RODGER WAYNE WILSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed April 18, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00313-CR
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RODGER WAYNE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-82491-04
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OPINION
Before Justices Moseley, Bridges, and Smith   See Footnote 1 
Opinion By Justice Smith
        Rodger Wayne Wilson was charged with possession of methamphetamine in an amount of one gram or more but less than four grams. See Tex. Health & Safety Code Ann. § 481.102(6), 481.115(c) (Vernon 2003 & Supp. 2006). The methamphetamine was found during a traffic stop in a baggy in plain view on the floorboard of the front passenger side of Wilson's car. At trial, which was before a jury, Wilson unsuccessfully sought to have the methamphetamine suppressed, arguing that it was the “fruit” of an illegal detention. Wilson also unsuccessfully sought to have the jury instructed, pursuant to article 38.23(a) of the Texas Code of Criminal Procedure, on the legality of the detention. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005). Wilson was convicted and sentenced to ten years' confinement. In two issues, Wilson now challenges the trial court's failure to suppress the methamphetamine and instruct the jury under article 38.23(a). In an additional issue, Wilson asserts his counsel was ineffective. Finding no merit to Wilson's complaints, we modify the judgment to delete an incorrect recitation that Wilson “waives his right of appeal and right to file or urge any motion for new trial.” As modified, we affirm the trial court's judgment.
Background
        McKinney police officer Joe Arp was on routine patrol traveling westbound near an intersection when he observed Wilson, traveling southbound, run a stop sign. As Arp turned his car around, Wilson pulled into an apartment complex. Arp followed him and saw Wilson heading towards the exit. After seeing Arp, however, Wilson parked and stepped out of the car. Wilson asked Arp to step back into the car, but Wilson remained standing next to the open car door. Based on Wilson's pulling into the apartment complex, attempting to exit, and failing to step back into the car, Arp suspected “there was more to this than just running a stop sign.” Arp approached Wilson and informed him of the reason for the stop. Arp then asked Wilson for his driver's license and questioned him “as to what he was doing, where he was going.” Arp also asked Wilson whether he had any outstanding warrants. When Wilson responded that he “might have,” Arp questioned him further. As he questioned Wilson, Arp “looked on him” and into the car “for anything that might lead to figure out what was going on.” Arp also walked around the car and looked through the windows. Arp saw the baggy containing the methamphetamine while looking through the passenger side window. After a field-test confirmed the baggy contained methamphetamine, Arp arrested Wilson. A search of Wilson and a further search of the car revealed several clear plastic baggies and syringes, both associated with the sale and use of narcotics. According to the video recording of the stop, Arp found the methamphetamine three minutes after approaching Wilson and before he checked for any warrants or determined whether to issue a citation.
        At trial, Wilson stipulated that the content of the baggy was methamphetamine. Although he did not testify, he presented a defense that the baggy was not his. Several witnesses testified on his behalf that he often loaned his car to friends, at least one of whom used methamphetamine.
Legality of Detention
        In his first issue, Wilson asserts the trial court erred in failing to suppress the methamphetamine because it was the “fruit” of an unlawful detention. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (excluding admission of unlawfully seized evidence). In arguing his detention was unlawful, Wilson does not dispute that Arp's basis for stopping him-running a stop sign-was lawful. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992) (law enforcement officer may lawfully stop motorist who commits traffic violation). Instead, Wilson focuses on the scope of the detention. Wilson argues that Arp had established his identity, residence, and destination before walking around the car. As such, Wilson contends, Arp had gathered all the necessary information for the investigation of the traffic violation and should have “let him go” instead of detaining him further. By detaining him further and walking around the car, Wilson argues, Arp exceeded the scope of the detention and rendered it “unreasonable” in violation of the Fourth Amendment to the United States Constitution. See U.S. Const. amend. IV. Wilson insists that the further detention rendered the seizure of the baggy unlawful, and thus, the trial court erred when it failed to suppress the methamphetamine. See Tex. Code Crim. Proc. Ann. art. 38.23(a). We disagree.
