intended to rob him.
        The first day Mr. Saint James continued to deny that. But as I said before, I felt like
        and Detective Hardesty both felt that he was minimizing his involvement.


               Blackmore and Hardesty requested a second interview with Saint James the following

day. Saint James agreed. Blackmore testified that during the second interview on February 13, Saint

James told them that:


        [H]e actually had preplanned the robbery with Mr. Bouldrey. He had knowledge that
        it was going to be a robbery and that he actually instructed Mr. Bouldrey to strike Mr.
        Dougherty on the head with his motorcycle helmet. The intent was to knock him out,
        take his money and leave him on the side of the road.


               Saint James’s confession was videotaped and reduced to written form. After taking

the statement, Detectives Blackmore and Hardesty returned to Austin and continued to investigate

the murder. Blackmore testified that the investigation into Bouldrey’s involvement was still

ongoing.

               On April 16, 2004, Saint James was indicted for Dougherty’s murder, committed in

the course of robbery. The jury was instructed on the law of parties and found Saint James guilty,

assessing punishment at fifty years’ confinement and a fine of $5,000. This appeal followed.



                                                  5
                                          DISCUSSION

Motion to suppress

                In his first issue, Saint James contends that the district court erred in denying his

motion to suppress his February 12 and 13, 2003 statements to Detectives Blackmore and Hardesty.

                In his motion to suppress, Saint James asserted that his “confession cannot be

considered truly voluntary because he was not informed of his right to have an attorney present

during the interrogation as per Miranda.”1 After holding a hearing on Saint James’s motion to

suppress, the district court disagreed, finding that Saint James “voluntarily came to the February 12,

2003, interview and agreed to return on February 13, 2003, to summarize and reduce to writing the

substance of the interview.” The district court made the following findings:


       At all times during the interview on February 12-13, 2003, the defendant was not
       under arrest and was free to leave.

       The defendant freely and voluntarily made the electronically recorded and written
       statement.

       The electronically recorded and written statement were [sic] not the result of
       custodial interrogation.


                We apply a bifurcated standard of review to an order granting or denying a motion

to suppress, giving almost total deference to a trial court’s determination of historical facts and

reviewing de novo the court’s application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.

Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The district




       1
           See Miranda v. Arizona, 384 U.S. 436 (1966).

                                                  6
court is the sole judge of the credibility of the witnesses and the weight to be given their testimony,

and it may choose to believe or disbelieve any or all of a witness’s testimony. Laney v. State, 117

S.W.3d 854, 857 (Tex. Crim. App. 2003); Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App.

2000); Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993); Allridge v. State, 850 S.W.2d

471, 492 (Tex. Crim. App. 1991).

               Saint James asserts that his February 12 and 13 statements should have been

suppressed because they were the result of an impermissible “question-first” interrogation tactic.2

Saint James compares his statements to the statements made by the defendant in Missouri v. Seibert,

542 U.S. 600 (2004). In Seibert, the suspect was taken to the police station and left alone in an

interview room for 15 to 20 minutes. Id. at 604. Without giving Miranda warnings, an officer

entered the room and questioned Seibert for 30 to 40 minutes—“squeezing her arm” in the process—

and eventually obtained a confession. Id. at 605. The officer then left the interview room, returned

20 minutes later with a tape recorder, gave Seibert the Miranda warnings, and began asking her to

repeat the same information she had previously told the officer. Id. Concluding that this

“question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a

coerced confession would be admitted,” the Supreme Court held that Seibert’s post-Miranda

statements were inadmissible. Id. at 617.




       2
         The “question-first” interrogation tactic involves successive interrogations of a suspect,
both before and after warning him of his Miranda rights. Missouri v. Seibert, 542 U.S. 600, 609
(2004). Only after a confession is obtained are the Miranda warnings given, and then the officer
asks the suspect to repeat his confession, in the belief that the incriminating statements given
subsequent to the Miranda warnings will be admissible. See id. at 609-10.

