Opinion issued July 22, 2014.




                                      In The

                               Court of Appeals
                                     For The

                           First District of Texas
                             ————————————
                               NO. 01-13-00245-CR
                            ———————————
                  JUAN FRANCISCO HERNANDEZ, Appellant
                                        V.
                        THE STATE OF TEXAS, Appellee


                 On Appeal from the County Court at Law No. 1
                            Brazoria County, Texas
                         Trial Court Case No. 191712


                           MEMORANDUM OPINION
        Juan Hernandez was convicted of possession of less than two ounces of

marijuana, a Class B misdemeanor.1 After the jury found Hernandez guilty, the

trial court assessed punishment at 180 days’ confinement—which the court


1
    TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West 2010).
probated for a 12-month period—and a fine of $800. Hernandez filed a motion for

new trial, asserting that his trial counsel provided ineffective assistance of counsel.

The trial court denied the motion.

      Hernandez appeals the denial of his motion, arguing that his counsel was

deficient because he (1) failed to adequately investigate and prepare for trial,

(2) failed to timely file pre-trial motions, (3) erroneously permitted off-record

proceedings to occur in judge’s chambers outside Hernandez’s presence,

(4) affirmatively elicited harmful hearsay testimony from a police witness, and

(5) failed to challenge the admissibility of Hernandez’s statements made to police

officers during the search of his vehicle.

      We affirm.

                                     Background

      Hernandez was stopped by Pearland Police Officer J. Guerrero for an

expired vehicle registration. Hernandez was the only person in the vehicle at the

time, but he was not the registered owner. Officer Guerrero found marijuana in the

vehicle and arrested Hernandez.

      At his trial, an issue came up during voir dire whether the jury or trial court

would assess punishment if the jury found Hernandez guilty of marijuana

possession. Hernandez’s counsel noted that he was requesting the jury to assess

punishment; however, the trial court announced that it would assess punishment


                                             2
instead, based on Hernandez’s inadequate election. Hernandez did not testify

during the guilt-innocence phase of the trial, but the two officers involved in his

arrest did.

       Office Guerrero testified that, as he approached Hernandez’s vehicle, he

noticed a strong smell of marijuana. Based on the smell, he asked Hernandez to

step out of the vehicle and wait on the side of the road while he did a probable

cause search of the vehicle. Officer Guerrero requested assistance, and Officer E.

Morton, who was in the area, stood with Hernandez next to the vehicle while

Officer Guerrero searched it. Officer Morton testified that he also noticed a strong

smell of marijuana coming from the vehicle. During the search, Officer Guerrero

found a duffle bag in the back seat of the vehicle that contained a glass jar with

marijuana inside. Officer E. Morton testified about two statements Hernandez

made to him while the vehicle was being searched, confirming that (1) Hernandez

could smell the marijuana and (2) there was “maybe” and “probably” marijuana in

the vehicle. The jury found Hernandez guilty of possession of marijuana.

       Hernandez testified in the punishment phase of the trial. He stated that there

were “no convictions on my record whatsoever” but listed as his criminal history a

deferred probation for assault, a juvenile adjudication for graffiti, and an earlier

arrest for possession of marijuana. Despite his earlier arrest for marijuana




                                          3
possession and the two officers’ testimony that the vehicle smelled like marijuana,

Hernandez testified that he had never smoked marijuana before.

      The trial court sentenced Hernandez to one year of community supervision

(probating a 180-day jail term), assessed an $800 fine, and suspended his driver’s

license for 180 days.

      Hernandez filed a motion for new trial alleging ineffective assistance of trial

counsel. Both Hernandez and his trial counsel testified at the hearing. During his

testimony Hernandez disclosed that he had two additional arrests for possession of

marijuana—one of which occurred between the arrest and trial in this matter. The

motion for new trial was denied, though the trial court entered an order staying

commencement of the terms of community supervision pending appeal.

      Hernandez timely appealed.

                    Ineffective Assistance of Counsel Claims

      In one issue, Hernandez contends that his trial counsel provided him

ineffective assistance of counsel in all aspects of his trial. We have consolidated

his allegations into five assertions of counsel deficiency: (1) failure to adequately

investigate and prepare for trial, (2) failure to timely file pre-trial motions,

(3) erroneously permitting off-record proceedings to occur in judge’s chambers

outside Hernandez’s presence, (4) affirmatively eliciting harmful hearsay




                                         4
testimony from a police witness, and (5) failing to challenge the admissibility of

Hernandez’s statements made during the vehicle’s search.

