                                   NO. 07-08-0149-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL C

                                      APRIL 3, 2009

                          ______________________________


                            VERNON R. LOVE, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 2007-417,543; HON. BRYAN POFF, PRESIDING

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant, Vernon R. Love, was indicted for possession of a controlled substance,

cocaine, in an amount of less than one gram, enhanced by two prior felony convictions.

A jury found appellant guilty of the indicted offense and the State waived the enhancement

paragraphs. Thereafter, the jury sentenced appellant to 18 months in a State Jail Facility.

Appellant appeals the judgment of the trial court alleging errors in the denial of his motion
to suppress, in refusing to give a charge pursuant to article 38.23 of the Texas Code of

Criminal Procedure,1 and due to ineffective assistance of counsel. We affirm.


                            Factual and Procedural Background


       In the early morning hours of August 4, 2007, appellant and a female companion

were detained by a City of Lubbock Police Officer after they had been observed crossing

Ave. Q in the vicinity of the intersection of Ave. Q and 19th street. Appellant was unable

to provide any identification. Upon being questioned about his date of birth, appellant gave

a date of birth that was inconsistent with the age he provided the officer. Appellant was

then detained by the officer while the identification data was verified. As a result of this

detention, appellant was handcuffed and placed in the back of a police car. While placing

appellant in the back of the patrol car, the officer removed a scarf from appellant’s head.2

Upon verifying some personal data that appellant gave to the officer, appellant was being

released when the officer noticed a wax paper packet stuck to the hair on the back of

appellant’s head. Based on his experience, the officer thought that the wax paper packet

contained drug contraband, therefore, the officer again secured appellant with handcuffs.

The packet was opened and found to contain a white powdery substance and appellant

was then arrested for possession of a controlled substance.




       1
          Further reference to the Texas Code of Criminal Procedure will be by reference
to “article ___” or “art. ___.”
       2
           The scarf was described in the testimony as a “doo-rag.”

                                             2
       As a result of the seizure of the wax paper packet, appellant was subsequently

indicted for possession of a controlled substance, cocaine, in an amount of less than one

gram. Prior to trial, a hearing was held on appellant’s motion to suppress the evidence.

The trial court denied the motion and the trial proceeded. When the contents of the wax

paper packet were offered into evidence, appellant’s counsel stated, “No objection.” At the

conclusion of the trial and before the court’s charge was read to the jury, appellant

requested an instruction pursuant to article 38.23. The trial court denied the request and

the jury convicted appellant of possession of a controlled substance, cocaine, in an amount

of less than one gram. The same jury sentenced appellant to 18 months in a State Jail

Facility. Through three primary issues, appellant contends that 1) the trial court erred in

refusing to suppress the cocaine, 2) the trial court erred in refusing to give the requested

instruction, and 3) if appellant’s counsel waived any error by not objecting to the

introduction of the cocaine, such waiver constituted ineffective assistance of counsel.


                                   Motion to Suppress


       The central question regarding the motion to suppress concerns whether appellant’s

issue has been preserved for appeal. The record reflects that the motion to suppress was

heard after voir dire but before the evidence was presented to the jury. After holding a

hearing on the motion to suppress, the trial court denied the motion and the trial

proceeded. When State’s exhibits 1 and 1A3 were offered into evidence, appellant’s trial

counsel stated, “No objection, your honor.” The exhibits were then admitted into evidence.


       3
        These were the manila envelope that the arresting officer placed the contraband
in before turning the contraband over to the DPS Laboratory, Ex. 1, and the plastic bag
containing the wax paper containing the cocaine, Ex. 1A.

                                             3
       Appellant urges that the actions of trial counsel were not a waiver of his objection

to the alleged unlawful seizure of the cocaine. This is so, according to appellant, because

the “no objection” statement only covered the physical evidence and not the prior testimony

relating to it. However, appellant’s position is untenable for two reasons. First, appellant

has offered no case law supporting his proposition and we have found none. Second, the

Texas Court of Criminal Appeals has stated that, “A defendant who affirmatively states, ‘No

objection,’ when evidence is offered, waives his right to complain on appeal that the

evidence was, as a matter of law, illegally obtained under Article 38.23.” Holmes v. State,

248 S.W.3d 194, 196 (Tex.Crim.App. 2008). See Dean v. State, 749 S.W.2d 80, 83

(Tex.Crim.App. 1988). Because appellant waived his right to complain that the evidence

was, as a matter of law, illegally obtained, we overrule appellant’s contention that the trial

court erred in denying the motion to suppress.


       Further, we note that appellant did not offer the DVD of the in-car video or any other

evidence during the hearing on the motion to suppress. As a result, the only evidence on

the question of the legality of the seizure of the contraband was that of the arresting officer.

