Broussard v. State

• Decision Date: 10 January 2002
• Docket Number: No. 01-00-01102-CR.,01-00-01102-CR.
• Citation: 68 S.W.3d 197
• Parties: Reginald V. BROUSSARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

68 S.W.3d 197

Reginald V. BROUSSARD, Appellant, v. The STATE of Texas, Appellee.

No. 01-00-01102-CR.

Court of Appeals of Texas, Houston (1st Dist.).

January 10, 2002.

Brett E. Dressler, Weitinger & Dressler, Houston, for Appellant.

Bridget Holloway, Asst. Dist. Attorney-Harris County, Houston, for State.

Panel consists of Justices COHEN, BRISTER,^* and SMITH.^**

EN BANC OPINION

SCOTT BRISTER, Justice.

When a convicted criminal asserts that his counsel was ineffective, "only in rare cases will the record on direct appeal be sufficient for an appellate court to fairly evaluate the claim." Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App.2000). Because we do not believe this is one of those rare cases, we affirm.

Background

Based on a tip that appellant Reginal Broussard was selling narcotics from his home, Houston Police Officer Stephen Kwiatkowski obtained an arrest warrant for him and a search warrant for his home. That evening, Kwiatkowski led seven other officers in executing the warrants. They entered the home using a battering ram to force open the front door. According to the officers, after conducting a brief search and finding only Broussard's wife in the house, they postponed further search until he arrived.

Broussard drove up about twenty minutes later. While one of the officers detained him outside his car, Officer Kwiatkowski approached and saw a small rock on the car's console. The rock proved to be cocaine weighing .306 grams.

Upon returning to the house to assist in the search, Officer Kwiatkowski found a clear plastic bag containing another rock on a nightstand in the couple's bedroom. This rock also proved to be cocaine weighing.932 grams. The only other products of the search were $900 and a trace amount of cocaine residue found in a metal box in a small safe,¹ and $988 found on Broussard.

At trial, Broussard's sole witness was his wife, who testified that (1) the officers searched the house extensively before Broussard came home, but never mentioned finding any money or cocaine, (2) she saw no cocaine in the bedroom or in the car before the officers came, and (3) the metal box was not in the safe and did not contain money. Broussard's counsel argued throughout the trial that Officer Kwiatkowski planted the evidence used to convict Broussard.

The jury found Broussard guilty of possessing between one and four grams of cocaine, and the trial court assessed punishment of three years in prison. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .115(a), (c) (Vernon Supp. 2002).

Broussard's Counsel

In issue one, Broussard claims his trial counsel should have moved to suppress the cocaine found in his home because the officers failed to knock and announce their presence before entering. See Wilson v. Arkansas, 514 U.S. 927, 929, 934, 115 S.Ct. 1914, 1915, 1918, 131 L.Ed.2d 976 (1995). While we would not characterize such a motion as a "hands-down" winner,² we cannot address the ineffectiveness question because of the state of the record.

Although Broussard filed a motion for new trial asserting ineffective assistance of counsel, he never raised the ground he now asserts on appeal. Thus, the record is silent as to why his counsel might have acted as he did. In such circumstances, our duty is clear—we must presume counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). The Court of Criminal Appeals has repeatedly held that without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective. See Chuong Duong Tong v. State, 25 S.W.3d 707, 714 (Tex.Crim.App.2000) (holding that "without some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design"), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001); see also Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999); Jackson, 877 S.W.2d at 771.

Broussard's Dilemma

Although our review should end here, we write briefly to respond to our colleagues' dissent. In a well-researched opinion, the dissent catalogues a long list of recent cases in which Texas intermediate appellate courts have found counsel ineffective despite a silent record. We agree with the Court of Criminal Appeals (it would hardly matter if we did not, as it is the superior court) that questions of ineffective assistance are better addressed in a postconviction application for a writ of habeas corpus.³ Nevertheless, we indulge in a bit of speculation to suggest why Broussard's counsel might not be as uninformed as the dissent suggests.

The dissent opines that no trial strategy could explain why Broussard's counsel failed to file a motion to suppress based on the failure to knock and announce. It is true such a motion, if successful, would have dropped the amount of cocaine below one gram, and thus decreasing his punishment in this case. But this was not Broussard's only case.

