Hugo Andy Martinez v. State

Opinion issued January 3, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00976-CR

HUGO ANDY MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1048707

MEMORANDUM OPINION

After the trial court denied the pretrial motions of appellant, Hugo Andy

Martinez, seeking to suppress his statement and seized evidence, appellant pleaded

guilty, without an agreed recommendation by the State, to the felony offense of

possession with intent to deliver a controlled substance, cocaine, weighing at least

400 grams. Tex. Health & Safety Code Ann. § 481.102 (3)(D) (Vernon Supp.

2007), § 481.112(a), (e) (Vernon 2003). Following a sentence investigation, the trial

court found appellant guilty, assessed his punishment at 50 years' confinement in

prison and a $250,000 fine, and later certified appellant's right to appeal. Appellant

presents five points of error, in which he argues that (1) the trial court abused its

discretion by denying appellant's motions to suppress, (2) appellant was denied

effective assistance of counsel, and (3) the trial court abused its discretion by refusing

to hold a hearing on appellant's motion for new trial. We affirm.

Background

By his judicial confession, appellant pleaded guilty to unlawfully and

knowingly possessing with intent to deliver a controlled substance, cocaine, weighing

at least 400 grams by aggregate weight including any adulterants and dilutants.

Appellant had been under surveillance pursuant to a tip by an informant and was

stopped for a traffic violation, after which he told officers who had followed him that

he had cocaine in his truck and granted the officers permission to search the truck.

Appellant was arrested in the driveway of a residence after police discovered cocaine

and a large sum of cash from the truck. After seizure of the cocaine and subsequent

arrest, appellant granted police oral and written consent to search the residence and

handed his keys to an officer to unlock it. Once inside, police found a total of 232.2

kilograms of cocaine in the locations to which appellant had directed them.

Appellant filed two pretrial motions to suppress. In the first motion, appellant

sought to suppress the written statement he provided to police; the second motion

sought to suppress the cocaine from the residence. The trial court conducted an oral

hearing pretrial to consider both motions, during which three police officers testified

and were cross-examined, and 18 exhibits were admitted. At the conclusion of the

hearing, the trial court denied the motions, thus concluding that there was no reason

to suppress the seized cocaine or appellant's statement.

Hearing on Motion for New Trial

In his fifth issue, appellant contends that the trial court erred by refusing

appellant's request for an evidentiary hearing on his motion for new trial. Appellant

filed his motion for new trial through newly retained appellate counsel, who verified

the motion and requested a hearing on it. The record reflects that the trial court

initially granted appellant's request for an evidentiary hearing, but later declined to

conduct the hearing because of deficiencies in the motion. Appellant initially

challenged that ruling in this Court by moving to abate the appeal. Having previously

ordered appellant's motion taken with the case, we address this issue first.

Article 40.001 of the Code of Criminal Procedure governs motions for new trial

premised on discovery of material evidence favorable to the accused. See Wallace

v. State , 106 S.W.3d 103, 107 (Tex. Crim. App. 2003) (citing Tex. Code Crim. Proc.

Ann. § 40.001 (Vernon 2006). The purpose of the hearing is to develop fully the

issues raised in the motion. Id. at 108; Martinez v. State , 74 S.W.3d 19, 22 (Tex.

Crim. App. 2002); see Tex. R. App. P. 21.2 (stating that motion for new trial required

to preserve error "only when necessary to adduce facts not in the record"). A

defendant does not have an absolute right to an evidentiary hearing on a motion for

new trial. Cooks v. State , __ S.W.3d __, No. PD-0010-06, slip op. at 5, 2007 WL

4146374 * __ (Tex. Crim. App. Nov. 21, 2007) (holding that time for filing motion

for new trial is critical stage during which defendant has a constitutional right to

counsel). To be entitled to a hearing, the motion for new trial and accompanying

affidavit must raise matters that (1) are not determinable from the record and (2)

could entitle the accused to relief. Id. (citing Jordan v. State , 883 S.W.2d 664, 665

(Tex. Crim. App. 1994)); Wallace , 106 S.W.3d at 108 (quoting Reyes v. State , 849

S.W.2d 812, 816 (Tex. Crim. App. 1993)).

Appellant's 24-page motion for new trial invoked these standards, citing Reyes ,

849 S.W.2d at 816 . Appellant's motion challenged denial of his motions to suppress

and also raised claims concerning the effectiveness of trial counsel. Yet, the existing

record contains both appellant's motions to suppress and the reporter's record from

the hearing on those motions. Accordingly, appellant's challenge to the ruling on his

motions to suppress are determinable from the existing record.

