Opinion issued May 13, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-11-00415-CR
                           ———————————
                      KIA SWANN HARRIS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1274872



                       MEMORANDUM OPINION

      A jury convicted Kia Swann Harris of aggravated robbery, and pursuant to

an agreed recommendation, the trial court assessed his punishment at ten years’

confinement in TDCJ. In eight issues, Harris contends that the trial court abused
its discretion when it denied his trial counsel’s motion for a continuance and that

his trial counsel was ineffective because she: (1) failed to file a pretrial motion to

suppress, or otherwise object to, an investigative stop and the subsequent search of

a backpack; (2) failed to file a pretrial motion to suppress, or otherwise object to,

Farias’s unreliable in-court identification; (3) stated “no objection” to the

admission of a photo, a bank deposit bag and a deposit slip, thereby waiving all

appellate review of the suppression issues in this case; (4) failed to request an

article 38.23 instruction to present these suppression issues to the jury; (5) failed to

object to Farias’s testimony that compared the robbers to “animals” and the State’s

reference to Harris as an animal during closing argument; and (6) failed to get a

ruling on her motion for continuance.          Harris also argues that his counsel’s

performance was deficient as a whole.

      We affirm.

                                     Background

A.    The Robbery

      Near midnight as the employees of a McDonald’s restaurant were closing

and cleaning the storefront, three men vaulted over the cash register counter and

robbed them at gunpoint. One of the robbers searched Martha Farias, the closing

manager, and took her cell phone and money, while the other two robbers

confronted the other two employees, searched them, took their cell phones, closed



                                           2
them up in the restaurant’s walk-in freezer and directed them to remain there.

Farias was then forced at gunpoint to open the safe in the restaurant’s back office.

Two of the robbers, including the one who took Farias’s money and cell phone,

stood behind Farias while she opened the office safe and gave them a bank deposit

bag labeled with the restaurant’s identification number. Although unable to get a

good look at the robbers’ faces, Farias recalled one of them was wearing a white

shirt and had a silver handgun. After the safe was emptied, Farias was put in the

freezer with the other two employees. The three of them waited in the freezer until

the robbers departed, and then went to a nearby residence and called 9-1-1.

      Neither Farias nor the other two employees were able to provide a detailed

description of any of the robbers, other than to say that they were young and

black.1

      Surveillance video from the restaurant documenting the events before,

during and after the robbery depicted one of the last customers that night, an

African-American man dressed in a fitted white t-shirt, dark pants, a necklace, and

dark tennis shoes with white tips, talking on a cell phone and getting a fountain

drink about an hour before the robbery.




1
      Q (defense counsel) Did you give the police a description of the suspects the night
      of the robbery?
      A (Farias) Yes, we told them that they were three black men, young.

                                           3
      The video shows the three men jumping over the counter and confronting

Farias. The first wore a white, sleeveless T-shirt, dark pants, white tennis shoes,

and a red hat. The second was in a non-fitted white T-shirt, long, dark shorts,

white tennis shoes, a black backpack and a black hat. The last one was wearing a

dark shirt, tan colored pants, and dark shoes. The man in the black hat with the

backpack searched Farias and the one in the red hat pointed his gun at her as she

opened the safe. The man in the black hat is shown helping to clean out the safe.

      Four days later, during an unrelated traffic incident (appellant’s car was

parked or idling in the far right lane of a street), Houston Police Department

Sergeant Travis Schmidt arrested appellant (driver) and Kevin Krenshaw

(passenger) for outstanding traffic warrants. Because there was no one available to

take custody of the vehicle and it was not legally parked where it could be left

safely, Schmidt had the car towed.       Officers Jason Zielonka and Greg Clark

inventoried the vehicle and transported Harris and Krenshaw to the city jail.

      During the inventory, Clark asked appellant if he needed anything out of his

vehicle before it was towed and appellant asked for “my money,” and directed

Clark to the front pocket of the black backpack in the trunk. After finding several

loose bills in the front pocket of the backpack, Clark looked in the main

compartment and found a clear, plastic bank deposit bag with the McDonald’s logo

that had been forcibly ripped open. A deposit slip was still inside.