At the time of trial, Broussard still had three years to serve on parole for two previous convictions for possession of cocaine.⁴ During the punishment phase, he admitted knowing his parole might be revoked if he was convicted. Thus, he had more on his mind than reducing a third degree felony to a state jail felony—if he was found guilty of anything, he was going back to prison. It is perfectly plausible that Broussard could have decided to risk a stiffer sentence in this case⁵ for the possibility of getting none at all.

But how to do that? There was no dispute the substance in both Broussard's car and home was cocaine, and there was little hope of proving it belonged to someone else. Broussard's only possible defense was that the cocaine had been planted in both locations by Officer Kwiatkowski. In his closing argument, defense counsel pointed out that four other officers searched the house and one other approached the car, but only Kwiatkowski spotted cocaine in either place. Given this defense strategy, Broussard's counsel could have decided he needed to show that Kwiatkowski found cocaine everywhere he looked. If only Kwiatkowski saw cocaine when other officers were present, better for the defense if this happened not once but twice.

Additionally, Broussard had good reason to emphasize the aggressive conduct of the police under Kwiatkowski's direction— eight officers wearing bulletproof vests battering down the door of his home only to find no one inside but his innocent wife. The officers' presence inside for an extended period of time before he arrived supported his theory that incriminating evidence was planted. If this cocaine were suppressed, the defense would need to explain why, despite this golden opportunity, Kwiatkowski chose to plant cocaine only outside in the car. If the dissent's hypothetical motion to suppress had been granted, Broussard's rogue-cop theory would have been less tenable.

Finally, reasonable trial counsel might have had one more concern about suppressing this evidence. Having heard about the search warrant and entry of Broussard's home, the jury would have been left to guess what, if anything, the officers found. Jurors are not unaware of the exclusionary rule, and some have strong feelings against it. Reasonable trial counsel might fear that, instead of assuming the officers found nothing, some jurors might assume they found far more drugs than in fact was the case. Reasonable trial counsel might fear some jurors would allow their suspicions about what was found (but suppressed) to affect their judgment about Broussard's guilt. This would have been improper, but that misses the point—in planning trial strategy, experienced attorneys often take into consideration what jurors shouldn't do, but might.

The dissent criticizes the first of these possible strategies because it is inconsistent with a motion to suppress Broussard's counsel did file four months before trial. First, we question the assumption that, to be effective, an attorney's strategies must always be consistent. Second, the dissent recognizes our hypothetical presents a reasonable trial strategy, arguing only that it was not this attorney's trial strategy. This is asking too much from an undeveloped record. Without evidence or a hearing, we need only suggest why trial counsel might have acted competently; it is Broussard's burden to prove that he did not.

Again, we concede that our speculations may be wrong. It is possible defense counsel had other reasons for not raising the knock-and-announce rule in his motion to suppress. It is possible, as the dissent argues, he didn't know he could. We simply cannot tell. Broussard must raise his claims by applying for a writ of habeas corpus, so that all the facts can be heard and considered.

We overrule issue one. The discussion of the issues two through five does not meet the criteria for publication set forth in Texas Rule of Appellate Procedure 47.4. Accordingly, the remainder of the opinion is not designated for publication.

We affirm the judgment of the trial court.

Justice BRISTER dissented from the panel's decision to reverse the trial court's judgment.

En Banc consideration was requested.

A majority of the Court voted for en banc consideration of the panel's decision. See id.

Justice COHEN, dissenting from the decision on en banc consideration, joined by Justice SMITH.

Justice JENNINGS, concurring with the decision on en banc consideration. See id.

We affirm the judgment of the trial court.

TERRY JENNINGS, Justice, concurring with decision on en banc consideration.

Although it is true that ineffective assistance of counsel may be shown on direct appeal without evidence of counsel's trial strategy in "rare" cases, this is not one of those "rare" cases. Here, appellant simply failed to prove by a preponderance of the evidence that his trial counsel was ineffective. See Thompson v. State, 9 S.W.3d 808, 813...