Appellant's motion for new trial also asserted a claim of ineffectiveness of

counsel. Specifically, appellant claimed, through appellate counsel, that his trial

counsel was ineffective in the following respects: not supporting the motions to

suppress with legal authorities on the issue of effective consent; not informing

appellant of the doctrine of affirmative links, which adversely affected the

voluntariness of appellant's plea; and not calling witnesses, offering mitigating

evidence, or making a "real" plea for leniency during the punishment phase of the

trial. The claim of failure to support the motions to suppress with legal authorities

is determinable in part from the existing record, which contains both the motion and

the reporter's record of the hearing on appellant's motions. Whether trial counsel was

ineffective as appellant claims is usually not determinable from the existing record,

however, and is, therefore, governed by article 40.001 of the Code of Criminal

Procedure. See Guidry v. State , 132 S.W.3d 611, 612 (Tex. App.--Houston [1st

Dist.] 2004, no pet.) (ordering abatement to conduct hearing on motion for new trial

claiming ineffective assistance of counsel based on claim of failure to convey

defendant's acceptance of plea offer). Accordingly, we next address whether a

hearing was required regarding the claim of ineffectiveness of counsel.

A. Prerequisites to Obtaining Article 40.001 Hearing

The defendant need not establish a prima facie case for a new trial in order to

be entitled to an evidentiary hearing on a motion for new trial; the motion and

supporting affidavit proof need only demonstrate that reasonable grounds exist for

holding that a new trial could be granted. Wallace , 106 S.W.3d at 108 (citing

Martinez v. State , 74 S.W.3d at 22 ; Guidry , 132 S.W.3d at 612 .

We review the trial court's decision to deny a hearing on an article 40.001

motion for new trial for abuse of discretion. See Wallace , 106 S.W.3d at 108 ; Guidry ,

132 S.W.3d at 612 . When a defendant presents a motion for new trial that raises

matters that are not determinable from the record and could entitle the defendant to

relief, a trial court abuses its discretion by failing to conduct a hearing. Wallace , 106

S.W.3d at 108 ; Martinez , 74 S.W.3d at 21 ; King v. State , 29 S.W.3d 556, 569 (Tex.

Crim. App. 2000); Guidry , 132 S.W.3d at 612 . An affidavit that specifically

demonstrates the truth of the defendant's grounds of attack is thus an absolute

prerequisite to obtaining a hearing. See Wallace , 106 S.W.3d at 108 ; Martinez , 74

S.W.3d at 21 ; Guidry , 132 S.W.3d at 612 . An affidavit that states only conclusory

allegations without supporting facts fails the showing required and is insufficient to

warrant an evidentiary hearing on the motion for new trial. Cooks , slip op. at 5 (citing

and quoting Jordan , 883 S.W.2d at 665 ); see also Martinez , 74 S.W.3d at 21 (stating

that affidavit must demonstrate that reasonable grounds for new trial exist and that

alleged grounds are true); Jordan , 883 S.W.2d at 655 (rejecting sufficiency of

conclusory affidavit, unsupported by facts and explanations concerning claim of

ineffective assistance of counsel, to put trial court on notice that reasonable grounds

exist to conduct evidentiary hearing); Vyvial v. State , 10 S.W.2d 83, 84 (Tex. Crim.

App. 1928) (op. on reh'g) (rejecting sufficiency of motion premised on "information

and belief," without specific averment of facts or supporting affidavit, because same

not only unassailable as perjury, but would also force limitless "fishing expeditions"

by reviewing court). The defendant or another person with knowledge may supply the

supporting affidavit for matters that are not apparent from the record. Bearden v.

State , 648 S.W.2d 688, 690 (Tex. Crim. App. 1983); see Vyvial , 10 S.W.2d at 84

(holding that matters constituting hearsay as to accused require affidavit of another

person with knowledge of facts).

B. Appellant's Claims of Ineffectiveness of Counsel

1. Voluntariness of Plea-Failure to Inform of Affirmative-Links Doctrine

Through newly retained appellate counsel, appellant claimed in his motion for

new trial that his trial counsel was ineffective because he did not inform appellant

adequately concerning the effect of the doctrine of affirmative links, as that defense

might affect appellant's lack of exclusive possession of the premises where police

seized the 250 kilograms of cocaine. Appellant argued that no affirmative links

connected him to the offense, that trial counsel's failure to inform appellant of the

affirmative-links doctrine adversely affected the voluntariness of his guilty plea, and

that he would not have pleaded guilty had he been aware of the case law.

