

Affirmed and Majority and Dissenting
Opinions filed March 24, 2011.
 
In
The
Fourteenth
Court of Appeals

NO. 14-10-00107-CR

Jimmy Ferrell
Cummings, Appellant 
v.
The State of
Texas, Appellee 

On Appeal from
the 228th District Court
Harris County, Texas
Trial Court
Cause No. 1178740

 
MAJORITY OPINION
Appellant Jimmy Ferrell Cummings appeals his
conviction for the felony offense of driving while intoxicated, claiming the
trial court committed fundamental error by failing to provide sua sponte a jury
instruction under article 38.23 of the Texas Code of Criminal Procedure.  This
statue prohibits the admission of evidence obtained in violation of state or
federal law and mandates a jury instruction when the evidence raises a material
fact issue in this regard.  Appellant also claims that his trial counsel
provided ineffective assistance by failing to request a jury instruction under
article 38.23 and by electing for the trial court, rather than the jury, to determine
punishment.  We affirm.
Factual And Procedural Background
Appellant was charged by indictment with the offense
of driving while intoxicated (“DWI”).  The indictment contained two enhancement
paragraphs in which the State alleged two, prior, final, felony convictions. 
Appellant pleaded “not guilty” to the charged offense.
At trial, the State called Officer Ricardo Cruz of
the Houston Police Department to testify.  Officer Cruz offered the following
account of events leading to appellant’s arrest:
At approximately 6:30 p.m. on August 13, 2008, Officer
Cruz was in uniform and driving in his marked patrol car on the Gulf Freeway. 
He observed appellant in the vehicle in front of him.  Both the officer and
appellant turned off the freeway onto a nearby street.   Appellant suddenly
stopped his truck in the road, opened the driver’s side door, and began to
urinate on the street.  Officer Cruz drove closer to appellant and saw him
sitting in the driver’s seat, holding his penis in his left hand as he continued
to urinate.  At this point, Officer Cruz moved his patrol vehicle, activated the
vehicle’s emergency lights, and approached appellant on foot, ordering
appellant to “put his penis back in his pants and step out of the vehicle.”  
Appellant smelled of alcohol, had bloodshot eyes, and
slurred speech.  Officer Cruz immediately handcuffed appellant because
appellant became verbally aggressive towards Officer Cruz.  Three unopened cans
of beer, still cold to the touch, were in the front of appellant’s truck. 
Officer Cruz suspected appellant was an intoxicated driver.  Both men were in a
lane of traffic, so Officer Cruz placed appellant in the patrol car for the
purpose of moving to a safer location to perform field-sobriety tests.  During
this interval, appellant continued to verbally threaten Officer Cruz, so
Officer Cruz called a “DWI unit.”  The DWI unit instructed Officer Cruz to bring
appellant to “Central Intox,” which he did.[1] 

