### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00445- CR

Ex parte Andrij Myr osl Lu ciw

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 07- 003- K3 68A, H ONO RAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The State char g ed appellant Andrij L uciw with possession of less than one g ram of

coca ine. See Tex. Hea lth & Safety Code Ann. § 481.115 (West Supp. 2009). L uciw pleade d g uilty
to the offe nse. L uciw subsequently filed an application for a post-conviction writ of habea s corpus,

see Tex. Code Crim. Proc

. Ann. art. 11.072 (West 2005), which the tria l c ourt denied. On appea l, L uciw arg ues that the trial court abused its d i s cretion in deny ing relief on the habea s application beca use (1) the court decide d the matter on written aff idavits rathe r than holding a hear ing, (2) L uciw did not rec eive eff

ective assistance of counsel during plea proce eding s, and (3) venue was improper in Wi lliamson Count y . We affir m the judgme nt of the trial cour t.

BACK GR OUND On Dec ember 30, 2006, appellant Andrij L uciw was driving s o u t h b o u nd on I nterstate H ighw ay

35 (“I H-35” ) in a F ord Explorer. His brother , Dmy tro, rode ne x t to him i n the passeng er’ s seat. Round Rock Police Offic er J oseph Clay pool, who was also trave ling southbound

on I H-35, encounte red L uci w’ s v eh i cl e at a location north of the intersec tion of I H-35 andL ouis He n n a Boulevard in Round Rock, an are a located in Wil liamson County

. Observing that

the vehicle had Pennsy lvania license plates, Clay pool rela y ed the p late number to the communications depar

tment of the Round Rock Police Depa rtment. A few m i n utes later, the communications depar

tment informed Clay

pool that the plates wer e reg istered to a vehicle that had been r eporte d stolen in Pennsy lvania.

I n acc ordanc e with depar

tment protocol for felony traff ic stops, Clay

pool waited for
two other patrol car s to a

rrive befor e stopping the vehicle. The stop was made near exit 246 off of I H-35, placing the location of the stop in Travis County

. Weapons draw n, the office rs order ed L uciw and his br other, Dmy

tro, out of the car . Acc ording to a n aff idavit f iled by Clay

pool dur ing ha

beas proce eding s, he detec ted the odor of burnt marijuana coming from the vehic l e. He o b serve d a g ree n leaf y substance on the console betwee n the driver’ s seat and passeng er’ s seat. Clay pool and Serg eant Mike Osborn sear ched the vehicle and found three plastic bag g ies containing marijuana

. They also discovere d a black duffe l bag behind t h e driver’ s seat, which contained four plastic bag g ies in a medicine bottle. Eac h of the bag g ies contained a white powder substance. Osborn field tested the substance, finding that the substance in all four bag g ies was coca ine, weig hing an ag g reg ate of

2.8 g rams including packa g ing. L uciw informed Clay

pool that he was the rig htful owner of the vehicle, th at h e had reported it stolen, and that the vehicle had subsequently been found. The Round R ock police
contac ted the Pennsy l v an ia law enfor ceme nt ag ency that had listed the vehicle as stolen. The ag ency co n fi rm ed t hat the vehicle had been rec overe d, but that due to administrative err or the listi ng had not been remove d from the stolen vehicles databa se. Acc ording to Clay pool’s aff idavit,

2both conver sations took place afte r Clay pool detec ted the odor of burnt marijuana coming from the vehicle

. Clay

pool arr ested L uciw for possession of cocai n e. Clay pool transporte d L uciw
to the Round Rock P o l i ce Depa rtment for booking, and L uciw was eventua lly booked into the Wil liamson County J ail. Clay pool filed a complaint in Wil liamso n C o u nty for the third-deg ree felony of possession of a c ontrolled substance

