Ex parte Moore
| Decision Date | 10 April 2013 |
| Docket Number | No. AP–76817.,AP–76817. |
| Citation | 395 S.W.3d 152 |
| Parties | Ex Parte Darron T. MOORE, Applicant. |
| Court | Texas Court of Criminal Appeals |
OPINION TEXT STARTS HERE
David Crook, Lubbock, TX, for Appellant.
Jeffrey S. Ford, Assistant Disrict Attorney, Lubbock, TX, for the State.
Applicant was convicted of possession of a controlled substance and was sentenced to ninety-nine years' imprisonment. His conviction was upheld on direct appeal. Moore v. State, No. 07–09–0276–CR, 2010 WL 1782276, 2010 Tex.App. LEXIS 3312 (Tex.App.–Amarillo May 4, 2010) (memo. op., not designated for publication). Applicant's petition for discretionary review was denied by this Court. Applicant now files this application for writ of habeas corpus claiming that he was denied effective assistance of trial counsel when trial counsel failed to preserve the issue of the validity of the search warrant for appellate review. The trial court entered findings of fact and conclusions of law recommending that we deny relief. Relief is denied.
Applicant was arrested on December 8, 2006, during the execution of a search warrant on Room 25 of the Sunset Motel located at 2305 Clovis Road, Lubbock, Texas. The search resulted in the seizure of cocaine base and marijuana. Applicant was indicted for the offense of possession with intent to deliver cocaine in an amount of between 4 and 200 grams.
The affidavit in support of the search warrant stated the following, in pertinent part:
6. The target of this investigation is a black male known as “Dizzy”, who resides at 2305 Clovis Road, Room number 25, Lubbock, Lubbock County, Texas based on the information set forth herein below.
* * *
The Affiant believes the Confidential Source (CS), referred to in this affidavit to be truthful. The below listed CS's have provided information in the past that has proven to be true and correct, and the information provided has been corroborated through surveillance, record checks, and other law enforcement officers.
Affiant has learned through his tenure as a DEA Task Force Officer in Lubbock, Texas, as a Lubbock Police Officer, through Confidential Sources, Sources of Information, and other law enforcement officers that “Dizzy” and “Nookie” are distributors of cocaine base in the Lubbock, Texas area. Within the past seventy-two hours, that above listed confidential informant has observed a quantity of cocaine base inside of the listed motel room. The confidential informant is able to recognize cocaine base and other controlled substances.
The Above referenced confidential informant has given information in the past on at least five occasions that has been proven to be credible and reliable. Affiant believes the informant to be credible and reliable base[d] on the past performance of the confidential informant.
* * * Based on information contained within this Affidavit, and based on my training, education, and experience, Affiant believes that “Dizzy” and “Nookie” are distributors of cocaine base in the Lubbock, Texas area and that “Dizzy” and “Nookie” utilize this building for the purpose of concealing his proceeds and cocaine base.
Due to these factors, Affiant asks for the issuance of a warrant that will authorize him to search said premises for potential contraband.
Applicant filed a motion to suppress alleging that all evidence obtained during the search of the motel room should be suppressed because the search violated his constitutional and statutory rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I, Section 9, of the Texas Constitution; and Article 38.23 of the Texas Code of Criminal Procedure. Specifically, Applicant argued that the search warrant used to obtain the evidence in the case was improper because (1) the search warrant affidavit did not reflect sufficient probable cause to justify the issuance of a search warrant because it lacked sufficient underlying circumstances to permit the conclusion that the contraband was at the location where it was claimed to be and failed to establish the credibility of the confidential informant; (2) the search warrant affidavit did not show probable cause sufficient to justify the issuance of the search warrant because there was no substantial basis for concluding that probable cause existed; (3) the information contained in the search warrant affidavit was stale; and (4) the issuing magistrate was misled by information in the affidavit that the affiant officer knew was false or would have known was false but for his reckless disregard for the truth.
At the pretrial hearing on the motion to suppress, the only witness to testify was Agent Dwayne Gerber, a Lubbock Police Department officer assigned to the Drug Enforcement Administration (DEA) Task Force. Gerber testified that he prepared the search warrant affidavit on December 8, 2006. He stated that the confidential informant, who he believed to be reliable, observed narcotics within the motel room within the preceding seventy-two hours and that Gerber used the information as support for his request for the issuance of a warrant. Gerber explained that the search warrant is based on the facts that are within the affidavit. He also acknowledged that “the only data that is specific with the exception of the room number and numerals and how the building looks, as far as facts and circumstances is that the confidential informant had been in there within 72 hours.” Regarding the search executed in the motel room, Gerber stated that he seized the two bags of contraband from the toilet. $120 was also located in the room, but it was not seized.
The trial court denied the motion to suppress:
During the guilt phase of trial, a forensic chemist for the DEA testified about his analysis of the drugs found in the motel room during the execution of the search warrant. When the State offered that contraband into evidence, defense counsel stated, “No objection.” After hearing all of the evidence, the jury found Applicant guilty of the lesser-included offense of possession of cocaine in an amount of between 4 and 200 grams, and he was subsequently sentenced to ninety-nine years' imprisonment.1
On direct appeal, the Amarillo Court of Appeals upheld Applicant's conviction. Moore, 2010 WL 1782276, 2010 Tex.App. LEXIS 3312. The court overruled Applicant's argument that “the trial court should have suppressed the evidence found as a result of execution of the search warrant” because Applicant waived any such complaint when he said “no objection” at the time the evidence was offered. Id. 2010 WL 1782276, at *2, at *5. Applicant's petition for discretionary review was denied by this Court.
On October 25, 2011, Applicant filed this pro se application for writ of habeas corpus, in which he complains of two instances of alleged ineffective assistance of trial counsel. Applicant asserts that trial counsel was ineffective for not preserving for appellate review the denial of a motion to suppress.2
The State filed a response to Applicant's writ application, in which the State argued that prejudice had not been shown for two reasons. First, the State maintained that Applicant did not allege any facts establishing that he had a reasonable expectation of privacy in the motel room, so his claim should not be addressed on the merits. Second, the State argued that “[t]he search warrant affidavit supported issuance of a search warrant, given that the affidavit alleged sufficient, specific facts showing probable cause to believe that there were drugs located within the motel room.”
Subsequently, trial counsel filed an affidavit. He stated, Trial counsel also stated, “I do believe the warrant to be invalid and hope that my client would not be punished further for my mistake.”
Following receipt of the State's response and trial counsel's affidavit, the trial court entered findings of fact and conclusions of law, recommending that relief be denied because ineffective assistance of counsel had not been shown. The court found that counsel's performance was deficient because “[i]t was not a matter of trial strategy for trial counsel not to object to the evidence that had previously been the subject of a pretrial motion to suppress.” However, the court determined that prejudice had not been shown. It explained that it had Therefore, the trial court concluded that “[e]ven if the issue had been preserved for appellate review, it would have been denied by the appellate court because the denial of the motion to suppress did not constitute an abuse of discretion.”
The writ application and accompanying documents were received by this Court, and on June 13, 2012, we ordered this application to be filed and set for submission. Ex parte Moore, No. AP–76,817, 2012 WL 2133705, 2012 Tex.Crim.App. Unpub. LEXIS 599 (Tex.Crim.App. June 13, 2012) (). Applicant's motion to expand the habeas record with objections was also granted. We ordered the parties to brief the following issue:
Whether Applicant was denied effective assistance of trial counsel when counsel filed and argued, before trial, a motion to suppress evidence obtained from a search conducted pursuant to a warrant,...
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