IN THE

TENTH COURT OF APPEALS

No. 10-05-00414-CR

No. 10-05-00415-CR

Kenny Clay,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 13th District Court

Navarro County, Texas

Trial Court Nos. 29692, 29693

The trial court found Kenny Clay guilty of possession of a controlled substance (penalty group 3) with intent to deliver and possession of a controlled substance (penalty group 1) with intent to deliver.  He was sentenced to one year in a state jail and to seven years in state prison, respectively, with the sentences to run concurrently.  He appeals, arguing in each appeal that he received ineffective assistance of counsel in the trial court.  We will affirm.

Clay asserts that his trial counsel was ineffective in four respects:  (1) failing to file any pretrial discovery motions, including a request for any Brady material; (2) failing to file a motion to suppress; (3) failing to call or subpoena key witnesses to support the defense theory that Clay legally possessed the controlled substances under prescriptions; and (4) the totality of the circumstances of counsel’s representation undermines the trial’s result.  Clay did not move for a new trial or request a post-verdict hearing on trial counsel’s strategies or the reasons for the challenged conduct. 

            The legal standard set out in Strickland v. Washington applies to Clay’s claim of ineffective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  To prevail, Clay must first show that his counsel’s performance was deficient.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).  Second, Clay must show that this deficient performance prejudiced his defense.  Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

            Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel’s conduct was reasonable and professional.  See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Mitchell, 68 S.W.3d at 642.  Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation:  “[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.”  Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see also Mitchell, 68 S.W.3d at 642 (“The reasonableness of counsel’s choices often involves facts that do not appear in the appellate record.  A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims.”).

            In the absence of evidence of trial counsel’s reason for the challenged conduct, we assume a strategic reason for trial counsel’s conduct, if one can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“an appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it”) (quoting 3 W. Lafave, et al., Criminal Procedure § 11.10(c) (2d ed. 1999) and citing Thompson, 9 S.W.3d at 814).  But, if nothing in the record reveals trial counsel’s reason, it is improper for us to speculate on it.  See Thompson, 9 S.W.3d at 814.

            The record does reveal that Clay’s trial counsel informed the trial court that all pretrial matters would be handled by agreement with the State and that any disputed issues would be taken up at a later pretrial hearing.  The failure to file pretrial motions, in and of itself, does not constitute ineffective assistance; an appellant must present a record and show harm by the failure to file specific motions.  Huynh v. State, 833 S.W.3d 636, 638 (Tex. App.—Houston [14th Dist.] 1992, no pet.).  Also, Clay offers no evidence or argument of any Brady material that the State failed to disclose.  In sum, nothing in the record negates the showing in the record that pretrial discovery matters were to be, and in fact were, handled by agreement.  Likewise, nothing in the record reveals why Clay’s trial counsel did not call or subpoena any witnesses.  Clay testified about a couple of physicians and some pharmacies where his prescriptions had been filled, but the record does not reveal whether or not his trial counsel followed up on this information.  Nor does the record reveal that any witness could have supported Clay’s defense.  See id.  On Clay’s first and third complaints, without a record that reveals the reasons for the challenged conduct of his trial counsel, we cannot speculate whether Clay’s trial counsel was ineffective.

Clay was arrested by two state troopers during a traffic stop.  During a pat-down search, the troopers found marihuana and a few pills on his person.  In a search incident to Clay’s arrest, the troopers found large amounts of pills in Clay’s vehicle.  Clay argues that his trial counsel should have filed a motion to suppress this physical evidence because the scope of the traffic stop was illegally continued and prolonged.  To prove that trial counsel was ineffective for failing to file a motion to suppress, Clay must prove that the trial court would have granted the motion, had it been filed.  Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).

Both troopers involved in the stop testified.  They had stopped Clay because his vehicle’s window tint was too dark and was bubbly and wrinkled.  He also did not have proof of liability insurance.  Clay does not contest these aspects of the stop.  Instead, he argues that the troopers, without reasonable suspicion, impermissibly prolonged the duration of the stop and, as part of a “fishing expedition” for unrelated criminal activity, frisked Clay, which led to the discovery of the controlled substances.  Without citation to the record or to a specific amount of time, Clay asserts that a “substantial amount of time” passed from the initiation of the stop to the pat-down search.

