                                 NO. 12-11-00034-CR

                       IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

MALCOLM HUNTER,                                  §            APPEAL FROM THE 2ND
APPELLANT

V.                                               §            JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §            CHEROKEE COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Malcolm Hunter appeals from his conviction for unlawful possession of a firearm. In two
issues, Appellant argues that the trial court erred in admitting a handgun into evidence and that he
received ineffective assistance of counsel. We affirm.


                                          BACKGROUND
       Police officers in Cherokee County, Texas, arrested Appellant and the other occupants of a
vehicle at a gas station. One of the officers was initially drawn to the vehicle because it did not
have a license plate or dealer tags. The occupants of the vehicle were nervous, and the officer
called for backup. Appellant gave a name that was not his own, but the officer soon discovered
his driver’s license in his pocket. The officer attempted to place Appellant in his patrol vehicle. A
scuffle ensued, but the police were able to subdue Appellant. The officers searched the vehicle
and found controlled substances, specifically pills, as well as a handgun. Appellant told the
police that the handgun and the pills belonged to him and that he did not want anyone else to get in
trouble for those items.
       Based on the recovery of the firearm and the fact that Appellant had been convicted of a
felony offense in 2009, a Cherokee County grand jury indicted him for the offense of unlawful

                                                 1
possession of a firearm.1 Appellant pleaded not guilty, and a bench trial was held. Following the
trial, the court found him guilty and assessed a sentence of imprisonment for eighteen years. This
appeal followed.


                                           ADMISSION OF EVIDENCE
       In his first issue, Appellant argues that the trial court should have acquitted him after it
considered sua sponte whether the handgun was obtained in derogation of his constitutional rights.
Applicable Law and Standard of Review
       Evidence obtained in violation of any provision of the United States Constitution or the law
of the State of Texas or the law of the United States may not be admitted in evidence against the
accused in the trial of a criminal case. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
This statutory exclusionary rule is coextensive with the common law exclusionary rule based on
the Fourth Amendment to the U.S. Constitution, but it goes further to exclude evidence that is
obtained illegally. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005); Miles v. State,
241 S.W.3d 28, 35 (Tex. Crim. App. 2007) (“The Texas Legislature enacted an exclusionary rule
broader than its federal counterpart.”); Pierce v. State, 32 S.W.3d 247, 251 n.7 (Tex. Crim. App.
2000) (“The statute that was the predecessor of the first sentence of Article 38.23 was enacted in
1925.”); see generally 40 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure
§§ 4.11-.35 (2d ed. 2001) (discussing the distinctions between the federal constitutional
exclusionary rule and the Texas statutory exclusionary rule; noting that “Article 38.23 of the Code
of Criminal Procedure imposes what is probably the broadest state exclusionary requirement of
any American jurisdiction.”).
       We review a trial court’s ruling on a motion to suppress for an abuse of discretion. See
Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000); see also Ramos v. State, 245 S.W.3d
410, 418 (Tex. Crim. App. 2008). An appellate court must view the evidence in the light most
favorable to the trial court’s ruling. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App.
2006). We afford almost total deference to a trial court’s determination of historical facts. See
Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006). We do not engage in our own
factual review; we determine only whether the record supports the trial court’s ruling. See
Rocha, 16 S.W.3d at 12.

       1
           TEX. PENAL CODE ANN. § 46.04 (West 2011).

                                                       2
Analysis
        On its own initiative, and after the parties had closed their evidence and had made their
final arguments, the trial court discussed whether the search of the vehicle at the gas station was
illegal. This consideration was based on the United States Supreme Court’s decision in Arizona
v. Gant, 556 U.S. 332, 129 S. Ct. 2d 1710, 173 L. Ed. 2d 485 (2009). The Gant decision was
important because it was a reevaluation and restatement of the Court’s previous rulings in Chimel
v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1960), and more importantly, in New
York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
        The Court’s Belton decision had been interpreted to allow a search of the passenger
compartment of an automobile if the driver was arrested, even if the driver would not be returned
to the vehicle. See Gant, 556 U.S. at __, 129 S. Ct. at 1718 (“Despite the textual and evidentiary
support for the Arizona Supreme Court's reading of Belton, our opinion has been widely
understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no
possibility the arrestee could gain access to the vehicle at the time of the search.”) In Gant, the
Court held that this interpretation was incorrect and that Belton “does not authorize a vehicle
search incident to a recent occupant's arrest after the arrestee has been secured and cannot access
the interior of the vehicle.” Id. 556 U.S. at __, 129 S. Ct. at 1714.
        Appellant did not file a pretrial motion to suppress, and he did not object to the admission
of the handgun on the basis that it was obtained during an illegal search. As such, he has not
preserved this complaint for our review. See Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim.
App. 2008). If we consider the trial court’s discussion of the issue of the legality of the search in
terms of an instruction to the jury to disregard any illegally obtained evidence, that decision, too, is
beyond our review. In Holmes, the court of criminal appeals held that a negative finding on that
question cannot be reviewed on appeal. See id. at 200 (“Had he received an Article 38.23 jury
instruction, he would have no appellate claim at all because the jury's decision regarding that
factual dispute would be unreviewable.”). Similarly, although for different reasons, a decision to
acquit Appellant for lack of legally obtained evidence would be beyond our review. See State v.
Blackshere, No. PD-0039-09, 2011 Tex. Crim. App. LEXIS 872, at *21 (Tex. Crim. App. June 22,
2011) (“Therefore, the trial court's actions were functionally an acquittal for purposes of double
jeopardy. Whether there was an underlying error in suppressing evidence is irrelevant; such an
underlying error cannot be reviewed after an acquittal for insufficient evidence.”).

                                                   3
         Because Appellant did not object to the admission of the handgun on the grounds that it
was illegally obtained, this issue is not preserved for our review. We overrule Appellant’s first
issue.
                                 INEFFECTIVE ASSISTANCE OF COUNSEL
         In his second issue, Appellant contends that he received ineffective assistance of counsel.
Specifically, he argues that counsel failed to object to admission of the handgun and that counsel
made inappropriate arguments or concessions.
Applicable Law
         Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The first step requires an appellant to demonstrate that trial counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
Counsel’s representation is not reviewed for isolated or incidental deviations from professional
norms, but on the basis of the totality of the representation. See Strickland, 466 U.S. at 695, 104
S. Ct. at 2069.
         The second step requires the appellant to show prejudice from the deficient performance of
his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To
establish prejudice, an appellant must show that there is a reasonable probability that the result of
the proceeding would have been different but for counsel’s deficient performance.                See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
         We begin with the strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994). As part of this presumption, we presume counsel’s actions and decisions were reasonable
and were motivated by sound trial strategy. See id. Appellant has the burden of proving
ineffective assistance of counsel. See id.
Analysis
         Appellant argues that counsel failed to object to the handgun when such an objection
would have been sustained. He also argues that counsel’s representation was outside the range of
reasonable professional assistance because he put on the record that he had encouraged Appellant
to accept a plea agreement and that it was his opinion that Appellant should not testify. Finally,