At trial, other officers also testified as to
appellant’s conduct on the night in question.  Officer James Tippy met appellant
between 7:00 p.m. and 7:15 p.m. at Central Intox.  According to Officer Tippy, upon
arrival, appellant appeared “confused” and smelled of alcohol.  Appellant
refused to consent to a breath test.  Sergeant O.J. Latin administered a series
of sobriety tests to appellant.  Sergeant Latin testified that he performed a
horizontal gaze nystagmus test, and appellant exhibited all six clues for
intoxication.  Sergeant Latin also administered the Rhomberg balance test, the
“one leg stand” test, and the straight line test.  Appellant showed signs of
intoxication on all tests.  
Appellant testified at trial, giving a different account
of the evening’s events.  Appellant testified that he left work a little after
5:00 p.m., and on his way home appellant stopped at a store and bought “two
single beers.”  Upon arriving home, appellant drank those two beers and a third
beer from his refrigerator.  At approximately 6:30 p.m., appellant’s girlfriend
called and asked him to pick her up from work.  Appellant was on his way to
pick up his girlfriend when he needed to use the restroom.  Appellant stopped
at a gas station, but the restroom was unavailable, so he got back into his
truck and found a dumpster.  Appellant put his truck in park, “tilt[ed] the
steering wheel up and let the seat back.”  He then “cracked the door [open] and
leaned over sideways[,] . . . and started peeing . . .”  According to
appellant, nobody could have seen him urinating.  Appellant backed his truck up
and then saw for the first time Officer Cruz, who was parked ahead of appellant. 
Appellant drove around Officer Cruz’s patrol car and waited at a stop sign. 
While waiting to turn, appellant heard Officer Cruz asking, “What are you
doing?”  Appellant responded that he was trying to get on the adjoining road.  Officer
Cruz then asked appellant to exit his truck, and appellant obliged.  Appellant
asked Officer Cruz, “What is the problem? What is going on?”  Officer Cruz
ordered appellant to turn around and put his hands on the truck.  Officer Cruz patted
appellant down, handcuffed him, and placed him in the back of the patrol car
without any explanation.
            The jury found
appellant guilty of the charged offense.  The trial court found the enhancement
paragraphs to be true and sentenced appellant to forty years’ confinement.  Appellant
filed a motion for new trial in which he asserted ineffective assistance of
counsel, and the trial court denied the motion.  Appellant now challenges his
conviction, raising two issues on appeal.
Issues and Analysis
Did the trial court err in failing to instruct the jury
under article 38.23 of the Texas Code of Criminal Procedure?
            In his first
issue, appellant asserts the trial court fundamentally erred in failing to
provide a jury instruction under article 38.23 of the Texas Code of Criminal
Procedure.  
A trial judge has a sua sponte duty to prepare a jury
charge that accurately sets out the law applicable to the specific offense
charged.  Oursbourn v. State, 259 S.W.3d 159, 179 (Tex. Crim. App.
2008); see Tex. Code Crim. Proc.
Ann. art. 36.14 (West 2007).  Article 38.23(a) requires a jury
instruction only if there is a genuine dispute about a material fact that is essential to deciding the lawfulness of the challenged
conduct in obtaining the evidence.  See Madden v. State, 242
S.W.3d 504, 510 (Tex. Crim. App. 2007).  If other facts not in dispute are sufficient to support the
lawfulness of the challenged conduct, then the disputed fact issue is not
material to the ultimate admissibility of the evidence.  See id.
Appellant asserts a
fact issue exists concerning whether Officer Cruz observed him urinating.  According
to appellant, this disputed factual issue was material to the lawfulness of
appellant’s detention and arrest, and without the 38.23 instruction, there was
no mechanism for the jury to weigh the conflict in testimony between appellant
and Officer Cruz. 
Presuming that Officer
Cruz could not have observed appellant urinating, there still would be a reasonable suspicion based on specific,
articulable facts that would lead an officer to the reasonable conclusion that
criminal activity was underway and that a particular person was connected to
the activity.  See Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App.
1997).  Officer Cruz testified that
urinating in public is a criminal offense.  Even under appellant’s version of
the facts, though Officer Cruz may not actually have seen appellant urinating,
Officer Cruz still would have seen appellant driving away from the area where
he had just urinated.  The facts and circumstances providing a reasonable
suspicion of criminal activity need not be criminal in nature themselves as
long as they include facts that, in some way, would increase the likelihood of
the presence or occurrence of criminal activity.  See State v. Lopez,
148 S.W.3d 586, 589 (Tex. App.—Fort Worth 2004, pet. ref’d).  Even under the
facts to which appellant testified, there would be a reasonable suspicion that some
activity out of the ordinary had occurred that justified further investigation
and the stop of appellant.  See Davis, 947 S.W.2d at 244; Garza v.
State, 771 S.W.2d 549, 558 (Tex. Crim. App. 1989).  
Under
appellant’s version of the facts, Officer Cruz asked appellant what he was