The affidavit offered in support of the motion for new trial is defective because

it lacks evidentiary support. Appellant neither verified the motion for new trial, nor

supported it with an unsworn declaration, as authorized by section 132.001 of the Civil

Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001

(Vernon 2005) (authorizing unsworn declarations for inmates). Appellant's appellate

counsel provided the only authentication for the statements through a brief

verification. In addition to stating her name and status as an attorney licensed to

practice law in Texas, counsel's verification recites that she had reviewed the motion

for new trial, and "state[d] under oath that the facts contained therein are true and

correct to the best of [her] knowledge." In Grant v. State , the Texarkana Court of

Appeals rejected an affidavit in similar form signed by counsel on behalf of an

accused and held that the trial court did not abuse its discretion by refusing to conduct

an evidentiary hearing. 172 S.W.3d 98, 101 (Tex. App.--Texarkana 2005, no pet.)

Because counsel's statements were necessarily hearsay with respect to the defendant's

claims that he was coerced into pleading guilty, counsel's sworn statement was

inadmissible hearsay, and the trial court did not err by not holding the requested

hearing on the motion for new trial. See id. (1)

Just as counsel in Grant could not testify competently that the defendant had

been coerced into entering a guilty plea, id. , appellate counsel was not competent here

to testify that trial counsel's alleged failure to inform appellant of the doctrine of

affirmative links adversely affected his decision to plead guilty. Thus lacking any

sworn statement or unsworn declaration by the defendant concerning trial counsel's

ineffectiveness because of his alleged failure to explain the affirmative links doctrine

to appellant and any relationship of that alleged failure to appellant's plea, the motion

for new trial remained effectively unsworn and, thus, noncompliant with the affidavit

requirement. See id . (citing Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (Vernon

2005) (authorizing unsworn declaration by prison inmate in lieu of affidavit); see also

Wallace , 106 S.W.3d at 108 ; Martinez , 74 S.W.3d at 21 ; Guidry , 132 S.W.3d at 612

(reiterating affidavit requirement). Accordingly, appellant's motion did not place the

trial court on notice that reasonable grounds for granting appellant's request for an

evidentiary hearing existed. See Jordan , 883 S.W.2d at 665 .

2. Other Ineffective-Assistance Claims

Appellant also contended in the motion for new trial that his trial counsel was

ineffective during the punishment phase by not offering witnesses or mitigating

evidence and not making a "real" plea for leniency. In addition to the lack of sworn,

supporting proof addressed above, these claims constitute bare legal conclusions

without additional supporting facts to substantiate the stated failures or explanations

of how any of these alleged failures adversely affected appellant. Compare King , 29

S.W.3d at 569 and Jordan , 883 S.W.2d at 665 (rejecting contentions in motion for

new trial as conclusory) with Guidry , 132 S.W.3d at 612 (holding that claim of

ineffective representation warranted evidentiary hearing because affidavit supporting

motion for new trial explained that counsel's failure to inform prosecutor that

appellant had accepted plea bargain, which resulted in greater punishment than

proposed by State).

We hold that appellant's motion for new trial and the supporting verification by

appellate counsel did not entitle appellant to the hearing contemplated by article

40.001 of the Code of Criminal Procedure because they did not place the trial court

on notice that reasonable grounds existed for granting the requested hearing. E.g. ,

Jordan , 883 S.W.2d at 665 . Therefore, that the trial court did not abuse its discretion

by refusing to conduct a hearing on appellant's motion for new trial.

We overrule appellant's fifth point of error.

Motions to Suppress

Appellant's first, second, and third points of error challenge denial of his

motions to suppress. The first and second points of error challenge the trial court's

refusal to suppress the evidence seized from the residence on the grounds that

appellant's written consent to search was neither voluntary nor valid, in violation of

article 1, section 9 of the Texas Constitution, article 38.23 of the Code of Criminal

Procedure, and the Fourth and Fourteenth Amendments to the United States

Constitution. See Tex. Const. art. 1, § 9; Tex. Code Crim. Proc. Ann. art. 38.23

(Vernon 2005); U.S. Const. amend. IV, XIV.

A. Voluntary Consent or Acquiescence to Police Authority--Waived

In point of error one, appellant contends that his written consent to search the

residence was not voluntary because he merely acquiesced to the police officer's claim

of lawful authority. See Bumper v. N. Carolina , 391 U.S. 543, 548 , 88 S. Ct. 1788,

1791 (1968); Paulus v. State , 633 S.W.2d 827, 850 (Tex. Crim. App. 1981). In

support of that contention, appellant interprets the record as demonstrating a conflict

between the testimony of the officers, who claimed that no more than ten minutes

passed between appellant's detentions and his signing the consent to search the

residence, and other evidence in the record that shows a gap of six hours between

initial detention and his signing the consent form. (2) Appellant argues that this conflict

casts "serious doubt" on both the officers' testimony and the voluntariness of

appellant's consent. Appellant also directs us to the following handwritten addition

to the consent to search form: "Narcessa Martinez (appellant's wife) will not be

arrested during this [search]." Appellant contends that the addition suggests either

that appellant's consent was coerced or that appellant believed he was promised

impunity for his wife if he consented to the search.

