Moreno, Albert v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Memorandum Opinion filed September 8, 2005

Affirmed and Memorandum Opinion filed September 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00245-CR

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ALBERT MORENO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 45,638

M E M O R A N D U M O P I N I O N

After a jury verdict finding appellant guilty of the offense of deadly weapon in a penal institution, the trial court sentenced appellant to confinement for 35 years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response, raising four issues.

Appellant first claims the indictment is void because it failed to charge the offense for which he was convicted. The indictment alleged that appellant possessed and concealed a deadly weapon, specifically Aa sharp piece of metal.@ Appellant asserts that at trial, the evidence showed appellant possessed a shank or prison knife, which he claims is broader and more general that a Asharp piece of metal.@ Thus, appellant appears to contend that the jury heard evidence of, and he was convicted of, a crime not alleged in the indictment.

The offense of deadly weapon in a penal institution requires proof that a person, while confined in a penal institution, intentionally, knowingly, or recklessly carries a deadly weapon or possesses or conceals a deadly weapon. Tex. Pen. Code Ann. ' 46.10(a) (Vernon 2003). The indictment in this case charged appellant as follows:

The GRAND JURY, for the County of Brazoria, State of Texas....upon their oaths present in and to said court that ALBERT MORENO, hereinafter styled Defendant, on or about the 14TH day of OCTOBER, 2002, and before the presentment of this indictment, in the County and State aforesaid, did then and there while confined in a penal institution, to wit: DARRINGTON UNIT of the Texas Department of Criminal Justice - Institutional Division, did then and there intentionally and knowingly and recklessly possess and conceal a deadly weapon, to-wit: A SHARP PIECE OF METAL.

Thus, the indictment alleged all the elements of the offense. A review of the testimony presented at trial reveals that a prison guard conducted a search of appellant=s cell (called a Ashakedown@) and found a piece of metal, approximately 7 inches long, with tape on one end, and a sharpened tip on the other end. More than one witness testified that a sharpened piece of metal, such as that involved in this case, is called a shank. Therefore, we find that the indictment clearly notified appellant of the offense with which he was charged. We overrule this issue.

In his second issue, appellant claims the State suppressed his attempt to offer exculpatory documents showing that possession of the weapon was necessary. Appellant submitted a proposed charge, which included an instruction on the law of necessity. The judge denied this request.

The defense of necessity is unavailable to a defendant, even if he establishes a reasonable belief that there was a need for a homemade knife, where the defendant fails to show that his own safety clearly outweighed the safety of numerous other inmates and employees sought to be protected by the statute prohibiting deadly weapons in penal institutions. Rios v. State, 1 S.W.3d 135, 137 (Tex. App.BTyler 1999, pet. ref=d). Appellant testified that he needed the weapon to protect himself from prison gangs. Thus, appellant presented evidence that the weapon was for his safety, but the record does not contain evidence proving that appellant=s safety clearly outweighed the safety of inmates and employees. Thus, we overrule issue two.

Appellant next asserts that there was legally insufficient evidence of a deadly weapon. A deadly weapon is defined as follows:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Pen. Code Ann. ' 1.07(a)(17) (Vernon Supp. 2004-05).

There was testimony from a correctional officer, Officer Moses, who found the item, that it was a piece of metal, about 7 inches long, sharpened to the end, with tape around one end, exposing 3-4 inches of blade. Officer Moses stated that the term in prison for an object like this is a shank. The piece of metal was admitted into evidence and a photo of that item is included in the record. The piece of metal looks like a knife, sharpened on both sides to a point, with tape wrapped around one end as a handle.

A former employee at the same correctional facility testified that he has seen items like this shank and that the purpose of these objects is to kill. This employee stated that he has seen killings at the facility involving shanks. Another witness, Gerald Larson, testified that he is retired from the Office of the Inspector General (previously called the Internal Affairs Division), but has worked in law enforcement since the 1960s. While with the Inspector General, Larson investigated felony charges that arose at several different correctional units. Larson testified that the shank in this case was very well-made, and that, in his experience, it is a weapon capable of causing serious bodily injury and death. Thus, the evidence admitted at trial was sufficient to support a finding that the sharpened piece of metal in this case constituted a deadly weapon.

Lastly, appellant raises ineffective-assistance claims against both his trial and appellate counsel. As to trial counsel, appellant contends counsel was ineffective because he did not file a pretrial motion to suppress. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-prong test to determine whether counsel is ineffective at the guilt/innocence phase of a trial. First, appellant must demonstrate that counsel's performance was deficient and not reasonably effective. Id. at 687. Second, appellant must demonstrate that the deficient performance prejudiced the defense. Id.

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. 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.1993).[1] 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.

In any case analyzing the effective assistance of counsel, we begin with the presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.App. 1994)(en banc). We assume counsel's actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is the appellant's burden to rebut this presumption via evidence illustrating why trial counsel did what he did. Id.

Appellant asserts that trial counsel was ineffective because he did not file a motion to suppress the shank, which appellant contends is not a deadly weapon. The record shows, however, that the shank was found during a routine cell Ashakedown,@ a legal search for contraband and weapons at the correctional facility. See Soria v. State, 933 S.W.2d 46, 60 (Tex. Crim. App.1996)(noting that, because a prisoner has no Fourth Amendment expectation of privacy in his cell, a shakedown search of a cell does not violate the Fourth Amendment or due process). Because the Ashakedown" search of appellant's cell was reasonable, there was no basis on which to file a motion to suppress the shank found during this search. Thus, appellant has not met his burden to show that trial counsel=s actions fell below a reasonable professional standard.

Appellant also claims his appellate counsel provided ineffective assistance by filing an Anders brief. We disagree. We have carefully reviewed the record, counsel=s brief, and appellant=s pro se response, and we agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. Thus, we find no merit to appellant=s claim of ineffective assistance.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 8, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] McFarland was overruled on other grounds in Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).