                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-284-CR
                              NO. 2-08-285-CR


ROGER JOHNSON                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                 STATE

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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION 1

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                                I. INTRODUCTION

     Appellant Roger Johnson appeals his conviction for two counts of

possession of a controlled substance with intent to deliver—cocaine in the




     1
         … See Tex. R. App. P. 47.4.
amount of one gram or more but less than four grams and methamphetamine

in the amount of four grams or more but less than 200 grams.2 We will affirm.

                               II. B ACKGROUND

      In February 2006, patrol sergeant Paul Jaworski and officer Eric

Louderback investigated Johnson’s residence because of complaints that

Johnson’s residence had “a lot of traffic” coming “in and out” of it.

Investigators had also received information from Johnson’s wife that Johnson

was using and selling drugs from his residence.             After conducting “spot

surveillance” on Johnson’s residence and observing “a number of vehicles

coming and going,” the officers decided to “pull the trash to see . . . what

[they] could find.”

      The officers linked multiple trash bags left for waste management to

Johnson’s residence through mail and other publications found in the trash with

Johnson’s name and address on them and a pill bottle with Johnson’s wife’s

name printed on it.    The officers also found a number of used and unused

plastic    baggies, two   broken   glass       pipes, and   almost five   grams   of

methamphetamine. Jaworski testified that these items were “consistent with




      2
          … See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003).

                                           2
dealing[,] use and sales of narcotics.”    The officers then obtained a search

warrant for Johnson’s residence.

      In addition to information regarding the complaints, spot surveillance, and

trash pull, the search warrant affidavit for Johnson’s residence alleged that

Johnson, as the person who controls the residence, “has a very long criminal

history and number of known AKA’s. . . . The history involves the states of

Maryland, Pennsylvania and California.     The crimes include those involving

narcotics, the manufacture and sale of weapons, robbery, assaults, burglaries

and resisting arrest . . . .”   The affidavit also refers to Johnson as “Mark

[Johnson],” “Marcus [Johnson],” and “Roger [Johnson].” The affidavit lists

Johnson’s birth date as March 29, 1954.

      Upon    execution    of    the   search   warrant,    police   discovered

methamphetamine and cocaine in various locations inside Johnson’s residence,

totaling 10.56 grams methamphetamine and 6.52 grams cocaine, 3 and various

drug paraphernalia. Police also found three guns.




      3
       … The State admits that portions of these drugs were found “in or near
the purse” of a person who was at Johnson’s residence when the warrant was
executed. But the State contends, and Johnson does not dispute, that the
drugs found in the “purse were not necessary to convict [Johnson] of the
charged offenses.”

                                       3
      Johnson was indicted in two separate counts for possession of a

controlled substance with the intent to deliver—one count pertaining to the

cocaine and the other pertaining to the methamphetamine. Both indictments

included an enhancement paragraph based on a 1988 robbery conviction in

California. The cases were tried together.

      After his arrest and prior to trial, Johnson was represented by at least

four different attorneys. Johnson testified that he fired the previous attorneys

because they had not performed satisfactorily, more specifically, because

“[t]hey just wanted [him] to take a plea.”

      On the day of jury voir dire, Johnson’s then-retained trial counsel filed a

motion to withdraw. The record does not reflect whether the trial court ever

ruled on this motion, but Johnson’s trial counsel continued to represent him

throughout Johnson’s trial. Also, before voir dire began, Johnson indicated to

the court that he wanted to file handwritten motions to suppress. The court

instructed Johnson to give his motions to his trial counsel.

      Following jury voir dire, the trial court noted that Johnson’s motions to

suppress had been filed and would be carried with the trial, and, if necessary,

the trial court would allow evidence to be heard concerning these motions

outside the jury’s presence.   Trial counsel did not object.    The motions to

suppress alleged that under Franks v. Delaware, the affidavit supporting the

                                       4
search warrant leading to Johnson’s ultimate arrest contained false and

misleading information that, if removed from the affidavit, would have rendered

the affidavit insufficient to establish probable cause for the search of Johnson’s

residence. 438 U.S. 154, 98 S. Ct. 2674 (1978).