                                          4
      The robbery case was assigned to Harris County Sheriff’s Office’s Robbery

Division Deputy Matthew Ferguson, who obtained a copy of McDonald’s

surveillance video, assembled a photo array for both Harris and Krenshaw, and met

with Farias and the general manager of the McDonalds at Farias’s home. After

giving Farias the standard admonishments (e.g., she was not obligated to pick

anyone out, the person who committed the crime may not be in the photo array,

etc.), Farias was shown both photo arrays. Although unable to point anyone out

from the first photo array, Farias did, after she watched the surveillance video with

Ferguson, identify Harris from the second photo array. Ferguson then told her that

she “had done a good job. That that person had the bank deposit in his car.”

      Ferguson then interviewed Harris and Krenshaw about the aggravated

robbery.     Harris denied any involvement and told Ferguson that the “stolen

evidence” found in his car (i.e., the deposit bag and deposit slip) belonged to a

“Gregory.”     Ferguson testified that his search of a database yielded no one

associated with appellant named Gregory and he investigated no further.

Krenshaw refused to talk to Ferguson. After reviewing the surveillance video,

Ferguson concluded that the backpack from appellant’s car looked like the one

used in the robbery.

      Based upon her review of the surveillance video, her opinion that Harris was

the man on the cell phone that she served an hour before the robbery, and the fact



                                         5
that Harris was wearing the same clothes as one of the robbers, Farias identified

Harris in court as one of the robbers.

      Q (Prosecutor). [D]o do you see a person in the courtroom today that
            was, that came over the counter and participated in the robbery?
            Do you see him in the courtroom today?

      A. Well, according to the video, after I calmed down, I watched the
           video and that is the person who I served.

      Q. You’re talking about the person seated over here?

      A. (Moving head up and down) I’m not completely sure about this
           part, but I am on this part.

      Q. So, you’re sure about the face of the person that robbed you; and
            by face, I’m pointing to this area between his nose and his
            mouth?

      A. I am. I am because I never saw his eyes.

      Q. And that’s the person you saw in there before the robbery?

      A. Yes, who came to purchase, yes; and I remember because those
           were the last two people.

      Q. And then -- so, now he’s back during the robbery?

      A. Back where?

      Q. This Defendant that’s in court today?

      A. At the holdup, when we saw the video, when we saw the video,
            next day in the afternoon, the security person tells me that
            because of the clothes, it’s him.

      Q. Security person, what security person are you talking about?

      A. Not security but the person who installed the cameras.



                                         6
      Q. So, the person that came in, the Defendant that you identified that
            came in before had the same clothes on during the robbery?

      A. Yes, he had the same clothes. You can see in the video that he was
           wearing the same T-shirt. It was like 50, 55 minutes after it
           happened.

      Q. But let’s go back to what you remember, you remember him
           having the same clothes before and during the robbery?

      A. Yes, just the T-shirt. I didn’t see anything else, just the T-shirt. It
           was white.

      ...

      Q. But you know – you’re saying that that’s the same person that
           came into the store before the robbery, talking on the phone?

      A. Yes.

      Q. And came in during the robbery with the other two people?

      A. In the video, it is seen in the video that he’s wearing the same
            clothes. You cannot see exactly the face, but those are the same
            clothes.

      Q. And it is the same person that’s seated over here at counsel table in
           the white shirt?

      A. Yes.


      Farias acknowledged on cross-examination that she did not see Harris’s

entire face during the robbery. Asked why she identified Harris as one of the

robbers, she answered: “Because after I watched the video the second time in my

house with the detective, I said to him, out of these pictures that you show me, I

cannot recognize anybody. But this person right here, I do remember this part of


                                          7
his face. It’s the same one that I served. And I said to him I am not a hundred

percent sure on his eyes, but I am on his mouth.”

      When asked if she gave the police a description of the robbers the night it

happened, Farias testified:

      The first night, the night of the holdup, we were very nervous; but I
      explained [to the police] step by step how everything had happened.
      After that, they watched the video, I was asked if I could remember
      anything else, and to tell them. So, the next day is when I watched the
      video, and the last persons that I served can be seen there. That’s
      when I told the detective. And when he rewinds it, that’s when we
      become aware that he’s wearing the same clothes.

B.    The Motion for Continuance

      Ten days before trial was scheduled to begin on April 15, 2011, the trial

court allowed appellant to substitute counsel in the case. Two days later, Harris’s

newly-retained trial counsel filed a sworn motion for continuance noting that she

was not prepared to announce ready for trial on April 15th. Although never

explicitly ruled upon, a handwritten entry on the filed copy of the motion recited

“[t]his is the atty that told me she was substituting in on a case already set for trial.