. L uciw reta ined attorney Michae l Whit e to handle his defe nse. On J anuar y 19, 2007, Whit e re ceive d a letter from the Wil liamson County District Attorney ’s offic e off ering a sente nce of four y ear s’ defe rre d adjudication, a $2,500 fine, and 20 day s in jail as a condition of supervision in exchang e for a plea of g uilty to the state jail felony of possession of less than one g ram of coca ine. See Tex. He alth & Safety Code Ann. § 481.115. The letter stated that L uciw had until J anuar y 31, 2007 to acc ept the offe r. On J anuar y 31, 2 0 0 7 , L u ci w acc epted the plea ag ree ment and pleade d g uilty . L uciw wa s sentence d in acc ordanc e with the ag ree ment on Fe bruar y 20, 2007. Approxim ately one y ear later, on Fe bruar y 15, 2008, L uciw filed an application for

a writ o f habea s corpus alleg ing as g rounds, inter alia, improper venue in Wil liamson County , illega l sear ch and seizure, and ineffe ctive assistance of counsel. I n support of his application, L uciw submitt ed his o wn af

fidavit and the aff

idavit of Dave Howar d, an attorney who had repr esente d L uciw’s br other on c harg es stemming f rom the traf

fic stop. The State submi tted the af fidavits of 1 Clay pool and White.

L uciw’s brother was char g ed with possession of marijuana following the stop. Acc ording 1 to Howar d, the charg es aga inst L uciw’s brother we re dismissed on the basis of imprope r venue in Wil liamson County

. 3Whit e’s aff idavit direct l y conflicts with the aff idavits of L uciw and Howar d in

numerous important respe cts. Whit e stated that, “[p] rior to Mr. L uciw’s g uilty plea, I went over the felony information and the pl ea paper work with him,” det ailing three potential course s of action. Whit e maintained that he and L uciw had “leng thy discussions” about the venue issue in particula r,

an d that L uciw signe d the plea ag ree ment “in [hi s] prese nce.” Whit e also indicated t h at h e “h ad discussions with Dave Howar d, who repr esente d Mr. L uciw’s brother,” about the ca s e p rior to L uciw’s plea

. L uciw, on the ot her hand, stated i n his aff idavit that he did not meet or s p ea k wi t h Whit e “until the day of sentenc ing,” and that Whit e sent a differ ent lawy er, Da v i d Fe rnande z, to handle the plea itself. This asser tion is supported by the repor ter’s rec ord of the plea proce eding , which lists appea

ranc es by the prosec ution and Fe rnande z only

. Acc ording to L uciw, he never knew 2 he “had any choice s, much less the ‘pros and cons’ of the ‘venue ’ issue, or even that I had a rig ht to raise these issues in a pre- trial format” until afte r he was sentenc ed. Fur ther, L uciw explained that 3 h e “d i d not sign any documents in [W hite’s] prese nce, beca use in point of fac t [W hite] was not prese nt” on the day of t he plea. I n addition , Howard stated he left a messag e for Whit e reg arding the venue issue but did not speak to him about the case until afte r sentenc ing, at which point Whit e “did not show much intere st in the topic” during a “ve ry short” conve rsation.

The re porter’ s rec ord does list an appe ara nce by Whit e at the se ntencing

proce eding

. 2 We note, howeve r, that when the trial co u rt asked L uciw at the sentenc ing proce eding 3 whether Whit e had “fully advised [hi m] as t o t h e law and the fac ts reg arding [t he] case ,” L uciw answe red, “ Yes, sir.” When the trial court then a sked L uciw if he felt that White had “a dequate ly repr esente d” him, L uciw answ ere d, “I do.” 4The trial court, which had also acc epted L uciw’s plea and sentenc ed L uciw, disposed

o f t h e h abea s application on the submitt ed aff idavits without holding a hear ing. The trial court’ s finding s of fac t de emed the af fidavits of Clay

pool and White “cre dible.” Consistent w ith White’s version of events, t h e t ri al court further found that L uciw and Whit e had extensive conver sations reg arding the case befor e L uciw pleade d g uilty , and conclude d that L uciw’s plea had been knowing and voluntary

. Ba sed on its finding s, the trial court denied L uciw’s habea s ap plication, and this appea l followed.

STANDARD OF REVIEW

I n revie wing the trial court’s decision to g rant or deny habea s corpus relief , we view the fac ts in the light most favor able to the trial court’s ruling and uphold that ruling absent an abuse of discretion. Ex parte W

heele r , 203 S.W .3d 317, 324 (Tex. Crim. App. 2006). The appellate court aff ords almost total defe renc e to a trial court’s fac tual fi ndings in habea s proce eding s, espec ially when those finding s are based upon cre dibilit y and demea nor. Ex parte A me z q u i ta , 223 S.W .3d 363, 367 (Tex. Crim. App. 2006). The trial court’s deter minations of historical fac t a re entitled to

some defe renc e even when the court’s finding s do not rest on cre dib i l i t y deter minations, but are based instead on phy sical or documentar y evidenc e or infere nces from other fac ts. Manzi v. State , 88 S.W .3d 240, 243-44 (Tex. Crim. App. 2002). We aff ord almost total defe renc e to the trial court’s application of the l aw t o t h e facts if the resolution of t he ult imate questi on turns on an evaluation of cre dibilit y and demea

nor. Ex parte Peterson , 117 S.W .3d 804, 819 (Tex. Cri m . App. 2003) (per curia m), overruled on other grounds by Ex parte Lewis , 219 S.W .3d 335, 371 (Tex. Crim. App.