      After the State rested, and outside the presence of the jury, Johnson’s

trial counsel moved for an instructed verdict, which was denied. The trial court

then allowed trial counsel to admit evidence pertaining to Johnson’s motions

to suppress. Trial counsel admitted into evidence documents which he claimed

showed that the police could not have picked up Johnson’s trash on the day

they claimed.    Thus, trial counsel argued, under Franks v. Delaware, “the

allegation about the trash run in the search warrant affidavit [is] misleading and

would render the search warrant affidavit . . . untrustworthy, and . . . all of the

evidence [seized at Johnson’s residence] should be suppressed on that theory.”

The trial court denied the motions to suppress.

      Still outside the presence of the jury, Johnson’s trial counsel examined

Johnson on the record about his decision to not testify.          After extensive

questioning by trial counsel, the trial court also questioned Johnson: “I don’t

care what [trial counsel] told you -- or what you’ve told [your trial counsel] or

what anybody else said. It’s your choice. Do you want to testify or do you not

want to testify?” Johnson replied, “No, sir.”

                                        5
      A jury found Johnson guilty on both counts and assessed punishment at

fifty-three years’ incarceration for each count.    The trial court ordered the

sentences to run concurrently. Johnson filed a motion for new trial, prepared

by his appellate counsel, based on several grounds, including ineffective

assistance of counsel.     The trial court conducted a hearing.        Johnson,

Jaworsky, Louderback, and Johnson’s trial counsel all testified at the motion

for new trial hearing. Johnson admitted into evidence his handwritten motions

to suppress, a list of questions he allegedly prepared for his trial counsel

pertaining to the indictments’ enhancement paragraphs, and an exhibit from the

waste collection company that serviced Johnson’s residence.

      Johnson testified that his trial counsel had initially refused to file his

motions to suppress. Johnson stated that his trial counsel had told him “that

by him filing these motions, I’m saying that everything in the house belonged

to me . . . . Compulsatory (sic) or something. It’s in that letter.” 4 Johnson

also said that there were numerous false statements and inaccuracies that he

had wanted to testify about regarding the search warrant affidavit, including the




      4
       … Prior to trial, trial counsel corresponded with Johnson by letter
regarding the motions to suppress. In the letter, trial counsel avers that filing
the motions to suppress would be “poor trial strategy” because Johnson might
have to take the stand and possibly either admit to ownership of the drugs or
defeat standing to complain about the drugs by denying ownership.

                                       6
date the police collected the trash, the spelling of his name, his criminal history,

and his date of birth. Johnson said that he had wanted to testify at the motion

to suppress hearing, but trial counsel’s “performance of the trial up to that point

forced me [to choose not to testify because] I was scared.” Johnson also said

that his trial counsel had refused to introduce evidence during the punishment

phase, including documentation regarding his drug rehabilitation, attendance

sheets and milestones for alcohol and substance abuse programs, and

information from his employer.

      Johnson’s trial counsel testified that he filed various standard pretrial

motions and had examined the State’s file in Johnson’s case. Trial counsel said

that his trial strategy for not wanting to file Johnson’s handwritten motions to

suppress was that some of the information Johnson wanted to address were

“matters within his personal knowledge.” Thus, trial counsel said, his advice

to Johnson was to not file the motions and avoid taking the stand where he

might, through the State’s questioning, be in the quandary of either admitting

to having possessed the drugs or denying possession and creating potential

standing issues.    Trial counsel pointed out that Johnson had signified his

compliance with this tactic when he wrote, “I agree” on trial counsel’s memo

to Johnson detailing this reasoning.




                                         7
      Trial counsel further testified that he did ultimately file the motions to

suppress and, in an attempt to undermine the search warrant affidavit, put on

evidence that indicated that the police did not pick up Johnson’s trash on the

day indicated.   Trial counsel also said that Johnson never told him that he

wanted to testify at a Franks hearing. Trial counsel said that it was Johnson’s

choice to not testify during the hearing or at trial. Trial counsel said that he

also put on punishment-mitigating evidence through Johnson’s wife where she

testified that he was a great father, had held down a steady job, and had

attempted to rehabilitate his drug problems. Trial counsel stated, however, that

Johnson never gave him any additional information or documentation about his

attendance sheets and milestones relating to alcohol and substance abuse

programs.