She understood she had to be ready.” When trial began on April 15th, the record

reflects that defense counsel announced “ready.”

C.    The Trial and Oral Motion to Suppress

      Immediately prior to opening statements, Harris’s trial counsel informed the

court of her desire to make an “oral” motion to suppress the illegal traffic stop and



                                           8
all evidence resulting therefrom. 2 The trial court informed counsel that having

waited until the trial had begun to so move, the motion would be carried with the

case and counsel could “make whatever objections [she] need[ed] to make at the

time that [she] need[ed] to make them” and the court would consider any

objections at that time. Trial counsel offered to reduce her Motion to writing and

the Court noted: “Just for purposes of the record, that might be helpful.” A written

motion to suppress was filed on April 19, 2011, the last day of trial.

                            Ineffective Assistance of Counsel

      Harris asserts that his trial counsel was ineffective for a number of reasons,

including her failure to file a pretrial motion to suppress, or otherwise object to, the

search of the backpack and Farias’s unreliable in-court identification. Harris also

cites his counsel’s “no objection” to the admission of the photo array, the bank

deposit bag and the deposit slip, resulting in waiver of all appellate review of the

suppression issues in this case.

D.    Standard of Review and Applicable Law

      To prevail on an ineffective-assistance-of-counsel claim, the defendant must

demonstrate, by a preponderance of the evidence, that (1) his trial counsel’s


2
      Counsel did not believe the State could establish probable cause for the stop
      because the surrounding circumstances were not included in any report and
      Officer Schmidt was not subpoenaed for trial. Schmidt, however, was working
      nearby, appeared and testified later that day to the circumstances surrounding the
      traffic stop.

                                           9
performance was deficient and (2) a reasonable probability exists that, but for the

deficiency, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). Under

the first prong of Strickland, the defendant must show that his counsel’s

performance fell below an objective standard of reasonableness, which does not

require showing that counsel’s representation was without error. Robertson v.

State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999). The second prong of Strickland requires the

defendant to demonstrate prejudice—a reasonable probability that, but for his

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

different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at

812. “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and therefore the defendant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009). Our review is highly deferential to counsel, and we do

not speculate regarding counsel’s trial strategy. Bone v. State, 77 S.W.3d 828, 833

(Tex. Crim. App. 2002). To prevail, the defendant must provide an appellate



                                         10
record that affirmatively demonstrates that counsel’s performance was not based

on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see

Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate

alleged ineffectiveness). If the record is silent regarding the reasons for counsel’s

conduct—as it usually is on direct appeal—then the record is insufficient to

overcome the presumption that counsel followed a legitimate trial strategy. Tong

v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000); Thompson, 9 S.W.3d at 813–

14; see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[I]n the

absence of evidence of counsel’s reasons for the challenged conduct, an appellate

court . . . will not conclude the challenged conduct constituted deficient

performance unless the conduct was so outrageous that no competent attorney

would have engaged in it.”).

      In rare circumstances, the trial record on direct appeal alone may present the

appellate court with sufficient information to conclude that no reasonable trial

strategy could justify counsel’s conduct because counsel’s performance falls below

an objective standard of reasonableness as a matter of law, regardless of whether

the record adequately reflects trial counsel’s subjective reasons for acting as he did.

Cannon v. State, 252 S.W.3d 342, 349–50 (Tex. Crim. App. 2008) (reversing

conviction based on ineffective assistance of counsel raised on direct appeal). For

example, if a defendant can demonstrate that defense counsel “entirely fail[ed] to



                                          11
subject the prosecution’s case to meaningful adversarial testing,” so that there was

a constructive denial of the assistance of counsel altogether, then prejudice,

because it is “so likely,” is legally presumed. United States v. Cronic, 466 U.S.

648, 658–59, 104 S. Ct. 2039, 2046–47 (1984).

      The failure to file a motion to suppress evidence is not per se ineffective

assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct.

2574, 2587 (1986). “Counsel is not required to engage in the filing of futile

motions.” Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no pet.)

(citing Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)). Rather, to

prevail on an ineffective-assistance claim based on counsel’s failure to file a

motion to suppress, a defendant “must show by a preponderance of the evidence

that the result of the proceeding would have been different—i.e., that the motion to

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

been insufficient to support his conviction.” Id. (citing Jackson v. State, 973

S.W.2d 954, 956–57 (Tex. Crim. App. 1998)). To meet this burden, the defendant

must produce evidence that defeats the presumption of proper police conduct. Id.

(citing Jackson, 973 S.W.2d at 957). The defendant must, therefore, develop facts

and details of the search sufficient to conclude that the search is invalid. Id. (citing

Jackson, 973 S.W.2d at 957). Simply contending that there “may be questions

about the validity of the search” is not enough to support an ineffective-assistance



                                          12
claim based on counsel’s failure to move to suppress evidence. Jackson, 973

S.W.2d at 957.

E.    Failure to File Pretrial Motion to Suppress or Otherwise Object to
      Illegal Traffic Stop and Illegal Search of the Backpack

      1.    Illegal Traffic Stop

      Harris argues that his counsel should have filed a pretrial motion to suppress,

or otherwise objected to, evidence seized as a result of the traffic “stop” because

temporarily stopping a car in a lane of traffic, without more, is not a violation of

Penal Code section 42.03. See TEX. PENAL CODE ANN. § 42.03(a), (b) (West 2011)

(stating person commits offense if he intentionally, knowingly, or recklessly

renders street or highway impassable or renders passage of that street or highway

unreasonably inconvenient or hazardous).

      The State, however, need not prove that a traffic offense was actually

committed in order to show reasonable suspicion to warrant an investigative stop.

Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Here, Officer

Schmidt testified that Harris’s vehicle, with no hazard lights activated, sat in the

middle of the lane on a busy street at 5:30 p.m. on a Friday afternoon, and impeded

traffic, necessitating other vehicles having to slow and bypass Harris’s vehicle.

This, under section 42.03, is sufficient to establish reasonable suspicion to detain

and investigate Harris’s vehicle. See Lauerback v. State, 789 S.W.2d 343, 346–47

(Tex. App.—Fort Worth 1990, pet. ref’d) (blocking one lane on busy day sufficient


                                         13
to constitute rendering passage unreasonably inconvenient or hazardous); see also

Windham v. State, No. 14-07-00193-CR, 2008 WL 2169918, at *3–4 (Tex. App.—

Houston [14th Dist.] May 22, 2008, pet. ref’d) (mem. op., not designated for

publication) (holding that car, stopped on feeder road for eight seconds during light

traffic, was sufficient to warrant traffic stop under section 42.03); Cashin v. State,

Nos. 14-03-01140-CR, 14-03-1141-CR, 2005 WL 975663, at *2 (Tex. App.—

Houston [14th Dist.] Apr. 28, 2005, no pet.) (mem. op., not designated for

publication) (holding that car stopped for fifteen seconds impeding free progress of

other cars was sufficient to warrant traffic stop under section 42.03). Accordingly,

not having shown that he would have prevailed had his trial counsel filed a motion

to suppress this evidence on this basis, see Jackson, 973 S.W.2d at 957, his

ineffective assistance of counsel claim consequently fails.

      2.      Illegal Search of the Backpack

      Harris argues that his counsel should have filed a pretrial motion to suppress,

or otherwise objected to, evidence seized as a result of the illegal search of the

backpack because the State neither proved that the officer’s decision to impound

the vehicle and conduct an inventory search was pursuant to HPD policy, nor that

HPD policy authorizes officers conducting an inventory search to search closed

containers.




                                         14
      Because the record is silent as to trial counsel’s reasons for not objecting to

the impounding and inventory of Harris’s vehicle, Harris has not overcome the

presumption that trial counsel was effective. Lopez, 343 S.W.3d at 142; Davis,

930 S.W.2d at 769 (holding defendant failed to satisfy the first prong of Strickland

because, without testimony by trial counsel, the court could not meaningfully

address his reasons for not filing a motion to suppress). 3

      We overrule Harris’s first issue.

F.    Failure to File Pretrial Motion to Suppress or Otherwise Object to
      Farias’s Unreliable Identification

      Harris’s second issue also contends ineffective assistance of counsel for

failing to file a motion to suppress or properly object to Farias’s identification of

Harris as unreliable. Again, because the record is silent as to trial counsel’s

reasons for not filing a motion to suppress or objecting to Farias’s identification of

Harris, Harris has not overcome the strong presumption that counsel’s decision

was based on trial strategy. Lopez, 343 S.W.3d at 142; Davis, 930 S.W.2d at 769

(holding defendant failed to satisfy the first prong of Strickland because, without

testimony by trial counsel, the court could not meaningfully address his reasons for


3
      Although she did not file a pretrial motion to suppress the backpack, trial counsel
      obtained a non-specific running objection to Officer Schmidt’s testimony
      regarding the backpack (“We’re going to enter a running objection at this time,
      please, Your Honor”), and she also objected to Officer Clark’s testimony
      regarding the backpack on the grounds that the proper chain of custody was not
      shown. Neither of these objections, however, has been raised on appeal.