52007). I f the resolution of the ultimate questions turns on an application of leg al standards, we

revie w the dete rmination de novo. Id.

DISCUSSIO N F ailure to Hold a Hearing

I n his first point of err or, L uciw arg ues that the trial court abused i ts discretion by failing to hold a conteste d hear ing on his application for a writ of habeas corpus, instead deciding the matter on the basis of submitt ed aff idavits. I n order for a complaint to be prese rved on appea l, “t h e rec ord must show that

. . . the complaint was made to the trial court by a t i m el y re q u es t ,
o bjection, or motion.” Tex. R. App. P. 33.1(a)

. I n this case , the rec ord contains n o re q u es t t h at the trial court hold a hear ing on L uciw’s habea s application. Whil e L uciw’s appellate counsel stated at oral arg ument that a reque st for a hear ing on L uciw’s habea s application had been made to the t rial court off the rec ord, such a request i s not sufficie nt to prese rve the matter on appeal. See i d

. (r eq u iring reque sts to be on rec ord); see also McQ ueen v. State , 984 S.W .2d 712 , 7 1 5 (Tex. App.—Texarkana 1998, no pet.) (explaining that, when objections and ruling s are made “off the rec ord, nothing is prese rved for revie w”)

. We conclude that L uciw’s first point of err or was not proper ly prese rved f

or re view. Even if the issue had been proper ly prese rved, we note that the trial court is g rante d wide latitude to choose appropr iate proce dures for deciding a habea s application: “I n making its deter mination, the court may order aff idavits, depositions, interrog atories, or a hear ing, and may rely

on the court’s persona l rec ollection.” Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b) (West 2005). T ex as courts have held that while this lang uag e “cle arly indicates that in maki n g i t s 6deter

mination the trial court may order

. . . a hear ing, it does not require that the trial court do so.” Ex parte Cummins , 169 S.W .3d 7 5 2 , 7 57 (Tex. App.—For t Worth 2005, no pet.) (empha sis in orig inal). Other courts have put the matter more bluntly , stating that the code of criminal proce dure “cle arly indicates that the decision by the trial court to conduct a hear ing on a defe ndant’s application i s entirely discretionary .” Ex parte Faulkner , No. 09-05-478- CR, 2006 Tex. App. L EXI S 94 8 6 , at * 8 (Tex. App.—B eaumont Nov. 1, 2006, pet. ref’d) (mem. op., not desig nated for publ i ca t i o n ) (empha sis added). Acc ording ly , L uciw’s f irst point of error

is overrule d. 4

Ineff ect ive Assistance of Counsel I n his second point of err or, L uciw arg ues that W h i t e’ s actions denied him eff ective assistance of counsel as g uara nteed by the Six th Amendment. See U.S. Const. amend. VI ; Strickland v. W

as h i n g ton , 466 U.S. 668 (1984). I n order to preva il on a claim of ineffe ctive

as s istance of counsel, the defe ndant must satisfy the two-prong test set forth in Strickland , which require s a showing that (1) counsel’s perf ormanc e was defic ient; and (2) co unsel’s defic ient perf ormanc e prejudice d the defe nse, resulting in an unreliable or fundame ntally unfair outcome. See 466 U.S. at 687-88; see also Ex parte Imoudu , 284 S.W .3d 866, 869 (Tex. Crim. App. 2009). The

We rec og ni z e t h at t h e t ri al courts have broad discretion in this are a and are g rante d 4 defe renc e when deciding matters of historical fac t solely on t h e b as is of aff idavits (instead of live testimony ). See Manzi v. State , 88 S.W .3 d 2 40, 243-44 (Tex. Crim. App. 2002) (instructing appellate courts to apply “a defe rential standard of revie w of the trial court’s resol u t i on of the historical fac ts from conflicting aff idavits”). We note, howeve r, t h at some have opined that the rationale for that defe renc e is less appar ent when the evalua tion is of paper instead of people. See, e.g. , id. at 250 (Cochra

n, J ., concur

ring ) (“I do not know how any one, judge or jury , can assess cre dibilit y and decide which of two sworn, conflicting versions of o n e event is true, based solely upon a wr itten affidavit.”). 7Supreme Court has held that the Str i ck l a n d t es t applies to challeng es to g uilty pleas based on

ineffe ctive assistance of counsel

. Hi l l v. Lockhart , 474 U.S. 52, 58-59 (1985); see also Imoudu , 2 8 4 S

. W

. 3 d at 869. A g uilty plea is not voluntary if made as a result of ineffe ctive assista n ce of counsel. Ex parte Burns , 601 S.W .2d 370, 372 (Tex. Crim. App. 1980); Ex parte K a r l son , 282 S.W .3d 118, 129 (Tex. App.—For t Worth 2009, pet. ref’d)

. Under t h e fi rs t prong , the defe ndant must show that counsel’s perf ormanc e was defic ient. Howeve r, there is “a strong presumption that counsel’s conduct falls within the wide rang e of rea sonable profe ssiona l as s i s t ance.” Strickland , 466 U.S. at 689. Under the second prong , a defe ndant cha lleng ing a

g uilty plea satisfies the prejudice requirement of Strickland by showing a

rea sonable probability that, absen t c o u n s e l’ s d e f ic ie n t p e r f o r mance , he would not have pleade d g uilty and would have insisted on g oing to trial. Hill , 474 U.S. at 59. Gene rally , this prejudice inquiry will closely re s em b l e the inquiry eng ag ed in by courts revie wing ineffe ctive-a ssistance challeng es to convictions obtained throug h a trial. Id. “[W ]here the alleg ed err or of counsel is a failure to advise the defe ndant of a potential aff irmative defe nse to the crime char g ed, the resolution of the ‘pre judice’ inquiry will depend larg ely on whether the aff irmative defe nse likely would have succe eded at trial.” Id. Where the alleg ed err or is failure to discover exculpatory evidenc e, the “pre judice” analy sis “will depend on the likelihood that discovery of the evidenc e would have led co u n s el to chang e his

rec ommendation as to the plea .” Id.

L uciw arg ues t h at Whit e provided ineffe ctive assistance by failing to advise him reg arding the propriety of venue in Wil liamson County and the leg ality of the sear ch of his vehicle, faili n g t o d i s co v er and view the video rec ording of the traff ic stop, and failing to raise the issues

8of improper venue, illega l sear ch, and compliance with the notice require ment of article 1 4

. 03(d)

of t he code of criminal proce dure to the trial court. See Tex. Code Crim. Proc. Ann. art. 14.03(d) (West Supp. 2009). W e addr ess ea ch conte ntion in turn.

Failure to Advise

L uciw arg ues that Whit e prov i d ed ineffe ctive assistance by failing to advise him of the venue and sear ch iss u es p ri o r t o his decision to plead g uilty , thus rende ring L uciw’s plea involuntary

. I n evalua ting the deficiency of counsel’s perf ormanc e under the first prong of Strickland , we note that the acc ounts of the advice L uciw rec eived from Whit e vary wildly

. Whit e states in his aff

idavit that he extensively discussed the case with L uciw, detailing the op t i o ns available with reg ard to the venue issue. L uciw, on the other hand, states in his aff idavit that he did
not speak with Whit e unti l s en tencing , that his only communication was with another attorney on the day of the g uilty

plea, a nd that he wa s never

apprised by

either of the venue and sea

rch issues. These competing versions of events lead to marke dly differ ent conclusions reg arding the defic iency of Whit e’s perf ormanc e. I n evalua ting these aff idavits, the trial court found Whit e’s aff idavit to be “cr edible” and larg ely adopted the fac ts as put forth in that aff idavit. We must defe r to the trial court’s finding s of historical fac t even when such finding s are based on aff idavits rathe r than witness testimony

