ARMANDO CARRION, JR. v. THE STATE OF TEXAS--Appeal from 28th District Court of Nueces County

NUMBER 13-06-00483-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

ARMANDO CARRION, JR., Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

 

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Benavides and Vela
Memorandum Opinion by Chief Justice Valdez

Appellant Armando Carrion, Jr. was indicted for the felony offense of credit card abuse pursuant to section 32.31(b)(8) of the Texas Penal Code, enhanced by three prior felony convictions. Tex. Penal Code Ann. 32.31, 12.42(a)(1), 12.42(a)(3) (Vernon Supp. 2006). By a single issue, Carrion asserts that he was denied effective assistance of counsel at trial. We affirm.

I. BACKGROUND

On the evening of April 11, 2006, Officer Arturo Gonzalez, Jr. observed Lisa Martinez, Carrion's girlfriend, park a vehicle she was driving in front of the Rancho Grande apartment complex. According to Officer Gonzalez's testimony, Carrion exited from the passenger's side of the vehicle and proceeded up the driveway of the Rancho Grande apartment complex. Just a month earlier, Officer Gonzalez had issued a criminal trespass warning to Carrion for trespassing at the Rancho Grande apartment complex. Officer Gonzalez parked his police car, approached Carrion, and asked him to return to the area near Martinez's car.

Officer Gonzalez then approached the car and asked for Martinez's driver's license. Martinez claimed she did not have her driver's license. While Officer Gonzalez was speaking with Martinez, Carrion was looking and gesturing to a passenger in the back seat of the car. The activity between Carrion and the vehicle's backseat passenger concerned Officer Gonzalez because he had reason to believe Carrion could be armed and dangerous. Officer Gonzalez knew of an incident where Carrion had assaulted a man with a knife and noticed that Carrion had a knife on his person. Officer Gonzalez escorted Carrion to the front of the vehicle, patted him down, and felt credit cards in his back pockets.

According to Officer Gonzalez, Carrion had been a suspect in a stolen wallet case where credit cards were taken from a wallet. Carrion was asked to take-out the credit cards. Carrion had three credit cards in his pocket that did not belong to him. Officer Gonzalez then arrested him for credit card abuse. According to Officer Gonzalez, Carrion replied, "You can't arrest me for credit card abuse because I haven't used them." Officer Gonzalez responded, "Yes. . . you're in possession of credit cards. They're not in your name. That's why you're being placed under arrest."

Carrion was indicted for credit card abuse. His indictment was amended twice. The first amendment added enhancement paragraphs, and the second amendment changed the theory of credit card abuse. After the first indictment was issued, the state offered Carrion a plea bargain of 180 days in jail in exchange for a guilty plea. Carrion refused the plea offer. Following a bench trial, Carrion was found guilty. He pled true to the enhancement paragraphs, and the trial court sentenced him to ten years in prison. After the judgment of conviction was entered, Carrion filed a motion for new trial based on ineffective assistance of counsel. A hearing was held and the motion was denied. This appeal ensued.

II. DISCUSSION

Carrion's sole issue advances two instances where he contends he was denied effective assistance of counsel because his trial counsel failed (1) to advise him that the indictment could be changed, and (2) to file a motion to suppress evidence derived from an illegal search.

A. Standard of Review

There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689 (1984); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). If "there is at least the possibility that the conduct could have been legitimate trial strategy," then we must "defer to counsel's decision and deny relief on an ineffective assistance of counsel claim on direct appeal." Johnson v. State, 172 S.W.3d 6, 12-13 (Tex. App.-Austin 2005, pet ref'd).

B. Applicable Law

We apply the two-pronged Strickland test to determine whether counsel's representation was so deficient that it violated Carrion's Sixth Amendment right to counsel. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see Strickland, 466 U.S. at 684; Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To show that counsel was ineffective, an appellant must show by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 686; Hernandez, 726 S.W.2d at 55.

C. Issue 1: The Indictment

In his first issue, Carrion contends that he was denied effective assistance of counsel at trial because his attorney failed to advise him that the form of the indictment could be changed. Carrion was originally indicted on April 20, 2006 on two counts of credit card abuse for "receiv[ing] a stolen credit card." Tex. Penal Code Ann. 32.31(b)(4) (Vernon Supp. 2006). The indictment was amended on May 11, 2006, to allege three prior convictions - two state jail felonies for forgery and a felony for possession of a controlled substance. The indictment was amended again on June 8, 2006, and the language in the counts was changed from "receiv[ing] a stolen credit card" to "not being the cardholder, and without the effective consent of the cardholder . . . possess[ing] a credit or debit card with the intent to use it;" the enhancement paragraphs were unaltered. Id. 32.31(b)(8).

