Opinion issued July 28, 2015




                                     In The

                               Court of Appeals
                                    For The

                           First District of Texas
                            ————————————
                     NOS. 01-14-00124-CR, 01-14-00125-CR
                            ———————————
                    EVAN STUART FAIRBANKS, Appellant
                                       V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 177th District Court
                             Harris County, Texas
                    Trial Court Case Nos. 1388074 & 1388075


                           MEMORANDUM OPINION

      Appellant Evan Stuart Fairbanks pleaded guilty to possession of marijuana

in an amount between five and fifty pounds (trial court case number 1388074;

appellate   court   case   number   01-14-00124-CR)   and   to   possession   of

methamphetamine in an amount less than one gram (trial court case number


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1388075; appellate court case number 01-14-00125-CR). The trial court denied his

subsequent motion to withdraw his guilty plea. In accordance with the plea

bargain, the court sentenced Fairbanks to two years in prison for possession of

marijuana and 180 days in state jail for possession of methamphetamine. However,

because the court had denied the motion to withdraw the guilty plea, it certified

Fairbanks’s right to appeal.

      On appeal, Fairbanks contends that this court should have abated his appeal

to allow him to further develop the record in the trial court to support a motion for

new trial. He also argues that his trial counsel was ineffective for giving him faulty

advice and for failing to file a motion to suppress the marijuana and

methamphetamine. We affirm.

                                    Background

      A police officer stopped appellant Evan Stuart Fairbanks for failure to signal

a turn. He was detained and taken to a nearby house in Houston, where law

enforcement officers executed a previously issued search warrant. Illegal drugs and

weapons were found at the house, and Fairbanks was arrested and charged with

possession of marijuana and methamphetamine. A notation on a case reset form

stated that he was charged with felony offenses of “POM, PCS, FPW,” which

stand for possession of marijuana, possession of a controlled substance, and felon

in possession of a weapon.


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      Fairbanks retained an attorney, Jyll Rekoff, who filed a motion to suppress

evidence. The motion alleged that the traffic stop was unlawful because a

videorecording showed that Fairbanks used his turn signal. The motion further

alleged that his arrest was warrantless and without probable cause. It sought

suppression of any statements made while Fairbanks was in custody, testimony

about any actions he took while in custody, and testimony about the arrest. The

motion to suppress did not address the warrant for the search of the house.

      On the day when the motion to suppress was set for hearing, and before the

trial court considered the motion, the State offered Fairbanks a plea bargain.

Although he had previously rejected a plea offer of five years in prison in

exchange for his pleas of guilty, he accepted a plea agreement in which he pleaded

guilty to the two charges of drug possession in exchange for a punishment

recommendation of two years in prison and the State’s agreement to drop the

charge against him of being a felon unlawfully in possession of a weapon. In

connection with his guilty pleas, Fairbanks stated in writing and in open court that

he was guilty of the alleged offenses.

      Sentencing was scheduled for approximately two months later. Just before

the sentencing hearing, Fairbanks obtained new counsel, and he filed a motion to

withdraw his guilty plea. He contended that Rekoff pressured him to plead guilty,

urged him to forego a hearing on the motion to suppress, and advised him that if he


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needed additional time to consider the State’s plea-bargain offer, he could hire

another attorney to represent him. He argued that this advice “led [him] to believe

that he could change his plea before [the] sentencing date.” In light of Rekoff’s

alleged actions, Fairbanks argued that his guilty plea was not free and voluntary.

The trial court denied the motion to withdraw his guilty plea, but it certified his

right to appeal.

      Fairbanks filed a motion for new trial on the grounds of ineffective

assistance of counsel, i.e., that Rekoff erroneously advised him to plead guilty and

failed to file a motion to suppress the evidence of marijuana and

methamphetamine. The trial court held an evidentiary hearing on the motion for

new trial. Three witnesses testified: Fairbanks, his mother, and Eric Locasio, the

prosecutor who made the plea offer.

      Fairbanks testified that he was 32 years old and one semester shy of earning

a master’s degree. He said that he had planned to go to trial and had not discussed

a plea bargain with Rekoff prior to the day he pleaded guilty. He said there were

multiple issues to be raised as part of his defense, including his contention that

there was an illegal stop and the fact that he was not named in the search warrant.

He testified that when Rekoff presented him with the plea-bargain offer, she told

him he had only five minutes to decide whether to accept it. Fairbanks also said

that the prosecutor looked at him and made tapping motions on his watch.


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Fairbanks explained, “That means hurry up. I’ve got other things to do.” He

testified that Rekoff told him to take the plea, replace her with a new attorney, and

then withdraw his guilty plea.