                                                  7
               This case is distinguishable from Seibert, primarily because the statements obtained

by Detectives Blackmore and Hardesty on February 12 and 13 were not the product of custodial

interrogation. The requirements of Miranda apply only to statements made during custodial

interrogation. See Miranda v. Arizona, 384 U.S. at 478 (volunteered statements not barred by Fifth

Amendment); Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (statute does not preclude admission of

statement that does not stem from custodial interrogation)

               A person is in custody if, under the totality of the circumstances, a reasonable person

would believe his freedom of movement was restrained to the degree associated with a formal arrest.

Stansbury v. California, 511 U.S. 318, 322 (1994); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.

Crim. App. 1996); Houston v. State, 185 S.W.3d 917, 920 (Tex. App.—Austin 2006, pet. ref’d).

The initial determination of custody depends on the objective circumstances of the interrogation, not

the subjective views of the police or the person being questioned. Stansbury, 511 U.S. at 323;

Dowthitt, 931 S.W.2d at 254; Houston, 185 S.W.3d at 920. The subjective views of the police

regarding custody may be relevant as a circumstance of the interrogation if they are conveyed to the

individual being questioned, but only to the extent that the communication of those views would

affect a reasonable person’s understanding of his freedom of action. See Stansbury, 511 U.S. at 325;

Dowthitt, 931 S.W.2d at 254; Houston, 185 S.W.3d at 920. Stationhouse questioning is not, in and

of itself, custodial. Dowthitt, 931 S.W.2d at 255; Houston, 185 S.W.3d at 920; see Oregon v.

Mathiason, 429 U.S. 492, 496 (1977). But “the mere fact that an interrogation begins as

non-custodial does not prevent custody from arising later; police conduct during the encounter may

cause a consensual inquiry to escalate into custodial interrogation.” Dowthitt, 931 S.W.2d at 255.



                                                 8
              In the hearing on the motion to suppress, Detective Blackmore testified that before

he interviewed Saint James, Saint James initiated contact with him, leaving a message on the

detective’s voice mail indicating that he wanted to speak with him about the murder:


       Q: What message did the defendant leave on your voice mail?

       A    He said, “Maybe the first thing I need to say is Merry Christmas. Saint James,
            Robert A.,” there is a sigh, then he says “murder contest, lots of years ago, Don
            Bouldrey. Give me a call. I can’t give you a phone number, but I have got to
            touch base with you. Homicide detectives here in Mesa touched with me. Like
            I said, Merry Christmas.”


              After receiving this message, Detective Blackmore testified that he arranged for a

“non-custodial meeting” with Saint James. Detective Blackmore then provided the following details

about the meeting:


       Q: Now where did you meet with the defendant on February 12, 2003?

       A: At the Mesa, Arizona Police Department.

       Q: And how is it that the defendant arrived at that location?

       A: He drove himself from home.

       Q: And was this a non-custodial interview?

       A: Yes, sir.

       Q: Was the defendant told at different points in time that he was free to leave?

       A: He was told numerous times that he was not under arrest, that we had no
          intention of arresting him there at that time, that he could talk to us and he was
          free to leave at any time that he wished.




                                                 9
              After the interview on February 12th, Saint James left the police station and returned

to his home, agreeing to return the following morning:


       Q: Did the defendant leave the police station?

       A: Yes. Detective Hardesty actually asked Mr. Saint James if he would be willing
          to return to the police station the next morning and talk to us further about the
          matter. He agreed to. We all left and we went to our hotel and Mr. Saint James
          went home.

       Q: Did he voluntarily return on the 13th?

       A: He did.


              Detective Blackmore went on to explain that during the meeting on February 13, Saint

James confessed to his involvement in the robbery without any questioning from the detectives:


       Q: What happened when he arrived on the 13th?

