 AFFIRM; Opinion issued December 4,2012




                                                 In The
                               Gmtrt uf Aptirah
                          fI! 1iitrirt if cxwi tt Jz111w5
                                         No. 05-1 1-00761-CR


                        DONNA J. BAGGERLY-DUPHORNE, Appellant

                                                   V.

                                THE STATE OF TEXAS, Appellee


                        On Appeal from the 204th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. F10-30879-Q


                                            OPINION
                            Before Justices Morris. Francis, and Murphy
                                     Opinion By Justice Morris

        A jury convicted Donna J. Baggerly-Duphorne of possession of less than one gram of

methamphetamine. In a single issue, appellant contends her right to effective assistance of counsel

was violated. We affirm the trial court’s judgment.

                                      FAcTUAL BAcKGRoUND

        At approximately 3:00 a.m. one morning, Grand Prairie police officer Trent Allen ran a check

of appellant’s license plates and discovered there were warrants for her arrest. Allen performed a

traffic stop of appellant’s vehicle, a Chevy Blazer. When Allen asked appellant for her driver’s

license, she provided a Texas identification card rather than a driver’s license. Allen returned to his

patrol car. and a backup officer, Nicholas Steppe, arrived at the scene.
         l3oth officers then approached appellant. Allen told appellant she was being arrested fir

 outstanding warrants. As appellant got out of her vehicle, she grabbed her purse and draped it across

her bod Allen informed appellant that they would need to take the purse because she would not

be allowed to keep it when she was taken into custody. She handed the purse over to the officers.

After searching appellant’s person. Allen olficer placed appellant in his patrol car. Meanwhile,

Steppe checked the purse for weapons and contraband. In it, he found an orange-capped hypodermic

needle and syringe with a clear liquid inside it. Allen recalled there being only one syringe in the

purse. but Steppe recalled finding a second syringe with clear liquid as well. When questioned by

the officers, appellant denied being diabetic or using drugs.

        An inventory search of the car led to the discovery of a backpack in the front passenger seat.

Inside the backpack was a lightbulb with drug residue on it, as well as at least one more syringe.

Steppe testified that the backpack contained one syringe with a “little bit” of liquid in it and two to

three other unused syringes. Appellant told the officers that the backpack belonged to her husband,

and there was a birth certificate for Benjamin Baggerly found inside the bag. Appellant was the only

occupant of her vehicle at the time of her arrest. After she was taken to jail, Steppe waited for a

wrecker to impound appellant’s car,

        A chain of custody form indicated that three syringes were transported to be tested by the

medical examiner’s office, but only two syringes were received by forensic chemists for testing.

Allen testified that, according to his report, six total syringes were found. One syringe containing

a clear liquid had been found in the purse. Four unused syringes were found in the backpack in

addition to a fifth syringe that contained only a small amount of the clear liquid substance. Allen

stated that the syringe from the purse and the syringe from the backpack containing a small amount

of liquid were the only two syringes he submitted for testing. He explained that it appeared the total
 number of syringes had been misinterpreted on the chain of custody lorm because the syringes had

been labeled I and 2 in the quantity section of the chain of custody form, rather than in the item

number section, thus leading to a miscount of the total number of syringes. Steppe. who had

collected the syringes during the search, agreed with this assessment.

        Presumptive testing of one ol the syringes indicated residue ol methamphetamine. Testing

of the other syringe showed it held .12 grams of liquid containing methamphetamine.

        ApPellant’s mother, Charlotte Duphorne. testified for the defense.          She explained that

appellant did not own a car on the morning of the arrest and that she had been driving her car at the

time. Duphorne stated that she had previously barred appellant’s estranged husband from coming

on the property where appellant lived with her. Despite this order, she had found tiny empty baggies

and needles in a shed in her backyard. Duphorne said that she knew appellant had given her husband

rides in her car against her wishes that appellant not he with him. Duphorne admitted she was not

with appellant at the time of her arrest and did not know what appellant might have had on her

person at that time.

       Appellant also testified in her defense. She claimed she did not take her purse with her when

she got out of the car. Rather. she claimed, Steppe had approached her with the purse in his hand

as Allen was telling her she was under arrest. She stated that Steppe asked her to get her driver’s

license out of the purse and she said her license was at home in her wallet. Then, according to

appellant, Steppe showed her a syringe and asked her what it     was.   According to appellant, she did

not have a syringe in her purse. She claimed the syringe had come from her husband’s backpack,

which had been in the back of the SUV   —   not in the front passenger seat as the officers had claimed.

She stated that she told the officer her husband uses methamphetamine. She admitted that she had

been giving her husband rides in her mother’s SUV. She also admitted that she used to inject
 methamphetamine with her husband before the two separated. According to appella
                                                                                 nt, she had been
 returning home Iiom grocery shopping at WalMart around 3:00a.m. when the officer
                                                                                  stopped her.
 Appellant’s traffic stop had been videotaped by the officers, but the recording was
                                                                                     not available at
 the time of trial.

                                              DiscussioN

         In her sole point oferror. appellant complains her right to effective assistance of counse
                                                                                                   l was
 violated because her attorney failed to obtain a ruling on her motion to suppress
                                                                                   tiled before trial,
 failed to argue a motion to suppress at trial, failed to object to the admiss
                                                                               ion of the
 methamphetamine at trial, failed to show a disputed fact issue requiring a the trial
                                                                                      court to submit
 ajury instruction on code of criminal procedure article 38.23, and failed to object to thejurv
                                                                                                charge’s
 exclusion of an article 38.23 instruction. All the complaints essentially amount to
                                                                                     an assertion that
adequate trial counsel would have pursued a ruling on a motion to suppress the drug
                                                                                    evidence and
ajury instruction infirming the jury that it could not consider evidence that it determ
                                                                                        ined was seized
illegally. Appellant contends that trial counsel should have more strenuously objected
                                                                                       to the fact    that
Steppe searched the SUV after appellant’s arrest. She asserts, as her trial counse
                                                                                   l did to a limited
extent, that once appellant was under arrest in Allen’s patrol car, Steppe had no author
                                                                                         ity to search
her vehicle incident to that arrest due to a recent change in law discussed by the
                                                                                   Supreme Court in
the case of Arizona v. Gant, 556 U.S. 332 (2009).