                                          15
not filing a motion to suppress); see also Mata v. State, 226 S.W.3d 425, 431 (Tex.

Crim. App. 2007) (rejecting lower appellate court’s conclusion that there was “no

conceivable reason” for trial counsel’s actions and stating that because record was

silent on this point, defendant “failed to rebut the presumption that trial counsel’s

decision was in some way—be it conceivable or not—reasonable”).

      We overrule Harris’s second issue.

G.    Stating “no objection,” to admission of photo array, deposit bag and
      deposit slip

      Harris’s third issue argues his counsel’s ineffectiveness due to her response

to the admission of the photo array, deposit bag, and deposit slip. Relying on

Lemons v. State, 135 S.W.3d 878 (Tex. App.—Houston [1st Dist.] 2004, no pet.),

Harris argues that his counsel’s “no objection” so severely undermined his defense

that it could not have been part of professional reasonable trial strategy. See

Lemons, 135 S.W.3d at 882.         In Lemons, this Court found that the record

affirmatively demonstrated defense counsel’s trial strategy, and that his “no

objection” statement undermined that strategy to the point that his trial counsel’s

performance fell below an objectively reasonable professional standard. Id. at 883.

The facts of Lemons are distinguishable, however, because here the record does not

provide any affirmative demonstration as to the trial strategy regarding the traffic

stop, search of the backpack, or identification proceedings; therefore, we cannot

conclude that counsel’s decision to declare “no objection” to the photo array,


                                         16
deposit bag, and deposit slip undermined her strategy for keeping out the evidence.

Id. at 883; see also Mata, 226 S.W.3d at 431 (concluding that because record was

silent as to reason for counsel’s conduct, defendant “failed to rebut the

presumption that trial counsel’s decision was in some way—be it conceivable or

not—reasonable”).

      We overrule Harris’s third issue.

H.    Trial Counsel’s Performance Deficient as a Whole

      Although not designated as a separate issue, Harris’s brief sets out the

argument that his trial counsel is not entitled to the presumption that her trial

decisions were made pursuant to trial strategy, and that the cumulative effect of his

counsel’s numerous instances of ineffective assistance undermines confidence in

the outcome of the case.4 In particular, Harris argues that the “pursuant to trial

strategy” presumption is inapplicable because the record does reflect that his trial

counsel, who was allowed to substitute into the case less than two weeks before

trial, sought a continuance one week before trial because she “was not prepared to

announce ready for trial” and needed more time. Coupled with the numerous

alleged instances of her ineffective assistance, Harris maintains that this is clear

evidence that her ineffectiveness was due to inadequate preparation. Yet, on the

day of trial, counsel announced ready. Accordingly, Harris has not rebutted the


4
      We will refer to this argument as Harris’s fourth issue.

                                           17
presumption that his counsel’s decisions were made pursuant to trial strategy

because the record does not affirmatively demonstrate that trial counsel’s actions

were due to inadequate preparation.

      Harris also argues that this case is similar to Cannon in which the Court of

Criminal Appeals presumed prejudice after the defendant showed that his counsel

entirely failed “to subject the prosecution’s case to meaningful adversarial testing.”

Cannon, 252 S.W.3d at 349–50 (citing Cronic, 466 U.S. at 659, 104 S. Ct. at

2047). In Cannon, after the trial court denied defense counsel’s motion to recuse

and motion for continuance, counsel declared that he was not ready for trial, that

he was unable to effectively represent his client, and that he therefore would not

participate in the trial. Cannon, 252 S.W.3d at 350. Defense counsel then declined

to: (1) participate in jury selection; (2) enter a plea for his client; (3) make an

opening or closing statement; (4) cross-examine any of the State’s witnesses; (5)

make any objections; (6) offer any defense; (7) request any special jury

instructions; or (8) offer any evidence or argument with respect to punishment. Id.