      Jaworski testified that he and Louderback picked up Johnson’s trash on

Monday, February 20, 2006, at around 3:00 a.m. Jaworski averred that the

seeming discrepancy between this pick-up time and the document Johnson had

admitted into evidence—which suggested a reported Tuesday, February 21,

2006 trash pickup by the police—was due to when the paperwork was filed.

Jaworski said that he did not provide names of informants or specifically verify

Johnson’s criminal history in the search warrant affidavit because it was his

surveillance of Johnson’s residence and the items collected from Johnson’s

                                       8
trash “that led to the probable cause for the search warrant.”     Louderback

testified that he assisted Jaworski in the trash pickup and the search of

Johnson’s residence.

      At the conclusion of the hearing, the trial court found that Johnson’s

testimony was “not credible.” The trial court denied the motions for new trial.

This appeal followed.

                    III. E FFECTIVE A SSISTANCE OF C OUNSEL

      In a single point, Johnson argues that he was denied effective assistance

of counsel in two ways. First, Johnson argues that trial counsel was deficient

by preventing him from adequately challenging the search warrant affidavit

under Franks v. Delaware. Second, Johnson argues that trial counsel failed “to

zealously represent [Johnson] during the punishment phase of the proceedings.”

      The Sixth Amendment to the United States Constitution affords criminal

defendants the right to reasonably effective assistance of counsel. U.S. Const.

amend. VI; Yarborough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4 (2003);

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied,

537 U.S. 1195 (2003). We apply a two-pronged test to ineffective assistance

of counsel claims, including challenges concerning counsel’s assistance at

punishment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,




                                      9
2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999);

Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).

      First, an appellant must show that his counsel’s performance was

deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2065. Under this first

prong, a strong presumption exists that defense counsel’s conduct was

reasonable and constituted sound trial strategy. Strickland, 466 U.S. at 689,

104 S. Ct. 2052. We evaluate the totality of the representation from counsel’s

perspective at trial, rather than counsel’s isolated acts or omissions in hindsight.

Gutierrez v. State, 8 S.W.3d 739, 749 (Tex. App.—Austin 1999, no pet.). Any

error in trial strategy will be deemed inadequate representation only if counsel’s

actions lack any plausible basis. Howland v. State, 966 S.W.2d 98, 104 (Tex.

App.—Houston [1st Dist.] 1998), aff’d, 990 S.W.2d 274 (Tex. Crim. App.

1999). The fact that another attorney, including appellate counsel, might have

pursued a different course does not necessarily support a finding of

ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979);

Johnson v. State, 987 S.W.2d 79, 88 (Tex. App.—Houston [14th Dist.] 1998,

pet. ref’d).   “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; see

also Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (reasoning

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that trial counsel is better positioned than an appellate court to judge the

pragmatism regarding significant decisions of trial strategy in a particular case).

Our scrutiny of counsel’s performance must be highly deferential, and every

effort must be made to eliminate the distorting effects of hindsight. Strickland,

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

      Second, an appellant must show that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The

second prong of Strickland requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial, i.e., a trial whose result

is reliable. Id.   In other words, Appellant must show there is a reasonable

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

proceeding would have been different.         Id.   A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at

2070.

      A.     Trial Counsel’s Strategy Regarding Motions to Suppress

      In this case, there was testimony by trial counsel offered during the

motion for new trial hearing concerning counsel’s trial strategy. Trial counsel

said that it was his professional opinion that filing motions to suppress that

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would culminate in Johnson having to testify regarding his personal knowledge

of the drugs found in his residence was “poor trial strategy.” Trial counsel said

that Johnson could have ultimately been questioned by the State, whereby he

would either confess to ownership of the drugs or deny ownership and lose the

motion under the doctrine of standing. Trial counsel testified that an exhibit

admitted into the record by Johnson indicates that Johnson agreed with trial

counsel’s tactic.