        The standard of review for evaluating claims of ineffective assistance of counse is
                                                                                        l set forth
in Strickland v. Washington, 466 U.S. 668, 687 (1 984). Strickland requires a two-ste
                                                                                      p analysis by
which the appellant must show both that (1) counsel’s performance fell below an objecti
                                                                                          ve standard
of reasonableness. and (2) but for counsel’s unprofessional error, there is a reason
                                                                                     able probability
the result of the proceedings would have been different. Id. It is the appellant’s
                                                                                   burden to prove
 inefli.ctive assistance. and she must overcome the strong presumption that. under the circumstance
                                                                                                    s.
 the challenged action might be considered sound trial strategy. Gamble v. Skile, 916 S.W.2d 92.
                                                                                                 93

 (Tex. App.—-l-louston fist Dist.] 1996. no pet.). A claim of ineffective assistance must he firmly

 supported in the record. Id. at 813. Our review of defense counsel’s representation is highly

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

 assistance, See Bone v. State, 77 S.W.3d 828, 833 (Tex. Grim. App. 2002).

        The record before us contains no evidence or testimony showing trial counsel’s strategy in

refraining from more thoroughly pursuing exclusion of the methamphetamine gathered from

appellant’s purse and the backpack in her mother’s SUV. It appears. however, that any effort
                                                                                             at
suppressing the complained-of evidence would have been fruitless. The only witness who testified

that appellant’s purse was [bund during a search of the SUV was appellant. The officers maintained

that the purse was on appellant’s person when it was confiscated and one or two syringes were found

inside. Appellant’s claim that the purse was discovered during the search of the car was necessarily

rejected by the jury. Appellant maintained not only that the purse was found during the search
                                                                                               of
the car but also that the purse did not contain even one syringe of methamphetamine. She further

maintained that the backpack with the syringes was in the back of the SUV, rather than next to her

in the passenger seat, as the officers had testified. Based on the verdict, it is clear the jury rejected

appellant’s versions of events. Accordingly. any jury instruction to disregard illegally obtained

evidence based on her claims about the search would not have succeeded. Nor does it appear
                                                                                           from
the trial judge’s comments relating to appellant’s request for an article 38.23 instruction that

appellant’s testimony would have overcome that of the police officers’ testimony given at the
                                                                                              time

the court ruled on the motion to suppress. Appellant cannot show that different action by trial

counsel on this matter would have changed the outcome of her case.
            Moreover, the trial testimony indicates that the search ol the SUV was an inventory search

 conducted as a matter of course by the Grand Prairie police department hefure the vehicle was

 impounded. An officer’s inventory of the contents of a vehicle is permitted under the Fourth

Amendment if it is conducted     pursuant   to a lawful impoundment of the vehicle. fhe State bears the

burden of establishing that the police conducted a lawful inventory search, and does so by

demonstrating that (I) an inventory policy exists and (2) the officers followed the policy. Moskey

v. Stale,   333 S.W.3d 696. 700 (Tex. App.—iIous. 2010. no pet.). Assuming the State were able to

meet the requirements demonstrating a lawful inventory search, any challenge to the search of the

SUV or the seizure of the purse or even the backpack would have failed, as a lawful inventory search

provides a separate, valid exception to the requirement fur a search warrant. id. at 702.

        Under normal circumstances. the record on direct appeal is not sufficient to show that

counsel’s representation was so deficient and so lacking in tactical or strategic decision making as

to overcome the presumption that counsel’s conduct was reasonable and professional. Bone, 77

S.W.3d at 833. The record in this case reflects that an 1nventorv’ search was done on the SUV and

that Steppe waited for the vehicle to be towed. Thus, it is possible both the State and defense

counsel were aware that Grand Prairie has an inventory policy and that Allen and Steppe had

followed the policy. Without some evidence showing trial counsel’s knowledge of the facts and

decisions in conducting the trial, we cannot conclude appellant’s trial attorney provided ineffective

assistance of counsel. It is certainly conceivable that trial counsel did not pursue the legality of the

search any further because he was aware such a challenge would have been futile.

       Appellant has failed to meet her burden of proving ineffective assistance of counsel.        We




                                                  —6—
therefore overrule her sole point of error. We affirm the trial courts judgment.




                                                     JO S HBv1ORRJS
                                           C             ICE

Do Not Publish
TEx. R. App. P.47
1 10761F.U05
                              Quitrt tif Appri1
                      Fift1! Jitrirt uf Lrxzu ztt Dztltaii
                                     JUDGMENT
1)ONNA J. BAGGERLY-DUPHORNE.                      Appeal from the 204
                                                                    th
                                                                        Judicial District Court
Appellant                                         of Dallas County, Texas, (TrCt.No. FlO
                                                  30879-Q).
No. 05-1 1-00761-CR         V                     Opinion delivered by Justice Morris.
                                                  Justices Francis and Murphy participating.
THE STATE OF TEXAS. Appellee

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered December 4, 2012.




                                         JOSEP’-I B. Ivi5RR1 s
                                      (ICE