doing, and appellant stated he was trying to get on the adjoining road. 
According to appellant, Officer Cruz then asked appellant to step out of the
truck, and when appellant complied, he asked Officer Cruz, “What is the problem?
What is going on?”  Appellant did not controvert Officer Cruz’s testimony that
appellant had bloodshot eyes and a strong odor of alcohol that Officer Cruz
detected right away.  Indeed, appellant testified that he consumed three beers
in the 60-90 minutes before he encountered Officer Cruz and that he felt a
“buzz.”  Therefore, even under appellant’s testimony, at this point, Officer
Cruz would have had reasonable suspicion that appellant was driving while
intoxicated.  See Goudeau v. State,
209 S.W.3d 713, 719–20 (Tex. App.—Houston [14th Dist.] 2006, no pet.)
(involving an accused’s bloodshot eyes and slurred speech as giving rise to the
reasonable suspicion that the accused may have been driving while
intoxicated).  
Appellant asserts a material fact issue exists
concerning whether Officer Cruz observed him urinating.  Appellant disputed
Officer Cruz’s testimony.  Appellant testified that he never used his left hand
to hold his penis.  Appellant testified that, “even if you were standing
outside [the truck’s] door, you couldn’t see me.” But these disputed facts are not essential to deciding the lawfulness of the challenged
conduct in obtaining the evidence.  See Madden, 242 S.W.3d at
517–18; Mbugua v. State, 312 S.W.3d 657, 669 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d); Reynosa v. State, 996 S.W.2d 238, 240 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Markey v. State, 996 S.W.2d
226, 230–31 (Tex. App.—Houston [14th Dist.] 1999, no pet.).  Therefore, the
trial court did not err in failing to include in the jury charge an instruction
under article 38.23(a).  Accordingly, appellant’s first issue is overruled.[2]
Did appellant receive
ineffective assistance of counsel?
In his second issue, appellant claims he received
ineffective assistance of counsel in two respects: (1) his trial counsel did
not request a jury instruction under article 38.23 and (2) his counsel elected
for appellant’s punishment to be assessed by the trial judge instead of the
jury.  
Both the United States and Texas Constitutions guarantee
an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex.
Const. art. I, § 10; Tex. Code
Crim. Proc. art. 1.051 (West 2005).  This right necessarily includes the
right to reasonably effective assistance of counsel.  Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte
Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).  To prove ineffective
assistance of counsel, appellant must show that (1) trial counsel’s
representation fell below an objective standard of reasonableness, based on
prevailing professional norms; and (2) there is a reasonable probability that
the result of the proceeding would have been different but for trial counsel’s
deficient performance.  Strickland, 466 U.S. at 688B92.  Courts apply a strong
presumption that trial counsel was competent and presume that counsel’s actions
and decisions were reasonably professional and motivated by sound trial
strategy.  See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999);  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  
Standard of Review
            The trial court denied appellant’s motion for new
trial, which was based on allegations of ineffective assistance of counsel.  We
will not reverse the trial court’s denial of a motion for new trial absent an
abuse of discretion.  See Charles v.
State, 146 S.W.3d
204, 208 (Tex. Crim. App. 2004), superseded
in part on other grounds by Tex. R. App. P. 21.8(b),
as recognized in State v.
Herndon, 215 S.W.3d
901, 905 n.5 (Tex. Crim. App. 2007).  We do not substitute our judgment for that of the trial court;
rather, we decide whether the trial court’s decision was arbitrary or
unreasonable.  See id.  We view the evidence in the light most favorable
to the trial court’s ruling, deferring to its credibility determinations, and
we presume all reasonable factual findings that could have been made in support
of the trial court’s ruling.  See id.  A trial court abuses its
discretion in denying a motion for new trial only when no reasonable view of
the record could support its ruling.  See id.
Failure to Request Article 38.23 Instruction
Appellant complains that he received ineffective
assistance of counsel based on his trial counsel’s failure to request an article
38.23 instruction.  As noted, because there was no fact issue material to the
lawfulness of appellant’s detention and arrest, appellant was not entitled to
an instruction under article 38.23.  See Hardin v. State, 951 S.W.2d
208, 211 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (rejecting claim for
ineffective assistance when trial counsel failed to request article 38.23
instruction).  Appellant’s trial counsel’s failure to request an instruction to
which appellant was not entitled is not ineffective assistance.  See id.  We
conclude that the trial court did not abuse its discretion by denying
appellant’s motion for new trial regarding alleged ineffective assistance based
on counsel’s failure to request an article 38.23 instruction.  
Punishment Assessment Election
Appellant also asserts that his trial counsel was
deficient in electing that the trial court, rather than the jury, assess
appellant’s punishment.  This argument is based on a false premise because it
