JEREMY RESHON TURNER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed December 31, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01380-CR
No. 05-07-01381-CR
No. 05-07-01382-CR
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JEREMY RESHON TURNER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-54872-WM, F05-54873-UM, and F06-22889-RM
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OPINION
Before Justices Moseley, Richter, and Francis
Opinion By Justice Richter
        Appellant Jeremy Reshon Turner was charged with and pleaded guilty to possession with the intent to deliver cocaine in an amount of 200 grams or more but less than 400 grams (cause number F05-54872-WM), possession of methamphetamine in an amount of more than 4 grams but less than 200 grams (cause number F05-54873-UM), and possession of cocaine in an amount of 1 gram or more but less than 4 grams (cause number F06-22889-RM). The trial court sentenced appellant to fourteen years' imprisonment for the possession with intent to deliver conviction and ten years' imprisonment each on the other two convictions. A $1500 fine was also assessed in all three cases.         In three issues on appeal, appellant argues the evidence was insufficient to support the deadly weapon findings, the trial court erred in overruling his motions to suppress, and he did not receive effective assistance of counsel. We modify the trial court's judgments to delete the deadly weapon findings and affirm the judgments as modified.
 
I. Background
         After receiving a complaint about drug activity, the police went to appellant's apartment to conduct a “knock and talk.” Appellant answered the door smoking a marijuana cigarette and was placed under arrest. While appellant was being arrested, the police observed crack cocaine on the coffee table. The police secured the apartment and requested a warrant by telephone. A Dallas County magistrate issued a search and arrest warrant directing the police to search apartment 2223 at 3829 Gannon Lane in Dallas, Texas and to arrest the described persons at that location. The search warrant was executed and appellant was arrested. Cash, contraband and deadly weapons were seized. Appellant was charged with possession with intent to deliver 200 grams or more but less than 400 grams of cocaine (cause number F05-54872-WM) and possession of methamphetamine in an amount of 4 grams or more but less than 200 grams (cause number F05-54873-UM). While appellant was out on bond for these two offenses, he was arrested and charged with possession of cocaine in the amount of 1 gram or more but less than 4 grams (cause number F06-22889 RM). Appellant filed a motion to suppress and asserted the apartment number listed on the warrant differed from the number of the apartment that was actually searched. The warrant was referenced in but not attached to the motion. The court conducted an informal hearing in chambers, off the record. The trial court subsequently issued a written order, without findings, denying the motion. Appellant filed a second motion to suppress and argued the magistrate did not follow the requirements of Tex. Code Crim. Proc. Ann. art.18.15 (Vernon 2005). The motion was heard on the record and denied. After the two motions to suppress were overruled, appellant entered open guilty pleas in all three cases. The State provided appellant with notice of its intent to seek deadly weapon findings, but appellant did not plead true to the special issue. Appellant was the sole witness to testify at sentencing. The trial court sentenced appellant to fourteen years' imprisonment for the possession with intent to deliver conviction and ten years' imprisonment each on the other two convictions. Deadly weapon findings were made in each case, but the trial court subsequently deleted the finding in cause number F06- 22889. A $1500 fine was also assessed in all three cases. This appeal followed.
        After the initiation of this appeal, a question arose about whether the record was complete. As a result, we ordered the trial court to make findings concerning the dates of all hearings, whether records of the hearings had been filed with the court, and whether any notes from the hearings were available and capable of being transcribed. The trial court timely conducted a hearing and made the requested findings. The findings reflect that an informal discussion on the first motion to suppress was held in chambers. Neither a record nor reporter's notes were made of these discussions.
 