Appellant did not preserve either contention in the trial court, where his motion

to suppress, as well as his motion for new trial, focused on appellant's lack of

authority to consent to the search of the residence, which another person actually

owned, and the alleged failure of the officers at the scene to inform appellant that he

could refuse to consent.

Well-settled law recognizes that virtually every right, whether constitutional or

statutory, may be waived by failing to object. Smith v. State , 721 S.W.2d 844, 855

(Tex. Crim. App. 1986); Solis v. State , 945 S.W.2d 300, 301 (Tex. App.--Houston

[1st Dist.] 1997, pet. ref'd). To preserve error for appellate review, an appellant must

object timely, with reasonable specificity, and obtain an adverse ruling. Tex. R. App.

P. 33.1(a); Turner v. State , 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) ; Steadman

v. State , 31 S.W.3d 738, 742 (Tex. App.--Houston [1st Dist.] 2000, pet. ref'd). An

appellant has not preserved error when the complaint on appeal does not comport with

the objection made to the trial court, Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim.

App. 2002), or expands beyond a narrow ground presented to the trial court. See

Swain v. State , 181 S.W.3d 359, 365 (Tex. Crim. App. 2005). Error is not preserved

under either alternative because the trial court had no opportunity to rule on the

grounds presented on appeal, as rule 33.1(a)(2) requires.

Because appellant did not present to the trial court the same contentions that he

presents in his first point of error to this Court, the trial court had no opportunity to

rule on those contentions, as required by rule 33.1(a)(2). Having thus failed to

preserve error by raising his challenges for the first time on appeal, appellant has

waived error. See Wilson , 71 S.W.3d at 349 ; Swain , 181 S.W.3d at 365 .

We overrule appellant's first point of error.

B. Authority to Consent

In his second point of error, appellant contends that the trial court erred by

denying his motion to suppress the cocaine the officers seized from the residence on

the grounds that appellant had neither actual nor apparent authority to consent to the

search because another person owned the residence. The State responds that appellant

waived any error because his contentions were not before the trial court during the

hearing on the motion to suppress. Though appellant's argument was not before the

trial court at the hearing on the motion to suppress, appellant's motion for new trial

included a challenge to his actual or apparent authority to consent to the search of the

residence. The trial court did not rule expressly on the motion for new trial, which

was overruled as a matter of law, but the motion nonetheless afforded the trial court

an opportunity to rule on the merits of appellant's challenge and, therefore, preserved

the complaint for appeal. See Tex. R. App. P. 33.1(b).

1. Standard of Review

Under the bifurcated standard of review that controls rulings on a motion to

suppress, we defer almost totally to the trial court's determination of historical facts,

and we review the court's application of the law de novo. See Dyar v. State , 125

S.W.3d 460, 462 (Tex. Crim. App. 2003); Brown v. State , 212 S.W.3d 851, 866 (Tex.

App.--Houston [1st Dist.] 2006, pet. denied). The trial court is the trier of fact at a

hearing on a motion to suppress and alone determines the credibility of witnesses and

the weight, if any, to accord their testimony. State v. Ross , 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000); Brown , 212 S.W.3d at 866-67 . Accordingly, the trial court may

believe or disbelieve all or any part of a witness's testimony, even if that testimony is

not controverted. Ross , 32 S.W.3d at 855 ; Brown , 212 S.W.3d at 867 . When, as here,

the trial court files no findings of fact, we view the evidence in the light that most

favors the trial court's ruling, and we will uphold the ruling on any theory of law

supported by the evidence. Estrada v. State , 154 S.W.3d 604, 607 (Tex. Crim. App.

2005); Brown , 212 S.W.3d at 867 .