was appellant, rather than his counsel, who made this election.  Appellant’s
counsel arguably could have been ineffective in advising appellant regarding
this election or in failing to properly execute appellant’s election, but
appellant’s counsel could not have been ineffective in making an election that
was not his to make.    See Redmond v. State, 30 S.W.3d 692, 698 (Tex.
App.—Beaumont 2000, pet. ref’d).  When appellant made his election that the
trial court would assess punishment, appellant had a prior felony conviction
for possession of cocaine and four prior DWI convictions.  In addition, while
he was out of jail on bond awaiting trial for the DWI offense in the case under
review, appellant was arrested and charged with a sixth DWI offense.  Because
appellant was a habitual felony offender, the range of punishment he would face
upon conviction for his fifth DWI offense would be twenty-five years to
ninety-nine years’ confinement or confinement for life.  See Tex. Penal Code Ann. § 12.42(d) (West
2003).  
There were various affidavits before the trial court
regarding appellant’s motion for new trial, but appellant did not present any
testimony.  There was no testimony from appellant regarding his counsel’s
advice as to the punishment election or as to appellant’s decision as to who
should assess punishment.  The record does not reflect whether appellant
elected to have the trial court assess punishment based on his attorney’s
influence or advice.  
Appellant
presented three affidavits from lawyers who practice criminal law and who did
not represent appellant in the case under review.[3]  None of
these three lawyers stated that they were aware of the advice that appellant’s counsel
had given appellant regarding the punishment election, and these lawyers did
not analyze the reasonableness of this advice.  Instead, these lawyers opined
that they would not have elected to have the trial court assess punishment
because the visiting judge who was presiding over this case has a reputation
for not being lenient in sentencing.  These three lawyers also stated that, in
their opinion, it would be a “strategic error” to elect to have this
visiting judge assess punishment in a felony DWI case in which the client is
subject to a range of punishment from twenty-five years to ninety-nine years’
confinement or confinement for life.  Though they disagreed with trial
counsel’s strategic decision and believed it was erroneous, these lawyers did not
state that advising a client to elect punishment by the trial court under these
circumstances would fall
below an objective standard of reasonableness.  Even if these
lawyers had so testified, the trial court reasonably could have disbelieved the
testimony of these three affiants.  See Charles, 146 S.W.3d at 210–13; Clarke v. State, 305 S.W.3d
841, 848 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). 
            In another affidavit, appellant’s trial counsel
testified that he believed the trial court’s assessment of punishment at forty years’
confinement was fair based on the evidence and appellant’s criminal record. 
Counsel also testified that a major factor in the decision to have the trial
court assess punishment was that, while on bond for the DWI offense in the case
under review, appellant was arrested for another DWI offense.  Counsel stated
that he believed this extraneous offense would have had a highly prejudicial
impact on a jury assessing punishment and that it would have less impact on a
judge.  The
trial court was free to credit trial counsel’s testimony in this regard.  The
decision as to who should assess the punishment in any criminal case is usually
a matter of trial strategy.  See Ex parte Adams, 701 S.W.2d 257, 259 (Tex.
Crim. App. 1985).  The trial court reasonably could have concluded that
appellant did not overcome the strong presumption that trial counsel’s actions
and decisions were reasonably professional and motivated by sound trial
strategy.  See Thompson, 9 S.W.3d at 813.  The trial court reasonably
could have concluded that counsel’s representation did
not fall
below an objective standard of reasonableness, based on prevailing professional
norms. 
See Gill v. State, 111 S.W.3d 211, 215 (Tex. App.—Texarkana 2003, no
pet.).  We conclude that the trial court did not abuse its discretion by
denying appellant’s motion for new trial as to alleged ineffective assistance regarding
appellant’s election that the trial court assess punishment.  Accordingly, we
overrule appellant’s second issue.
The trial court’s
judgment is affirmed.
 
                                                                                    
                                                                        /s/        Kem
Thompson Frost
                                                                                    Justice
 
 
Panel consists of Justices Anderson,
Frost, and Brown. (Anderson, J., dissenting). 
Publish — Tex. R. App. P. 47.2(b).
 




[1] No
description, formal name, or location of “Central Intox” is in the record.


[2] Even if the
trial court had erred, we would conclude that appellant did not suffer
egregious harm.   


[3] Appellant also presented two other affidavits that did
not contain any testimony arguably relevant to the issue of whether his trial counsel’s representation fell below an objective
standard of reasonableness, based on prevailing professional norms.  
 