      On cross-examination, Fairbanks testified that he had prior convictions for

misdemeanor possession of marijuana to which he had pleaded guilty, and theft

from a person for which he received deferred adjudication and later pleaded guilty,

in accordance with a plea bargain, on the State’s motion to adjudicate. He

conceded that on five or six prior occasions in the course of this case, he had sat in

court and watched other plea bargains, including the judge’s admonishments. He

also conceded that the judge had asked him at the plea hearing if he was pleading

guilty because he was guilty, and he had said “yes.” But at the hearing on the

motion for new trial, Fairbanks testified that he previously lied when he told the

judge he was guilty. He testified that his plea was given freely and voluntarily,

saying, “no one held a gun to my head and made me take the plea; but I did what

my lawyer recommended me to do.”

      Fairbanks’s mother testified that she was with her son when Rekoff advised

him to accept the plea bargain and hire another attorney to handle the case. She

said her son asked Rekoff some questions, and the lawyer answered him. But the

parties were unable to locate Rekoff for the hearing on the motion for new trial,

and she did not appear or testify.


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      Finally, Locasio testified that he had offered to dismiss one of the three

charges against Fairbanks and to recommend the minimum punishment on the two

remaining charges in exchange for pleas of guilt. Locasio said that he had shared

with Rekoff some legal research that demonstrated why the motion to suppress

should have been denied by the court. He denied that Rekoff had raised any issues

pertaining to the adequacy of the affidavit that supported the warrant to search the

house.

      The trial court denied the motion for new trial. The judge said that he found

Fairbanks’s testimony not credible on the question of whether he was pressured

into taking the plea and that his mother’s testimony was not helpful. As to the

claim that Rekoff was ineffective in regard to the motion to suppress, the trial

judge said he was not in a position to rule on it because she had not appeared for

the hearing and he had no evidence as to her reasons for not attacking the search

warrant in the motion to suppress.

      Fairbanks appealed. He sought abatement of the appeals so that he might

further develop the record in the trial court. We denied his motion to abate the

appeals.

                                     Analysis

      Both of Fairbanks’s issues concern allegations of ineffective assistance of

counsel. He first challenges this court’s decision not to abate this appeal to allow


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him to further develop the record. Next he argues that trial counsel was ineffective

for failing to pursue a motion to suppress.

I.    Abatement of the appeal is not authorized

      In his first issue, Fairbanks argues that this court erred by denying his

motion to abate the appeals to allow him another chance to develop the record to

assert ineffective assistance of counsel on direct appeal.

      Fairbanks was represented by appellate counsel during the stage of

proceedings when a motion for new trial could be filed. He filed a motion for new

trial, and the trial court held an evidentiary hearing. The court held the hearing on

two separate days to afford Fairbanks an additional opportunity to secure the

testimony of his trial counsel, who was not located and did not appear. The court

denied the motion after specifically finding that Fairbanks’s testimony was not

credible and noting that the record was silent as to trial counsel’s strategy in regard

to the motion to suppress.

      In this court, Fairbanks filed a motion to abate. He sought to secure

testimony from Rekoff to support his claim of ineffective assistance of counsel.

However, he has provided no authority supporting his contention that abatement to

the trial court is appropriate, and the Texas Court of Criminal Appeals has

disavowed the practice for hearings on motions for new trial. See Benson v. State,

224 S.W.3d 485, 492–95 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (en banc)


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(citing Jack v. State, 149 S.W.3d 119, 124 (Tex. Crim. App. 2004)). We are aware

of no legal basis for granting the requested relief, particularly when Fairbanks was

represented by appellate counsel for the purposes of the motion for new trial stage

and the trial court held a hearing on the motion. However, we note that a defendant

may collaterally attack a conviction on the basis of ineffective assistance of

counsel through habeas corpus proceedings. See id. at 495 n.5; see also Jackson v.

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d

469, 475 (Tex. Crim. App. 1997).

      We overrule Fairbanks’s first issue.

II.   Ineffective assistance of counsel

      In his second issue, Fairbanks argues that his trial counsel was ineffective

for advising him to plead guilty and later withdraw his plea, and also for failing to

pursue a motion to suppress the evidence found in the house. Because he raised the

issue of ineffective assistance of counsel in a motion for new trial, we must

determine whether the trial court abused its discretion by denying the motion for

new trial. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We

defer to the trial court on factual matters, viewing the evidence in the light most

favorable to the court’s ruling. Id. We will reverse the court’s ruling onl if it was

arbitrary, clearly erroneous, or not supported by any reasonable view of the record.

Id.


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      A guilty plea entered after a proper demonstration of ineffective assistance

of counsel is considered involuntary and therefore invalid. See Ex parte Moody,

991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). To prevail on a claim of

ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence that (1) his trial counsel made errors so serious that

counsel was not functioning as counsel under the Constitution and (2) a reasonable

probability exists that, but for trial counsel’s deficient performance, the result of

the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002). Under the first prong, we indulge a strong

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

professional assistance and that the challenged act might be considered sound trial

strategy. Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011) (quoting

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). In the context of a guilty plea, the

second prong of Strickland is satisfied by a demonstration of a “reasonable

probability that, but for counsel’s errors, [the defendant] would have not have

pleaded guilty and would have insisted on going to trial.” Ex parte Moody, 991

S.W.2d 856, 858 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d

530, 536 (Tex. Crim. App. 1997)).