The Court of Criminal Appeals held that counsel’s behavior, considered as a

whole, constructively denied the defendant his right to effective assistance of

counsel because counsel “effectively boycotted the trial proceedings and entirely

failed to subject the prosecution’s case to meaningful adversarial testing.” Id. at

350–52.



                                         18
      Here, Harris’s counsel engaged in no such histrionics and participated in all

aspects of the trial, including jury selection, closing statement,5 filing motions,

making objections, and cross-examining the State’s witnesses. The record does not

support Harris’s suggestion that his counsel’s lack of preparation amounted to an

absence of trial strategy which entirely failed to subject the prosecution’s case to

meaningful adversarial testing. See id. at 350–52.

      Accordingly, Harris has also failed to demonstrate that his case is one of

those rare cases like Cannon, in which we can presume prejudice. 6

      We overrule Harris’s fourth issue.

I.    Failure to Request Article 38.23 Instruction

      In his fifth issue, Harris argues that his trial counsel was ineffective for

failing to request an article 38.23 instruction regarding the traffic stop, the

inventory, and Farias’s identification.        See TEX. CODE CRIM. PROC. ANN. art.

38.23(a) (West 2005) (prohibiting admission of illegally obtained evidence against



5
      Harris’s co-counsel made the opening statement.
6
      Harris also cites to Marin v. State for the proposition that the trial court’s failure to
      provide his counsel with sufficient time to prepare deprived Harris of his “right to
      have adequate time to prepare for trial.” Marin v. State, 891 S.W.2d 267, 270
      (Tex. Crim. App. 1994). Marin, however, is referring to what is now article
      1.051(e) of the Code of Criminal Procedure which, by its terms, only applies to
      appointed counsel. See TEX. CODE CRIM. P. ANN. art. 1.051(e) (West 2005)
      (stating that “an appointed counsel is entitled to 10 days to prepare for a
      proceeding . . .” and that this mandatory provision may be waived only with
      written consent of defendant or on record in open court).


                                             19
criminal defendants and providing for jury instruction directing jury to disregard

evidence that it believes or reasonably doubts was obtained illegally).

      Harris acknowledges that in order to prevail on such a claim, the record must

affirmatively reflect the reasons why trial counsel chose not to request the jury

instruction, and that when the record provides no explanation as to the motivation

behind trial counsel’s actions, an appellate court should not ordinarily declare

counsel’s performance ineffective. See Thompson, 9 S.W.3d at 814. Nevertheless,

Harris argues that “in light of the numerous oversights of counsel with regard to

investigation, objection to, and preservation of suppression issues in this case, it is

apparent from the record that counsel’s mere nine days of preparation inadequately

prepared her for trial.” On the contrary, the record is silent as to why trial counsel

chose not to request an article 38.23 instruction.

      Even were Harris able to overcome the presumption of effectiveness, he has

not demonstrated that he was legally entitled to an article 38.23 instruction on the

grounds he asserts, and thus, he has not demonstrated his counsel’s failure to

request the instruction fell below an objective standard of reasonableness. See Ex

parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably

competent counsel need not perform a useless or futile act, such as requesting a

jury instruction to which the defendant is not legally entitled or for which the

defendant has not offered legally sufficient evidence to establish. Requesting a



                                          20
jury instruction to which one is not legally entitled, merely for the sake of making

the request, is not the benchmark for a competent attorney.”) (footnote omitted). 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). Before a defendant is entitled to

such an instruction, he must show that (1) the evidence heard by the jury raises an

issue of fact; (2) the evidence on that fact is affirmatively contested; and (3) the

contested factual issue is material to his claim of a constitutional or statutory

violation. See TEX. CRIM. CODE PROC. art. 38.23 (West 2005); Madden, 242

S.W.3d at 510.

      Only a factual dispute about how the evidence was obtained gives rise to the

requirement that an article 38.23 instruction be included in the charge. Pickens v.

State, 165 S.W.3d 675, 680 (Tex. Crim. App. 2005).              When essential facts

concerning the search or arrest are undisputed, the legality of the search or arrest is

a question of law and no jury instruction is required. Garza v. State, 126 S.W.3d

79, 86 (Tex. Crim. App. 2004).