I. Discussion
The Motions to Suppress (Cause No. F05-54872-WM and F05-54873-UM)
        In his second issue, appellant argues the trial court erred in denying his two motions to suppress. With regard to the first motion, appellant insists the trial court should have suppressed all of the evidence seized from the apartment because the search warrant listed the address at which the search was to be executed as “3829 Gannon Lane, Apartment 2223" but the apartment searched was “apparently” “2225.” Noting “such technical defects 'can be cured by explanatory testimony,'” see Green v. State, 799 S.W.2d 756 (Tex. Crim. App. 1990), appellant argues his conviction should be reversed because “no such explanation [exists] in the record.” The State maintains the evidence supports an implicit finding that the warrant was not executed on the wrong address. Alternatively, the State argues the record supports a finding that even if the warrant was executed on the wrong apartment, the occupant was correctly named.
        The search warrant and supporting affidavit both list the address at which the search is to be executed as “3829 Gannon Lane, Apartment 2223.” Although both the warrant and affidavit are part of the record on appeal, there is no indication the warrant and affidavit were before the court when the first motion to suppress was considered. There is no record of any testimony concerning execution of the warrant on the wrong apartment number or the apartment in which appellant was located when the warrant was executed. Even if the warrant was before the trial court, there is no record that the trial court received any proof that the wrong apartment number was listed on the warrant.
        Reviewing courts cannot make assumptions or speculate about materials that are not contained in the appellate record. See Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). Here, there is no record on the first motion to suppress at all. Without a record, we are unable to determine what the court may have considered and whether the parties agreed to certain facts.   See Footnote 1  We are unable to evaluate what, if any, explanation the State may have offered for any alleged deficiency or determine whether any deficiency was cured. Appellant had the burden to bring forward a record on appeal sufficient to show the trial court erred in its ruling on the motion to suppress. See Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007) (reversing decision based on exhibit not included in record). Because no record exists, nothing is preserved for our review. See e.g., McQueen v. State, 702 S.W.2d 302, 302 (Tex.App.-Houston [1st Dist.] 1985, no pet.) (court's consideration of appellate complaint requires that record be complete on issue urged); Vicknair v. State, 702 S.W.2d 304, 306 (Tex.App.-Houston [1st Dist.] 1985, no pet.) (failure to designate statement of facts on suppression hearing for inclusion in record tantamount to having no appeal at all). Appellant's complaint with regard to the first motion to suppress is overruled.
        Appellant argues his second motion to suppress should have been granted because the magistrate did not follow the requirements of Tex. Code Crim. Proc. Ann. art. 18.15 (Vernon 2005). Specifically, appellant claims he was denied the ability to determine if the items listed on the officer's return were actually seized because he did not have the opportunity to review the magistrate's “pointed questions” to the affiant and because he did not receive certified copies of the officer's return. The State counters that even if the magistrate did not follow the requirements of article 18.15, appellant has not demonstrated harm. We agree with the State.
        Article 18.10 of the Texas Code of Criminal Procedure provides that after returning a search warrant, an officer shall state on the back of the same, or on some paper attached to it, the manner in which it has been executed, and shall deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. See Tex. Code Crim. Proc. Ann. art. 18.10 (Vernon 2005). Under article 18.15 of the Texas Code of Criminal Procedure, the magistrate must certify and deliver the warrant and inventory to the clerk of the court with jurisdiction over the case. See Tex. Code Crim. Proc. Ann. art. 18.15 (Vernon 2005).
        During the hearing on the second motion to suppress, appellant presented evidence that the magistrate did not furnish the clerk of the court with records of his proceedings, that search warrants and supporting papers were given to the court coordinator of the district court rather than the clerk, and that the district court did not have a copy of the search warrant for appellant's cases on file.
        Even if the evidence demonstrated that the magistrate did not follow the requirements of section 18.15, ministerial violations of the search warrant statutes do not vitiate a search warrant absent a showing of harm. See Robles v. State, 711 S.W.2d 752, 753 (Tex. App.-San Antonio 1986, pet. ref'd); Phenix v. State, 488 S.W.2d 759, 766 (Tex. Crim. App. 1972). Appellant had a copy of the search warrant, the officer's return, and the supporting affidavit, as evidenced by his introduction of these items as an exhibit during the hearing on the second motion to suppress. The sufficiency of an affidavit is determined by considering the totality of the circumstances set forth in the four corners of the affidavit. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Therefore, the fact that appellant was unable to review the questions the magistrate posed to the officers had no impact on his ability to assess the sufficiency of the search warrant affidavit.
         Appellant's contention that he was unable to determine what evidence was seized because the officer's return was not certified is similarly unpersuasive. Appellant has not established that any additional evidence was seized, that the evidence listed as seized was changed, or that he was otherwise surprised by the existence or non-existence of seized evidence. Consequently, appellant has made no showing of prejudice. In the absence of a showing of injury, there is no reversible error. Appellant's second issue is overruled.
Ineffective Assistance of Counsel (Cause No. F05-54872-WM and F05-54873-UM)
