Kevin Ray Scott v. The State of Texas--Appeal from 8th District Court of Rains County

NO. 12-05-00427-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KEVIN RAY SCOTT, APPEAL FROM THE 8TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE RAINS COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Kevin Ray Scott was convicted for possession of a controlled substance (less than one gram). In two issues, Appellant challenges the reasonableness of the searches of both himself and the front passenger of his vehicle and asserts that trial counsel was ineffective. We affirm.

Background

On July 24, 2004, at approximately 10:39 p.m., Appellant was stopped by Texas Department of Public Safety Troopers Ray Ragan and Brandon Stribling. The troopers stopped Appellant in order to issue him a citation for driving 67 miles per hour in a 55 miles per hour speed zone. Trooper Ragan began to suspect criminal activity when Appellant took an unusually long time to stop his vehicle. Three other individuals were passengers in Appellant s vehicle at the time of the stop.

Trooper Ragan approached Appellant s vehicle and explained the reason for the stop. He then asked Appellant to step out of his vehicle. Appellant stepped out and walked backwards to the rear of his vehicle. As he stepped out, he tossed a package of breath mints back into the vehicle. Trooper Ragan thought Appellant s walking backwards was unusual and suspected that Appellant was attempting to conceal something from him. He also smelled the odor of alcohol coming from inside Appellant s vehicle and saw several propane lighters in the vehicle that were the type commonly used in connection with methamphetamine.

As Trooper Ragan spoke with Appellant, he could smell the odor of alcohol on Appellant s breath. After briefly questioning Appellant, he walked back to Appellant s vehicle to see if there were any open containers in plain view. Seeing none, he returned to where Appellant was standing to question him about possible alcohol consumption. Based upon concerns for officer safety, he conducted a quick pat down search of Appellant that revealed two lighters, some change, and a baby pacifier.

Trooper Ragan then returned to Appellant s vehicle where he noticed an open container of alcohol between the driver s seat and the center console. Although it appeared that someone had attempted to conceal the container, it was, nonetheless, still in plain view. He then requested that the front passenger step out of the vehicle for questioning. He conducted a pat down search of the passenger for officer safety. During the search, he found a small plastic bag containing residue of what appeared to be methamphetamine.1

For safety reasons, Trooper Ragan placed the passenger in handcuffs and instructed Trooper Stribling to place Appellant in handcuffs as well. He instructed the remaining two occupants of the vehicle to keep their hands in view and asked them if there were any weapons in the vehicle. One admitted that there was a knife in the vehicle.

Shortly after speaking with the remaining occupants, Trooper Ragan saw a flashlight casing and another small plastic bag laying on the ground near where Appellant had been standing. The plastic bag contained what appeared to be a usable amount of methamphetamine. Inside the flashlight casing was a glass pipe of the type commonly used to smoke methamphetamine. The pipe had a white residue in it and black marks where it appeared to have been heated.

Trooper Ragan searched Appellant s vehicle and found two glass tubes, a hypodermic needle, and an illegal double edged throwing knife. He gave Appellant a field sobriety test, which revealed that Appellant was not intoxicated. Appellant admitted, however, that the open container was his.

Troopers Ragan and Stribling reviewed the videotape from the camera mounted in their patrol car. The tape revealed that Appellant had discarded the items found on the ground. Trooper Ragan placed Appellant under arrest for possession of a controlled substance2 and possession of drug paraphernalia.3

The paraphernalia charge (for the flashlight and glass pipe) was tried separately from the controlled substance charge. Appellant was convicted on the paraphernalia charge and fined.

At the subsequent trial for the controlled substance charge, Troopers Ragan and Stribling testified about the traffic stop and Appellant s arrest. The State also called Keith Pridgeon, a supervisor at the Texas Department of Public Safety crime lab in Tyler, Texas. Pridgeon testified that the substance found in the bag on the ground was methamphetamine and that it was less than one gram. Both the patrol car videotape and the bag of methamphetamine were admitted into evidence.

Appellant did not testify or call any witnesses during the guilt/innocence phase of the trial. Instead, Appellant s counsel argued that Trooper Ragan had confused the two bags found during the stop and that the passenger, not Appellant, was the individual who actually had the bag with the usable amount of methamphetamine. The jury found Appellant guilty of possession of a controlled substance (less than one gram), sentenced him to two years of confinement, and fined him $5,000.00. This appeal followed.

Reasonableness of the Searches

In his first issue, Appellant challenges the reasonableness of the searches of both himself and the front passenger of his vehicle.