. See Manzi , 88 S.W .3d at 244 (instructing appellate courts to apply “a defe rential standa

rd of revie w of the trial c ourt’s re solution of the historical fac ts from conflicting aff idavits”). On the f

acts found by

the trial cour

t, Whi te’s per formanc e wa s not deficient. Even under L uciw’s version of events, howeve r, t h er e is no showing that Whit e’s perf ormanc e prejudice d the defe nse. I n deter mining wh et h er t he defe ndant would have insisted
9on g oing to trial but for the defic ient advice of counsel, we “pre dict” the defe ndant’s succe ss at trial

on the issues co u n s el fa i l ed t o discuss with the defe ndant. See Hill , 474 U.S. at 59-60. L uciw’s

venue and sear ch challeng es would likely have failed at trial. Reg arding venue, wher e there is not

a specia l venue statute applicable to the char g ed offe nse, the proper venue for the prosec ution is the county in which the off

ense was commi tted. Tex. Code Crim. P roc. A nn. art. 13.18 (West 2005);

see also Schem m v. State , 228 S.W .3d 844, 84 6 (T ex . Ap p . — Austin 2007, pet. ref ’d). Under article 13.18, when conduct constituting a single offe nse is committed in more than one county ,
venue is proper in any of those counties. Schem m , 228 S. W

. 3 d at 846. The uncontested fac ts in Clay pool’s aff idavit indicate that he observe d L uciw driving in Williamson County , followed him until the stop in Travis County , and found coca ine in L uciw’s vehicle following the stop. These fac ts ap p ear sufficie nt to show by a preponde ranc e of the evidenc e that L uciw possessed the co ca i n e in Wil liamson County , making venue proper there

. See Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005) (“V enue need only be proved by a pre p o n d er an ce of the evidenc e.”)

. Under this analy sis, an objection on the basis of imprope r venue would not have suc cee ded at tria l.

Fur ther, the fac ts in this case do not prese nt a likelihood of succe ss in ch al l en gi ng the sear ch. Clay

pool’s aff idavit indicates that the police rec eived information that L uciw’s vehicle had been repor

ted stolen, p ro v i d i ng probable cause to perf orm a traff

ic stop. See Davis v. State , 829 S.W .2d 218, 220 (Tex. Crim. App. 1992) (citing Terry v. Ohio , 392 U.S. 1 (1968)) (“A stop is justified if the office r, based upon specific and articula ble fac ts, rea sonably surmises that the detained person may be associate d with a crime.” ). Fur ther, Clay pool states that he smelled the odor of burnt marijuana afte r stopping the car , providing probable cause to sear ch the vehi cl e. S ee

10Moulden v. State , 576 S.W .2d 817, 819 (Tex. Crim. App. 1978) (auth o ri z i n g o ff icer who smells marijuana in ve hicle af

ter tra ffic stop to sea

rch ve hicle for

evidenc e). I

n his brief, L

uciw does not challeng e these fac ts or prese nt alterna te theories reg arding the illega lity of th e sear ch. Acc ording ly , 5 L uciw fa ils to show that an objection to the sear ch would have succe eded a t trial. L uciw has not shown that he would have preva iled o n the venue or sear ch issues
at tri al , and there fore fails to demonstrate that he would not have pleade d g uilty and would have “insisted on g oing to trial” had Whit e adv i s ed h i m of these issues. See Hill , 474 U.S. at 59. Consequently , even assuming that Whit e’s perf ormanc e was defic ient, L uciw’s arg ument does not satisfy the sec ond prong of the Strickland standard.

Video Rec ording

L uciw also a

rg ues that White provided ineff ective assistance by failing to discover

or revie w the videot ap e of the crime scene . Under Strickland , “counse l has a duty to make

rea sonable investiga tions or to make a rea sonable decision that makes particula r investiga tions

At oral arg ument, L uciw’s appellate counsel arg ued that the sear ch would have been illega l 5 under Arizona v. Gant . 556 U.S. __, 129 S. Ct . 1710 (2009). I n Gant , the Supreme Court limited the exception of sear ch incident to arr est to case s in which “the arr estee is within rea ching distance of the passeng er compar tment or it is rea sonable to b el i ev e t h e vehicle contains evidenc e of the offe nse of arr est.” Id. at 1723. Wit hout addre ssing whether the Gant holding applies to the fac ts of L uciw’s cas e, we note that Gant was not decide d until April 2009, a signific ant period of time afte r the events and proce eding s of this case occur red. Counsel cannot be expected to predic t chang es in the law: “Clairvoy ance is not a require d attribute o f ef fe ct ive repr esenta tion.” United S t a t es v. Fields , 565 F.3d 290, 295 (5th Cir. 2009) (internal citations and quotation marks omitted); see also Ex parte Chandler , 182 S.W .3d 350, 359 (Tex. Crim. App. 2005) (“[L ]ega l advice which only lat er proves to be incorre ct does not normally fall below the objective standard of rea sonablene ss under Strickland .”). Consequently , Whit e’s failure to consider Gant -base d defe nses does not constitute defic ient perf ormanc e. 11u nnece ssary .” Aldrich v. State , __ S.W .3d __, No. 02-05-303- CR, 2009 Tex. App. L E XIS 6 7 7 7 ,

at *44 (Tex. App.—For

t Worth Aug

. 25, 2009, no pet.) (citing Strickland , 466 U.S. at 690-91). The

rea sonablene ss of counsel’s investiga tive decisions is viewed throug h the lens of “counse l’s perspe ctive at the time.” Rompilla v. Beard , 545 U.S. 374, 381 (2005). The Supreme Court has held that “the duty to investiga te does not forc e defe nse lawy ers t o s co u r t h e g lobe on the off chanc e something will turn up; rea sonably diligent counsel may draw a line when they have g ood rea son to think further inve stiga tion would be a wa ste.” Id. at 383.

No “scour ing of the g lobe” was require d in this case . The video rec ording of the traff ic stop and subsequent arr est was re ad i l y available to Whit e and could have produce d exculpatory information or highlig hted discrepa ncies in the State’s case . Thoug h Whit e stated in his aff idavit that he g leane d the fac ts of the case from rea ding the l et t er fr o m t h e State’s attorney and the probable cause a ffidavit attache d to it, counsel’s duty to investiga te g ener ally extends bey ond such activities: “Or dinarily counsel should not blindly rely on the vera city ei t h er o f his client’s version of the fac ts or witness statements in the State’s file.” McFarland v. State , 928 S.W .2d 482, 501 (Tex. Crim. App. 1996); see also Am. Ba r Ass’n., AB A Standards for Criminal J usti ce: Prosecution Func tion and Def ense Func ti o n 4

- 4

. 1 ( a ) ( 3 d e d

. 1 9 9 3 ) ( “ D efe nse counsel should conduct

a prompt investiga

tion of the circ ums t ances of the case and explore all avenue s leading to facts relev ant to t h e merit

s of the case and the penalty in the event of conviction.”) (empha sis added)

. Fur ther, the rec ording included L uciw’s statements to the arr esting office r, and evalua t ing the defe ndant’s own statements constitutes a key element of prepa ring a defe nse. See Johnson v. State , 172 S.W .3d 6, 19 (Tex. App.—Austin 2005, pet. ref ’d) (“See king and o b t ai n i n g inculpatory —or

12exculpatory —statement s i n the defe ndant’s own voice is an essential part of case investiga tion, prepa ration for trial, and trial stra teg y .”). Howeve r, w e n e e d n o t r e a c h a c o n c lusion reg arding whether Whit e’s failure to revie w the videotape amounted to def icient per formanc e under Strickland , beca use no prejudice resulted 6 from the decision. Under the second Strickland prong , L uciw must show that, had Whit e proper ly evalua ted the evidenc e, he would have been likely to “cha ng e his rec ommendation as to the plea.” Hill , 474 U.S. at 59. L

uciw arg ues that Whit e would have been awa re of the venue and sear ch issues h ad h e v i ewe d the video, and would then have been able to proper ly advise his client reg ar d i n g those issues. As analy

zed above, howeve r, there is no rea sonable prob ab i l i t y t h at the venue and

sear ch i ssues could have been succe ssfully raised at trial. Given the scant probability of succe ss

on these issues, no sufficie nt likelihood exis ts that Whit e would have advised his client not to plead g uilty or encour ag ed him to seek a better plea bargai n . Acc ording ly , L uciw’s arg ument fails to satisfy the second prong of the Strickland standard with reg ard t o W hite’s failure to discover and view the video r ecor ding of the stop.