       A: Almost immediately we had gathered back in the interview room and after we
          got together Mr. Saint James told us that he had done some thinking overnight
          and he had something that he wanted to tell us. He asked us to sit down, be
          quiet and not interrupt him and give him the opportunity to speak.

       Q: What did he reveal at that point?

       A: He told us at that point that he was involved, that he had actually participated in
          the planning of the robbery of Mr. Dougherty. . . .

       Q: After he gives you that initial bit of new information, was he nevertheless still
          in a non-custodial setting?

       A: Yes, sir.

       Q: Was he placed under arrest at that point or anything?

       A: No, sir.

                                                10
       Q: Did the interview continue?

       A: It did.

       Q: In some detail did he ultimately provide a written statement?

       A: Yes, he did.

       Q: Did you give him Miranda warnings prior to the obtaining of the written
          statement that could be described as a confession?

       A: Yes.

       ....

       Q: And the written statement itself contains the Miranda warnings?

       A: It does.

       ....

       Q: Were these voluntary statements?

       A: Yes, sir.

       Q: Was he in custody at the time that he gave these statements?

       A: No, sir.

       Q: At the conclusion of all his statements, did he in fact leave the police station?

       A: He did.

       Q: He was free to leave?

       A: And he did, yes, sir.


               Saint James also testified during the hearing on the motion to suppress. After

testifying that he was not given his Miranda warnings until the end of his interview on February 13,

he explained that, for most of the interview, he did not believe he was in custody:


                                                11
       Q: Finally, were you told that you could walk out and terminate at any time?

       A: I’ve got to admit, Byers and Detective Blackmore are pretty good cops and they
          made very clear to me that I could leave at any point at any time.

       Q: From your point of view, did you feel like you were being treated as a suspect
          or a witness?

       A: I’m not going to be here to dent anybody’s fenders, but I was there to help the
          cops out—basically a bad word, help the police department out as just a
          conversation, not as a witness, not as somebody that has to be under the
          Miranda rights. I was there to help the cops out, the police department, if you
          wish. I was there having a conversation with some men that needed some help.
          That’s my situation.


               Saint James went on to testify that it was not until after the detectives gave him his

Miranda warnings that he believed he was “in a very tight spot.”3

               Based on the totality of the circumstances surrounding the February 12 and 13

interviews, we find that there is sufficient evidence in the record to support the district court’s

findings that Saint James was not under arrest and was free to leave, that his statement was freely

and voluntarily made, and that the statement was not the result of custodial interrogation. Saint

James initiated contact with Detective Blackmore, asking to speak with him about the murder.

Although the interview was at the police station, Saint James drove himself to the station, and the


       3
          We note that the reading of Miranda warnings does not transform a noncustodial setting
into custodial interrogation. See United States v. Bautista, 145 F.3d 1140, 1148 (10th Cir. 1998);
Sprosty v. Buchler, 79 F.3d 635, 642 (7th Cir. 1996); Davis v. Allsbrooks, 778 F.2d 168, 172 (4th
Cir. 1985) (to hold that Miranda warnings create custody “would convert admirable precautionary
measures on the part of officers into an investigatory obstruction”); United States v. Charles, 738
F.2d 686, 693 n.6 (5th Cir. 1984). However, the giving of Miranda warnings is a factor in the
determination of whether a reasonable person would believe that he is under arrest. See Bautista,
145 F.3d at 1148; Sprosty, 79 F.3d at 642. Moreover, there may be “circumstances where a clash
of wills over a suspect’s desire to remain silent would create custody through overbearing police
behavior.” Davis, 778 F.2d at 172 n.1. There is no evidence of “overbearing police behavior” in this
case.