At his motion for new trial hearing, Carrion testified that he was offered a plea bargain of 180 days in jail after the original indictment was filed against him. He rejected the offer because he believed that he could only be charged with credit card abuse for using stolen credit cards, and he never intended to use the credit cards. Carrion's trial counsel testified at the hearing that Carrion was unwilling to plead guilty to the original indictment because he claimed to have merely found the credit cards. On appeal, Carrion argues that his counsel was deficient in not advising him that the indictment language could be amended. (1)

The record in the instant case shows that Carrion's counsel advised him at every stage of the indictment and trial process. At the motion for new trial hearing, Carrion's trial counsel testified as follows:

Q: Okay. On the subsequent one in which the enhancement paragraphs were added increasing the range of punishment, do you recall explaining that to Mr. Carrion, that the range of punishment had been increased?

 

A: Yes, that's correct. I initially - when they made the 180-day offer, I had told him that they could enhance him and that that's a coercive power of the State, that they can, you know, basically say take the 180 days or we're going to enhance your punishment.

 

Q: And then when the case was reindicted next, is that when the wording was changed from receiving stolen credit cards to possessing stolen credit cards?

 

A: Yes. That was the change from S-1 to S-2.

 

Q: Okay. And do you recall explaining that to Mr. Carrion?

 

A: Yes. We went over the new indictment saying that he was possessing, not receiving.

 

Q. And so Mr. Carrion clearly understood what he was being charged with and the range of punishment for that offense, including the enhancement paragraphs, before he went to trial in this case, correct?

 

A. Yes, that's correct.

 

Thus, the record reflects that Carrion was made fully aware by his trial counsel of the charges he faced and the possible punishments available. Additionally, we note that throughout the criminal proceedings, Carrion maintained his innocence regarding any theory of credit card abuse. At trial, Carrion testified, "I'm not going to take nothing, not one day. I'm not going to sign one day for this charge because I'm not guilty of it. You can try me two years from now, and I'm still not going to sign for one day because I'm not guilty of this."

The first prong of the Strickland test is that an appellant must show by a preponderance of the evidence that his trial counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686. Carrion has failed to present us with a record showing that his trial counsel's action fell below a reasonable standard. Carrion's first argument regarding ineffective assistance of counsel fails.

D. Issue 2: Motion to Suppress

In his second allegation of ineffective assistance of counsel, Carrion contends that he was denied effective assistance of counsel because his attorney failed to file a motion to suppress evidence derived from an illegal search.

A trial counsel's failure to file a motion to suppress is not per se ineffective assistance of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Counsel is not required to engage in the filing of futile motions. Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). Rather, to satisfy the Strickland test and prevail on an ineffective assistance claim premised on counsel's failure to file a motion to suppress, an appellant must show by a preponderance of the evidence that the result of the proceeding would have been different-i.e., that the motion to suppress would have been granted and that the remaining evidence would have been insufficient to support his conviction. Jackson v. State, 973 S.W.2d 954, 956-57 (Tex. Crim. App. 1998). To meet his burden, Carrion is required to produce evidence that would defeat the presumption of proper police conduct. Id. at 957. This requires Carrion to develop the facts and details of the search sufficient to conclude that the search was invalid. Id.

Terry v. Ohio authorizes a pat-down search of a person for weapons when the officer is justified in believing that the detainee may be armed and presently dangerous. Terry v. Ohio, 392 U.S. 1, 29-30(1968). The purpose of a Terry search is to neutralize a potentially volatile situation and to allow an officer to investigate without fear of violence; it is not meant to discover evidence of a crime. See id.; Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974). This does not mean that the officer must be absolutely certain that the individual is armed; nor does the officer have to have probable cause to arrest. Davis v. State, 61 S.W.3d 94, 97 (Tex. App.-Amarillo 2001, no pet.). Rather, the issue is whether a reasonably prudent officer in the same circumstances would be warranted in believing that his safety or that of others is in danger. See Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (stating that the officer must have before him specific and articulable facts reasonably leading him to conclude that the suspect might possess a weapon).

In the instant case, Officer Gonzalez testified that he had written a criminal trespass warning to Carrion at the Rancho Grande apartments a month earlier. Officer Gonzalez also testified that he knew Carrion had assaulted a man with a knife in the past and that Carrion's gesturing with the backseat passenger caused him concern. The only witnesses at Carrion's motion for new trial were Carrion and Carrion's trial counsel. Carrion failed to marshal enough facts and details for us to conclude that the search was improper. Jackson, 973 S.W.2d at 956-57. Based on the record before us, it is unlikely that a motion to suppress would have been granted. Carrion's claim of ineffective assistance of counsel based on his trial counsel's failure to file a motion to suppress fails.

We overrule Carrion's sole point of error.

III. CONCLUSION

The judgment of the trial court is affirmed. Tex. R. App. P. 43.2(a).

 

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 28th day of August, 2007.

1. Carrion's argument focuses on his trial counsel's failure to advise him about the various theories of credit card abuse for which he could had been indicted. He does not argue that his trial counsel failed to warn him about the effect of enhancement paragraphs being added to the indictment, and we will not address that argument. Tex. R. App. P. 47.1 (providing that the court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition).