RONALD RYAN POWDRILL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 8, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01317-CR
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RONALD RYAN POWDRILL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-58877-JR
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OPINION
Before Justices Whittington, Bridges, and Francis
Opinion By Justice Francis
        The trial court convicted Ronald Ryan Powdrill of burglary of a building, found both enhancement paragraphs true and set punishment at three years in prison. In his sole issue, appellant contends counsel rendered ineffective assistance by not objecting when the State offered his written statement into evidence. We affirm.
        To prevail on his issue, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 667-68, 694 (1984). The record must affirmatively demonstrate counsel's ineffective assistance. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).         Undercover Dallas police officer Tommy Bailey, specially deployed in response to complaints about burglaries of garages and sheds in the area, observed appellant back his car into the complainant's driveway, enter the complainant's driveway-area storage shed and remove property. Appellant's girlfriend, Jennifer Westerfield, was inside the car during the burglary. Later, when appellant was arrested at his residence, Westerfield told police appellant had taken a set of small weights and showed the officers where they were.
        Appellant's defense rested upon the testimony of his friend, James David Hunt, who lived next door to the complainant. Hunt said that around the time of the burglary, he gave appellant permission to enter the shed in his fenced backyard and take some small weights. All the area houses had rear-entry garages, and Hunt surmised that appellant got mixed up in the alley and mistakenly took weights from the wrong shed. Although appellant and Westerfield had been to his residence before, Hunt testified appellant was unfamiliar with the alleyway. Hunt told the court the houses were similar, but said he had converted his garage into a bricked-in living area with windows while the complainant had a conventional garage door. The complainant denied any similarity between two residences, but he admitted his shed was the only one visible from the alley.
        After the defense rested, the State introduced the written statement at issue in rebuttal. Detectives Thomas Anthony Cicio and S.E. Brezik interviewed appellant at the police station. Appellant was cooperative with them, admitted he committed the offense but refused to give them a written statement. According to Cicio and Brezik, officer Daniel Cosby transported appellant to the police station and then went to lunch. When Cosby returned to take appellant to the jail, he learned that appellant had not given a written statement and told him, “Hey, you said that you were going to write [Cicio] a statement. Well, you know, we are going to have to go back and pick up your girlfriend and charge her as well because she was there with you the whole time.” Appellant then wrote a statement admitting he committed the burglary and that Westerfield had criticized him for it. Despite his discomfort with what Cosby had done, Cicio testified he thought appellant's statement was nonetheless uncoerced. The State admitted the written statement into evidence without objection. In the statement, appellant said he drove into the alley and rear driveway of the house, saw the shed and “peeked in and saw weights, 4 two and a half pounds, and decided they would be perfect for this puppy pit [bull] to gain muscle by dragging them around. Then I go to my house with them weights on my floorboard, and my girl was bitching at me the whole way.”
        Although trial counsel did not object to admitting the written statement into evidence, counsel did cross-examine both detectives about the voluntariness of the statement. On cross- examination, Cicio agreed that a “the specter of coercion” surrounded the taking of the statement, and that appellant did not make the statement until Cosby threatened to arrest Westerfield. Cicio said that Cosby's actions were “a level of persuasion which some person might consider it coerced.” Brezik said that whether appellant was coerced was a matter of interpretation, but that he would not follow the procedure Cosby used to get the statement.
        After his conviction and sentencing, appellant filed a motion for new trial contending trial counsel's failure to object to the statement constituted ineffective assistance of counsel. During the hearing on appellant's motion, counsel testified he met with appellant and they discussed whether to have a jury trial and a hearing to challenge the confession's admissibility. Counsel testified appellant decided to proceed with a trial before the court. He did not object to the statement because, in the trial before the court, the same judge who would rule on the objection was hearing the case. At one point during his testimony, counsel said he interpreted section 38.22(6) of the code of criminal procedure to apply only to jury trials. At another point, he conceded he could have objected to the statement in a trial before the court.         Appellant also testified and denied that counsel explained to him that he had a right to a hearing regarding the voluntariness of the confession. He said he would not have waived his right to a jury trial had he known he could contest the voluntariness of the statement. After hearing the conflicting testimony, the trial court denied appellant's motion for new trial.
