                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-17-00258-CR
                             ____________________

                 MICHAEL RICHARD BOSWELL, Appellant

                                        V.

                   THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                   Trial Cause No. 16-09-10821-CR
__________________________________________________________________

                          MEMORANDUM OPINION

      In his sole issue on appeal, appellant Michael Richard Boswell, who was

charged with unlawful possession of a firearm by a felon, contends that his trial

counsel provided ineffective assistance by failing to pursue a hearing and obtain a

ruling on a motion to suppress. We affirm the trial court’s judgment.

                                 BACKGROUND

      Boswell was indicted for unlawful possession of a firearm by a felon, a third-

degree felony, and his charge was enhanced by two prior felony convictions,

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subjecting Boswell to the punishment range for a habitual offender. See Tex. Penal

Code Ann. § 12.42(d) (West Supp. 2017); id. § 46.04(a)(1) (West 2011). Boswell’s

trial counsel filed a motion to suppress evidence resulting from an illegal arrest,

which included a pistol and contents of a safe, but counsel did not to set a hearing

and obtain a ruling on the motion. Boswell pleaded “guilty” to the indicted offense

and also pleaded “true” to the two enhancement paragraphs.

      The trial court conducted a sentencing hearing, during which Detective Justin

Schutzenhofer of the Montgomery County Narcotics Enforcement Team testified

that he was conducting surveillance on Boswell’s apartment based on information

that methamphetamine was being distributed from that address. Schutzenhofer

testified that after observing suspicious activity, he stopped a vehicle with an expired

registration leaving Boswell’s apartment. Schutzenhofer identified Boswell as one

of the individuals in the vehicle, and he placed Boswell in custody for an active

warrant. According to Schutzenhofer, Boswell gave the police consent to search his

apartment, in which police found methamphetamine and a firearm. Schutzenhofer

testified that he arrested Boswell for the offense of possession of a firearm by a felon.

Boswell admitted to possessing the firearm the police found in his apartment. The

trial court sentenced Boswell to imprisonment for a term of twenty-five years.

Boswell appealed.

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                                     ANALYSIS

      In his sole issue on appeal, Boswell claims his trial counsel provided

ineffective assistance by failing to set a hearing and obtain a ruling on the motion to

suppress. According to Boswell, there is no explanation in the record reflecting any

justifiable reason why his trial counsel failed to have the trial judge rule on the

motion to suppress. Boswell maintains that this Court should grant him a new trial

to pursue his motion to suppress.

      To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-pronged test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
      fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a

reasonable probability that but for his counsel’s errors, the outcome would have been

different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “Appellate

review of defense counsel’s representation is highly deferential and presumes that




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counsel’s actions fell within the wide range of reasonable and professional

assistance.” Id.

      Boswell must prove that there was no professional reason for specific acts or

omissions of his counsel. See id. at 836. Furthermore, “[a]ny allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500

(Tex. Crim. App. 1996)). The bare record on direct appeal is usually insufficient to

demonstrate that “counsel’s representation was so deficient . . . as to overcome the

presumption that counsel’s conduct was reasonable and professional.” Bone, 77

S.W.3d at 833 (citation omitted). Before being denounced as ineffective, counsel

must be allowed an opportunity to explain his actions. Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003).

      To prevail on an ineffective assistance claim based on counsel’s failure to

pursue a motion to suppress, Boswell must show by a preponderance of the evidence

that the motion to suppress would have been granted and that the remaining evidence

would have been insufficient to support his conviction. See Jackson v. State, 973

S.W.2d 954, 957, 961 (Tex. Crim. App. 1998); Ex parte Jones, 473 S.W.3d 850, 854

(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). Boswell must also produce

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evidence defeating the presumption of proper police conduct. See Jackson, 973

S.W.2d at 957.

      Boswell did not file a motion for new trial, so the record is silent as to why

counsel did not set a hearing and obtain a ruling on the motion to suppress. See

Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833. With a silent record, we must

presume that counsel’s conduct falls within the wide range of reasonable

representation. See Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833. We cannot

presume that counsel’s conduct constituted ineffective assistance. See Thompson, 9

S.W.3d at 813; Bone, 77 S.W.3d at 833. In addition, Boswell has failed to

demonstrate a reasonable probability that, but for counsel’s alleged errors, the

outcome would have been different. See Bone, 77 S.W.3d at 833; see also Jackson,

973 S.W.2d at 957; Ex parte Jones, 473 S.W.3d at 854. Accordingly, we overrule

Boswell’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.

                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on April 30, 2018
Opinion Delivered July 11, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

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