        In his third issue, appellant maintains he did not receive effective assistance of counsel because the informal hearing on the first motion to suppress was not conducted on the record. Consequently, appellant argues the appellate record is not adequate with regard to the issues presented in the motion. Effectiveness of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (en banc). The evaluation of an ineffective assistance claim begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). To prevail on an ineffective assistance claim, an appellant must establish both prongs of a two prong test, showing: 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. See Strickland, 466 U.S. at 687-88. Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
         Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Under normal circumstances, the record on direct appeal is not sufficient to overcome the presumption that counsel's conduct was reasonable and professional.
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). But here we have the benefit of trial counsel's testimony on the record. During the post-trial hearing concerning the record, trial counsel testified that suppression of the evidence was the “primary focus” of his trial strategy. Counsel also admitted that the failure to conduct the hearing on the record was a “grave . . . first year lawyer's mistake” that was his fault. Thus, by counsel's own admission, the error resulted from oversight rather than trial strategy. At a minimum, this explanation destroys the presumption of reasonable assistance. See Ex Parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (en banc) (counsel's admission of mistake demonstrated error did not result from trial strategy).
        But even if we were to conclude counsel's performance was deficient, appellant must also show a reasonable probability that, but for counsel's error, the result would have been different. Strickland, 466 U.S. at 695. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694.
        Although numerous issues were raised in the written motion to suppress, trial counsel admitted the address on the search warrant was the primary focus of the first motion and the informal hearing. The search warrant was referenced in, but not attached to the motion. No witnesses were called and there is no indication that any evidence was introduced. During the post-trial hearing concerning the record, counsel did not identify any witnesses that would have been called to testify or evidence that would have been introduced had the hearing been conducted on the record. There is no indication the trial court would have granted the motion to suppress if the hearing had been conducted on the record, nor is there any indication that the making of such a record would have supported appellant's claim on appeal.
        Appellant admits the record is silent as to harm, but maintains harm should be presumed. Citing Vannortrick v. State, 227 S.W.3d 706 (Tex. Crim. App. 2007), appellant contends when an error defies harm analysis or when the record is insufficient to conduct a meaningful harm analysis, harm is presumed under Rule 44.2(b). Appellant's contention is misplaced.
        The rule 44.2(b) harm analysis in Vannortrick was applied to non-constitutional error. In such a case, neither party bears the burden to prove harm. See Id. at 709. An ineffective assistance of counsel claim, however, involves error of constitutional dimension and requires a harm analysis under Strickland. See Bone, 77 S.W.3d at 833 (party claiming ineffective assistance of counsel has burden to establish deficiency of counsel was prejudicial). Only certain situations are excepted from the straightforward application of Strickland's requirements, and none of these situations are applicable here.   See Footnote 2  Therefore, appellant had the burden to demonstrate harm. On this record, we conclude appellant's burden has not been met. Appellant's third issue is overruled.
Cause Number F06-22889-RM
        In a cross-point, the State argues we should dismiss the appeal in cause number F06-22889- RM because none of appellant's issues pertain to this conviction. Rule 38.1 provides that a party's brief must contain a “clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” Tex. R. App. P. 38.1(h). Appellant's only reference to his conviction in cause number F06-22889-RM is in a footnote where he asserts it is reasonable to believe he would not have pled guilty to this charge if suppression had been granted in the other two cases. As a result, appellant states “it would not be fair” to leave this judgment undisturbed if relief is granted on the other two. Appellant's bald assertions are made without supporting argument, authority, or references to the record. Although we disagree with the State's contention that dismissal is the appropriate response in this instance, we conclude appellant has failed to present anything for our review regarding his conviction in cause number F06-22889-RM. As a result, any error has been waived. See Tex. R. App. P. 38.1(h).
The Deadly Weapon Findings (Cause No. F05-54872-WM and F05-54873-UM)
        In his first issue, appellant contends the evidence is insufficient to support the trial court's deadly weapon findings. The State agrees, and joins in the request that the judgments be modified to delete these findings. Based on our review of the record, we agree that the evidence supporting the deadly weapon findings is legally insufficient. We therefore resolve appellant's first issue in his favor and modify the judgments in cause numbers F05-54872-WM and F05-54873-UM to delete the deadly weapon findings. Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd).
        Having resolved all of appellant's other issues against him, we modify the judgment in cause numbers F05-54872-WM and F05-54873-UM to delete the deadly weapon findings and affirm these judgments as modified. The judgment in cause number F06-22889-RM is affirmed.
                                                          
                                                          
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
071380F.U05
 
 
        
 
Footnote 1 Appellant relies on testimony from the post-trial hearing concerning the record to support an inference that the parties agreed the warrant listed the incorrect apartment number. But even if we were to indulge such an inference, the fact that the warrant may have been deficient does not conclude the inquiry. The absence of a record still precludes meaningful review.
Footnote 2 See Johnson v. State, 169 S.W.2d 223, 231 (Tex. Crim. App. 2005) (exceptions include complete denial of counsel, conflict of interest and structural error of the trial court). See also Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008) (discussing constructive denial of counsel and presumed prejudice).