2. Standing

We first address the State's contention that appellant lacks standing to assert

that he lacked actual or apparent authority to consent to the search of the residence

because the residence was not appellant's residence. An accused has standing to

contest a search under the Fourth Amendment provided he has a legitimate expectation

of privacy in the place searched. Rakas v. Illinois , 439 U.S. 128, 143 , 99 S. Ct. 421,

430 (1978); Granados v. State , 85 S.W.3d 217, 222-23 (Tex. Crim. App. 2002);

Brown , 212 S.W.3d at 867 . It is the defendant's burden to establish that he had a

subjective expectation of privacy that society recognizes as reasonable in the place

searched. Granados , 85 S.W.3d at 223 ; Brown , 212 S.W.3d at 867 . (3)

In this case, appellant had keys to the residence on his keychain and gave them

to an officer at the residence, who then unlocked the residence and entered it with

other officers after appellant signed a written consent. Once inside, appellant, who

was on crutches, remained in the kitchen area of the residence, from which he directed

the officers conducting the search to areas all over the house, where they recovered

cocaine and kilo wrappers. The search progressed by appellant's indicating an area

for the officers to search, the officers' recovering either cocaine or kilo wrappers in

that area, and then returning to appellant to ask whether any more drugs existed and

where they were located. Appellant directed the officers to a specific shelf in a

bedroom, a specific dresser drawer of another bedroom, a specific oatmeal bag in the

pantry area of the kitchen, the attic crawl space of a bedroom, as well as the garage.

Appellant instructed the officers how to access the attic--by using a ladder in the

garage that was resting on large duffel bags containing the largest amounts of

cocaine--and described those bags as well, and also told the officers that the owner

of the house did not know that appellant was storing controlled substances there.

These circumstances, including the circumstances that the contraband was hidden and

not in plain view in any of the areas to which appellant directed the officers, warrant

the trial court's implied conclusion that appellant had a reasonable expectation of

privacy in the searched premises. See Granados , 85 S.W.3d at 223 ; Brown , 212

S.W.3d at 867 . Accordingly, we conclude that appellant has standing to challenge

whether he consented to the search.

3. Validity--Whether Officers Reasonably Relied on Appellant's Consent (4)

It is undisputed that police conducted a warrantless search of the residence, but

also undisputed that appellant signed a written consent authorizing the search. Consent

is a well-established exception to the warrant requirement. Miller v. State , 208 S.W.3d

554, 559 (Tex. App.--Austin 2006, pet. ref'd) (citing Schneckloth v. Bustamonte , 412

U.S. 218, 219 , 93 S. Ct. 2041, 2043-44 (1973)); Reasor v. State , 12 S.W.3d 813, 817

(Tex. Crim. App. 2000). An individual whose premises or property is searched may

consent, but an individual who has common authority over and authority to use the

premises or property may also consent. Illinois v. Rodriguez , 497 U.S. 177, 179-81 ,

110 S. Ct. 2793, 2797 (1990) (citing United States v. Matlock , 415 U.S. 164, 171 , 94

S. Ct. 988, 993 (1974)); Whisenhunt v. State , 122 S.W.3d 295, 298 (Tex.

App.--Houston [1st Dist.] 2003, pet. ref'd); Brown , 212 S.W.2d at 868; see also Jones

v. State , 119 S.W.3d 766, 787 (Tex. Crim. App. 2003) (stating that third person who

has "equal control and equal use of property searched" may validly consent).

To be constitutionally valid, consent must be voluntary. See Rayford v. State ,

125 S.W.3d 521, 528 (Tex. Crim. App. 2003) (citing Schneckloth , 412 U.S. at 219-23 ,

93 S. Ct. at 2041 ); see also Brimage v. State 918 S.W.2d 466, 480-82 (Tex. Crim. App.

1994) ("When the State has secured the voluntary consent to a warrantless search, such

a search violates neither the United States or Texas constitutions, nor the laws of this

state.") (citing Matlock , 415 U.S. 164 , 94 S. Ct. 988 (1974); Becknell v. State , 720

S.W.2d 526 (Tex. Crim. App. 1986); Sharp v. State , 707 S.W.2d 611 (Tex. Crim. App.

1986)). The validity of a consent to search is a question of fact and is determined from

all the circumstances. Rayford , 125 S.W.3d at 528 (citing Ohio v. Robinette , 519 U.S.

33, 40 , 117 S. Ct. 417, 421 (1996)); Maxwell v. State , 73 S.W.3d 278, 281 (Tex. Crim.

App. 2002). Federal constitution law demands that the State prove the validity of

consent by a preponderance of the evidence, and the Texas Constitution requires the

State to establish validity of consent by clear and convincing evidence. Rayford , 125

S.W.3d at 528 ; Maxwell , 73 S.W.3d at 281 .

An individual's authority to consent to search another's premises or property

derives from the Supreme Court's recognition that several persons may have joint

access or control over a property for most purposes and thus may use the property

sufficiently mutually that it is reasonable to recognize that a cohabitant has the right to

permit the inspection in his own right. See Maxwell , 73 S.W.3d at 282 ; see Matlock ,

415 U.S. at 171 n.7, 94 S. Ct. at 993 n.7. Accordingly, a person who has common

authority over a premises has the same authority to consent as another with whom the

person shares the premises. See Maxwell , 73 S.W.3d at 281-82 ; Brown , 212 S.W.3d

at 868 (citing Matlock , 415 U.S. at 171 , 94 S. Ct. at 993 ). "Common authority,"

therefore, "derives from the mutual use of the property, not the ownership or lack

thereof." Jones , 119 S.W.3d at 787 ; see Maxwell , 73 S.W.3d at 281 .

In Whisenhunt , this Court concluded that an officer acted reasonably in searching

an accused's bedroom, having been led to the room by a person "who appeared to have

authority to consent to the search." 122 S.W.3d at 301 . We relied on Illinois v.

Rodriguez , in which officers had been granted access inside an apartment by a woman

who represented that the apartment was "our[s]" and that she had clothes and furniture

there. 497 U.S. at 179 , 110 S. Ct. at 2797 . Though the woman unlocked the apartment

with her key and gave officers permission to enter, she had no actual authority to

consent to the officer's entry because she had moved and was not living there. Id . at

180. Noting that the record did not clearly establish whether the woman told the

officers that she currently lived at the apartment or that she had merely lived there once,

the Supreme Court ruled that searches could be valid under the apparent authority

rationale. Id. at 188 , 110 S. Ct. at 2801 . The court instructed, "Whether the basis for

such authority exists is the sort of recurring factual question to which law enforcement

officials must be expected to apply their judgment; and all the Fourth Amendment

requires is that they answer it reasonably." Id . at 186, 110 S. Ct. at 2800 . Because

many situations that confront officers in the course of executing their duties "are more

or less ambiguous, room must be allowed for some mistakes on their part," though

mistakes must be "reasonable" and result from "acting on facts leading sensibly to . .

. conclusions of probability." Id. (citing Brinegar v. United States , 338 U.S. 160, 176 ,

69 S. Ct. 1302, 1311 (1949)).

More recently, in Georgia v. Randolph , the Supreme Court reiterated that the

"constant element in assessing Fourth Amendment reasonableness in the consent cases

. . . is the great significance given to widely shared social expectations . . . ," and that

Matlock "stands for the proposition that the reasonableness of such a search is in

significant part a function of commonly held understanding about the authority that

co-inhabitants may exercise in ways that affect each other's interest" so that "shared

tenancy is understood to include an 'assumption of risk,' on which police officers are

entitled to rely." 547 U.S. 103, 111 , 126 S. Ct. 1515, 1521-22 (2006). Accordingly,

Matlock imposed no burden on police "to eliminate the possibility of atypical

arrangements" when there is no "reason to doubt that the regular scheme was in place."

Randolph , 547 U.S. at 112 , 126 S. Ct. at 1522 .

Viewing the totality of the circumstances of this case in the light that most favors

the trial court's ruling, we begin with the consent form that appellant signed, which

appellant executed after he was arrested based on the cocaine and large amount of cash

recovered from his truck. When asked whether additional drugs were inside the

residence, appellant replied "yes" and consented orally to a search of the residence.

The officers then waited about ten minutes for another officer to arrive with the consent

form.

Before signing the form, appellant received his statutory warnings twice and

indicated that he understood them. Appellant also read the consent form, which

includes the recital that he had a right to refuse consent and that no promises, threats,

or physical or mental coercion had been used to gain either his consent or his signature

on the form. Appellant read and understood English well. No guns had been drawn,

and appellant was cooperative. The officers were attentive to appellant's physical

limitations because his leg was injured, and he had to use crutches. The officers and

appellant were the only people present at the residence, and two officers were present

when appellant signed the consent form.

Though no friends or family members were under investigation, and the officers

had no knowledge of appellant's wife or family, appellant indicated to the officers that

he wanted to take ownership of any contraband recovered and did not want his wife to

go to jail. In addition, appellant informed the officers that the actual owner of the

residence did not know that appellant was storing drugs there.

Appellant gave his keychain to police officers, who used one of the keys to

unlock and enter the residence. When one of the officers was asked under cross-examination what led him to believe that the residence was appellant's, he responded

that appellant had keys to the residence, which led the officers to believe that appellant

"might have control of the residence"; that appellant "told us he had cocaine there," and

that he "believe[d appellant] knew what was in that location." Once inside, appellant

remained in the kitchen, because of his injury, but was nonetheless able to direct the

officers specifically to multiple areas where cocaine had been hidden, as addressed

above.

