                            NUMBER 13-17-00499-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JOHN EDWARD HAGENSICK,                                                     Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.



                       MEMORANDUM OPINION
            Before Justices Contreras, Longoria and Hinojosa
               Memorandum Opinion by Justice Longoria

      Appellant John Hagensick appeals his conviction of burglary of a building, a state-

jail felony. See TEX. PENAL CODE ANN. § 30.02(a) (West, Westlaw through 2017 1st C.S.).

By one issue, he argues that he received ineffective assistance of counsel. We affirm.
                                     I. BACKGROUND

       On December 13, 2015, Officer Bradley Allen Gamble of the Ingleside Police

Department received a call from appellant. Appellant at first provided details regarding a

burglary that had occurred on Kenny Lane, then later identified himself and admitted to

his involvement in the burglary. Appellant also made several anonymous calls to the

Ingleside Police Department providing information about the same burglary. After these

calls, Officer Ryan Breaux contacted appellant and asked if he would be willing to come

to the police department and give an interview.        The interview was conducted on

December 14, 2015. Despite not being under detention at the time of the interview,

appellant was read his Miranda rights. According to the officers that spoke with appellant,

appellant was coherent and did not appear to be under the influence of drugs or alcohol.

During the interview, appellant commented that he was “leaning towards a lawyer right

now.” When asked if he was willing to waive his rights and talk, he answered yes. During

the interview, appellant gave incriminating statements.

       Appellant was indicted for burglary of a building on February 7, 2017. See id. A

jury trial commenced, and appellant was found guilty on June 28, 2017.            The jury

assessed punishment at twelve months in state jail and a $5,000 fine. This appeal

followed.

                                      II. DISCUSSION

       In his sole issue, appellant argues that counsel was ineffective because he did not

challenge the voluntariness of appellant’s incriminating statements.

1. Applicable Law




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      In order to sustain a claim of ineffective assistance of counsel, an appellant must

prove two factors: (1) that counsel made errors so serious that counsel was no longer

functioning as “counsel” under the Sixth Amendment, and (2) that the errors prejudiced

the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A claim of ineffective

assistance of counsel cannot be sustained unless counsel’s representation fell below an

objective standard if reasonableness. Id. at 687–88. Any allegation of ineffectiveness

must be firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Ineffective assistance claims are subject to a strong presumption of reasonable

trial strategy which an appellant must overcome. Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994) (en banc). A silent record is usually not enough to overcome the

presumption of reasonable assistance. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001).   Because the record is undeveloped and extrinsic evidence cannot be

considered, direct appeal is usually an inadequate tool for ineffective assistance of

counsel claims. See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012).

In cases where counsel has not had an opportunity to explain the reasons behind the

actions, the challenged conduct must be “so outrageous that no competent attorney

would have engaged in it.” Roberts v. State, 220 S.W.3d 533-34 (Tex. Crim. App. 2007).

      In order to satisfy the requirement of proving that the errors prejudiced the defense,

an appellant must show a reasonable probability that proceedings would have been

different but for counsel’s error. Thompson, 9 S.W.3d at 812.

      The trial court’s determination of whether a statement is given voluntarily is

reviewed for an abuse of discretion. See Sosa v. State, 769 S.W.2d 909, 916 (Tex. Crim.



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App. 1989) (en banc). Under section 38.22 of the Texas Code of Criminal Procedure, a

written statement made as the result of a custodial interrogation is not admissible against

a defendant unless that statement meets certain criteria. See TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 2 (West, Westlaw through 2017 1st C.S.). In addition to being informed

of his Miranda rights, section 38.22 requires that the defendant, “prior to and during the

making of the statement, knowingly, intelligently, and voluntarily” waive his rights. Id.;

see Miranda v. Arizona, 384 U.S. 436, 444 (1966). “A statement is involuntary . . . only if

there was official, coercive conduct of such a nature that any statement obtained thereby

was unlikely to have been the product of an essentially free and unconstrained choice by

its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).

2. Analysis

       Appellant did not move for a new trial due to ineffective assistance of counsel.

Because there was not a motion for a new trial, counsel has not had an opportunity to

explain any reasoning behind the challenged conduct.          Thus, in order to sustain

appellant’s challenge, the conduct must be “so outrageous that no competent attorney

would have engaged in it.” See Roberts, 220 S.W.3d at 533–34.

       Appellant claims that failure to challenge the voluntariness of appellant’s

statements or move to suppress resulted in ineffective assistance of counsel. Failing to

file a motion to suppress is not necessarily ineffective assistance. See Yuhl v. State, 784

S.W.2d 714, 717 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d). Appellant’s earlier

calls to the police department and appellant’s response to being asked if he was waiving

his Fifth Amendment rights indicate that the statements were given voluntarily. See Sosa

v. State, 769 S.W.2d 909, 916 (Tex. Crim. App. 1989) (en banc). See TEX. CODE CRIM.



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PROC. ANN. art. 38.22, § 2; Alvarado, 912 S.W.2d at 211. Thus, it was not outrageous to

decide not to challenge the voluntariness of Hagensick’s statements. See Strickland, 466

U.S. at 687. Likewise, given the record, it was not outrageous to not file a motion to

suppress. See Roberts, 220 S.W.3d at 533–34; Yuhl, 784 S.W.2d at 717. We find that

Hagensick’s trial counsel was not deficient. See Strickland, 466 U.S. at 687.

       Because Hagensick has failed on the first Strickland prong, we need not address

the second prong. See TEX. R. APP. P. 47.1. We overrule his sole issue.

                                  III. CONCLUSION

       The judgment of the trial court is affirmed.

                                                                 NORA L. LONGORIA
                                                                 Justice

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

Delivered and filed the
26th day of July, 2018.




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