      We turn first to the proper standard of review given that the trial court has

already rejected Hernandez’s claim of ineffective assistance of counsel by denying

his motion for new trial.

A.    Standard of review

      In Strickland v. Washington, the United States Supreme Court recognized

that a criminal defendant has a Sixth Amendment right to effective assistance of

counsel, observing the “crucial role” the right to counsel plays in our adversarial

system. 466 U.S. 668, 685, 104 S. Ct. 2052, 2063 (1984); see Ex parte Jimenez,

364 S.W.3d 866, 882–83 (Tex. Crim. App. 2012). A criminal defendant claiming

that trial counsel was ineffective must prove that (1) trial counsel’s performance

fell below an “objective standard of reasonableness” and (2) the deficient

performance prejudiced his defense such that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064,

2068; Jimenez, 364 S.W.3d at 883.

      To determine whether Hernandez has shown counsel’s performance was

objectively deficient under the first prong of Strickland, we look to the totality of

the representation and the particular circumstances of the case at the time of trial,


                                         5
ignoring the effect of “20/20 hindsight.” Jimenez, 364 S.W.3d at 883; Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We indulge a strong

presumption that counsel rendered adequate assistance and acted in furtherance of

a sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Jimenez, 364

S.W.3d at 883; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004). To

overcome the presumption of reasonable professional assistance, an allegation of

ineffectiveness must be firmly rooted in the record. Salinas v. State, 163 S.W.3d

734, 740 (Tex. Crim. App. 2005). There are “countless ways” to provide effective

assistance; therefore, an appellate court’s scrutiny of trial counsel’s conduct should

be highly deferential and presumed to be in furtherance of sound trial strategy

unless the record demonstrates otherwise by a preponderance of the evidence. Ex

parte Rogers, 369 S.W.3d 858, 862 (Tex. Crim. App. 2012) (quoting Strickland,

466 U.S. at 689, 104 S. Ct. at 2065).

      Under the second prong of Strickland, an appellant must show that there is a

reasonable probability that, but for his counsel’s deficient performance, the result

of the proceeding would have been different. See Strickland, 466 U.S. at 687, 694,

104 S. Ct. at 2064, 2068; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.

2005). What is required to meet the “reasonable probability” standard is a lesser

burden than the more-likely-than-not standard. Shanklin v. State, 190 S.W.3d 154,

165 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d improvidently granted).


                                          6
A reasonable probability is “a probability sufficient to undermine confidence in the

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

      “The two prongs of Strickland need not be analyzed in a particular order” on

appeal. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.” Cox v. State, 389 S.W.3d 817, 819

(Tex. Crim. App. 2012). Therefore, if we determine that Hernandez cannot

establish prejudice as a result of his counsel’s alleged deficiency, we need not

consider whether trial counsel’s actions were ineffective. Id.

      When, as here, an appellant first raises the issue of ineffective assistance of

counsel in a motion for new trial, we review the trial court’s denial of the motion

for an abuse of discretion. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App.

2012); Rodriguez v. State, 329 S.W.3d 74, 81 (Tex. App.—Houston [14th Dist.]

2010, no pet.); Cf. Broussard v. State, 68 S.W.3d 197, 206 (Tex. App.—Houston

[1st Dist.] 2002, pet. ref’d) (noting that, without new trial motion to create record

of trial counsel’s reasons for actions, appellate court must presume actions were

product of overall strategic design and reasonable). An abuse of discretion occurs

when the trial court’s decision is so clearly wrong as to lie outside the zone of

reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App.

1992). We view the evidence in the light most favorable to the trial court’s ruling,


                                          7
and will reverse only if no reasonable view of the record could support the trial

court’s finding. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We

defer to the trial court’s resolution of historical facts and, so long as a reasonable

view of the evidence supports the trial court’s decision to deny Hernandez’s

motion for new trial, we will affirm. Acosta v. State, 411 S.W.3d 76, 90 (Tex.

App.—Houston [1st Dist.] 2013, no pet.).

B.    Failure to adequately investigate and prepare for trial

      Hernandez contends that his trial counsel “fail[ed] to conduct an

independent investigation into the facts and circumstances of the charge alleged”

and “fail[ed] to conduct any sort of meaningful preparation of a punishment case.”