Appellant contends, however, that the totality of the circumstances demonstrates

that no person could reasonably believe that appellant validly consented to the search

of the residence. Appellant emphasizes that an officer conceded that he discovered

during the search that the house was the residence of another person, and that the

officer could not identify, from photographs presented to him at trial, whether the

cocaine discovered from a bedroom was in appellant's bedroom or a bedroom that

someone else used. From this, appellant infers that no items, personal to appellant,

were identified in the house. Appellant also emphasizes that the officers had no

advance information about the residence as it related to appellant. We disagree.

Though the officer could not identify which bedroom was appellant's from a

photograph introduced into evidence and there was no testimony concerning personal

effects like clothing, these circumstances alone are insufficient to show that appellant

lacked authority, in light of other evidence that affirmatively connects appellant to the

house. Appellant referred voluntarily to both his wife and the actual owner of the

property in reference to the house, but stated that the owner did not know about the

cocaine and that his wife was not involved in the possession and should not be arrested.

Both statements, however, connected appellant to the house, to which appellant had

keys. On reviewing the record under the controlling standard, we conclude that the

State presented clear and convincing evidence, and thus a preponderance of the

evidence, that appellant validly consented to a search of the residence and, therefore,

that the officers at the scene acted reasonably in relying on appellant's consent.

Except for narrow exceptions that do not apply here, settled law recognizes that

lack of legal ownership of a residence is a nondispositive inquiry in consent-to-search

cases. See Jones , 119 S.W.3d at 787 ; Maxwell , 73 S.W.3d at 282 & n.3 (recognizing

exceptions for cases involving landlord and tenant and hotel and guest). Appellant's

command over the residence, to the extent that he was able to describe specific places,

specific directions to those places, and even specific containers--like the oatmeal bag

in the pantry and the box in the attic crawl space--and to tell the officers where items

like the ladder he recommended to access the attic crawl space was stored, constituted

clear and convincing evidence that appellant had control and authority over the

residence based on his unequivocal use of it and command over it. Learning that

another person actually owned the house did not diminish that showing except to

demonstrate that appellant's control, authority, use, and command over the house were

mutual with the owner and were shared with the owner. See and compare Brimage ,

918 S.W.2d at 480-82 (rejecting validity of consent based on consenter's

representations that cast doubt on consenter's ownership) with Maxwell , 73 S.W.3d at

282 (upholding validity of consent because officer could reasonably have believed that

driver had mutual control with defendant over rig, despite defendant's ownership).

We hold that the facts available to the officers in this case would warrant a

person of reasonable caution to believe that appellant used and had authority and

control over the residence where officers seized the contraband and, therefore, that the

trial court did not abuse its discretion by overruling appellant's motion to suppress the

cocaine.

We overrule appellant's second point of error.

C. Appellant's Statement

Appellant's third point of error challenges denial of his motion to suppress his

written statement. Appellant contends that the statement should have been suppressed

as the "fruit of the poisonous tree," specifically, the wrongful conduct of the officers

at the scene. Appellant waived this point by failing to preserve it in the trial court. See

Tex. R. App. P. 33.1(a); Turner , 805 S.W.2d at 431 ; Steadman , 31 S.W.3d at 742 .

We overrule appellant's third point of error.

Ineffective Assistance of Counsel

In his fourth point of error, appellant contends that his trial counsel was

ineffective. Appellants claims that counsel did not inform him of the law of affirmative

links, did not provide legal authorities to the trial court in support of the motion to

suppress, and did not call witnesses, offer mitigating evidence, or make a "real" plea

for leniency at the punishment hearing conducted on the presentence-investigation

report (PSI).

To prevail on his claim of ineffective assistance of counsel, appellant must meet

the standard set forth in Strickland v. Washington , 466 U.S. 668, 687 , 104 S. Ct. 2052,

2064 (1984). Appellant must first demonstrate that his trial counsel's representation

fell below an objective standard of reasonableness under prevailing professional norms.

See id . at 688, 104 S. Ct. at 2064-65 ; Mitchell v. State , 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002); Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second,

appellant must establish that his counsel's performance was so deficient that it

prejudiced his defense. See Howland v. State , 966 S.W.2d 98, 104 (Tex.

App.--Houston [1st Dist.] 1998), aff'd on other grounds , 990 S.W.2d 274 (Tex. Crim.

App. 1999). Thus, appellant must show a reasonable probability that, but for his

counsel's unprofessional errors, the result of the proceeding would have been different.

