Reynaldo Ybarra Zamora a/k/a Enrique Jimenez Mata v. The State of Texas--Appeal from 365th Judicial District Court of Maverick County

MEMORANDUM OPINION
No. 04-02-00559-CR
Reynaldo YBARRA-ZAMORA a/k/a Enrique Jimenez-Mata,
Appellant
v.
The STATE of Texas,
Appellee
From the 365th Judicial District Court, Maverick County, Texas
Trial Court No. 92-12-04091
Honorable Amado Abascal III, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green , Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: April 2, 2003

AFFIRMED

Defendant Reynaldo Ybarra-Zamora was convicted of possession of marijuana and sentenced to twelve years' confinement and fined ten thousand dollars. On appeal, defendant contends that his constitutional and statutory rights were violated when the Border Patrol stopped his vehicle, searched him, and later arrested him without a search warrant and that his trial counsel was ineffective. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. 47.4. We affirm.

Statement of Facts

On July 1, 1992, two border patrol agents were on duty to patrol Highway 277 South going to Carrizo Springs and Highway 57 leaving Eagle Pass towards San Antonio. The agents decided to check out if there was any smuggling activity occurring at Mr. B's, a local truck stop that is frequently used by smugglers. When the agents drove by Mr. B's that morning, they noticed two women, later identified as Denise Marie Perez and Connie Jean Rangel, sleeping in a vehicle in the parking lot. After noticing the vehicle, the agents then ran a check on the license plate of the car and discovered that the car was registered in Austin, Texas. Because of the origin of the license plate, the agents decided to watch the vehicle.

After a while, the agents approached the women and woke them up by tapping on the glass of the car. After asking the women why they were sleeping in their vehicle, they replied that they were on their way back to Austin, but got tired and decided to sleep in their car. Because the agents believed their response was suspicious, they continued to watch the vehicle. Around 6:00 a.m., the two agents observed a male, later identified as the defendant, driving a dark colored Mustang. Defendant apparently drove up to the women's vehicle, spoke with them, and then left in the direction of Carrizo Springs. Approximately five to ten minutes later, the agents saw defendant return to speak with the two women. This sparked the agent's interest because it is common for smugglers to use a person to scout for border patrol agents in the area.

After defendant finished his discussion with Perez and Rangel, he drove out again on Highway 277 and then Perez and Rangel followed him in their car. Because Perez and Rangel had previously told the agents they were returning to Austin, rather than continuing to Carrizo Springs, they decided to stop both vehicles to run an immigration check. The agents first stopped defendant and asked him his citizenship. After stating that he was a United States citizen, the agents asked to search his vehicle, to which he consented. When the agents found nothing in his car, they released him. After releasing the defendant, the agents pursued Perez and Rangel. When they stopped the women's vehicle, they performed an immigration check and asked to search the vehicle. The women consented to the search, which resulted in the discovery of approximately thirty pounds of marijuana underneath the hood of the car. The agents then arrested the two women. As the agents were arresting Perez, she told the agents that the marijuana did not belong to her or Rangel but to defendant. Defendant was subsequently arrested and charged with possession of marijuana.

Search and Seizure Violations

In his first issue, defendant contends that his conviction should be set aside because the Border Patrol searched and arrested him without a warrant, in violation of articles 1.06 of the Texas Code of Criminal Procedure and the Fourth and Fourteenth Amendments to the United States Constitution. Defendant also complains that his rights, protected by article 38.23 of the Texas Code of Criminal Procedure and Article 1, section 19 of the Texas Constitution, were violated because the evidence, which was illegally obtained, was wrongfully admitted during his trial.

Before disposing of defendant's federal constitution claims, we first address his attempt to assert state constitutional claims. In his brief, defendant offers no arguments or authority concerning the protection provided specifically by the Texas Constitution or state law nor does he contend how state law protection differs from federal constitutional protection. State and federal constitutional claims should be argued in separate grounds, with separate substantive analysis or argument provided for each ground. Muniz v. State, 851 S.W.2d 238, 251- 52 (Tex. Crim. App. 1993); Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991). Because defendant has failed to adequately brief his state law contentions, we will address only his federal constitutional claims. See Garay v. State, 954 S.W.2d 59, 64 (Tex. App.--San Antonio 1997, pet ref'd).