Generally, in order for an appellant to claim that a trial court erred in allowing testimony, he must have preserved the error at trial by making a proper objection and securing a ruling on the objection. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Trooper Ragan s pat down search of Appellant revealed two lighters, some change, and a baby pacifier, but no contraband or weapons. None of these items were seized or admitted as evidence at trial. At trial, Trooper Ragan testified as to the results of the search, but Appellant did not object to the testimony. Because Appellant made no objection at trial, he failed to preserve any issue regarding the testimony for our review.4 See id.

As to Trooper Ragan s search of Appellant s passenger, the State contends that Appellant does not have standing to complain about the search. The State did not challenge Appellant s standing at trial. However, because standing is an element of Appellant s unreasonable search claim, the State may raise standing for the first time on appeal. Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004).

To have standing to complain of a search or seizure, the complaining party must show that he had a reasonable expectation of privacy that was invaded. See id. A complaining party has no standing to complain about the invasion of someone else s personal rights. Id. In this case, Appellant brought forth no evidence that he had a reasonable expectation of privacy in the clothes being worn by the passenger. See id. at 59-60. Therefore, Appellant has no standing to complain about the search of the passenger. See id.

We overrule Appellant s first issue.

Effectiveness of Trial Counsel

Error! Hyperlink reference not valid.In his second issue, Appellant asserts that he received ineffective assistance of counsel at trial. Specifically, Appellant contends that trial counsel was ineffective because counsel did not attempt to prevent the jury from learning of Appellant s conviction for possession of drug paraphernalia, his past criminal history, and the pending unadjudicated charges against him, nor did counsel request a limiting instruction regarding the paraphernalia conviction.

 Standard of Review

Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel s representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. At this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm for reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel s representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

Under the second step of the Strickland analysis, the appellant must show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability was defined by the Supreme Court as a probability sufficient to undermine confidence in the outcome. Id.

Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App. Texarkana 2000, pet. ref d). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fell below the professional norm for reasonableness. Id. The appellant must prove that his attorney s errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney s errors, the outcome would have been different. See id.

 Discussion

In this case, the record contains no evidence of the strategic reasons for counsel s decisions. Under the facts presented here, this alone requires us to resolve this issue against Appellant. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003); see also Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) ( If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. ). However, the reasons for counsel s actions are not difficult to discern from the record.

Appellant was charged with possession of a controlled substance. The controlled substance, methamphetamine, was in a small plastic bag at the time of Appellant s traffic stop. Appellant tried to dispose of the substance clandestinely but was instead caught on videotape throwing it onto the ground. In light of the overwhelming evidence of Appellant s guilt, Appellant s counsel had but one reasonable argument: that Trooper Ragan had confused the bag found on the passenger and the bag Appellant threw to the ground. Counsel argued that Trooper Ragan had actually found the bag containing methamphetamine when searching the passenger and then found the bag containing only residue on the ground. Counsel further argued that Trooper Ragan confused the two bags and thus the wrong man was being prosecuted for possessing the drugs.

In order to make this argument successfully, counsel needed to muster credibility with the jury. It was reasonable trial strategy to concede certain damaging facts, such as Appellant s conviction for possession of drug paraphernalia, his past criminal history, and the pending unadjudicated charges against him, in an attempt to win the trust of the jury. Consequently, Appellant has failed to show that his counsel provided ineffective assistance in this regard. See McFarland, 928 S.W.2d at 500.

As to counsel s failure to request a limiting instruction, Appellant has not explained what type of limiting instruction he believes was warranted. Likewise, Appellant has not presented any evidence of the strategic reasons for counsel s decision not to seek a limiting instruction. Therefore, Appellant has not met his burden to show that counsel s conduct fell below the professional norm for reasonableness. See Ortiz, 93 S.W.3d at 88-89.

Because Appellant has not met his burden to shown that counsel s conduct fell below the professional norm for reasonableness, we need not address the second step of the Strickland analysis. We overrule Appellant s second issue.

 Disposition

We affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered February 14, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 After later examining the bag more carefully, Trooper Ragan determined that the amount was not a usable or testable amount.

2 See Tex. Health & Safety Code Ann. 481.115(b) (Vernon 2003).

3 See Tex. Health & Safety Code Ann. 481.125(a) (Vernon 2003).

4 Appellant filed a motion to suppress testimony about the bag of methamphetamine, the flashlight, and the glass pipe, but did not move to suppress testimony about the pat down search of his person.