See Strickland , 466 U.S. at 694 , 104 S. Ct. at 2068 ; Howland , 966 S.W.2d at 104 .

Appellant has the burden to establish both prongs of the Strickland test by a

preponderance of the evidence. See Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998). Because there is a strong presumption that trial counsel's conduct fell

within the wide range of reasonable professional assistance, appellant must overcome

the presumption that counsel's action or inaction might be considered "sound trial

strategy" under the circumstances. See Strickland , 466 U.S. at 689 , 104 S. Ct. at 2065 ;

Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).

Any allegation of ineffectiveness must be firmly founded in the record, which must

demonstrate affirmatively the alleged ineffectiveness. Thompson , 9 S.W.3d at 813 .

The record on direct appeal, therefore, will not normally be sufficient to demonstrate

a preponderance of evidence that an attorney's representation was so deficient and so

lacking in tactical or strategic decision-making that an appellant will succeed in

overcoming the presumption that representation was reasonably professional. See Bone

v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When the record is silent

regarding counsel's reasoning or strategy, we may not speculate to find trial counsel

ineffective. Gamble , 916 S.W.2d at 93 .

Though appellant filed a motion for new trial and requested a hearing on the

motion, in part to substantiate the claims of ineffectiveness of trial counsel, we held

above that the appellant's appellate counsel's motion lacked the evidentiary support

required by article 40.001 of the Code of Criminal Procedure to entitle appellant to an

evidentiary hearing. Accordingly, there is no record on which we might rely to

substantiate and assess either trial counsel's strategy or his reasons for acting or not

acting as appellant contends he should have. Under the circumstances, we may not

speculate concerning either. See Thompson , 9 S.W.3d at 814 ; Gamble , 916 S.W.2d at

93 .

We cannot say that appellant's criticism of the motion to suppress because of

lack of substantive authority is sufficient to show that counsel's performance fell below

an objective standard of reasonableness, to the degree that appellant can overcome the

presumption that the motion constituted effective representation. Counsel cited the

controlling provisions of the Texas and federal constitutions and the Code of Criminal

Procedure that supported his constitutional challenges and presented several

challenges, including many preserved by that motion and presented on appeal. The

hearing on the motion further reflects vigorous cross-examination by which trial

counsel scrutinized each police officer's version of the sequence and timing of events,

particularly concerning appellant's consents to search both his vehicle and the

residence. Concerning appellant's criticism of trial counsel for not calling witnesses

at the punishment hearing, the record shows that counsel presented several character

letters on appellant's behalf. Similarly, counsel's closing argument at punishment

strongly recommended lesser punishment by emphasizing that appellant cooperated

with police, had a good work history, an insignificant criminal history, was young and

had family support, as well as family obligations, but was also disabled by his leg

injury.

We hold that appellant has not met his burden to show, by a preponderance of

the evidence, that his trial counsel's performance was deficient. Having thus not

satisfied the first prong of the Strickland test, appellant has not overcome the

presumption that his trial counsel provided reasonably effective representation.

We overrule appellant's fourth point of error, and we deny all pending motions.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).

1. The defendant in Grant had provided his own statement in support of the motion for

new trial, but it was neither a sworn affidavit nor an unsworn declaration. See Grant

v. State , 172 S.W.3d 98, 101 (Tex. App.--Texarkana 2005, no pet.) (citing Tex. Civ.

Prac. & Rem. Code Ann. § 132.001 ).

2. The State explains in its brief that the 6-hour lapse is from 2 p.m., when the officers

received their tip. Rolling surveillance of appellant did not occur until four or five

hours later, when officers observed the first hand-to-hand transfer from appellant's

truck.

3. Several factors are relevant to determining whether a given claim of privacy is

objectively reasonable, including whether the accused (1) had a property or

possessory interest in the place invaded, (2) was legitimately in the place invaded, (3)

had complete dominion or control and the right to exclude others, (4) took normal

precautions customarily taken by those seeking privacy before the intrusion, or (5) put

the place to some private use, and lastly (6) whether the accused's claim of privacy

is consistent with historical notions of privacy. See Brown v. State , 212 S.W.3d 851,

867 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) (citing Granados v. State , 85

S.W.3d 217, 222-23 (Tex. Crim. App. 2002)). This list of factors is non-exhaustive,

and no single factor is dispositive of a legitimate expectation of privacy. Id.

4.

We note that this case differs from many involving consent by third parties, in that

here the consenting third party contends that his own consent was invalid, rather than

the consent given by another. See e.g. , Maxwell v. State , 73 S.W.3d 278, 280 (Tex.

Crim. App. 2002) (involving driver who consented to search of defendant's truck

trailer).