Boyd Lee Rice v. The State of Texas--Appeal from County Court at Law No 2 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00057-CR

Boyd Lee Rice,

Appellant

v.

The State of Texas,

Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court No. 2005-3744-CR2

MEMORANDUM Opinion

A jury convicted Boyd Lee Rice of driving while intoxicated and the trial court sentenced him to ninety days in jail, probated for twelve months, and assessed a $2,000 fine. In one issue, Rice contends that he was denied effective assistance of counsel when his attorney did not seek to suppress evidence allegedly obtained in violation of article 14.03(g) of the Code of Criminal Procedure. We affirm.

To prove ineffective assistance, an appellant must show that: (1) counsel s performance was deficient; and (2) the defense was prejudiced by counsel s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003). The appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). There is a strong presumption that counsel s conduct fell within a wide range of reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). [A]ny allegation of ineffectiveness must be firmly founded 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).

Rice complains of trial counsel s failure to file a motion to suppress, alleging that he was illegally stopped because the officer was acting outside his jurisdiction and stopped Rice for a mere traffic offense. Rice s motion for new trial did not allege ineffective assistance. The record is silent as to trial counsel s reasons for not filing a motion to suppress.

However, trialcounsel may have determined that the stop was authorized by subsections (d) and (g) of article 14.03.[1] In Brother v. State, 166 S.W.3d 255 (Tex. Crim. App. 2005), the Court of Criminal Appeals upheld the trial court s denial of a motion to suppress where an officer effectuated the stop outside his jurisdiction:

Appellant was stopped outside the arresting officer s jurisdiction based on the officer s probable cause that DWI was underway, and the officer so testified. The officer was resolute that the caller had provided facts which led him to believe that DWI--not traffic offenses--was afoot. Therefore, Article 14.03(g) did not prohibit the stop outside the officer s jurisdiction.

Moreover, Article 14.03(d) further authorized the stop. Subsection (d) provides that an officer may make an extra-jurisdictional stop for felony offenses, disorderly conduct offenses under Chapter 42, intoxication offenses under Chapter 49, and breaches of the peace that are committed within the officer s view. Based on the officer s testimony here, the trial court could have reasonably found that an intoxication offense was taking place. Therefore, the stop was authorized by both subsections (d) and (g).

166 S.W.3d at 260 (internal citations omitted). In Mitchell v. State, 187 S.W.3d 113 (Tex. App. Waco 2006, pet. ref d), we upheld the trial court s denial of a motion to suppress where Venus Police Officer Bryan Fulbright effectuated a stop outside his jurisdiction. 187 S.W.3d at 114. Based on an unidentified citizen s report and his own observations, Fulbright suspected Mitchell of driving while intoxicated and so was authorized to stop Mitchell under subdivisions (d) and (g) of article 14.03, even though he was outside Venus city limits. Id. at 116.

In this case, John Jay Justice witnessed Rice speeding and contacted the Robinson Police Department. Justice remained on the phone with the dispatcher, continued following Rice, and observed Rice weave through different lanes of traffic, drive in the same lane as oncoming traffic, and run a red light. Justice communicated Rice s movements to dispatch. Robinson Police Officer Patrick Carey testified that he responded to Justice s traffic complaint that Rice was speeding. He further testified that based on the type of call this is a possible drunk driver. Carey observed Rice weaving in different lanes. He effectuated the stop in Falls County, outside his McLennan County jurisdiction. He observed a strong odor of alcohol coming from Rice s vehicle and administered field sobriety tests that Rice failed. Rice refused to submit to a breath test.

Based on this evidence, the trial court could have determined that subsections (d) and (g) authorized the stop because Carey could have reasonably suspected that an intoxication offense was occurring and so denied a motion to suppress evidence resulting from the stop. See Brother, 166 S.W.3d at 260; see also Mitchell, 187 S.W.3d at 116. Accordingly, trial counsel could have felt that a motion to suppress would have been frivolous under the circumstances.

While this, and other reasons, may explain trial counsel s failure to file a motion to suppress, we may not speculate as to those reasons. See Robinson v. State, 22 S.W.3d 631, 636 (Tex. App. Waco 2000, pet. ref d). Absent a record revealing trial counsel s strategy or motivation, Rice has not defeated the strong presumption that trial counsel s actions fell within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814. Rice s ineffective assistance claim is better raised through an application for a writ of habeas corpus. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Bone, 77 S.W.3d at 837 n.30. The judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 27, 2008

Do not publish

[CR25]

[1] At the time the offense was committed, subsection (d) provided:

A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace.

Act of May 29, 2003, 78th Leg., R.S., ch. 897, 1, 2003 Tex. Gen. Laws 2723 (current version at Tex. Code Crim. Proc. Ann. art. 14.03(d) (Vernon Supp. 2007)).

Subsection (g)(2) provided:

A peace officer listed in Subdivision (1), (2), (3), (4), or (5), Article 2.12, who is licensed under Chapter 415, Government Code, and is outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, except that an officer who is outside the officer's jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the officer is listed in Subdivision (4), Article 2.12.

Act of May 10, 1999, 76th Leg., R.S., ch. 210, 2, 1999 Tex. Gen. Laws 686, 686-87 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 14.03(g)(2) (Vernon Supp. 2007)).