When we are reviewing the issue of the propriety of the court’s ruling on a motion to

suppress, we apply the abuse of discretion standard. See Oles v. State, 993 S.W.2d 103,

106 (Tex.Crim.App. 1999). Whether the trial court abused its discretion depends upon

whether, given the record and the law, its decision fell outside the zone of reasonable

disagreement. See Benitez v. State, 5 S.W.3d 915, 918 (Tex.App.–Amarillo 1999, pet.

ref’d). We must uphold the trial court’s decision if it is correct on any theory of law

applicable to the case, whether or not relied upon by the trial court, when the standard of


                                               4
review is abuse of discretion. See State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.

2000); State v. Clemmer, 999 S.W.2d 903, 905 (Tex.App.–Amarillo 1999, pet. ref’d). In

reviewing trial court rulings on matters such as motions to suppress, appellate courts afford

almost total deference to trial court determinations of historical facts and to decisions

involving mixed questions of law and fact if the resolution of those questions depends on

an evaluation of credibility and demeanor.          Guzman v. State, 955 S.W.2d 85, 89

(Tex.Crim.App. 1997).


       Applying these precepts to the record before us reveals that the arresting officer did,

in fact, change his testimony to provide at least two different reasons for stopping appellant

on the night in question. Two reasons were given, according to the officer, because he

realized, upon reflection, that appellant and his companion could not have been guilty of

the offense of jay-walking, as described in the initial report.4 Later, the officer realized that

where he observed appellant crossing the street was not a controlled intersection and,

therefore, appellant could not have been guilty of jay-walking, as that offense is defined.

The officer further testified that appellant did not enter onto the sidewalk when he finished

crossing the street. Instead, appellant and his companion walked a short distance in the

gutter next to the sidewalk while approaching the officer’s vehicle. According to the officer,

this action was a violation of a traffic law. See TEX . TRANSP . CODE ANN . § 552.006 (Vernon



       4
         The fact that appellant was initially stopped for jaywalking rather than failure to
walk on the sidewalk is not relevant to the inquiry because we review the facts known to
the officer from an objective standpoint to determine whether the facts constituted a lawful
basis for the stop in question and not based upon the officer’s subjective understanding
of the law at the point in time of the stop. See Blount v. State, 965 S.W.2d 53, 55
(Tex.App.–Houston [1st Dist.] 1998, pet ref’d).

                                               5
Supp. 2008). The trial court had ample opportunity to observe the witness and to judge

his credibility. After making these observations, the trial court overruled appellant’s motion

to suppress. There were no findings of fact and conclusions of law entered into the record

and, therefore, we must assume that the trial court made implicit findings that support its

decision. See Ross, 32 S.W.3d at 855-56. From this testimony, the trial court could have

found that appellant walked in the street rather than the sidewalk and that it was not

impractical for appellant to walk on the sidewalk. Therefore, we must assume that the trial

court made these implied findings of fact. Thus, because the officer personally observed

a violation of the traffic laws, we conclude that the trial court’s determination that the officer

had reasonable suspicion to detain appellant was correct. Accordingly, the trial court did

not abuse its discretion in overruling appellant’s motion to suppress. Oles, 993 S.W.2d at

106.


                                         Charge Error


       Appellant next contends that the trial court committed error when, at the conclusion

of the evidence, he requested the trial court to include a paragraph in the Court’s Charge

pursuant to article 38.23. Appellant presented a proposed paragraph to the court, which

after hearing argument by both appellant and the State, the trial court overruled.5


       5
           Appellant’s proposed instruction was:
       You are instructed that under our law no evidence obtained or derived by
       officer, member of the judiciary, or other person in violation of any provision
       of the Constitution or laws of the United States of America or the State of
       Texas shall be admitted in evidence against the accused on the trial of any
       criminal case.


                                                6
         When reviewing alleged charge error, a reviewing court conducts what is essentially

a two-part inquiry. First, we determine whether error exits. Druery v. State, 225 S.W.3d

491, 504 (Tex.Crim.App. 2007) (citing Almanza v. State, 686 S.W.2d 157, 171

(Tex.Crim.App. 1985)). If error exists, then we review to determine whether the error

caused sufficient harm to require reversal. Id. The degree of harm required to cause

reversal depends upon whether the error was preserved. Id. Error properly preserved will

require reversal as long as the error is not harmless. Id. See Almanza, 686 S.W.2d at

171. This requirement has been held to mean that any harm, regardless of degree, is

sufficient to require reversal. See Airline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.

1986).


         In order to be entitled to a jury instruction on article 38.23(a), an appellant must

meet three requirements:


         (1) The evidence heard by the jury must raise an issue of fact;

         (2) The evidence on that fact must be affirmatively contested; and

         (3) That contested factual issue must be material to the lawfulness of the
         challenged conduct in obtaining the evidence.