        A traffic stop, like a general investigative detention, is a “seizure” for Fourth Amendment purposes and is subject to the Fourth Amendment's “reasonableness” requirements. Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); Spight v. State, 76 S.W.3d 761, 766 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Under the Fourth Amendment, a traffic stop is reasonable if, under the totality of the circumstances, the officer was justified in making the stop and his actions during the stop were confined in length and scope to that necessary to fulfill the purpose of the stop. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004); Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997) (citing Terry v. Ohio, 392 U.S. 1, 20 (1968)).
        During a stop, an officer may reasonably check for outstanding warrants, demand identification, proof of insurance, and car registration, and ask the driver where he is going and the purpose for the trip. Kothe, 152 S.W.3d at 63; Spight, 76 S.W.3d at 766; Mohmed v. State, 977 S.W.2d 624, 628 (Tex. App.-Fort Worth 1998, pet. ref'd). The officer may also look into the vehicle and seize any items that are in plain view that “immediately” appear to be evidence of a crime, contraband, or otherwise subject to seizure. Walter v. State, 28 S.W.3d 538, 541-44 (Tex. Crim. App. 2000). However, once the officer gathers the relevant information, the detention must end unless the officer has reasonable suspicion to believe another offense is being committed. Davis, 947 S.W.2d at 243, 245. A detention that is reasonable at its inception may become unreasonable and violate the Fourth Amendment by virtue of its excessive intensity and scope. Id. at 243. A detention that is not temporary and reasonably related to the circumstances that justified the interference is unreasonable and unlawful, and any evidence seized as a result is inadmissible. Id.; see also Tex. Code Crim. Proc. Ann. art. 38.23(a). We review de novo a question of whether a specific detention is “reasonable” and whether evidence seized as the result of the complained-of detention should have been suppressed. Kothe, 152 at 62.
        There is no dispute that Arp was justified in stopping Wilson and in ascertaining his identity, residence, and destination. Rather, the inquiry is whether Arp's walking around the car and looking through the windows were reasonably within the scope of the stop. Although Wilson argues that Arp had gathered all the necessary information to determine whether to issue a citation for running the stop sign before he walked around the car, the record belies this contention. The record reflects Arp walked around the car and looked through the windows while questioning Wilson about his “potential” warrants. While he had established Wilson's identity, residence, and destination, Arp had not yet determined whether Wilson had any outstanding warrants or whether to issue a traffic citation. In fact, only three minutes had elapsed from when Arp approached Wilson before he saw the methamphetamine in plain view. At the moment Arp began walking around the car, he was still investigating the traffic violation and thus acted within the scope of the detention. See Kothe, 152 S.W.3d at 63-64 (traffic stop investigation is fully resolved only after “computer check” on driver's license and car registration is completed and officer knows that “driver has currently valid driver's license, no outstanding warrants, and the car is not stolen”); State v. Cardenas, 36 S.W.3d 243, 246- 47 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd) (consent to search car valid where obtained within six minutes of stop and before officer had run driver's license check). Because Arp was still conducting his investigation, he was permitted to look through the windows and seize any items in plain view that appeared to be crime-related. See Texas v. Brown, 460 U.S. 730, 740 (1983) (no legitimate expectation of privacy exists “shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers”); Walter, 28 S.W.3d at 544 (contraband found in plain view inside truck in course of investigation of traffic violation lawfully seized). Wilson's argument that the trial court should have suppressed the methamphetamine because Arp seized it while acting outside the scope of the stop is without merit. We resolve Wilson's first issue against him.
Article 38.23(a) Instruction
