Broussard v. State

TERRY JENNINGS, Justice,

concurring with decision on en banc consideration.

Although it is true that ineffective assistance of counsel may be shown on direct appeal without evidence of counsel’s trial strategy in “rare ” cases, this is not one of those “rare ” cases. Here, appellant simply failed to prove by a preponderance of the evidence that his trial counsel was ineffective. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). He failed to overcome the strong presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance. See id. at 813 . I write separately to emphasize the record does not affirmatively demonstrate that appellant’s trial counsel failed to take an action in defending his client that no reasonably competent attorney could have believed constituted sound strategy.

Appellant claims that his trial counsel was ineffective for not asserting, as an additional ground for suppressing the cocaine found in his residence, that the officers’ “no-knock” entry into his residence violated the Fourth Amendment. Appellant argues that this failure was “objectively deficient” and “cannot be explained by any reasonable trial strategy.”

Generally, police officers entering a dwelling to execute a search warrant must knock and announce their identity and purpose before attempting forcible entry. Wilson v. Arkansas, 514 U.S. 927, 929, 934 , 115 S.Ct. 1914, 1915, 1918 , 131 L.Ed.2d 976 (1995). There is no blanket exception to this knock-and-announce requirement for felony drug investigations. Richards v. Wisconsin, 520 U.S. 385, 387-88 , 117 S.Ct. 1416, 1418 , 137 L.Ed.2d 615 (1997). 1

As noted by Justice Thomas in Wilson , “the reasonableness of a search may depend in part on whether law enforcement officers announced their presence and authority prior to entering.” Wilson, 514 U.S. at 931 , 115 S.Ct. at 1916 (emphasis added). The common law rule generally requiring announcement is “justified in part by the belief that announcement generally would avoid ‘the destruction or breaking of any house ... by which great damage and inconvenience might ensue....’” Id., 514 U.S. at 936-37 , 115 S.Ct. at 1918 (quoting Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K.B.1603)) (emphasis added). It is important to note:

[N]o precise form of words is required in a case of this kind. It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority....

Wilson, 514 U.S. at 932 , 115 S.Ct. at 1917 (quoting Case of Richard Curtis, Fost. 135, 137, 168 Eng. Rep. 67, 68 (Crown 1757)) (emphasis added). The Court stated as follows:

We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish *203 the reasonableness of an unannounced entry.

Wilson, 514 U.S. at 936 , 115 S.Ct. at 1919 (emphasis added).

Thus, in evaluating the reasonableness of the officers’ search in this context, the important factor is whether the officers announced their presence and authority prior to entering appellant’s residence, not whether they actually knocked on his door.

Although the police officers in this case did not knock or ring a door bell, they did in fact announce their presence and authority prior to entering appellant’s residence. This is explicitly shown in the record from the direct examination of Houston Police Officer S.M. Kwiatkowski:

State: And what happened once you got there?

Officer: We ran up to the front door, I opened the screen door and let Officer Fuller use the battering ram to force the front door of the house open.

State: Before Officer Fuller — did he actually use the battering ram?

Officer: He did.

State: Did you-all make your presence known or did you announce yourself?

Officer: Yes. We yelled. When we were running up there we yelled, “police, search waiTant. ”

State: Okay. And did you do that in a loud voice?

Officer: Yes, I did.

State: And is that normally — is that procedure for the Houston Police Department?

Officer: Yes, it is.

(Emphasis added.)

The record also contains a photograph, State’s Exhibit 3, which shows the front of appellant’s residence. It illustrates that, after yelling “police, search warrant” while running up to the house, Officer Kwiat-kowski, in fact, had to stop and open a screen door to allow Officer Fuller onto a screened-in front porch. Only after stopping to have opened the screen door and entering onto the screened-in front porch could the officers reach appellant’s front door. By even the most conservative estimate in favor of appellant’s position, many seconds transpired from the time the officers yelled “police, search warrant” to the time of actual entry through appellant’s front door.

The record also reveals that the “battering-ram” used to force open appellant’s door was “a large round piece of metal and plastic” approximately “three or four feet in length.” Officer Fuller swung it to strike the door to force it open. The record reveals the only damage caused by the use of the battering-ram was that the “locking mechanism” to the door was “destroyed.” It simply cannot be said that “great damage and inconvenience” could have ensued from the precise use of such a tool.

This case is readily distinguishable from Wilson , in which “the officers entered the home while they were identifying themselves. ...” Wilson, 514 U.S. at 930 , 115 S.Ct. at 1916 . Here, the officers loudly announced their presence and authority prior to entering the residence, putting any occupant on notice that they were coming, not as mere trespassers, but under proper legal authority.

Thus, appellant’s argument that his trial counsel was “objectively deficient” for not asserting, as an additional ground for suppressing the cocaine found in the residence, that the officers’ “no-knock” entry into the residence violated the Fourth Amendment is without merit. In fact, such an assertion, based on the record, would arguably have been futile.

*204 Further, because appellant failed to litigate the issue fully in a motion for new trial, we do not know if his trial counsel knew of other reasons not to assert the “no-knock” grounds in his motion to suppress evidence. We do not know whether, if counsel had raised it, the State would or could have called other witnesses on the issue; whether, if other witnesses had been called, they would have testified in ways favorable to appellant or the State on the issue; or whether, had such a record been developed, it would have supported appellant’s position as a matter of law.

Conclusion

Appellant’s argument can prevail only if his trial counsel’s raising the issue below would necessarily have resulted in a ground that undisputedly should have prevailed. His argument that the “no-knock” entry into his residence violated the Fourth Amendment would arguably, based on the record, have been futile. Thus, his claim that his trial counsel’s performance was “objectively deficient” fails. Further, given the uncertainties of this underdeveloped issue, we may not speculate on his trial counsel’s strategy. See, e.g., Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.Houston [1st Dist.] 1996, no pet.). Therefore, I concur with the decision of the En Banc Court affirming the judgment of the trial court.

. In Richards , the Supreme Court upheld as reasonable a “no-knock” entry by police officers because the circumstances showed the officers had a reasonable suspicion that Richards might destroy evidence if given the opportunity to do so. Richards, 520 U.S. at 395 , 117 S.Ct. at 1422 .