Affirmed as Modified and Memorandum Opinion filed December 16, 2014.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-13-00832-CR

                  WRANDY DEWAYNE LITTLE, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 405th District Court
                          Galveston County, Texas
                      Trial Court Cause No. 12CR2480

              MEMORANDUM                          OPINION

      A jury convicted appellant Wrandy Dewayne Little of possession of a
controlled substance. The jury found two enhancement paragraphs to be true and
sentenced appellant to confinement for 33 years in prison. Appellant filed a timely
notice of appeal. We affirm.

      In his first two issues, appellant claims ineffective assistance of counsel. In
his third issue appellant claims the evidence is insufficient to support the trial
court’s order to pay attorney’s fees. Finding only the final issue to have merit, we
sustain that issue, modify the judgment, and affirm the judgment as modified.

                                       BACKGROUND

       On the night of September 9, 2012, Officers Derr and Sanderson were
working the night shift in a patrol unit in Galveston, Texas. Officer Derr was a
passenger in Officer Sanderson’s patrol car. The officers turned onto 25th Street
and observed appellant’s car in front of them. Officer Sanderson believed
appellant’s car was going “a little bit over the speed limit.” The officers did not
have radar in their car. Officer Derr made a visual estimation of the speed of
appellant’s vehicle and believed it was traveling “a little faster than . . . the posted
speed limit.” The officers’ car drew closer to appellant’s car. Officer Sanderson did
not stop appellant at that point, but waited to see if he would observe another
traffic violation.

       As appellant approached the intersection of 25th Street and Broadway, the
light was yellow. Appellant hit his brakes, but then proceeded through the
intersection. The officers then stopped appellant for running a red light. Officer
Derr testified “[the light] was clearly red when [appellant’s vehicle] went through
the intersection.” Officer Sanderson stated that he believed the vehicle ran a red
light. State’s Exhibit 1, a video of the traffic stop, was admitted into evidence and
played before the jury.

       During the traffic stop, the officers smelled marijuana in the car and
questioned appellant about the source of the smell of marijuana. Appellant
admitted to smoking marijuana. The officers searched appellant due to the smell of
the marijuana and appellant’s inculpatory statements. Officer Derr searched
appellant’s person and found the controlled substances that were the basis of his
conviction.
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                          INEFFECTIVE-ASSISTANCE ARGUMENT

      Appellant argues trial counsel made two errors: (1) failing to move to
suppress the evidence obtained as a result of an illegal stop; and (2) failing to
request an instruction pursuant to article 38.23 on the legality of the traffic stop.
Tex. Code Crim. Proc. art. 38.23 (West, Westlaw through 2013 3d C.S.). The
record reflects trial counsel did move to suppress the evidence obtained, but not on
the ground that the stop was illegal. Rather, trial counsel urged the trial court to
suppress the evidence on the grounds that appellant was in custody when the police
asked if he had anything in his pocket. The trial court denied that motion and in
this appeal appellant raises no issue as to that ruling.

      When reviewing claims of ineffective assistance of counsel, we apply the
standard of review set forth in Strickland v. Washington, considering whether trial
counsel’s performance was deficient and whether this deficient performance
deprived the defendant of his right to a fair trial. 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). The Strickland standard requires that an appellant prove by a
preponderance of the evidence both that (a) his trial counsel’s representation fell
below an objective standard of prevailing professional norms and (b) there is a
reasonable probability that, but for counsel’s deficiency, the result of the
proceeding would have been different. Strickland, 444 U.S. at 690–94. An
appellant’s failure to satisfy one prong makes it unnecessary for a court to consider
the other prong. Id. at 697.

      Our review of trial counsel’s performance is highly deferential, beginning
with the strong presumption that the attorney’s actions were reasonably
professional and were motivated by sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). In most cases, direct appeal is an

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inadequate vehicle for raising such a claim because the record is generally
undeveloped and cannot adequately reflect the motives behind trial counsel’s
actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003);
Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999).

      When, as in this case, there is no proper evidentiary record developed at a
hearing on a motion for new trial,1 it is extremely difficult to show that trial
counsel’s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). If there is no hearing or if counsel does not appear at the
hearing, an affidavit from trial counsel becomes almost vital to the success of an
ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.
Houston [14th Dist.] 2000, pet. ref’d). The Court of Criminal Appeals has stated
that it should be a rare case in which an appellate court finds ineffective assistance
on a record that is silent as to counsel’s trial strategy. See Andrews, 159 S.W.3d 98,
103 (Tex. Crim. App. 2005). On such a silent record, this court can find ineffective
assistance of counsel only if the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392
(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we
“review the totality of the representation and the circumstances of each case
without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011) (citing Robertson, 187 S.W.3d at 483).




