Ronald Ray Lofton v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-94-264-CR

RONALD RAY LOFTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Falls County, Texas

Trial Court # 6615

O P I N I O N

The appellant, Ronald Ray Lofton, was convicted of possession of less than 28 grams of a controlled substance and sentenced to 12 years in prison. See Tex. Health & Safety Code Ann. 481.102(3)(D), 481.115 (Vernon 1992). Lofton brings this appeal pro se and argues that: 1) his trial counsel failed to render reasonably effective assistance; 2) the trial court erred in denying his motion to suppress because the contested evidence was obtained as a result of an illegal search and seizure; and 3) his trial counsel abandoned Lofton's appeal and thereby denied him due process. For the following reasons, we affirm.

On September 3, 1993, at around two in the morning, Marlin Police Officers Terry King and Bobby Searcy were dispatched to a home on Marlin Street where it was reported by the owner, Paul Humphrey, that a burglary was in progress. When the officers arrived at the address, they arrested a subject inside the house. After Officers King and Searcy had secured the suspect, Humphrey told the officers that there were three people sitting in a car parked half a block down the street that he believed were also involved in the burglary. He stated that he had never seen the car before and that none of the occupants lived in the neighborhood. The defendant, Lofton, was in the driver's seat of the automobile. Lofton started the automobile and began driving down the street in the direction of Humphrey's house. Officer King motioned for the vehicle to stop, and Lofton put his vehicle in park and stepped out of the car. Officer King asked him for his driver's license, and Lofton replied that he did not have a license or any other form of identification with him. Officer King then testified that he noticed a bulge in Lofton's shirt pocket and that he had several pieces of paper stuffed into it. Officer King thought perhaps he had some identification in his shirt, and asked Lofton what was in his pocket as he casually touched the outside of it. Lofton responded by knocking his hand away. At this point, Officer King decided to arrest Lofton for being unable to produce a valid driver's license. After Officer King had arrested Lofton, he searched him and removed the contents of the shirt pocket. Officer King testified that he found a mass of papers and a glass "crack pipe" in the pocket. Once the officers had transported Lofton to jail, Officer King went through the papers and found a piece of paper that had been folded up. When he opened the paper, he found a white powdery substance that was later determined to be cocaine. Lofton was charged and convicted of possession of a controlled substance and sentenced to twelve years in prison.

In his first point, Lofton argues that his trial counsel provided ineffective assistance of counsel. Specifically, he claims that counsel failed: 1) to investigate the facts of the case and to call witnesses in Lofton's favor and 2) to object to the insufficient corroboration of a witness's testimony.

The right to effective representation is guaranteed under both the federal and state constitutions. U.S. Const. amend VI; Tex. Const. art. I, 10. The United States Supreme Court established the federal constitutional standard for determining ineffectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984). The Texas Court of Criminal Appeals adopted the Strickland standard in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

To show counsel was ineffective, the complaining party must show by a preponderance of the evidence that: 1) trial counsel's performance was deficient because it fell below an objective standard of reasonableness and 2) that there was a reasonable probability that, but for counsel's errors, the results of the proceedings would have differed. Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). Such allegations will only be sustained if they are firmly rooted in the record. Smith v. State, 676 S.W.2d 379, 385 (Tex. Crim. App. 1984), cert. denied, 471 U.S. 1061, 105 S. Ct. 2173 (1985). In making this determination, the reviewing court must look at the "totality of the representation, rather than solely at isolated acts or omissions of the trial counsel." Rodriguez, 899 S.W.2d at 665. Moreover, the representation of the defendant should be viewed from the defense counsel's perspective at trial, and not with 20-20 hindsight. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. There is a strong presumption that trial counsel's performance fell within the wide range of acceptable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Lofton claims that his trial counsel failed to investigate the facts of the case and to call witnesses in Lofton's favor. The record does not support Lofton's contention that his attorney did not investigate the facts of the case. In addition, the record is silent as to why his trial counsel failed to call any witnesses in Lofton's favor. However, we do not need to speculate as to what counsel did or did not do in order to dispose of this point. Id.

Due to the lack of evidence in the record concerning trial counsel's reasons behind not calling witnesses or whether he investigated the facts, we are unable to find that trial counsel's performance was deficient. There is a strong presumption that trial counsel's decisions were part of a sound trial strategy. Id. (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). "Consistently with Strickland, we must presume that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that he 'made all significant decisions in the exercise of reasonable professional judgment.'" Jackson, 877 S.W.2d at 771 (quoting Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992)). Lofton cannot show that his trial counsel was ineffective in this regard.

Lofton also claims that his trial counsel did not object to the insufficient corroboration of Humphrey's testimony at trial. Lofton cites no authority for this rule, but he apparently is referring to the accomplice-witness rule. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). Humphrey is not an accomplice to the crime, and therefore, his testimony does not need corroboration. We find that the evidence was relevant and properly admitted at trial. Tex. R. Crim. Evid. 401. We are unable to conclude that Lofton received ineffective assistance from his trial counsel. Lofton's first point is overruled.

