# Broussard v. State > Texas Court of Appeals, 1st District (Houston) · January 10, 2002 · 68 S.W.3d 197 URL: https://www.frixlaw.com/law-library/cases/9755557 ## Case - **Full name:** Reginald v. BROUSSARD, Appellant, v. the STATE of Texas, Appellee - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** January 10, 2002 - **Citations:** 68 S.W.3d 197; 2002 Tex. App. LEXIS 250; 2001 WL 1691310 - **Precedential status:** Published - **Opinion:** Opinion of the court by Brister - **Judges:** Scott Brister - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755557 ## How later opinions describe it (automated extraction) - noting that, without new trial motion to create record of trial counsel’s reasons for actions, appellate court must presume actions were product of overall strategic design and reasonable - finding evidence insufficient to demonstrate counsel was ineffective for failing to file suppression motion based upon officers’ unannounced entry - finding evidence insufficient to demonstrate counsel ineffective for failing to file a suppression motion based upon officers= unannounced entry ## Opinion text EN BANC OPINION SCOTT BRISTER, Justice. When a convicted criminal asserts that his counsel was ineffective, “only in rare cases will the record on direct appeal be sufficient for an appellate court to fairly evaluate the claim.” Robinson v. State, 16 S.W.3d 808 , 813 n. 7 (Tex.Crim.App.2000). Because we do not believe this is one of those rare cases, we affirm. Background Based on a tip that appellant Reginal Broussard was selling narcotics from his home, Houston Police Officer Stephen Kwiatkowski obtained an arrest warrant for him and a search warrant for his home. That evening, Kwiatkowski led seven other officers in executing the warrants. They entered the home using a battering ram to force open the front door. According to *199 the officers, after conducting a brief search and finding only Broussard’s wife in the house, they postponed further search until he arrived. Broussard drove up about twenty minutes later. While one of the officers detained him outside his car, Officer Kwiat-kowski approached and saw a small rock on the car’s console. The rock proved to be cocaine weighing .306 grams. Upon returning to the house to assist in the search, Officer Kwiatkowski found a clear plastic bag containing another rock on a nightstand in the couple’s bedroom. This rock also proved to be cocaine weighing .932 grams. The only other products of the search were $900 and a trace amount of cocaine residue found in a metal box in a small safe, 1 and $988 found on Broussard. At trial, Broussard’s sole witness was his wife, who testified that (1) the officers searched the house' extensively before Broussard came home, but never mentioned finding any money or cocaine, (2) she saw no cocaine in the bedroom or in the car before the officers came, and (3) the metal box was not in the safe and did not contain money. Broussard’s counsel argued throughout the trial that Officer Kwiatkowski planted the evidence used to convict Broussard. The jury found Broussard guilty of possessing between one and four grams of cocaine, and the trial court assessed punishment of three years in prison. See Tex. Health & Safety Code Ann. §§ 481.102 (3)(D), .115(a), (c) (Vernon Supp. 2002). Broussard’s Counsel In issue one, Broussard claims his trial counsel should have moved to suppress the cocaine found in his home because the officers failed to knock and announce their presence before entering. See Wilson v. Arkansas, 514 U.S. 927, 929, 934 , 115 S.Ct. 1914, 1915, 1918 , 131 L.Ed.2d 976 (1995). While we would not characterize such a motion as a “hands-down” winner, 2 we cannot address the ineffectiveness question because of the state of the record. Although Broussard filed a motion for new trial asserting ineffective assistance of counsel, he never raised the ground he now asserts on appeal. Thus, the record is silent as to why his counsel might have acted as he did. In such circumstances, our duty is clear — -we must presume counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). The Court of Criminal Appeals has repeatedly held that without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective. See Chuong Duong Tong v. State, 25 *200 S.W.3d 707, 714 (Tex.Crim.App.2000) (holding that “without some explanation as to why counsel acted as he did, we presume that his actions were the product of an overall strategic design”), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196 , 149 L.Ed.2d 1027 (2001); see also Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999); Jackson, 877 S.W.2d at 771 . Broussard’s Dilemma Although our review should end here, we write briefly to respond to our colleagues’ dissent. In a well-researched opinion, the dissent catalogues a long list of recent cases in which Texas intermediate appellate courts have found counsel ineffective despite a silent record. We agree with the Court of Criminal Appeals (it would hardly matter if we did not, as it is the superior court) that questions of ineffective assistance are better addressed in a postconviction application for a writ of habeas corpus. 3 Nevertheless, we indulge in a bit of speculation to suggest why Broussard’s counsel might not be as uninformed as the dissent suggests. The dissent opines that no trial strategy could explain why Broussard’s counsel failed to file a motion to suppress based on the failure to knock and announce. It is true such a motion, if successful, would have dropped the amount of cocaine below one gram, and thus decreasing his punishment in this case. But this was not Brous-sard’s only case. At the time of trial, Broussard still had three years to serve on parole for two previous convictions for possession of cocaine. 