                                                   4
he argues that counsel’s closing argument was brief and that he unnecessarily elicited evidence of
additional misconduct by Appellant.
       As to the argument that counsel should have objected to the admission of the handgun, it is
necessary for Appellant to show that the trial judge would have committed error in overruling such
an objection. See Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). This
Appellant cannot do. As we discussed in the earlier section of this opinion, counsel did not object
to the admission of the handgun on state law or constitutional grounds. If he had done so, the
State would have had an opportunity to offer additional evidence to support the admissibility of the
handgun.
       Even so, as the record stands at this point, the trial court could have overruled an objection
to the admission of the handgun without committing error. There were several officers present at
the scene where Appellant was arrested. There were also four occupants of the car. The police
had evidence of the unlawful possession of controlled substances and, the trial court could have
reasonably concluded, had probable cause to search the automobile for evidence related to that
offense. Such a search would have been permissible under Gant. See Gant, 556 U.S. at __, 129
S. Ct. at 1719 (“[W]e also conclude that circumstances unique to the vehicle context justify a
search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of
arrest might be found in the vehicle.”). Accordingly, Appellant has failed to show that counsel
was ineffective for failing to object to the admission of the handgun.
       With respect to informing the court of Appellant’s decision to reject a plea agreement, the
court of criminal appeals has held that putting such information in the record during a bench trial is
not harmful to a defendant. See Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997).
Counsel’s addition that he had recommended that Appellant accept the offer was an unnecessary
supplement to what the court in Monreal termed a protection against “future claim[s] of
ineffective assistance [of counsel],” but we fail to see how this, in the context of this case, caused
any prejudice to Appellant. See id.
       Similarly, counsel’s act of placing it in the record that he had recommended that Appellant
not testify did not prejudice him in any way. The perils of a defendant taking the stand, and being
open to cross examination, are well understood. See, e.g., Lucious v. State, 828 S.W.2d 118, 123
(Tex. App.–Houston [14th Dist.] 1992, no pet.) (“In light of appellant's prior criminal record,
advice that appellant not testify was certainly plausible trial strategy.”).

                                                   5
       With respect to closing argument, it is true that counsel’s summation was brief. However,
there was not a significant amount of contested evidence in this case. The State’s witnesses
testified that they found the handgun and that Appellant claimed ownership of it. Appellant
admitted that he was within five years of a conviction for a felony offense, denied owning the
handgun, and denied admitting that he owned or possessed the handgun. Closing argument is a
matter, generally, of strategy. See Thompson v. State, 915 S.W.2d 897, 904 (Tex. App.–Houston
[1st Dist.] 1996, pet. ref'd); Flemming v. State, 949 S.W.2d 876, 881 (Tex. App.–Houston [14th
Dist.] 1997, no pet.) (finding counsel may have believed the best strategy in the closing argument
was to be brief and appear open and honest). With this case coming down to a single discrete
factual determination for the trial court to make, Appellant has not shown that counsel’s closing
argument was deficient.
       Finally, Appellant argues that counsel unnecessarily asked a police officer about two
instances when Appellant had been arrested for possession of marihuana and aggravated assault
with a deadly weapon. Following the exchange, the trial court told counsel that in such situations
he “usually [sat] back and let it go,” but he asked “why in God’s name are you asking the State
[sic] witness about other matters that they hadn’t even brought up that your client has gotten in
trouble for?” Counsel responded that he was attempting to “dispel some” of the testimony to the
effect that his client had been involved in criminal activity on “numerous occasions.” The court
appeared to be satisfied with that explanation and adjourned for the day.
       Appellant has failed to show that counsel’s strategy of confronting the officer’s testimony
was unreasonable. The officer had testified that he had had contact with Appellant on “numerous
occasions.” Instead of letting that broad statement stand, counsel asked questions designed to
show that those interactions resulted in few convictions. The trial court had already heard that
Appellant had been adjudicated as a juvenile for what would have been an aggravated robbery had
he been an adult and had heard about the aggravated assault investigation. The court also knew
that Appellant had violated the terms of his community supervision in another case and later heard
that Appellant had been cited or documented for 211 instances of misconduct while at the Texas
Youth Commission. Counsel’s strategy was a reasonable one; it appeared to be instigated at
Appellant’s direction; and it did not serve to introduce information that, on balance, prejudiced
Appellant.
       Having held that Appellant failed to meet his burden to show that counsel’s representation

                                                6
was below professional norms, we overrule Appellant’s second issue.


                                                        DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.
                                                                      JAMES T. WORTHEN
                                                                           Chief Justice



Opinion delivered August 10, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           7