Hernandez specifically complains that his counsel failed to make an “independent

investigation into what other person or persons may have been responsible for the

marijuana that was found in the truck that day.” He argues that the truck he was

driving actually belonged to his brother, David, and that David and others at his

place of employment had access to the truck before the arrest. Presumably, then,

one of them could have exonerated Hernandez by testifying that the marijuana was

actually his.

      A criminal defense lawyer must have a firm command of the facts of the

case to render reasonably effective assistance of counsel. Ex parte Ybarra, 629

S.W.2d 943, 946 (Tex. Crim. App. 1982); Ex parte Duffy, 607 S.W.2d 507, 516


                                          8
(Tex. Crim. App. 1980). Counsel has the responsibility to seek out and interview

potential witnesses. Ex parte Duffy, 607 S.W.2d at 517. We cannot view defense

counsel’s conduct as consistent with a sound trial strategy if counsel’s failure to

conduct an investigation left him unable to make an informed strategic decision.

Id. at 526; Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); see

also Shanklin, 190 S.W.3d at 164–65 (stating there can be no “strategy” to not call

witness if counsel had no knowledge concerning testimony witness would have

offered).

      Hernandez’s counsel testified at the hearing on the motion for new trial. He

offered that, “in hindsight,” he should have presented the case differently;

however, an ineffective-assistance-of-counsel claim must be analyzed from the

perspective of counsel at the time he acted and without the “deleterious effects of

hindsight.” Thompson, 9 S.W.3d at 813. Regarding his thoughts at the time he

made trial strategy decisions, he testified that he had reviewed the case and taken

notes on the offense report, interviewed Hernandez, and in his opinion developed a

strategy. He stated that he “didn’t just walk into this courtroom and read the

offense report and read the allegation.” When questioned about his trial strategy on

the specific issue of Hernandez’s brother being the owner of the vehicle containing

the marijuana, Hernandez’s counsel responded that he thought calling the brother

as a witness would have been “futile.” He explained:


                                         9
      Q.     And what was your reasonable trial strategy in failing to contact
             David, the owner of the vehicle, in a circumstantial evidence
             case like this?

      A.     Well, I felt that David—very unlikely he’s going to admit that
             yes, the marijuana is his and would seem to me to be futile.

      To prevail on a Strickland challenge based on counsel’s failure to identify or

call a defense witness, the aggrieved client must establish harm by showing that

the witness was available to testify and that the testimony would have been of

some benefit to the defense. See Ex parte White, 160 S.W.3d at 52. Hernandez fails

to establish any harm. He did not offer an affidavit from his brother, David, or any

other person who had access to the truck, indicating that he would have testified

that the marijuana actually belonged to him. Without knowledge of what the

witness would have testified to at trial, we cannot conclude that Hernandez was

harmed by his counsel’s failure to call any of these potential witnesses. Given the

deference afforded a trial court’s ruling on a motion for new trial, we also cannot

conclude that the trial court erred by denying the motion based on this allegation of

ineffective assistance of counsel. See Acosta, 411 S.W.3d at 90.

      Regarding counsel’s preparation for the punishment phase of trial,

Hernandez complains that he would have provided lengthier testimony had his

counsel told him the types of information that would have been relevant to that

phase of the trial. Again, we conclude that Hernandez cannot meet his burden to

establish harm, even if we were to presume his counsel was deficient. Hernandez
                                         10
had already been found guilty by the jury; the trial court judge was deciding

punishment. Ultimately, the court sentenced Hernandez to one year of community

supervision—half the length that could have been assigned. And his fine of $800

was less than half the maximum fine for a Class B misdemeanor. TEX. PENAL

CODE ANN. § 12.22 (West 2011).

      Hernandez offered that he would have testified that he went to church,

donated his time and money, and cared for family members had his counsel better

prepared for trial and informed him of the types of information relevant to a

punishment determination. He asserts that “there is good reason to believe that

similar testimony during the punishment phase would have impacted Judge Mills

in a manner beneficial to appellant.”

      We cannot conclude that this additional testimony would have lessened his

punishment, particularly considering that the trial judge who sentenced him was

the same judge who considered and denied his motion for new trial on the exact

issue of un-elicited mitigating testimony. See Shanklin, 190 S.W.3d at 166 (“In

considering a motion for new trial, the trial court possesses broad discretion in

determining the credibility of the witnesses and in weighing the evidence to

determine whether a different result would occur upon retrial.”); see also

Mazratian v. State, 961 S.W.2d 353, 358 (Tex. App.—Houston [1st Dist.] 1997, no

pet.) (defendant failed to meet second prong of Strickland by showing prejudice:


                                        11
“[H]e received a probated sentence . . . . Appellant has not shown that there is a

reasonable probability that, but for trial counsel’s [error], the result of the trial

would have been different.”).