      1
          There was no motion for new trial filed in this case.

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      A. Motion to Suppress

      We cannot say that trial counsel’s decision to move for suppression of the
evidence on the grounds of custodial interrogation, rather than the legality of the
initial stop, was conduct “so outrageous that no competent attorney would have
engaged in it.” Goodspeed, 187 S.W.3d at 392. See Perez v. State, 56 S.W.3d 727,
731 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (the first Strickland prong
was not satisfied where record was silent as to why trial counsel objected on
constitutional grounds rather than statutory grounds). On this record, which is
silent as to counsel’s strategy, we conclude that appellant failed to meet his burden
of showing that trial counsel’s assistance was ineffective. Accordingly, we
overrule appellant’s first issue. And, as discussed below, we conclude that trial
counsel could have reasonably concluded that the officer did have a reasonable
suspicion to stop appellant for running a red light and that a motion to suppress on
that ground would have been futile.

      B. The Article 38.23 Instruction

      Appellant next argues that trial counsel was deficient for failing to request
an article 38.23 instruction based on an allegedly illegal traffic stop.2 Appellant
argues that a review of the video shows appellant’s vehicle had entered the

      2
          Article 38.23 provides:
      (a) No evidence obtained by an officer or other person in violation of any
      provisions of the Constitution or laws of the State of Texas, or of the Constitution
      or laws of the United States of America, shall be admitted in evidence against the
      accused on the trial of any criminal case.
      In any case where the legal evidence raises an issue hereunder, the jury shall be
      instructed that if it believes, or has a reasonable doubt, that the evidence was
      obtained in violation of the provisions of this Article, then and in such event, the
      jury shall disregard any such evidence so obtained.
      Tex. Code Crim. Proc. Ann. art. 38.23 (West, Westlaw through 2013 3d C.S.).


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crosswalk before the traffic signal turned red—that appellant did not run a red
light. Section 544.007(d) provides that “an operator of a vehicle facing only a
steady red signal shall stop at a clearly marked stop line. In the absence of a stop
line, the operator shall stop before entering the crosswalk on the near side of the
intersection.” Tex. Transp. Code §544.007(d) (West, Westlaw through 2013 3d
C.S.). Appellant claims that because the video shows he had entered the crosswalk
when the light turned red, the traffic stop was illegal.

      A routine traffic stop closely resembles an investigative detention. Berkemer
v. McCarty, 468 U.S. 420, 436–37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). “If an
officer has a reasonable basis for suspecting that a person has committed a traffic
offense, the officer may legally initiate a traffic stop.” Zervos v. State, 15 S.W.3d
146, 151 (Tex. App.—Texarkana 2000, pet. ref’d). The State was not required to
show a traffic offense was actually committed, but only that the officer reasonably
believed a violation had occurred. Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d
159, 163 (Tex. App.—Dallas 2001, no pet.); accord Garcia v. State, 43 S.W.3d
527, 530 (Tex. Crim. App. 2001). See also Cook v. State, 63 S.W.3d 924, 927 n. 5
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (noting that there is no
requirement that a traffic regulation is actually violated).

      Officer Derr testified that the light was red when appellant entered the
intersection. Officer Sanderson stated that he believed the vehicle ran a red light.
We have reviewed the video and the intersection has a stop line before the
crosswalk. The light turned yellow, appellant hit his brakes, but then proceeded
and the light turned red. When watching the video at regular speed, as the officers
would have perceived it in real time, it is unclear whether the vehicle entered the
intersection before or after the light turned red. The video does not clearly
contradict the officer’s testimony. See Montanez v. State, 195 S.W.3d 101, 109

                                           6
(Tex. Crim. App. 2006) (to the extent the trier of fact’s determination of historical
facts is based on a videotape of a traffic stop admitted into evidence, the trier of
fact is entitled to deference, but only if those factual determinations are supported
by the record); Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)
(declining to give that almost total deference to factfinder’s determination of
historical facts because “the videotape present[ed] indisputable visual evidence
contradicting essential portions of [the officer’s] testimony”). See also State v.
Houghton, 384 S.W.3d 441, 446 (Tex. App.—Fort Worth 2012, no pet.) (the
reviewing court is to give almost total deference to the trier of fact’s factual
determinations unless the video recording indisputably contradicts those findings).

      The record is silent as to why trial counsel failed to request the instruction
but the record demonstrates that trial counsel could reasonably have determined the
traffic stop was not illegal because it was based upon a reasonable suspicion that
appellant ran a red light. It is not ineffective assistance to fail to request a jury
instruction when trial counsel reasonably could have determined that the
instruction was not applicable to the case. See Aldaba v. State, 382 S.W.3d 424,
432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Accordingly, counsel’s
failure to request a jury instruction on that basis was not a deficiency that rises to
the level of ineffective assistance. Because appellant has not established the first
prong of Strickland, we overrule appellant’s second issue.

                                    ATTORNEY’S FEES

      In his third issue, appellant claims the evidence is insufficient to support the
trial court’s order that he reimburse Galveston County Department of Court
Services for attorney’s fees. The State agrees and the record reflects appellant was
found indigent. The record does not reflect that appellant’s financial circumstances
materially changed after he was found indigent. See Tex. Code Crim. Proc. Art.

                                          7
26.04(p) (West, Westlaw through 2013 3d. C.S.); see also Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010). Accordingly, we sustain appellant’s
third issue and modify the judgment to delete the award of attorney’s fees.

      As modified, the judgment of the trial court is affirmed.




                                      /s/       Tracy Christopher
                                                Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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