      Here, Harris asserts that an article 38.23 jury instruction would result in a

jury resolution of conflicting police testimony as to the discovery of outstanding

warrants for Harris and Krenshaw; determine the adequacy of the State’s evidence



                                          21
concerning the legality of the search and seizure of the backpack; and determine

whether Farias’s identification of Harris had been impermissibly tainted. Harris,

however, has not identified a material contested factual dispute regarding any of

these topics.7 Moreover, the Court of Criminal Appeals has held that article 38.23,

by its terms, applies only to illegally obtained evidence, not to in-court

identifications. Allen v. State, 511 S.W.2d 53, 54 (Tex. Crim. App. 1974); see

Andujo v. State, 755 S.W.2d 138, 143 (Tex. Crim. App. 1988) (en banc). Finally,

the adequacy of the State’s evidence concerning the legality of the search and

seizure of the backpack is not a fact question subject to an article 38.23 instruction.

See Garza, 126 S.W.3d at 86 (stating that when essential facts concerning search

or arrest are not in dispute, legality of search or arrest is question of law, not fact,

and no article 38.23 jury instruction is required). Accordingly, Harris has not


7
      Harris argues that there is a discrepancy in the officers’ testimony about a warrant
      permitting the arrest of Krenshaw, leading to a question of whether the car could
      be towed. According to Harris, Officer Zielonka testified that Officer Schmidt did
      not know if there was a warrant for Krenshaw’s arrest, conflicting with Officer
      Schmidt’s testimony and Officer Clark’s testimony that there were warrants for
      both men. In fact, Officer Zielonka said that when he and Clark were first
      dispatched to the scene they were told that the driver had an outstanding warrant,
      but the officer on the scene was unsure about the passenger. Officer Clark
      testified that when he and Zielonka arrived at the scene Officer Schmidt informed
      them that both the driver and passenger had outstanding warrants. This is
      consistent with Officer Schmidt’s testimony that both men had outstanding
      warrants. At most, there may be a conflict as to precisely when Officer Schmidt
      discovered the outstanding warrant for Krenshaw—before or after he called for
      backup—but there is no dispute that Schmidt had discovered warrants for both
      men by the time the other officers arrived and began to inventory the vehicle for
      towing.

                                           22
shown that he was entitled to an article 38.23 instruction. See Hardin v. State, 951

S.W.2d 208, 211 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (rejecting claim

for ineffective assistance where trial counsel failed to request article 38.23

instruction when evidence established that he was not entitled to instruction and

therefore it did not affect outcome of case). Trial counsel’s failure to request an

instruction to which Harris was not entitled is not ineffective assistance. See id.

      We overrule Harris’s fifth issue.

J.    Failure to Object to Testimony Comparing Robbers to Animals and
      Closing Argument Referring to Said Testimony

      In his sixth issue, Harris asserts that his counsel was deficient for failing to

object to Farias’s testimony that she thought that he and the other robbers were

animals when they first jumped over the counter and the State’s reference to that

testimony in closing argument. In particular, Farias testified that she first thought

animals had leapt over the counter at McDonalds:

      Yes, because at the beginning I didn’t even imagine that those were
      people. I thought they were like animals when they jumped. On
      the—at the first statement I didn’t know how many they were until I
      saw the video.

During closing arguments, the State referred to the robbers as “those three

animals” when discussing Farias’s testimony.           The State also specifically

compared Harris to an animal: “He was one of those three. He jumped over the

counter like animals.”



                                          23
      The record does not disclose trial counsel’s reasons for not objecting to

Farias’s description of Harris and the other robbers as being animal-like, or the

State’s summation of that testimony in closing argument, therefore Harris has not

overcome the presumption that the challenged action constituted “sound trial

strategy.” See Mata, 226 S.W.3d at 431; see also Johnson v. State, 233 S.W.3d

109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (absent contrary

showing in record, it must be presumed that counsel’s failure to object to State’s

argument was part of valid, considered trial strategy, and did not constitute

deficient performance). Furthermore, Harris provided no authority or argument to

show why Farias’s testimony of her initial perception that the robbers jumping

over the counter were animal-like was inadmissible, or that the State’s summation

was improper. See Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999)

(proper jury argument encompasses summation of evidence presented at trial).

      We overrule Harris’s sixth issue.

                             Motion for Continuance

      In his seventh and eighth issues, Harris posits that if the handwritten notation

on the motion for continuance constitutes a denial, then, in light of counsel’s lack

of preparation, the court abused its discretion and his counsel was ineffective for

failing to ensure that the record reflected the reasons why a continuance was

necessary and how Harris was harmed by the court’s denial of the motion.