                                                12
detectives repeatedly informed Saint James that he was not under arrest, that they had no intention

of arresting him at that time, and that he was free to leave. In fact, Saint James freely left the police

station after both the February 12 and February 13 interviews and went home. There is also no

evidence of any coercive behavior on the part of the detectives. Furthermore, when Saint James

arrived at the police station on February 13, he confessed to his involvement in the robbery without

any questioning from the detectives. In fact, he told them “to sit down, be quiet and not interrupt

him and give him the opportunity to speak.” This is clearly not the type of situation the Supreme

Court disapproved of in either Miranda or Seibert. See Rhode Island v. Innis, 446 U.S. 291, 299-300

(1980) (“Any statement given freely and voluntarily without any compelling influences is, of course,

admissible in evidence.”). We conclude that the district court did not abuse its discretion in denying

Saint James’s motion to suppress. We overrule Saint James’s first issue.


Ineffective assistance of counsel

                In issues two, three, four, and five, Saint James asserts that trial counsel was

ineffective for: (1) failing to move to suppress the 1986 Colorado prison statement; (2) failing to

move to suppress the December 2002 statement made to Detective Byers in Arizona; (3) failing to

object to portions of the 1986, 2002, and 2003 statements which mentioned Saint James’s prior

incarcerations and past drug activities; and (4) failing to request a jury instruction on the issue of the

voluntariness of Saint James’s statements to the police.4


        4
          Saint James filed a motion to abate this appeal and remand for a hearing on whether trial
counsel was ineffective. Saint James’s appointed appellate counsel filed a motion for new trial but
did not raise ineffective assistance of counsel claims because “the Reporter’s Record had not been
prepared within the time frame for filing a new trial motion and counsel could not have known of
the existence of these issues prior to reviewing the Reporter’s Record.”


                                                   13
               Ineffective assistance of counsel claims are evaluated under the two-part test

formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a

showing of both deficient performance and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. 2005). A Strickland claim must be “firmly founded in the record” and “the record must

affirmatively demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). Direct appeal is usually an inadequate vehicle for raising such a claim

because the record is generally undeveloped. Id. at 813-814. “This is true with regard to the

question of deficient performance—in which counsel’s conduct is reviewed with great deference,

without the distorting effects of hindsight—where counsel’s reasons for failing to do something do

not appear in the record.” Goodspeed, 187 S.W.3d at 392. We have said that “trial counsel should

ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.”

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Absent such an opportunity, an

appellate court should not find deficient performance unless the challenged 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).



         Texas Rule of Appellate Procedure 2 authorizes an appellate court, on a party’s motion or
on its own initiative, and in order to expedite a decision or for other good cause to “suspend a rule’s
operation in a particular case and order a different procedure; but a court must not construe this rule
to suspend any provision of the Code of Criminal Procedure . . . .” Tex. R. App. P. 2. A court of
appeals may not use Rule 2 to suspend or enlarge appellate limits that regulate the orderly and timely
process of moving a case from trial to finality of conviction. Oldham v. State, 977 S.W.2d 354, 359
(Tex. Crim. App. 1998).

         Saint James has not shown good cause for this Court to suspend the rules of appellate
procedure and allow him to file a new motion for new trial. Accordingly, Saint James’s motion to
abate appeal and remand for a hearing is denied. See Pettway v. State, 4 S.W.3d 390, 391 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d).

                                                  14
               To show prejudice, “appellant must show a reasonable probability that, but for his

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Mitchell

v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). “In other words, the appellant must prove

counsel’s representation so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Hall v. State, 161 S.W.3d 142, 152 (Tex.

App.—Texarkana 2005, pet. ref’d) (citing Strickland, 466 U.S. at 686). If, however, “there is at least

the possibility that the conduct could have been legitimate trial strategy,” then we must “defer to

counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.” Id. (quoting

Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003)).


    1986 Colorado statement

               Saint James first asserts that counsel was ineffective for failing to make a motion to

suppress the 1986 statement Saint James made while in prison in Colorado because it was made

involuntarily. Regardless of the merits of this assertion, we conclude that counsel’s decision not to

object to the admission of this statement reasonably could be considered legitimate trial strategy.

