BOBBY RENO SCHNEIDER, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued May 18, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00106-CR
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BOBBY RENO SCHNEIDER, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F05-35236-PI
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OPINION
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice Morris
        At trial, a jury convicted Bobby Reno Schneider of unlawful possession of methamphetamine with intent to deliver. He complains on appeal that the trial court erred by overruling his motion to suppress and that he received ineffective assistance of counsel. We affirm the trial court's judgment.
Factual Background
        Police made contact with appellant and his nephew after an anonymous caller reported that people fitting their description could be found in a particular location. The caller claimed they possessed a large quantity of methamphetamine. A uniformed officer first approached appellant and the nephew in front of a house for sale, where they were digging through the garbage. The officer spoke to the men for a few minutes before a second officer arrived. She asked them what they were doing. Appellant seemed nervous and anxious, but his nephew did not. The men gave her their names and birth dates. She ran the men's identifying information through a database from her squad car as she waited for her backup officer to arrive.
        When her backup arrived, the original officer returned to appellant and asked him if he “had anything illegal on him.” Appellant said no. Then the officers asked appellant for consent to search his person and car. The officers claimed appellant consented to the searches. At the hearing on his motion to suppress the evidence from the search, appellant testified the officers never asked for consent. Appellant stated that he had an extensive criminal history and would never have agreed to a search. He contended he was “quite familiar with the law,” having been arrested numerous times and convicted on fourteen occasions.
        The backup officer searched appellant while the other officer searched his car. Appellant had a baggie of methamphetamine in his right front pocket. Inside the car, the officer found a syringe and baggies for packaging individual dosage units of methamphetamine.
        Appellant did not testify during the guilt-innocence phase of trial. His nephew testified for the defense that he and appellant were going through the trash because it “[l]ooked like there was some good stuff in there.” He claimed that before that time he had not observed any drugs or drug paraphernalia on appellant. According to the nephew, appellant put something in his pocket from the trash, but the nephew did not know what it was. They threw other potentially valuable items from the trash inside the car.
        According to the nephew, when the police arrived at the scene, they took identification from appellant and him, then sat appellant down on the curb. Afterward, according to the nephew, the police searched him, appellant, and the car.
Discussion
        In his first issue, appellant contends the trial court erred by overruling his motion to suppress. He specifically argues his detention was not supported by a reasonable suspicion. He further contends that if the interaction was merely an encounter or an investigative detention supported by reasonable suspicion, the search exceeded the purpose of the stop.   See Footnote 1 
        We review a trial court's ruling on a motion to suppress for an abuse of discretion under a bifurcated standard of review. See Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We give almost total deference to the trial court's rulings on questions of historical fact, but we review de novo a trial court's application of search and seizure law. Id. at 768. At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
        Here, the undisputed evidence showed appellant was digging through the trash on a street curb when the original officer approached, asked him for identifying information, and asked what he was doing. She returned to her squad car to check appellant's identification before the second officer arrived at the scene. She was with him for a “few minutes” before she and the other officer requested permission to search appellant's person and car.
        A seizure does not occur simply because a police officer approaches an individual and asks him a few questions. Florida v. Bostick, 501 U.S. 429, 434 (1991). So long as a reasonable person would feel free to disregard the officer and go about his business, the encounter is consensual and will not trigger Fourth Amendment protection. Id. Even when officers have no basis for suspecting a particular individual, they may ask the individual general questions, ask to examine their identification, and request consent to search their belongings, so long as the police do not convey a message that compliance with their requests is required. See id. at 434-435. The issue is whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter. State v. Velasquez, 994 S.W.3d 676, 679 Tex. Crim. App. 1999 (citing Bostick, 501 U.S. at 440).
        “Consensual encounter” is, of course, a relative term. As the court of criminal appeals has noted, even an innocent person's pulse might race when a police officer identifies himself and begins asking questions. See id. at 679. But the Constitution “does not guarantee freedom from discomfort.” Id. Instead, the test is whether is a “reasonable person” would feel free to terminate the interview. Id.
        In this case, appellant was digging through the trash on the side of the road. He had a car nearby. The original officer spoke to him for a “few minutes” before he consented to the searches. We conclude the interaction between appellant and the police was a consensual encounter. And we defer to the trial court's finding that the officers were more credible than appellant on the issue of consent to the searches. The trial court did not abuse its discretion in denying the motion to suppress. We resolve appellant's first issue against him.
        In his second issue, appellant complains he received ineffective assistance of counsel because his trial attorney failed to request a jury instruction on article 38.23(a) of the Texas Code of Criminal Procedure. That statute provides:
 
        No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
        In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provision of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
 
Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).
        We evaluate claims of ineffective assistance of counsel under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate the claim's merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance. See id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before an appellate court may deem counsel ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001)).
        Appellant now contends trial counsel should have requested an article 38.23(a) instruction because appellant testified he did not consent to the searches. But this testimony was elicited during the hearing on the motion to suppress outside the presence of the jury. The jury never heard testimony from appellant claiming he did not consent to the searches. Appellant further claims the nephew's testimony raised the issue of consent. In fact, the nephew merely testified that the officers searched appellant and him. He never testified on the issue of consent to search. Accordingly, no fact issue pertaining to consent was raised at trial requiring the court to instruct the jury on the legality of the search.
        Moreover, we do not know from this record why counsel chose this strategy for appellant's defense following the denial of the motion to suppress. Perhaps counsel felt that a 38.23 argument would detract from his strategy of arguing appellant would never have agreed to a search if he knew he actually possessed methamphetamine. During jury argument, counsel specifically discussed the possibility that appellant had accidentally turned up the methamphetamine in the trash and had not realized he had it.
        Because no fact issue on consent was raised before the jury and because the record contains no evidence explaining counsel's failure to pursue a trial defense that would have justified an article 38.23 instruction, we cannot conclude counsel's performance was deficient. See Ramirez v. State, 76 S.W.3d 121, 128 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). Appellant has failed to meet his burden. We therefore resolve his second issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060106F.U05
 
Footnote 1 Appellant relies on testimony adduced during the guilt-innocence phase of trial to support his argument that the motion to suppress should have been granted. In particular, appellant cites the nephew's testimony that the original officer took their identification cards and required appellant to sit on the curb and the backup officer's testimony that he was at the scene for at least thirty minutes. Because this evidence was not before the court at the time of its ruling, we will not consider it.