Lupe S. Morales, Jr. v. The State of Texas--Appeal from 365th Judicial District Court of Maverick County

No. 04-98-00125-CR
Lupe S. MORALES, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 97-09-04821-CR
Honorable Amado Abascal, III, Judge Presiding

Opinion by: Alma L. L pez, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 23, 1998

AFFIRMED

The question before the Court is whether the Appellant, Lupe S. Morales, Jr., received effective assistance of counsel at the pre-trial hearing on Appellant's motion to suppress and at the guilt/innocence phase of trial. The Appellant has not shown that trial counsel's assistance was so ineffective that Morales was precluded from receiving a fair trial. For the reasons stated in this opinion, we affirm.

FACTUAL BACKGROUND

Morales was riding as a passenger in a green 1975 Ford LTD driven by Efrain Bustos. They arrived at the Eagle Pass port of entry from Mexico on February 25, 1997. Canine enforcement officer, Martin Contreras, and his dog, Hollywood, were performing pre-primary sweeps for narcotics of vehicles at the port of entry. A pre-primary sweep for narcotics consists of the dog being walked along the side of the vehicles in order to detect the presence of drugs. During this pre-primary sweep the dog immediately alerted the inspector to an area underneath the vehicle. Morales and Bustos were escorted to a secondary holding area, while an officer drove the car into the second area for a more intensive search. All personal belongings were taken from the vehicle and placed on a table prior to an intensive search of the vehicle. During the vehicle search, a trap door was found behind the back seat, which contained 63 pounds of marijuana. Upon inspection of the personal belongings, customs official, Juanita Flores, found an additional 19 grams of marijuana in a bag. Prior to the inspection, Morales told Ms. Flores that the bag, which contained the marijuana, belonged to him. Morales was tried and convicted of the offense of second degree possession of marijuana of 2,000 pounds or less, but more than 50 pounds. See Tex. Health & Safety Code Ann. 481.121 (a)(b)(5) (Vernon Supp. 1998). Morales was found guilty of the offense charged in the indictment and the jury assessed punishment at imprisonment for 25 years and imposed a fine of $2,500.00. Morales is appealing this conviction and sentence.

STANDARD OF REVIEW

The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution guarantee the right to effective assistance of counsel. The effectiveness of retained and appointed counsel are both judged by the same standard. See Johnson v. State, 614 S.W.2d 148, 149 (Tex. Crim. App. 1981). The correct standard of review when an accused claims ineffective assistance of counsel is the Strickland two-prong test. Strickland v. Washington, 466 U.S. 686 (1984). The appellant must show that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. See id.; Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). The Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Ybarra v. State, 890 S.W.2d 98, 112 (Tex. App.--San Antonio 1994, pet. ref'd). The issue is to be judged by the totality of the representation rather than by isolated acts or omissions of trial counsel. See Ex parte Raborn, 658 S.W.2d 602, 605 (Tex. Crim. App. 1983).

DISCUSSION

Morales contends that trial counsel rendered ineffective assistance at the pre-trial hearing on his motion to suppress and at the guilt/innocence phase of trial. Morales must prove ineffective assistance of counsel by a preponderance of the evidence. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Morales maintains that counsel's failure to distinguish the differences between the federal and state exclusionary rule indicate trial counsel's ineffectiveness. A search upon entry into the United States at a port of entry is a well-established exception to the warrant requirement for a search. The United States Supreme Court has held that a border search exception applies to the Fourth Amendment probable cause doctrine under federal law. See United States v. Montoya de Hernandez, 473 U.S. 531, 537-538 (1985). Morales contends that the statement made by customs official, Juanita Flores, that the bag containing 19 grams of marijuana belonged to him was inadmissable under the provisions of article 38.23 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. Art. 38.23(a) (Vernon Supp. 1998). Article 38.23(a) states that "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." See id. In this regard, Congress has granted the executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. See United States v. Ramsey, 431 U.S. 606, 616-617 (1977). With reference to an admission that the bag was his, Morales asserts that trial counsel should have obtained a written order to determine whether any written or oral statements existed. Morales has not shown that such an order would have kept the statement from coming before the jury.

Morales's argument as to trial counsel's ineffectiveness is based on the failure to object to the admission of the statement. Isolated acts or omissions of trial counsel viewed through the hindsight of the Appellant are not sufficient to meet Appellant's burden on the ineffective assistance claim. See Ybarra v. State, 890 S.W.2d 98, 112 (Tex. App.--San Antonio 1994 pet. ref'd). Counsel's performance is judged on the totality of counsel's representation. See id. Morales has failed to show that the statement would have been inadmissible and, therefore, failed to meet the first prong of the Strickland test.

In order to meet the second prong of the Strickland test, Morales is required to prove that the harm identified presents a reasonable probability that, but for counsel's deficient conduct, the jury's verdict would have been different. See Hernandez v. State, 726 S.W.2d 53, 59 (Tex. Crim. App. 1986). Morales was a passenger in the vehicle as it entered the port of entry. The contraband was concealed in the vehicle. Morales and his co-defendant, Bustos, appeared to be so nervous they became suspect to the customs inspectors. The jury was capable of weighing the credibility of the witnesses and reasonably concluding from the facts that Morales knowingly possessed the marijuana with the co-defendant. Morales has not proven by a preponderance of the evidence that the testimony of Ms. Flores concerning his admission, if suppressed, would have changed the jury's decision. The fact that another attorney might have pursued a different course of action at trial will not support a finding of ineffectiveness. See Banks v. State, 819 S.W.2d 676, 681 (Tex. App.--San Antonio 1991, pet. ref'd). Morales has failed to show that he received ineffective assistance of counsel.

CONCLUSION

Appellant's point of error is overruled and the judgment is affirmed.

Alma L. L pez, Justice

DO NOT PUBLISH

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