The 1986 statement was consistent with Saint James’s trial testimony. In the statement, Saint James

claimed he was simply the negotiator for a drug transaction and that Bouldrey was responsible for

the robbery and murder. Given the incriminating nature of Saint James’s subsequent statements to

police, counsel may have wanted the 1986 statement to come in as evidence supporting Saint

James’s theory of the case—that he was not responsible for Dougherty’s death.




                                                  15
    Evidence of prior incarcerations and past drug activity in all statements

               Saint James also contends that counsel was ineffective for failing to object to portions

of his 1986, 2002, and 2003 statements that referenced prior incarcerations related to drug offenses.

We conclude that counsel reasonably could have anticipated that this evidence would come in

anyway. While evidence of other crimes, wrongs or acts is not admissible to prove the character of

a person in order to show action in conformity therewith, it may be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. See Tex. R. Evid. 404(b). The robbery and murder arose out of a drug

transaction. Evidence related to Saint James’s prior involvement with drugs was directly related to

this offense. Additionally, Saint James’s defense was that he was merely a negotiator for a drug

transaction. Evidence that he was previously involved in drugs was relevant to that defense. We

thus find it highly unlikely that, even if trial counsel had objected to the references to prior

incarcerations and past drug activity, the district court would not have allowed the evidence to be

admitted.


    December 2002 statement

               Saint James also asserts that counsel was ineffective for failing to make a motion to

suppress the statement he made to Detective Byers in December 2002. Although Saint James admits

that this statement was made voluntarily, he contends it should have been suppressed because it

contained references to the 1986 statement and also to past drug offenses. As we discussed above,

counsel reasonably could have wanted the 1986 statement to be admitted. If that was his trial

strategy, it could also be part of his strategy not to object to portions of the 2002 statement that



                                                 16
referred to the 1986 statement. We also do not believe counsel was ineffective for failing to object

to the references to past drug offenses, for the reasons described above.


     Jury instruction on voluntariness

                Saint James further contends that counsel was ineffective for failing to request a jury

instruction on the voluntariness of his confession. Saint James cites this Court’s opinion in Vasquez

v. State, 179 S.W.3d 646 (Tex. App.—Austin 2005, pet. granted), in which we held—for the first

time—that “a defendant may be entitled to an instruction on voluntariness even if the facts

surrounding his confession are undisputed. An instruction must be given if a reasonable jury,

viewing the totality of the circumstances, could have found that the statement was not voluntarily

made.” Id. at 662. We first note that Vasquez was not decided until over a year after Saint James’s

trial. Counsel cannot be expected to comply with a decision that was not handed down until well

after his representation of his client ended. See Vaughn v. State, 931 S.W.2d 564, 568 (Tex. Crim.

App. 1996) (“An ineffective assistance of counsel claim cannot be based on an alleged error of

counsel when the caselaw evaluating counsel’s actions and decisions in that instance was nonexistent

or not definitive”). We also note that Vasquez did not involve a claim of ineffective assistance of

counsel, and thus the decision did not address the circumstances in which counsel has an obligation

to ask for such an instruction.

                Furthermore, even assuming trial counsel’s performance was deficient for failing to

request a jury instruction on voluntariness, Saint James has failed to show that, but for this error, the

result of the proceeding would have been different. There is enough evidence in the record from

which a rational jury could conclude that Saint James’s confession was voluntary. Saint James has



                                                   17
failed to demonstrate a reasonable probability that, if the jury had been instructed on voluntariness,

the jury would not have found his confession to be voluntary.

                  For the reasons stated, we conclude that trial counsel was not ineffective. We

overrule Saint James’s second, third, fourth, and fifth issues.


                                          CONCLUSION

                  Having overruled Saint James’s issues on appeal, we affirm the judgment of the

district court.




                                               _____________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: August 31, 2006

Do Not Publish




                                                 18
