Jackson v. State

• Decision Date: 11 April 1996
• Docket Number: No. 14-94-00689-CR,14-94-00689-CR
• Citation: 921 S.W.2d 809
• Parties: Demetrius JACKSON, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 809

921 S.W.2d 809

Demetrius JACKSON, Appellant, v. The STATE of Texas, Appellee.

No. 14-94-00689-CR.

Court of Appeals of Texas Houston (14th Dist.).

April 11, 1996.

Rehearing Overruled May 30, 1996.

Paul Hilbert, Houston, for appellant.

Scott A. Durfee, Houston, for appellee.

Before MURPHY, C.J., and AMIDEI and ANDERSON, JJ.

OPINION

AMIDEI, Justice.

This is an appeal by appellant, Demetrius Jackson, from a conviction of felony possession of cocaine in an amount of less than 28 grams. TEX.HEALTH & SAFETY CODE ANN. § 481.115 (Vernon 1989 & Supp.1993) ¹. A jury found appellant guilty and the trial court sentenced him to twenty-five years imprisonment, enhanced by two prior felony convictions. In two points of error, appellant contends, (1) the trial court erred in not suppressing the cocaine found upon his person due to an illegal arrest, and (2) he was denied effective assistance of counsel. We reverse and remand.

On the morning of November 2, 1993, Deputy Henry Goss of the Harris County Sheriff's Department was patrolling his assigned area in the northern part of Harris County. Goss observed appellant standing on the curb in front of a house described by Goss as "a drug or crack house." The house appeared abandoned; it was dilapidated, the windows were boarded up with plywood and the front door was missing. When appellant saw Goss approach in his patrol car, appellant made an abrupt move and stuck something into the waistband of his pants, then turned and ran into the house.

Officer Goss stopped his patrol vehicle, got out and chased appellant into the house. About ten feet into the house, appellant turned around and put his hands up. Goss then conducted a pat-down of appellant and found a crack pipe in the waistband of appellant's pants. The pipe was still hot and it tested positive for cocaine.

In appellant's first point of error he claims that the trial court erred in not suppressing the cocaine sua sponte. Appellant claims the arrest was illegal and, therefore, the cocaine should not have been admitted.

At the trial, appellant affirmatively stated that he had no objections to the admission of this evidence. By not objecting to the admission of this evidence, appellant has waived any error as to its admission. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App.1992), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). We overrule appellant's point of error number one.

The appellant's second point of error is that he was denied effective assistance of counsel. Appellant claims his counsel was ineffective for failing to file a motion to suppress the crack pipe because his arrest was illegal. He also claims that counsel was ineffective because he did not request the court to rule on the issues of suppression at the time of trial. Trial counsel did not argue illegal arrest to the jury nor request a jury instruction on illegally obtained evidence or on illegal detention.

A defendant in a criminal case is entitled to reasonably effective assistance of counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1986); Ex parte Duffy, 607 S.W.2d 507, 513 (Tex.Crim.App.1980). Texas follows the federal standard enunciated in Strickland v. Washington in deciding whether a defendant has received effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that standard, a defendant must show: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense. Essentially, appellant must show that: (1) counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) that 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 defined as a probability sufficient to undermine confidence in the outcome. Miniel v. State, 831 S.W.2d 310, 323 (Tex.Crim.App.1992), cert. denied, 506 U.S. 885, 113 S.Ct. 245, 121 L.Ed.2d 178 (1992).

Judicial scrutiny of counsel's performance must be highly deferential. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. An ineffectiveness claim cannot be demonstrated by isolating one portion of counsel's representation. McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App.1992), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). Therefore, in determining whether the Strickland test has been met, counsel's performance must be judged on the totality of the representation. Strickland, 466 U.S. at 670, 104 S.Ct. at 2056. The defendant must prove ineffective assistance of counsel by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984).

Appellant argues that, had the crack pipe not been in evidence, he would have been entitled to a verdict of not guilty. We agree that without evidence of the cocaine, appellant would have been entitled to a finding of not guilty.

The record before us is devoid of facts that would establish conclusively the validity of the search and seizure in this case. The record does not show whether appellant was arrested with or without a warrant. Officer Goss testified that he was on routine patrol in District 2. His duties were to make calls and traffic stops. He was driving west in the 6100 block of Hartwick at about 10:00 a.m. and observed appellant standing just off the curb in front of a house that was boarded up and missing a front door, and which appeared to be an abandoned house. Photographs of the house indicate that the area was a residential area. He testified that appellant was standing in front "of what is known to be a drug house or a crack house." Counsel for appellant objected to the characterization of the house as a drug or crack house and the court sustained the objection but counsel failed to ask that the jury be instructed to disregard the officer's statement.

When appellant saw the officer's car approaching him he made an "abrupt move and stuck something into the waistband of his pants." Appellant ran into the house and the officer followed. Appellant stopped in the house, turned around, and put up his hands. The prosecutor asked the officer what happened after appellant turned around and the officer stated, "I approached him and I patted him down for weapons or contraband." The prosecutor then asked him what he discovered after patting appellant down and the officer replied, "I found a silver colored crack cocaine pipe in the waistband of his pants." On re-direct examination, the prosecutor asked the officer why he patted appellant down and the officer again replied, "I patted him down for weapons or contraband." The prosecutor asked him why he thought appellant had a weapon and the officer replied, "... because of the overt move he made when he saw me." Counsel for appellant did not object to the introduction of the crack pipe into evidence. His cross-examination of the officer was limited to where the officer arrested appellant, whether there were other officers present, and whether he was aware of a young female on the premises. Counsel for appellant did not question the officer about the specific details of the search of appellant for "weapons or contraband," question the officer as to why he suspected a weapon under these circumstances or inquire if the officer feared for his personal safety.

Appellant's trial counsel called one witness, a Cassandra Carr, who was a convicted felon. She testified that she was taking a nap in the bedroom of the abandoned house. When she awoke she saw two officers in the yard and appellant sitting in a police car. The record is unclear what counsel was trying to prove concerning appellant's arrest other than Carr's presence. She testified she knew appellant and that the officers were talking to appellant while he was in the car. She referred to the house as "my house," but the record does not establish ownership.

Appellant's trial counsel did not ask for a jury instruction on illegally obtained evidence or illegal detention, which would have been authorized by Article 38.23, Texas Code of Criminal Procedure. He did not argue to the jury that such a search and seizure was illegal and did not file a motion for new trial. His argument to the jury seemed to concern the fact that Officer Goss did not name the second officer in his report nor did he identify Cassandra Carr; therefore, there was reasonable doubt as to appellant's guilt.

From the facts, it is apparent that the officer had no probable cause for a warrantless arrest and presumably had no warrant. However, from the facts, it would appear he would have been justified in making an investigative detention, or Terry ² stop. Circumstances short of probable cause may justify temporary detention for the purpose of investigation. Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983). An investigatory stop is justified if a police officer, based upon specific and articulable facts, reasonably concludes the detained person may be associated with a crime. Davis v. State, 829 S.W.2d 218 (Tex.Crim.App.1992) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). For a Terry stop to be valid, (1) the officer must have a reasonable suspicion that some activity out of the ordinary is occurring; (2) there must be some suggestion to connect the detained person with the unusual activity; and (3) there must be some indication that the activity is related to a crime. Johnson, 658 S.W.2d at 626.

Appellant cites Gurrola v. State, 877 S.W.2d 300 (Tex.Crim.App.1994), as authority and as being applicable here. We disagree. In Gurrola, an officer on routine patrol was stopped by an unknown informant (citizen) who...