                                          24
A.      Preservation of Error

        To preserve a complaint for appellate review, the record must show the trial

court ruled on the motion, either expressly or implicitly. TEX. R. APP. P.

33.1(a)(2)(A); Salazar v. State, 95 S.W.3d 501, 505 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref’d); see also McKinney v. State, 59 S.W.3d 304, 313 (Tex.

App.—Fort Worth 2001, pet. ref’d) (noting motion for continuance was implicitly

overruled). Eight days before trial, Harris’s trial counsel filed a sworn motion for

continuance averring that she was not prepared to announce ready for trial on April

15th.    Nevertheless, when trial began as scheduled on April 15th, the record

indicates that defense counsel answered ready for trial. 8 Thus, although the motion

for continuance was never expressly ruled upon, the trial court implicitly overruled

counsel’s motion for a continuance by proceeding to trial. See McKinney, 59

S.W.3d at 313.9

B.      Standard of Review and Applicable Law

        We review a trial court’s ruling on a motion for continuance for abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To

establish an abuse of discretion, a defendant must show he was actually prejudiced


8
        Although the motion was never explicitly ruled upon, someone noted on the filed
        copy of the motion that “[t]his is the atty that told me she was substituting in on a
        case already set for trial. She understood she had to be ready.”
9
        Having determined that the motion was implicitly denied, we need not consider
        whether the notation made on the motion constitutes a ruling on the motion.


                                             25
by the denial of his motion. Id. If the motion for continuance was based on a

claim of inadequate preparation, there must be a showing that the defendant was

prejudiced by his counsel’s inadequate preparation time. Hernandez v. State, 643

S.W.2d 397, 399–400 (Tex. Crim. App. 1982) (en banc).

      Speculation will not suffice to obtain reversal for a trial court’s failure to

grant a continuance. See Renteria v. State, 206 S.W.3d 689, 702 (Tex. Crim. App.

2006). An appellate court will conclude the trial court’s denial of a motion for

continuance was an abuse of discretion “only if the record shows with considerable

specificity how the defendant was harmed by the absence of more preparation time

than he actually had.” Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App.

2010). A defendant can ordinarily make such a showing at a hearing on a motion

for new trial because only then will he be able to produce evidence regarding what

additional information, evidence, or witnesses the defense would have had

available if the trial court had granted the motion for delay. Id. at 842–43.

      No motion for new trial having been filed, there was never a record as to

how Harris was harmed by the absence of more preparation time with

“considerable specificity.” See id.10 Without such a record we cannot say that the

trial court abused its discretion by denying the motion for continuance. See id.


10
      Harris points out in his reply brief that his trial counsel also initially represented
      him on appeal and that she would have been the one to file any such motions for
      new trial. By the time the public defenders’ office was appointed to represent him

                                            26
      With respect to Harris’s assertion that his counsel was ineffective for failing

to ensure that the record reflected the reasons why a continuance was necessary

and why Harris was harmed by the court’s denial of the motion, the record is silent

as to why counsel chose not to ask for a hearing on her motion or file a motion for

new trial. As such, Harris has failed to overcome the presumption that counsel’s

performance was based on sound strategy.            See Mata, 226 S.W.3d at 431

(concluding that because record was silent as to reason for counsel’s conduct,

defendant “failed to rebut the presumption that trial counsel’s decision was in some

way—be it conceivable or not—reasonable”); see also Mallett, 65 S.W.3d at 63;

Thompson, 9 S.W.3d at 813.

      We overrule Harris’s seventh and eighth issues.




      on appeal, the time for filing a motion for new trial had long since passed.
      Although the lack of a motion for new trial is often an impediment to a
      defendant’s successful assertion of ineffective assistance of counsel on direct
      appeal, the lack of a motion for new trial does not preclude Harris’s ability to
      challenge his conviction on ineffective assistance grounds. As the Court of
      Criminal Appeals has repeatedly acknowledged, “Generally, post-conviction writ
      proceedings are a better forum for pursuing relief on an ineffective assistance of
      counsel claim.” Freeman v. State, 125 S.W.3d 505, 506–07 (Tex. Crim. App.
      2003).

                                          27
                                     Conclusion

      We affirm the trial court’s judgment.




                                               Justice Jim Sharp
                                               Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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