Defendant asserts his rights under the Fourth and Fourteenth Amendments to the United States Constitution were violated when the Border Patrol stopped and searched his vehicle, searched his person, and then subsequently arrested him. Defendant, however, failed to draw the trial court's attention to his constitutional complaints either by filing a motion to suppress or by objecting during trial. In order to preserve error, a timely and sufficiently specific request, objection, or motion must be made to the trial court. Tex. R. App. P. 33.1; Laney v. State, 76 S.W.3d 524, 527 (Tex. App.--Houston [14th Dist.] 2002, pet. granted). This is true even when the complaint is on constitutional grounds. Espinoza v. State, 29 S.W.3d 257, 260 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). Because defendant failed to preserve error here, we overrule his first issue.

Ineffective Assistance of Counsel

In his second, third, and fourth issues, defendant contends his counsel was ineffective. To show ineffective assistance of counsel, defendant must demonstrate counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms and that, but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). A "reasonable probability" is defined as a probability sufficient enough to undermine confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). It is defendant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Jackson, 973 S.W.2d at 956. A defendant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. Strickland, 466 U.S. at 697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

We hold that defendant has failed to show that counsel's actions fell below an objective standard of reasonableness. First, defendant contends that counsel was ineffective because counsel failed to move to suppress the evidence resulting from the search, and the jury should have been instructed to disregard the allegedly illegally obtained evidence. Defendant does not describe the evidence he complains about nor does he cite to any portion of the record referring to such evidence. However, based on the record, it appears his complaint relates to the thirty pounds of marijuana of which he was charged with possession. If the marijuana is the evidence about which defendant complains, he has no standing to claim its seizure was illegal or that it was admitted in violation of his Fourth Amendment rights. Fourth Amendment rights are personal rights that may not be vicariously asserted. Brown v. United States, 411 U.S. 223, 230 (1973); Garcia v. State, 960 S.W.2d 329, 332 (Tex. App.--Corpus Christi 1997, no pet.). It is defendant's burden to establish that he has standing. State v. Klima, 934 S.W.2d 109, 111 (Tex. Crim. App. 1996). An infringement of Fourth Amendment rights occurs when a person has an expectation of privacy and that expectation is violated. Katz v. United States, 389 U.S. 347, 352 (1967); United States v. Hunt, 505 F .2d 931, 938 (5th Cir. 1974). Unless defendant can demonstrate an infringement of his Fourth Amendment rights, a mere passenger does not have standing to challenge the search of an automobile in which he is riding. Harris v. State, 713 S.W.2d 773, 775 (Tex. App.--Houston [1st Dist.] 1986, no pet.).

In this case, two border patrol agents seized twenty to thirty pounds of marijuana from Perez's and Rangel's car. Defendant was not the driver of the vehicle in which the marijuana was found nor was he a passenger in the car at the time the drugs were discovered. Additionally, there is no evidence in the record showing defendant had a possessory interest in the car or that he was ever inside the car. Therefore, defendant had no expectation of privacy in the automobile in which the marijuana was discovered. Because defendant had no standing to challenge the seizure of the marijuana, we cannot find counsel's omissions fell below an objective standard of reasonableness. Accordingly, we find that defendant's first two contentions have no merit.

Second, defendant contends his counsel was ineffective because counsel failed to prepare him to testify on his own behalf, failed to call witnesses to testify in his defense, and failed to investigate his claim that Enrique Jimenez-Mata was his half-brother or present evidence to establish that contention. However, defendant does not direct us to anywhere in the record to show that he desired to testify and was prohibited from doing so. Similarly, defendant has not pointed to any place in the record showing that counsel's failure to call witnesses was due to ineffective assistance rather than trial strategy. When the appellate record contains no evidence of the reasoning behind a trial counsel's action, the reviewing court cannot conclude that counsel's performance was deficient because such determination would be based upon speculation. Weeks v. State, 894 S.W.2d 390, 391 (Tex. App.--Dallas 1994, no pet.). In this case, counsel filed a motion for new trial, but it appears no hearing was held. The record, therefore, is silent as to trial counsel's strategy and reasoning. To find that trial counsel was ineffective based on the record before us would call for speculation, which we will not do. Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994). Because defendant cannot demonstrate by a preponderance of the evidence that his trial counsel failed to prepare him to testify or that he failed to properly investigate his case nor demonstrate harm from such alleged inactivity, his claim of ineffective assistance of counsel on this point must fail. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Accordingly, we overrule defendant's second, third, and fourth issues.

Conclusion

We affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH