## In the Court of Appeals Second Appellate District of Texas at Fort Wor th

___________________________ No. 02

- 22

- 00010

- CR

___________________________

On Appeal from the 30th District Court Wichita County, Texas Trial Court No. DC30

- CR2021

- 0158

Before Su dderth, C .J.; Birdwell and Wal ker , JJ.

M emorandum Opinion by Just ice Birdwell 

### J OSHUA 

### L EE 

### W URTZ 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury fo und appellant Josh ua Lee Wu rtz guil ty of possessi n g a gram o r less of methamphetamine, a state jail felon y , see T ex. Health & Safety Code Ann. § § 481.1 0 2( 6 ), .115(a), (b) , after which t he tr ial court sentenced Wu rtz to confinement in a state jail for twelve months , see Tex. Penal Code Ann. § 12.35. Wur tz appe aled ; he
raise s three iss ue s : 1. D i d la w enforcement violate Wurtz’s Fourth Ame ndment right to be free from unreason able search and seizure?
2. Should the evidence discovered in the unlawful search have been suppressed or excluded? 3. Was defense counse l ineffective by failing to file a moti on to suppress the illegally obtained evi dence and by failing to object to th e introduction of the illegall y obtained evidence at trial?
We hold that Wurtz faile d to preserve his first two issues. And regarding
W u r t z ’ s third iss ue, the recor d , which does not contain defense counsel ’ s explanation s, doe s not support W urtz ’ s argument. Accordingly, we ov errule all three
issues an d affirm the trial court ’ s judgment. I. Background
A d ispatcher directed Wi chita Fa lls P olice O ffice r Kaleb Li ttl e ton to a shots

fired call. Because of the call ’ s nat ure , not only Officer Littleton but also n umerous other officers w ent to the sce ne . A t the sce ne , the stree t was full of p eople , some of
whom were w i tnesses; they related to Officer Littleton that they had seen a pers on involv ed i n the shooting and described him a s wearing a red s hir t and blue jeans . T hey3 further indi cated that the man had walk ed no r th bo und and p ointed in the direction that they ha d s e en him walking. Guided by this information , Officer Littleton d r ove northbound and, about a
block or two a way , saw a man who match ed the witnesses’ description , detained the

man , and identifie d him as W urtz
. For officer safety , Officer Littl e ton patted Wurt z down , found noth ing, handcuffed Wurtz, and plac ed him in the back of the patrol ca r. Officer Littleton maintai n e d tha t he had only d etained Wurtz a nd denied arrest ing
him. When q uestioned about not finding a gun, Officer Littl eton comm ented that based on his experience with call s of this nat ure, di scard ing a gun was very easy. Ret urni ng to the sce ne of the reported shots , O ff icer Littl e ton continue d his investigation and found shell casings in the street.
Based on the location of the shell casings and information gat hered from
wi tnesse s , Officer Lit tleton focused his investigation on a resid ence on 23rd Street

. S p e ci fically, the witnesses told Officer Littleton that two black males and a subje c t matching Wurtz’s descri ption had run in to that hous e after the shots were fi red.
Officer Littleton was familiar with that particular house and knew it as a loca t ion fro m which narcotics were s old an d distr ib ut ed

. And b ased on O fficer Littleton ’ s experience, drug houses and gun ac tivity went together

. T he occupants of the 23rd Street residence , however, refused to cooperate

. N o t h av ing probable cause to make an arrest , Officer L itt leton int ended to release
Wurtz

.4 Before re leasing Wurt z, though, Officer Littleto n asked for Wur t z ’ s consent to search his person. Officer Little to n bel ieved th at he h ad taken Wurtz’s handcuffs off before asking f or consent bu t had n ot express ly told W u rtz that he was free to leave

. Aft er Wurtz gave verbal conse nt, Officer Lit tle ton removed him f rom the back seat of the pa trol car and con duc te d a road side se a rch

. Offi cer Little ton found in t he right
front coin pocket of Wurtz ’ s jeans a white crystal

- like substance tha t he suspected , th rough his training an d experi ence, t o be metha mphetam ine, an illegal contraband.
Officer Lit tleton performed a field test that came back presumptively positi v e for methamphetamine. Less tha n forty minutes elap sed f rom the ti me that Officer
L

ittleton was dispat ched (7:17 p. m. ) to the time that he arrested W urtz (7:56 p.m.)