      Furthermore, trial counsel reasoned that the only legitimate challenge to

the search warrant affidavit under Franks v. Delaware was one that challenged

the actual basis for probable cause—the evidence of the police department’s

independent investigation of watching Johnson’s residence and the discovery

of drugs and drug paraphernalia in Johnson’s trash. See State v. Delagarza,

158 S.W.3d 25, 27–28 (Tex. App.—Austin 2005, no pet.) (holding that

magistrate had substantial basis for concluding probable cause to search

residence existed where, although tip concerning suspected drug dealing came

from anonymous informer of unknown reliability, comings and goings at

residence were—in officer’s experience—indicative of unlawful drug dealing,

officers   retrieved   trash   bags   left   outside   residence   containing   drug

paraphernalia, and bags tested positive for cocaine); see also State v. Raymer,

786 S.W.2d 15, 16 (Tex. App.—Dallas 1990, no pet.) (holding that affidavit

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in support of warrant to search defendant’s house based upon officer’s

knowledge of contents of trash behind defendant’s residence provided

magistrate with substantial basis for determining that illegal drugs were

probably in defendant’s house). Trial counsel did in fact file the motions to

suppress and present evidence in an attempt to undermine the search warrant

affidavit based on this reasoning. We hold that the record demonstrates that

there was a plausible basis for trial counsel’s strategy and that, regarding the

motion to suppress, Johnson has failed to point to any evidence that

undermines the strong presumption that his trial counsel rendered adequate

assistance and made all significant decisions in the exercise of his reasonable

professional judgment. See Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

We overrule this portion of Johnson’s sole point.

      B.    Evidence Presented at Punishment Phase

      Johnson also argues that trial counsel was ineffective because he failed

to “zealously represent [him] during the punishment phase” of trial.

Specifically, Johnson argues that trial counsel failed to secure witnesses who

could have corroborated Johnson’s progress and achievements in employment

history, drug abuse therapy, and self-motivated rehabilitation programs such as

Alcoholics Anonymous and Narcotics Anonymous.




                                      13
      Johnson’s trial counsel explained at the motion for new trial hearing that

Johnson had not provided him with any documentation regarding personal

achievements nor did Johnson provide a list of additional witnesses he wished

trial counsel to call. Johnson did not dispute this claim at the motion for new

trial hearing. Trial counsel also testified that he discussed presenting mitigating

evidence at the punishment phase with Johnson. Trial counsel said that he

advised calling Johnson’s wife but advised against Johnson taking the stand

because he believed Johnson would appear poorly to a jury under cross-

examination.

      The record shows that Johnson’s trial counsel presented evidence in the

punishment phase by calling Johnson’s wife to testify. Johnson’s wife testified

that Johnson had always worked and provided for his family, that he was a

“great father,” that he had been involved in rehabilitation programs, and that

she would support him after he was released from incarceration.

      Assertions of ineffective assistance of counsel must be firmly founded in

the record.    Bone v. State, 77 S.W.3d 828, 834 (Tex. Crim. App. 2002)

(holding that trial counsel only calling a single witness and defendant at

punishment phase did not constitute ineffective assistance of counsel where

evidence of what additional witnesses would have testified to was not in

record).   Johnson has not shown, to a reasonable probability, how the

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additional witnesses he claims should have been called to testify would have

brought about a different result. See Strickland, 466 U.S. at 687, 104 S. Ct.

at 2064.

      There is simply no evidence in the record to support Johnson’s contention

that a jury would have assessed a lighter sentence had these alleged additional

witnesses testified on his behalf. Johnson was convicted of two first-degree

felonies. The punishment range for these convictions is five to ninety-nine

years’ confinement. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003). The

jury assessed punishment at fifty-three years for each conviction. Assuming

without deciding that trial counsel’s decision not to procure more testimony or

to produce extra evidence in an attempt to mitigate punishment violated the

first prong of Strickland, Johnson has not demonstrated that any prejudice

resulted. See Woodford v. Visciotti, 537 U.S. 19, 22–23, 123 S. Ct. 357, 359

(2002) (reasoning that when it is alleged that counsel performed deficiently at

the punishment phase of trial, defendant must prove that there is a reasonable

probability that, but for counsel’s errors, the sentencing jury would have

reached a more favorable penalty-phase verdict); see also Bone, 77 S.W.3d at

834–36. We hold that Johnson has not demonstrated any prejudice regarding

trial counsel’s performance during the punishment phase of trial. We overrule

this portion of Johnson’s sole point.

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                              IV. C ONCLUSION

     Having overruled Johnson’s sole point in its entirety, we affirm the trial

court’s judgments.

                                          PER CURIAM

PANEL: MEIER, WALKER, and McCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2009




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