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      To the extent that Fairbanks contends that his plea was involuntary because

Rekoff advised him that he could later withdraw his plea, we must defer to the trial

court’s assessment of his credibility. See Riley, 378 S.W.3d at 457. Thus, this

contention fails the first prong of Strickland and cannot support a determination

that the trial court abused its discretion in denying the motion for new trial.

      Fairbanks focuses primarily on his counsel’s failure to pursue a motion to

suppress based on the adequacy of the search-warrant affidavit. A failure to file

pre-trial motions does not categorically constitute ineffective assistance of counsel.

Johnson v. State, 176 S.W.3d 74, 79 (Tex. App.—Houston [1st Dist.] 2004, pet.

ref’d). To satisfy his burden under Strickland, Fairbanks is required to show that a

motion to suppress would have been granted. See Jackson, 973 S.W.2d at 957;

Keller v. State, 125 S.W.3d 600, 608 (Tex. App.—Houston [1st Dist.] 2003, pet.

dism’d).

      Under Texas law, no search warrant may issue without a sworn affidavit that

sets forth facts sufficient to establish probable cause. TEX. CODE CRIM. PROC.

art. 18.01(b), (c). Probable cause exists when there is a fair probability that

contraband or evidence of a crime will be found at the specified location at the

time the warrant is issued. See State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim.

App. 2011). When reviewing the sufficiency of an affidavit to support a search

warrant, we determine if there is a substantial basis upon which the magistrate


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could have concluded that probable cause existed. Id. at 271 (citing Illinois v.

Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)). In doing so, we view the

affidavit in a commonsensical and realistic manner, and we defer to all reasonable

inferences a magistrate could have made. See Rodriguez v. State, 232 S.W.3d 55,

61 (Tex. Crim. App. 2007); Jones v. State, 338 S.W.3d 725, 733 (Tex. App.—

Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012).

      In his motion for new trial, Fairbanks argued that his trial counsel was

ineffective because she did not seek to exclude evidence found at the house. The

search-warrant affidavit was based on information provided by a confidential

informant. The motion for new trial challenged the adequacy of the search-warrant

affidavit on four grounds. Specifically, the motion for new trial argued that the

affidavit did not (1) demonstrate that the confidential informant had personal

knowledge of the alleged facts, (2) show that the affiant independently verified the

information, (3) state when and where the affiant spoke to the informant, or (4)

identify Fairbanks by name.

      On appeal, Fairbanks argues that his trial counsel should have sought to

suppress the marijuana and methamphetamine found in the house on the basis that

the affidavit was inadequate for failing to disclose when the informant obtained his

information or when he conveyed it to the affiant. Because Fairbanks makes a

specific legal argument in favor of suppression, we consider whether it is so


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compelling that an attorney would be ineffective for failing to raise it. That is, we

must consider the four corners of the affidavit and determine if Fairbanks has

shown by a preponderance of the evidence that a motion to suppress would have

been granted on the basis that the affidavit failed to disclose when the informant

obtained the information and conveyed it to the affiant. See Jackson, 973 S.W.2d at

957.

       The affidavit stated in relevant part:

              Within the past forty eight (48) hours, Affiant and members of
       the Houston Money Laundering Initiative Task Force conducted a
       narcotics investigation at the above described location believed to be
       storing a large quantity of marijuana.

              Affiant spoke to a credible and reliable person who will be
       referred to as a confidential informant (CI). Affiant has worked with
       the CI in the past and the CI has provided information about narcotics
       traffickers that Affiant has been able to independently verify.

             The CI informed Affiant that the CI met the above listed
       suspect and that he has a large quantity of marijuana for sale. The
       suspect told the CI that he is storing the large quantity of marijuana at
       the described location for the purpose of selling to customers.

       On a common-sense reading of the affidavit, the investigation occurred in

the 48 hours prior to presentation of the affidavit to the magistrate. The affiant’s

communications with the confidential informant were part of that investigation. In

describing the information received from the confidential informant, the affidavit

twice used the present tense: first reporting that the informant stated that the

suspect “has” a large quantity of marijuana, and second stating that the suspect told
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the informant that he “is storing” it at the described location. A magistrate

reasonably could have inferred that the confidential informant both obtained the

information and disclosed it to the affiant during the 48-hour investigation. See

Rodriguez, 232 S.W.3d at 61; Jones, 338 S.W.3d at 733. We conclude that

Fairbanks has not shown that a motion to suppress would have been granted, and

therefore he has not satisfied the first prong of Strickland. See Jackson, 973

S.W.2d at 957; Keller, 125 S.W.3d at 608.

      We overrule Fairbanks’s second issue.

                                   Conclusion

      We affirm the judgments of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Keyes, Bland, and Massengale.

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




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