. Officer L i ttl eton initi ally placed the substance that he found on Wurtz in the

e v idence ro om . L ater , another officer se n t i t to a laboratory

. A fo rensic sc ientist
de termi ned that the su bstance was methamphetamine weigh ing less than one gram . II. Disc u ssion
A. Search and S ei zure Wurt z ’ s fi r st two issues deal wi th Officer Littleton ’ s search of Wurt z ’ s perso n. In his bri ef, W urtz acknowledg e s that his trial co unsel did not file a motion to
suppress and d i d not object to the disputed evidence when it was admitted at trial

. 1
The State responds that Wurtz forf eited his fir st two issues b ecause he never

1 Trial counsel’s failure to file a motion to s uppress or object to the admiss ion of th e d isput ed evide nce form s the basis of Wurtz’s t hird is sue

— ineffective assi stance of c ounsel.5 presen ted h is complaint to the trial court and never asked the trial court to suppress

or e x clude the allegedly inadmissible evidence. We agree.
T o pre serv e an iss ue for appellate review , a party mus t m ake a sufficiently specific complaint and obtain a n adverse rulin g. See Tex. R. App. P. 33.1(a)(1)

– (2).
Wi t hout a mo tion to suppress and without a n objec tion at trial, Wurtz failed to
pres erve any alleged error for ap pellate review. See Black v. State , 358 S.W.3d 823, 828

– 29 (Tex. App.

— Fort Wo rth 2012, pet. ref’d)

. Appe llate courts sh ou ld not address
unpreser ve d complai nts on the ir merits

. Ford v. S tate , 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) ; Moody v. State , 551 S .W.3d 167, 172 (Tex. App.

— Fort Worth 20 17, no pet.)

. W e overrule Wurt z ’ s first t wo issue s as unpreserved

. B. In effectiv e Assistance of Counsel
In his thir d issue, Wurtz contends that his trial counsel rendered ineffective
assist ance becaus e he did not file a motion to suppres s or object to evi dence th at Wu rt z alleges O fficer Little ton illegal ly obtained. The State argue s

— and we agree

— that the record does not support W urtz ’ s contention.
1 . Ap plicable La w The Sixth Amendment guarantees a cr im inal defendant the effective assistance
of couns el. Ex parte S cott , 5 41 S.W.3d 104, 1 14 (Tex. Crim. App. 2017); see U.S. Const.

a mend. VI. To establish ineffective assistan ce, an appellant must prove by a
p reponderanc e of the evidence that his counsel’s re presentation was deficient and that
the defi ciency prejudiced the def ense. Strickland v. Washington , 466 U.S. 668, 687, 1046 S. Ct. 2052, 2064 (1984); Nava v. State , 415 S.W .3d 289, 307 (Tex. Crim. App. 2013 ).
The reco rd must af firmatively demonstrate tha t the claim has merit. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim . App. 1999).
In evaluating cou nsel’s effectiveness under the deficient

- performan ce prong,

we r eview th e totality of the representation a nd the part icular circ umstances of the
case to d et ermine whether counsel provided reasona ble assistance under all the

c ircumstances and prevailing pro fessional norms at the time of the alleged error. See
Stricklan d , 466 U. S. at 688

– 89, 104 S. Ct. at 2065; Nava , 415 S .W.3d at 3 07; Thompson , 9 S.W.3d at 8 13

– 14. Our review of counsel’s representa tion is highly deferential, an d we indulge a s trong presumpti on that counsel’s conduct was not deficient. Nava , 415 S.W.3d a t 307

– 08. An appellate court may not infer ineffective assist ance simply from an unclear

re co rd or a record that does not show why c ounsel failed to do something. Menefield v.
St ate , 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State , 2 26 S.W.3d 425 , 432 (Te x. Crim. App. 2007). Trial counsel “should or dinar ily be afforded an opportunity

t o explain his actions before being denoun ced as ineffective.” Menefield , 363 S.W.3d at
593. If trial c ounsel did not have that opportunity, we should no t conclude th a t

counse l performed deficiently unless the challenged co nduct was “so outrageous that

no c om petent attorney would have engaged in i t.” Nava , 415 S.W.3d at 308. D irect appeal is usually inadequ ate for raising an ineffective

- assistance

- of

- couns el claim7 beca u se the r ecord generally does not show coun sel’s reaso n s for any alleged deficient performa nc e. See Menefield , 363 S.W.3d at 592

– 93; Thompson , 9 S.W.3d at 813

– 14.
A trial attorne y’s failure to file a motion to suppress is not per se ineffective.
Hollis v. S tate , 21 9 S.W.3d 446, 456 (Tex. App.