4 During the punishment phase, he admitted knowing his parole might be revoked if he was convicted. Thus, he had more on his mind than reducing a third degree felony to a state jail felony — if he was found guilty of anything, he was going back to prison. It is perfectly plausible that Broussard could have decided to risk a stiffer sentence in this case 5 for the possibility of getting none at all. But how to do that? There was no dispute the substance in both Broussard’s car and home was cocaine, and there was little hope of proving it belonged to someone else. Broussard’s only possible defense was that the cocaine had been planted in both locations by Officer Kwi-atkowski. In his closing argument, defense counsel pointed out that four other officers searched the house and one other approached the car, but only Kwiatkowski spotted cocaine in either place. Given this defense strategy, Broussard’s counsel could have decided he needed to show that Kwiatkowski found cocaine every *201 where he looked. If only Kwiatkowski saw cocaine when other officers were present, better for the defense if this happened not once but twice. Additionally, Broussard had good reason to emphasize the aggressive conduct of the police under Kwiatkowski’s direction— eight officers wearing bulletproof vests battering down the door of his home only to find no one inside but his innocent wife. The officers’ presence inside for an extended period of time before he arrived supported his theory that incriminating evidence was planted. If this cocaine were suppressed, the defense would need to explain why, despite this golden opportunity, Kwiatkowski chose to plant cocaine only outside in the car. If the dissent’s hypothetical motion to suppress had been granted, Broussard’s rogue-cop theory would have been less tenable. Finally, reasonable trial counsel might have had one more concern about suppressing this evidence. Having heard about the search warrant and entry of Broussard’s home, the jury would have been left to guess what, if anything, the officers found. Jurors are not unaware of the exclusionary rule, and some have strong feelings against it. Reasonable trial counsel might fear that, instead of assuming the officers found nothing, some jurors might assume they found far more drugs than in fact was the case. Reasonable trial counsel might fear some jurors would allow their suspicions about what was found (but suppressed) to affect their judgment about Broussard’s guilt. This would have been improper, but that misses the point — in planning trial strategy, experienced attorneys often take into consideration what jurors shouldn’t do, but might. The dissent ciiticizes the first of these possible strategies because it is inconsistent with a motion to suppress Broussard’s counsel did file four months before trial. First, we question the assumption that, to be effective, an attorney’s strategies must always be consistent. Second, the dissent recognizes our hypothetical presents a reasonable trial strategy, arguing only that it was not this attorney’s trial strategy. This is asking too much from an undeveloped record. Without evidence or a hearing, we need only suggest why trial counsel might have acted competently; it is Broussard’s burden to prove that he did not. Again, we concede that our speculations may be wrong. It is possible defense counsel had other reasons for not raising the knock-and-announce rule in his motion to suppress. It is possible, as the dissent argues, he didn’t know he could. We simply cannot tell. Broussard must raise his claims by applying for a writ of habeas corpus, so that all the facts can be heard and considered. We overrule issue one. The discussion of the issues two through five does not meet the criteria for publication set forth in Texas Rule of Appellate Procedure 47.4. Accordingly, the remainder of the opinion is not designated for publication. We affirm the judgment of the trial court. Justice BRISTER dissented from the panel’s decision to reverse the trial court’s judgment. En Banc consideration was requested. A majority of the Court voted for en banc consideration of the panel’s decision. See id. . Broussard voluntarily gave Officer Kwiat-kowski a key from his key ring that opened the safe. . Unannounced entry is constitutional when police have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous, futile, or allow the destruction of evidence. Richards v. Wisconsin, 520 U.S. 385, 394 , 117 S.Ct. 1416, 1421 , 137 L.Ed.2d 615 (1997). In this case, the trial court granted Broussard's motion in limine prohibiting any mention of what Officer Kwiatkowski learned to support the search warrant. Given this limited record, we cannot know whether one of the exceptions applies. Further, even if there was a violation of the knock-and-announce rule, the United States Supreme Court has not yet decided whether or to what extent the exclusionary rule should be used as a remedy. See Wilson, 514 U.S. at 937 n. 4, 115 S.Ct. at 1919 n. 4; United States v. Ramirez, 523 U.S. 65 , 72 n. 3, 118 S.Ct. 992 , 997 n. 3, 140 L.Ed.2d 191 (1998). . See, e.g., Thompson, 9 S.W.3d at 814-15 (holding ineffectiveness should be considered at hearing dedicated to considering all facts, circumstances, and rationale behind counsel's actions, including opportunity to explain why no objection was made in trial court). . In 1991, Broussard pleaded guilty to a first • degree felony possession charge and was placed on probation for eight years. In 1994, he pleaded guilty to a second degree felony charge, at which time his probation was revoked and he was sentenced to ten years in prison. According to his testimony during the punishment phase of the trial, Broussard served three of those years in prison, had been out on parole for several years, and still had three years left to serve. .The penalty for possession of less than one gram of cocaine is confinement for 180 days to two years. Tex. Health & Safety Code Ann §§ 481.102(3)(D), .115(a), (b) (Vernon Supp. 2002); Tex. Penal Code Ann. § 12.35 (a) (Vernon 1994). The penalty for possession of more than one gram but less than four grams of cocaine is confinement for two years to ten years. Tex. Health & Safety Code Ann. §§ 481.102 (3)(D), .115(a), (c) (Vernon Supp. 2002); Tex. Penal Code Ann. § 12.34 (a) (Vernon 1994). The punishment assessed by the trial court in this case was three years. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755557. Public record. Not legal advice.