Madden v. State, 242 S.W.3d 504, 510-12 (Tex.Crim.App. 2007). Appellant opines that

the DVD of the in-car video, which was played before the jury, sufficed to meet the



         Now bearing in mind unless you believe the State’s evidence beyond a or all
         reasonable doubt that no violation of Defendant’s Constitutional rights
         occurred in any alleged defense used to enforce the enhancement or
         jurisdictional provision in this matter you will disregard the evidence and you
         will not consider such evidence for any purpose whatsoever.

                                               7
requirements set forth in Madden. Appellant’s brief contains an analysis of how the DVD

was contrary to some of the testimony of the State’s only witness. Appellant opines that

the DVD shows some water in the gutter or possibly a driveway at the point where

appellant first crossed the street. According to this theory, such evidence supports the

submission of the article 38.23(a) instruction.


       The problem with the position of appellant is that these exact observations and

assertions are not supported by the record. At best, the officer stated during cross-

examination that, if trial counsel said there was water in the gutter of the street where

appellant was walking, he would agree. However, this agreement does nothing to prove

that appellant could not get up onto the sidewalk at the time he completed crossing the

street. Nor does the record contain testimony describing any driveway that appellant had

to walk on before stepping up onto the sidewalk. Although the officer asserts that he could

have stopped appellant for violation of the Texas Transportation Code section 552.007, the

appropriate statutory reference was section 552.006. See TEX . TRANSP . CODE ANN . §

552.006 (Vernon Supp. 2008). The missing link in appellant’s theory is that no one

testified that the water in the gutter, assuming there was water in the gutter, prevented

appellant from stepping up onto the sidewalk, as he came to the edge of the street or that

the driveway prevented appellant from going immediately onto the sidewalk. This lack of

affirmative evidence to raise the fact issue that appellant contends requires the article

38.23(a) instruction is fatal to his claim. Without some affirmative evidence to the effect

that the sidewalk adjacent to the roadway was not accessible or that he was otherwise




                                             8
unable to step immediately onto the sidewalk there is no issue of fact for the jury to

resolve. Madden, 242 S.W.3d at 513. Accordingly, appellant’s issue is overruled.


                            Ineffective Assistance of Counsel


       Appellant next contends that he received ineffective assistance of counsel.

Specifically, appellant states that, when trial counsel stated “No objection” to the

introduction of State’s exhibits 1 and 1A, counsel was guilty of being ineffective.


       In determining whether counsel’s representation was so inadequate as to violate a

defendant’s Sixth Amendment right to counsel, Texas courts adhere to the two-pronged

test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986).6 Judicial review

of an ineffective assistance of counsel claim must be highly deferential to trial counsel and

avoid using hindsight to evaluate counsel’s actions. Ingham v. State, 679 S.W.2d 503, 509

(Tex.Crim.App. 1984). There is a strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance. Strickland, 466 U.S. at 690. The

burden is on appellant to prove by a preponderance of the evidence that counsel was

ineffective. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (en

banc). The defendant must first prove that counsel’s performance was deficient, i.e., that

counsel’s assistance fell below an objective standard of reasonableness. McFarland, 928

S.W.2d at 500. If appellant has demonstrated deficient assistance of counsel, it is then



       6
        The same standard of review applies to contentions arising under Article 1, Section
10 of the Texas Constitution.

                                             9
necessary that appellant affirmatively prove prejudice as a result of the deficient

assistance. Id. In proving prejudice, appellant must prove a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.

Hernandez, 726 S.W.2d at 55.


       Any allegation of ineffective assistance of counsel must be firmly founded in the

record and the record must affirmatively demonstrate the alleged ineffectiveness.

McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both

showings, an appellate court cannot conclude the conviction resulted from a breakdown

in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854

S.W.2d 128, 131 (Tex.Crim.App. 1993). Appellate courts look to the totality of the

representation and the particular circumstances of each case in evaluating the

effectiveness of counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991).

It is possible that a single egregious error of omission or commission by appellant’s

counsel constitutes ineffective assistance. E.g., Jackson v. State, 766 S.W.2d 504, 508

(Tex.Crim.App. 1985) (modified on other grounds on remand from United States Supreme

Court in 766 S.W.2d 518 (Tex.Crim.App. 1988)).


       Applying these precepts to the case before the Court, we immediately recognize that

we have held that the motion to suppress was, in addition to being waived, properly denied

by the trial court. The effect of this holding is that, even if counsel’s conduct in waiving the

objection to the introduction of State’s Ex. 1 and 1A was deficient, even had he properly

                                              10
preserved the objection, the evidence was properly admitted by the trial court. Therefore,

failing to preserve the objection could not be deficient assistance. McFarland, 928 S.W.2d

at 500. Accordingly, appellant’s final issue is overruled.


                                        Conclusion


       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                                 Mackey K. Hancock
                                                      Justice

Do not publish.




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