At least one fede ral court has conclude d that co u n sel’s perf ormanc e was defic ient for 6 faili n g t o re v i ew a video rec ording of a traff ic stop prior to trial. I n Garza v. Quarterman , the petitioner applied for habea s corpus relief from a Texas state convict i o n , ci t i n g counsel’s failure to view the video rec ording of the DWI traff ic stop underly

ing the conviction. C.A. No. C-06-345, 2007 U.S

. Di s t

. L E XI S 18049, at *10 (S.D. Tex. Mar. 13, 2007). I n a memorandum and rec ommend at i on to the district court, the United States mag istrate judge conclude d that “fa iling to view the tape was objectively unrea sonable” under the first prong of Strickland

. Id. at *18. The court e x plained that, bec ause the “tape provided a n unbiased a ccount of

the ar rest and show ed the events befor e, during and afte r the traff ic stop,” defe nse counsel “cle ar[ly ]

. . . should have watche d the entire tape pr ior to the trial.” Id.

13Failure to Raise Issues to the Trial Cour t L uciw also arg ues that Whit e provided ineffe ctive assistance by failing to raise the is sues of improper venue, illega l sear ch, and compliance with the notice require ment of article 14.03(d) of the code of criminal proce dure to the trial court. See Tex. Code Crim. Proc. Ann.
art. 14.03(d). Our analy sis of the venue and sear ch issues above indicates that Whit e’s perf ormanc e was not ineff

ective w ith reg ard to the ve nue and se arc h issues. Fur ther, we find no merit in L uciw’s arg ument reg arding the arr esting office r’s lack of compliance with article 14.03(d) of the code of criminal p ro ce d u re , whi ch dictates that a police office r making an arr est outside his jurisdiction “shall, as soon as prac ticable afte r making the

arr est, notify a law enfor ceme nt ag ency having jurisdiction wher e the arr est was made.” Id. L uciw arg ues that failure to comply with this provision war rante d a transfe r of venue t o T ra vis County

. Howeve r, Texas courts evalua ting article 14.03(d) have held that the notice require ment of the article is “administrative in nature ” and does not confe r substantive rig hts. See Bachick v. State , 30 S.W .3d 549, 5 5 3 (Tex. App.—For t Worth 2000, pet. ref

’d) (dec lining to suppress evidenc e on basis of lack o f compl iance with notice require ment of article 14.03(d))

. Whit e could have rea sonably

c o n c lu ded that even a violation of this administrative provision would not mandate transf e r o f v e n u e . Fur ther, there is no rea son to be lieve that L uciw would have insisted on g oing to tria l had the ca se been transfe rre d to Travis County

. Acc ording ly , Whit e did not provide ineffe ctiv e as s i s t an ce in failing to raise the la ck of c ompliance with ar ticle 14.03(d). As o u r analy sis indicates that the t rial court did not abuse its discretion in den y i n g relief based on ine ffe ctive assistanc e of c ounsel, L uciw’s se cond point of er ror is over

ruled.

14Im proper Ve nue I n his third point of err or, L uciw arg ues that the trial court abused its discretion by failing to g rant his habea s application due to the impropriety of venue in Wil liamson County

. Under Texas law, “[ i] t is well-e stablished that habea s corpus will lie only to revie w j urisdictional defe cts or denials of fundame ntal or constitutional rig hts.” Ex parte W atson , 601 S.W .2d 350, 352 (Tex. Crim. App. 1980); see also Ex parte Pena , 71 S.W .3d 336, 337 n.4 (Tex. Crim. App. 2002). Venue is distinct from jurisdiction; while jurisdiction “conc erns the power o f t he court to hear and deter mine the case ,” venue ref

ers to “the place wher e a case may be tried.” W atson , 601 S.W .2d
at 351. Thoug h jurisdictional issues may be raised in an application for a writ of habea s corpus,

a defe ndant “may not c ollatera lly attack his conviction

. . . on the basis that venue was improper.” Id. at 352. Acc ording ly , L uciw’s third point of er ror is over

ruled. 7

CONCLUSION Finding no reve rsible er

ror, we aff

irm the judg ment of the trial c ourt.

L uciw makes one further arg ument with re g ard to venue, contending that the 7 requ i site proce dures wer e not followed for waiver of venue under article 13.20 of the code of criminal proce dure. See Tex. Code Crim. Proc. Ann. art. 13.20 (West 2005). Article 13.20 applies t o v enue by consent, and does not apply when, as here , venue was proper . See id. Fur ther, article 13.20 does not provide exclusive proce d u re s fo r wa i v ing venue. See, e.g. , Cooks v. State , 844 S.W .2d 697, 730 (Tex. Crim. App. 1992) (holding that rig ht to chang e of venue may be waived as matter of

law by participa ting in hea

ring s on merits). 15__________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med Filed: De cembe r 31, 2009 Do Not Publish

16