In his second point, Lofton claims that the trial court erred in denying his motion to suppress because the contested evidence was obtained as a result of an illegal search and seizure. In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). On appeal, the reviewing court is limited to determining whether, viewed in the light most favorable to the trial court's ruling, the trial court erred in applying the law to the facts. Id. The totality of the circumstances is considered in determining whether the trial court's findings are supported by the record. Absent a showing of an abuse of discretion, we will not disturb the trial court's findings. Dancy v. State, 728 S.W.2d 772, 777 (Tex. Crim. App. 1987), cert. denied, 484 U.S. 975, 108 S. Ct. 485 (1987); Flores v. State, 895 S.W.2d 435, 440 (Tex. App. San Antonio 1995, no pet.).

Law enforcement officials may stop and briefly detain individuals suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. See Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968); Flores v. State, 895 S.W.2d at 440. Under a Terry investigative stop, officers are entitled to briefly question a suspicious person regarding his identity, his reasons for being in the area, and to make any other reasonable inquiry of an investigative nature. Id.

In order "[t]o justify this temporary detention, an officer must have specific, articulable facts which, considering his experience and personal knowledge and his inferences from those facts, would reasonably warrant an intrusion on the freedom of the citizen stopped for investigation." Id. Furthermore, suspicious activity connected with a crime must be occurring or have occurred, and the individual stopped for investigation must somehow be connected with this activity. Id. Once a suspect has been lawfully detained, the officer is entitled to make a limited search of the individual for weapons if the officer has a reasonable belief that the suspect is potentially dangerous to him.

In the present case, Officers King and Searcy were responding to a burglary in progress at a residence. The owner, Paul Humphrey, stated that he thought the occupants of the car parked half a block down the street were involved in the burglary. He stated that he did not recognize the car and that he did not think that anyone in the car lived in the neighborhood. In addition, Officers King and Searcy found a large amount of Humphrey's personal belongings stacked by the back of the house. Officer King testified that he believed that the suspect detained in the house must have had an accomplice because he would need help to remove all of the possessions from the home. We find that the officers had a reasonable suspicion to believe that Lofton was involved in the burglary and were justified in making an investigatory stop to determine if he was involved. Once Lofton had been stopped, Officer King was entitled to question Lofton about his identity.

Once a person has been legally detained, an officer may make an arrest for any offense discovered during the investigative detention. Gaines v. State, 888 S.W.2d 504, 510 (Tex. App. El Paso 1994, no pet.). When Officer King asked for Lofton's driver's license, he was unable to produce it. It is a misdemeanor, and an arrestable offense, for a person to operate a motor vehicle without having a driver's license in his immediate possession. Snyder v. State, 629 S.W.2d 930, 934 (Tex. Crim. App. 1982); Gaines, 888 S.W.2d at 510; see Act of August 28, 1967, 60th Leg., R.S., ch. 328, 7, 1967 Tex. Gen. Laws 778, 781-82, repealed by, Act of September 1, 1995, 74th Leg., R.S., ch. 165, 24(a), 1995 Tex. Gen. Laws 1870, 1871 (current version at Tex. Transp. Code Ann. 521.025(c) (Vernon supp. 1996)).

Once Lofton had been taken into custody for the license violation, the police were entitled to perform a search incident to an arrest to make an inventory of his belongings or for security reasons. Rogers v. State, 774 S.W.2d 247, 264 (Tex. Crim. App.), cert. denied, 493 U.S. 984, 110 S. Ct. 519 (1989). We find that the officers' initial detention of Lofton was proper based on the reasonable suspicion that he was involved in the burglary. Moreover, the subsequent legal arrest for not possessing a driver's license permitted the officers to conduct a valid search incident to an arrest. The evidence taken from Lofton's person was legally seized. Therefore, we find that the trial court properly denied Lofton's motion to suppress the evidence. Lofton's second point is overruled.

In his third point, Lofton claims that his trial counsel abandoned his appeal and thereby denied him due process. The court imposed Lofton's sentence on April 29, 1994. On August 26, the transcript was filed in this court. However, Lofton's trial counsel failed to file a statement of facts or a brief in the allotted time. Because no brief was filed, we abated this cause to the trial court for a hearing to determine if trial counsel had abandoned the appeal and whether Lofton desired to proceed with the appeal. At the hearing, evidence was admitted that counsel had in effect abandoned the appeal. Counsel testified that he believed that Lofton had received "a very good sentence," and he further stated that he did not file a brief because he did not want to prejudice Lofton's right to pursue the appeal pro se. Moreover, once it had been determined that trial counsel had abandoned his appeal, Lofton testified that he wanted to pursue the appeal pro se.

We find that this point is moot. Lofton has been given the opportunity to present his case before this court in an out of time appeal. He is not entitled to any further relief. Lofton's third point is overruled. We affirm the judgment of the trial court.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings

and Justice Vance

Affirmed

Opinion delivered and filed May 15, 1996

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