Both troopers said that Clay’s behavior was strange; his movements were sudden and jerky, and his manner of speech was odd.  One trooper described Clay’s nervous demeanor, shaky hands, shifting eyes, and failure to make eye contact while speaking.  And Clay paused while looking for his registration and insurance paperwork to try to listen to what was being said on the other trooper’s radio, which concerned the trooper because he thought Clay was possibly worried about the troopers’ receiving information about Clay.  Both troopers said Clay appeared to have a small amount of a white powdery substance and wet, clear mucus around his nose, which was consistent with using illegal drugs.  Clay was asked to get out of his vehicle while his citations were being written, and one of the troopers did a pat-down search for weapons for officer safety based on Clay’s behavior and demeanor.  The trooper felt a baggie in a pocket and thought it might be illegal drugs.  He asked Clay if he had anything illegal on his person, and rather than responding, Clay’s mouth started “shivering,” which heightened the trooper’s suspicion.  The trooper then found the baggie of marihuana in the pocket and a smaller baggie with some pills.

A routine traffic stop is analyzed as a Terry stop.  Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 318 (1984); see Terry v. Ohio, 329 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).  A seizure that is reasonable at its inception may violate the Fourth Amendment by virtue of its excessive intensity and scope.  Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997).  Thus, an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.  See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983).  Once the reason for the stop has been satisfied, the stop may not be used as a “fishing expedition for unrelated criminal activity.”  Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Ginsberg, J., concurring)).  “There is, however, no constitutional stopwatch on traffic stops.  Instead, the relevant question in assessing whether a detention extends beyond a reasonable duration is ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.’”  United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004) (en banc) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)).  An investigative detention following a traffic stop may last as long as is reasonably necessary to effectuate the purpose of the stop.  Id. at 512.  The Supreme Court has expressly rejected placing a rigid time limitation on Terry investigative detentions.  Kothe v. State, 152 S.W.3d 54, 64-65 (Tex. Crim. App. 2004) (citing Sharpe, 470 U.S. at 685-86, 105 S.Ct. at 1575 (declining to “establish a per se rule that a 20-minute detention is too long” under Terry)).

A law enforcement officer may conduct a limited search of a suspect’s outer clothing for weapons, even in the absence of probable cause, when the officer reasonably believes that the suspect is armed and dangerous.  Carmouche v. State, 10 S.W.3d 323, 329 (Tex. Crim. App. 2000) (citing Terry, 329 U.S. at 27, 88 S.Ct. at 1883; Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992)).  The purpose of this limited search is to allow the officer to pursue investigation without fear of violence, not to discover evidence.  Id.  The officer need not be absolutely certain that an individual is armed; the issue is whether a reasonably prudent person would justifiably believe that he or others were in danger.  O’Hara v. State, 27 S.W.3d 548, 551 (Tex. Crim. App. 2000).  A frisk is justified when the officer can point to specific and articulable facts that reasonably lead him to conclude that the suspect might possess a weapon.  Carmouche, 10 S.W.3d at 329.

            If a protective frisk goes beyond what is necessary to determine if the suspect is armed, the frisk is no longer valid under Terry and its fruits will be suppressed.  Id. at 330.  But “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy, beyond that already authorized by the officer’s search for weapons.”  Id. at 330-31 ((quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334 (1993)).

Under the evidence in this case, we find that, had Clay’s trial counsel filed a motion to suppress, the trial court would not have abused its discretion in finding that the pat-down that revealed the controlled substances in Clay’s possession was for officer safety and was not unreasonable, and we would hold that the pat-down was constitutionally justified.  See id. at 329-30.

            Finally, based on our above discussion, the totality of the circumstances concerning Clay’s trial counsel’s representation does not render her assistance ineffective.  We overrule Clay’s issue in each appeal and affirm the trial court’s judgments.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment only, not the opinion of the Court.)

Affirmed

Opinion delivered and filed August 30, 2006

Do not publish

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