        In his second issue, Wilson challenges the trial court's denial of his request for an article 38.23(a) instruction. See Tex. Code Crim. Proc. Ann. art. 38.23(a). Under article 38.23(a), a defendant is entitled to a jury instruction whenever a fact issue is raised concerning the legality of the seizure of evidence. Id.; Pierce v. State, 32 S.W.3d 247, 251 (Tex. Crim. App. 2000). Wilson urges he was entitled to such an instruction because “factual issues existed” concerning the legality of his detention and subsequent seizure of the methamphetamine. In making this argument, Wilson relies on his arguments in his first issue. However, Wilson's complaint that his detention and the seizure of the methamphetamine were unlawful is a legal issue not a factual one, and a jury instruction is required only when the question is factual. Pierce, 32 S.W.3d at 251; Kane v. State, 173 S.W.3d 589, 595 (Tex. App.-Fort Worth 2005, no pet.). Although Wilson argues now that Arp walked around the car only after he had concluded his investigation, the record, as stated, belies his contention. No factual dispute exists concerning the basis for the stop or when, in the course of the investigation, Arp found the methamphetamine. Because no factual issue exits concerning the circumstances of Wilson's detention and the seizure of the methamphetamine, the trial court did not err in refusing to instruct the jury under article 38.23(a). We resolve Wilson's second issue against him.
Effective Assistance of Counsel
        In his third issue, Wilson asserts his counsel was ineffective. Specifically, Wilson complains his counsel was ineffective in failing to object to (a) the prosecutor's questions concerning oral statements Wilson made following his arrest and (b) the prosecutor's reference to those statements in opening and closing arguments. Relevant to this issue, the record reflects Wilson's statements were video recorded but only partially audible. Because section three of article 38.22 of the Texas Code of Criminal Procedure requires that an accused's statements be recorded and the recording preserved until the conviction is final or prosecution is barred, see Tex. Code Crim. Proc. Ann. 38.22, §3 (Vernon 2005),Wilson maintains his counsel should have objected. Wilson maintains further that had counsel objected, the objections would have been sustained, and the outcome of trial would have been different. We disagree.
        We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999). In reviewing an ineffective assistance of counsel claim, we indulge a strong presumption that counsel was competent. Thompson, 9 S.W.3d at 813. Generally, before we can conclude counsel's performance was deficient, we must have a record showing the reasons for counsel's actions. Id. at 813-14; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Because the trial record is directed to the issues of guilt or innocence and punishment, an additional record focused specifically on the conduct of counsel, such as a record of a hearing on a motion for new trial asserting ineffective assistance of counsel, is generally needed. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd). Only when “counsel's ineffectiveness is so apparent from the record” will an appellant prevail on direct appeal absent a hearing on a motion for new trial asserting an ineffective assistance of counsel claim. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003); Kemp, 892 S.W.2d at 115.         We have reviewed the complained-of portion of the prosecutor's questioning and statements and conclude that Wilson's claim of ineffective assistance of counsel is without merit. Contrary to Wilson's argument, the record reflects counsel objected to many of the questions posed by the prosecutor; counsel's explanation for not objecting to the rest of the questions and the prosecutor's opening and closing arguments are not in the record. Wilson neither filed a motion for new trial asserting ineffective assistance of counsel nor otherwise developed a record explaining why counsel failed to object, and his counsel's ineffectiveness is not “apparent from the record.” Given the record before us, we cannot conclude counsel was deficient. Thompson, 9 S.W.3d at 814 (silent record insufficient to show counsel's performance deficient for failing to object to admission of inadmissible hearsay); Robinson v. State, 22 S.W.3d 631, 636 (Tex. App.-Waco 2000, pet. ref'd) (silent record insufficient to show counsel's performance deficient for failing to file motion to suppress). We resolve Wilson's third issue against him.
        
         Modification of Judgment
        We note that the trial court's judgment reflects that Wilson waived his right of appeal and right to file or urge any motion for new trial. However, nothing in the record supports this. As such, we modify the judgment to delete this incorrect recitation. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).
Conclusion
        Having concluded that the trial court did not err in failing to suppress the methamphetamine and failing to instruct the jury under article 38.23(a) and that the present record is insufficient to
 
 
support a claim that counsel was ineffective, we affirm the trial court's judgment as modified.
 
 
                                                          
                                                          BEA ANN SMITH
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
060313F.U05
 
 
Footnote 1          The Honorable Bea Ann Smith, Justice, Court of Appeals, Third District of Texas at Austin, Retired, sitting by assignment.