       The trial court’s decision that this testimony did not warrant a new trial is

not so clearly wrong as to lie outside the zone of reasonable disagreement;

therefore, the trial court did not abuse its discretion in denying the motion for new

trial on this basis.

C.     Failure to timely file pre-trial motions

       Hernandez asserts that his counsel was deficient by “fail[ing] to timely file

motions to protect appellant’s rights during trial.” Specifically, he complains that

he told his attorney he wanted the jury to assess punishment, yet his attorney failed

to timely or adequately file his election. Hernandez wanted the jury to assess

punishment “because he felt they would be more lenient with him if he was

convicted.”

       Hernandez must meet his burden under both Strickland prongs to prevail on

an ineffective assistance of counsel claim; failure to meet either prong prohibits a

finding of ineffective assistance. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at

2064, 2068. If Hernandez fails to meet his burden to demonstrate harm, we may

overrule the issue without analyzing whether counsel’s conduct was deficient. Cox,

389 S.W.3d at 819; Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999).


                                         12
      Hernandez did not demonstrate harm. The motion that he claims was

untimely filed was a request to have the jury determine punishment. Instead, the

trial court assessed punishment by probating Hernandez’s sentence. This is the

same result he sought in his untimely motion: to “be granted community

supervision . . . .” Hernandez appears to concede a lack of prejudice, stating in his

appellate brief that counsel’s failure to timely file his motion “is not per se

ineffective” but could be considered part of “cumulative errors” requiring reversal.

      Given that the trial court placed Hernandez on community supervision as

requested and the lack of assurance that a jury would have recommended a more

lenient sentence, we cannot conclude Hernandez was prejudiced by his counsel’s

failure to elect to have the jury determine punishment. Thus, the trial judge did not

abuse its discretion in denying the motion for new trial on that basis.

D.    Acquiescing to off-record proceedings in judge’s chambers

      Hernandez also complains that his counsel “fail[ed] to object to proceedings

during trial that took place in private, off the record, and outside of appellant’s

presence.” Hernandez contends that challenges for cause were asserted during an

off-record conversation leaving him unable to discern “whether there were any

other additional challenges for cause that were made but not granted.” The State

responds that Hernandez had not met his burden on this issue. For instance, during

the hearing on Hernandez’s motion for new trial, his trial counsel would not


                                          13
confirm that strikes for cause were asserted at the off-record conference. In fact,

counsel testified that he would have asked for a record if anything of any relevance

or importance occurred and would not have prejudiced his client by failing to do

so.

      We are required to view the evidence in the light most favorable to the trial

court’s ruling. Webb, 232 S.W.3d at 112. Hernandez’s speculation that the content

of the off-record discussion affected the composition of the jury panel is

insufficient to require reversal of the trial court’s decision to deny the motion for

new trial. Cf. Muennink v. State, 933 S.W.2d 677, 682 (Tex. App.—San Antonio

1996, pet. ref’d) (overruling ineffective assistance argument based on trial

counsel’s failure to insist that court reporter make record of jury selection); see Ex

parte Howard, No. AP–76809, 2013 WL 4859010, at *5 (Tex. Crim. App. Sept.

11, 2013) (mem. op., not designated for publication) (holding that appellant was

unable to establish prejudice based on unrecorded bench conferences or counsel’s

failure to object to jury shuffle); Anderson v. State, No. 10-09-00306-CR, 2010

WL 4140317, at *4–5 (Tex. App.—Waco Oct. 20, 2010, pet. ref’d) (mem. op., not

designated for publication) (overruling appellant’s contention that unrecorded

conferences required reversal and holding that “ineffective assistance claim will

not be sustained on the basis of mere speculation” regarding what occurred in

unrecorded conference).


                                         14
E.    Eliciting hearsay testimony from police witness

      Hernandez argues that his attorney committed professional error when he

attempted to impeach the arresting officer. Based on counsel’s testimony at the

hearing on Hernandez’s motion for new trial, counsel believed the arresting officer

was testifying at trial about matters not included in his police report. Counsel asked

Officer Morton whether he had any idea who put the bag containing the marijuana

in the car and then, more specifically, whether he knew if another person, such as

Hernandez’s brother, put it in the car. These questions led Officer Morton to testify

about a conversation he had with Hernandez’s brother. Hernandez complains that

the decision to raise this topic during cross-examination was error and inconsistent

with any reasonable trial strategy because Hernandez’s counsel was wrong—he

misremembered the content of the police report and the attempt to impeach elicited

harmful testimony.

      While testifying at the hearing on the motion for new trial, Hernandez’s

counsel agreed that he made a “mistake” and that the testimony elicited was not

helpful “[o]n the whole.” Nonetheless, counsel did offer a reason for asking the

questions: “That was the only way I could get in the fact that the truck did not

belong to Mr. Hernandez and that his brother stated the truck belonged to him.”

      Litigants are not guaranteed an error-free representation by their counsel. Ex

parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991); Ingham v. State, 679


                                         15
S.W.2d 503, 509 (Tex. Crim. App. 1984) (en banc). Isolated mistakes generally do

not require a finding of ineffective assistance of counsel. Ingham, 679 S.W.2d at

509. Even if this mistake did meet the first prong of Strickland, we conclude that

Hernandez has not demonstrated harm from the testimony. See Ladd, 3 S.W.3d at

570 (holding that failure to establish prejudice prong of Strickland test precludes

any relief).

       Hernandez’s analysis of this issue is limited to a single sentence: “His

reckless introduction of an otherwise inadmissible hearsay statement in a manner

which actually underscored that statement was objectively deficient, and Appellant

was likely prejudiced by it.” Officer Morton had testified that he called

Hernandez’s brother to confirm Hernandez’s story. The brother told him that he

had not seen Hernandez in two days. He confirmed that the vehicle was newly

purchased. But the brother said nothing about who owned the marijuana.

Hernandez fails to demonstrate how this testimony prejudiced him at trial.

       Besides, this issue was presented to the trial court in the motion for new

trial, which was denied. We cannot conclude that the trial court abused its

discretion in holding that Hernandez failed to meet his burden to establish

ineffective assistance of counsel based on this exchange during cross-examination

of Officer Morton. To the extent this testimony can be viewed as harmful, it is

within the zone of reasonable disagreement, which makes it insufficient to


                                        16
conclude that the trial court abused its discretion by denying the motion for new

trial.

F.       Failure to challenge the admissibility of Hernandez’s statements made
         during the vehicle search

         Hernandez’s final complaint concerns his counsel’s failure to object to

Officer Morton’s testimony recounting incriminating statements made by

Hernandez during the vehicle search. Officer Morton testified as follows:

         Q.    Did you ask him about the marijuana smell in the truck?

         A.    Yes. I asked if he smelled marijuana in the truck; and he said,
               yes.

         Q.    Did you ask him if there was marijuana inside the truck?

         A.    Yes. I asked him if—if there was any marijuana inside the
               truck. He shrugged his shoulders, said maybe and said
               probably.

         Hernandez asserts that his counsel should have objected to this testimony as

inadmissible custodial statements made without the benefit of Miranda-style,

statutory warnings. See TEX. CODE CRIM. PROC. ANN. art. 38.22; Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). If Hernandez cannot establish a

reasonable likelihood that a pre-trial motion to suppress or proper objection to

admission of his statement would have been successful—and, as a result, would

have altered the outcome of the proceeding—then counsel’s failure to take those

actions cannot support an ineffective assistance claim. See Yuhl v. State, 784


                                          17
S.W.2d 714, 717 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d); Martinez v.

State, No. 04-04-00057-CR, 2005 WL 2138121, at *1–2 (Tex. App.—San Antonio

Sept. 7, 2005, no pet.) (mem. op., not designated for publication). The record does

not support Hernandez’s assertion that he was in custody when these statements

were made.

      A person held for investigative detention is not “in custody.” Dowthitt v.

State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). The point that a traffic stop

escalates from an investigative (non-custodial) to a custodial detention is

determined based on objective factors surrounding the event. See State v. Ortiz,

382 S.W.3d 367, 372–73 (Tex. Crim. App. 2012). These include whether there is

probable cause to arrest and whether the defendant has become the focus of the

investigation. Dowthitt, 931 S.W.2d at 254–55. “[T]he primary question is whether

a reasonable person would perceive the detention to be a restraint on his movement

‘comparable to [a] formal arrest,’ given all the objective circumstances.” Ortiz, 382

S.W.3d at 372; Dowthitt, 931 S.W.2d at 255.

      There are four situations that have been recognized to escalate an

investigative detention into custody: (1) a suspect is physically deprived of

freedom in a significant way, (2) the police tell the suspect that he cannot leave,

(3) the police create a situation that would lead a reasonable person to believe his

freedom of movement has been significantly restricted, and (4) the police have


                                         18
probable cause to arrest a suspect, manifest that knowledge of probable cause to

the suspect, and do not tell the suspect that he is free to leave. State v. Saenz, 411

S.W.3d 488, 496 (Tex. Crim. App. 2013) (citing Dowthitt, 931 S.W.2d at 255).

The restriction of the suspect’s movement must be tantamount to an arrest to rise to

the level of custody. Dowthitt, 931 S.W.2d at 255.

      At trial, Hernandez would have had the burden of proving that his statements

were obtained during a custodial detention. See Herrera v. State, 241 S.W.3d 520,

526 (Tex. Crim. App. 2007). Hernandez raised the issue in his motion for new trial,

which the trial court denied. A trial court’s determination of “custody” presents a

mixed question of law and fact. Id. at 526. “[W]e afford almost total deference to a

trial judge’s ‘custody’ determination when the questions of historical fact turn on

credibility and demeanor.” Id. at 526–27; Shanklin, 190 S.W.3d at 166 (“In

considering a motion for new trial, the trial court possesses broad discretion in

determining the credibility of the witnesses and in weighing the evidence to

determine whether a different result would occur upon retrial.”).

      At the hearing on the motion for new trial, Hernandez testified that Officer

Guerrero, the police officer who initially stopped him, explained that the traffic

stop was for an expired registration. Officer Guerrero then asked him to get out of

the vehicle. According to Hernandez, this action made him feel that he was not free

to leave. About fifteen minutes later, Officer Morton arrived. Hernandez testified


                                         19
that this felt like a long time to wait. According to Hernandez, Officer Morton’s

arrival “made me feel very uncomfortable like I was not free to leave at all.”

Hernandez did not testify that the police said or did anything to him that would

objectively indicate that the traffic stop had evolved into something equivalent to a

formal arrest; instead, he claimed that he “could tell” that he could not leave.

      Meanwhile, Officer Guerrero testified at trial that he initially stopped

Hernandez for an expired registration then, as he approached the vehicle, noticed a

strong smell of “raw marijuana.” Based on that smell, he asked Hernandez to get

out of the vehicle. Officer Morton testified that he also noticed the smell of

marijuana coming from the vehicle when he arrived. Officer Morton “went and

stood with the—the gentleman at the back of the truck and spoke with him as

Officer Guerrero completed a probable cause search of the vehicle.” Officer

Morton testified that Hernandez was not under arrest or handcuffed; they were

“just making conversation” with each other. After asking Hernandez where he was

going, he asked whether Hernandez could smell marijuana in the truck, and

Hernandez replied, “Yes.” Officer Morton testified that, when he asked Hernandez

if there was any marijuana in the truck, “He shrugged his shoulders, said maybe

and said probably.”

      We conclude that the objective facts do not indicate that this was a custodial

interrogation requiring the Miranda-style warnings found in article 38.22.


                                          20
Hernandez had not been handcuffed, and his movement had not been significantly

restricted otherwise. The police had not said anything to him that could be

considered an objective manifestation of a subjective belief of guilt. Hernandez

and Officer Morton were standing together on the side of the road talking while

Officer Guerrero searched the vehicle. Hernandez was not in custody; his purely

subjective belief that he soon would be arrested does not alter our conclusion. See

Ortiz, 382 S.W.3d at 373 (holding that “undisclosed subjective belief of the suspect

that he is guilty of an offense should not be taken into consideration—the

reasonable person standard presupposes an ‘innocent person.’”); see also Dowthitt,

931 S.W.2d at 254–55.

         We conclude that Hernandez has not met his burden to establish that his

counsel provided him ineffective assistance of counsel or that the trial court erred

by denying his motion for new trial on that basis.

                                     Conclusion

         Having overruled Hernandez sole issue, we affirm the judgment of the trial

court.



                                              Harvey Brown
                                              Justice

Panel consists of Justices Keyes, Bland, and Brown.

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

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