        Regarding the first prong of Strickland, appellant contends counsel's “total failure” to raise the issue of voluntariness of his statement resulted in the unknowing and involuntary waiver of his constitutional and statutory rights to due process of law. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005); Jackson v. Denno, 378 U.S. 368, 376-77 (1964). Appellant contends Cicio's testimony regarding Cosby's coercion created a duty for counsel to object to the statement. Citing Sanders v. State, appellant contends counsel's failure to raise the issue of voluntariness cannot be considered sound trial strategy. See Sanders v. State, 715 S.W.2d 771, 775-76 (Tex. App.-Tyler 1986, no pet.). Appellant interprets counsel's testimony as showing counsel was unaware that he could object in a non-jury trial.
        In Sanders, counsel was found to be ineffective on evidence showing the illiterate defendant signed a statement he could not read. See Sanders, 715 S.W.2d at 775-76. Counsel never discussed the statement with him, told him the State had no evidence against him, and failed to object to the statement's admission before a jury. Id. Sanders is distinguishable from the present case.
        Counsel testified that he was appellant's third attorney and the matter had already been set for trial before the court at the time he was appointed. During final argument, counsel brought up the detectives' observations regarding an appearance of coercion and argued to the trial court that reasonable doubt existed regarding whether appellant was coerced into confessing. Thus, unlike the deficient counsel in Sanders, the record contains ample evidence that trial counsel provided appellant with a vigorous defense.         Appellant does not have a right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We presume trial counsel rendered reasonable and professional assistance and used sound trial strategy unless the record affirmatively shows otherwise. See Salinas, 163 S.W.3d at 740. In this trial before the court, where trial counsel presented an otherwise competent defense, we cannot conclude his strategic decision to attack the weight to be given the written statement, rather than its admissibility, fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 667-68.
        Moreover, even if counsel's performance had been defective, we are not convinced counsel's formal objection and request for a hearing would have affected the outcome of appellant's trial. Appellant cannot prevail under the second prong of Strickland unless he can show that counsel's motion to suppress the confession would have been granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (en banc) (per curiam); LaFleur v. State, 79 S.W.3d 129, 137 (Tex. App.-Texarkana 2002, no pet.). A statement is involuntary if the record shows it resulted from “official, coercive conduct” of such a nature that it is “unlikely to have been the product of an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (en banc). A police officer's threat to arrest or punish a suspect's relative may render the suspect's subsequent confession inadmissible. Roberts v. State, 545 S.W.2d 157, 161 (Tex. Crim. App. 1977). However, when a suspect creates conditions that cast suspicion upon an innocent relative, and the suspect makes a self-motivated confession to extricate the innocent relative from this position, the confession may be deemed voluntary and admissible. Id.
        The only evidence supporting appellant's involuntariness theory came from the testimony of Cicio and Brezik. Even though candidly reporting Cosby's comments to appellant, Cicio said that appellant confessed voluntarily. Appellant wrote his statement for the evident purpose of clearing Westerfield, whom he had placed in jeopardy through his own acts. Thus, it is not clear that an objection to admissibility of the confession would have been successful. See, e.g., Roberts, 545 S.W.2d at 161 (upholding trial court's determination that suspect voluntarily confessed to clear his innocent wife placed under suspicion of possessing his heroin); Ashcraft v. State, 934 S.W.2d 727, 738 (Tex. App.-Corpus Christi 1996, pet. ref'd) (concluding trial court did not abuse its discretion in denying motion to suppress confession obtained after officer told suspect that suspect's mother could be held accountable for drugs and stolen property found in house and urged suspect to cooperate with police). Appellant brought this issue to the trial court's attention during the hearing on his motion for new trial, and after hearing the evidence, including the conflicting testimony of trial counsel and appellant regarding their discussions about the case, the court denied the motion.
        Furthermore, even if counsel had gotten the confession suppressed, the State presented other overwhelming evidence of appellant's guilt. Bailey observed appellant committing the offense. Westerfield told the arresting officers appellant committed the offense and where they could find the stolen property at his residence. Hunt's credibility was at issue in light of his friendship with appellant and testimony from both Hunt and the complainant showing it would have been difficult for appellant to confuse the two residences. Thus, we conclude appellant cannot show that trial counsel's failure to object to the written confession changed the outcome of his case. See Strickland, 466 U.S. at 694. Because appellant cannot meet either prong of the Strickland standard, we overrule his sole issue.
        We affirm the trial court's judgment.
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061317f.u05