— Austi n 2007, no pet.). A n ineffective

assistance clai m based on an attorney’s alleged failure to file a motion to suppress

c annot succeed un less the appell ant shows that such a motion would have been granted and that t h e remain ing evi dence would not have been s ufficient t o support the conviction

. Jackson v. St ate , 973 S.W.2d 954, 95 6

– 5 7 (Tex. Crim. App. 1998); see Hollis , 219 S .W.3d at 456 (“C ounsel is not r equired to engage in the filing of futile motions.”).
2 . Dis cus s ion
Wurt z ’ s conte ntion is not firmly found ed in the r e cord

. As a pr eliminary
matter, we note that a n officer may place a detainee i n the back of a patrol car d ur ing a temporary investigative d etention

. See Hauer v. S tate , 466 S.W.3d 886, 892

– 93 (Tex. App.

— Houston [14th Dist.] 2015, no pet.). Addit ionally, h a ndcuffing a suspect does

not turn a tem porary investigative detention into an arrest. State v. Sheppard , 271 S.W.3d 281, 283 (Tex. Crim. Ap p. 2008). To the extent that Wurtz argu es that he did not conse n t to the search, defense counsel argued t hat to the j ury . Wurtz ’ s consent was neither recorde d nor in writing.
T he jury ’ s ve rdict , however, reflects that it reject ed that contention.8 I n his brief, Wurt z not es that d uring the punishment phase, he had denie d gi ving consent. The pun ishment phas e, however, also showe d that Wurtz ’ s memory

was not trust worthy when he denied making another statement unrelated to the
consent issue: “No. I absolutely did not say that.” But

— a fter being threatened with perjury (whi ch failed t o dissuade him) and after being confronte d with a recording i n which he made the disputed statement (which succeeded)

— Wurtz conceded that h e had made the statement: “I don’t remember what I said. I apologize. Yes, that is what
I told him. . . . I’ m very so rry.”
While it is c lear wh at Wu rtz told the tr ial court d uring the punishment trial , unk nown is w hat Wurtz told h is counsel b e fore trial. If defense counse l had testified
that W urtz told him tha t h e had consented to th e se arch, that would be anoth er piece
of the puzzle. Even a ssumi ng the cont rary

— that Wurtz told his counsel that he ha d
not consented

— does not establish ineff e ctive assistance per se becaus e other factors might have potentially played a role in counsel ’ s decision

- making. For examp le, a l though it is true that the ju ry di d not have the be nefit of
Wurtz ’ s punishment

- tri al test imony denying cons ent, it is also true that the jury di d

no t have the benefit of Wurtz ’ s 2014 conviction for possession of less than one gram of methamphetami ne

— a con viction with which the State l ikel y would have tri ed to impea ch Wurtz had he testified du ring the guilt

–

innocence trial

. 2 See Te x . R. Evid.

2 The punishment trial revealed that Wurtz h ad prior convictions for possession of less than one gram of met hamphetamine (2014), possessio n of und er two o unces9 609. For our purpos es, we do not need to speculate. The qu estion is whether the

re cord sufficiently supports Wu rtz ’ s ineffec tive

- assistance con ten tion, and it does no t. We do no t know counsel ’ s reasoning.
And to t he extent that Wurtz c o ntends t h at his deten tion w as not reasonably related in scope to the circumstances that jus tified the in vestigation in the first pl ace , the part ies never litigated th at issue in the tria l court

. Se e Hughes v. State , No. 02

- 19

- 00114

- CR , 2020 WL 6165413, at *2 (Tex. App.

— Fort Worth O ct. 22, 2020, no pet.) (mem. op., no t de signated f or publication). On this r ecord , when another court ha s d etermined t hat a seventy

- five

- min ute delay was not un reasonable, we cannot say

— as a matter of law

— tha t the less

- than

- forty

- m inute d e t ention h ere was unreasonable

. See
Strauss v. State , 121 S.W.3d 486 , 492 (Tex. App.

— Amarillo 2003, pet. ref ’ d). Becau se th e issue was n ot raised in the trial court, the evidence an d the ar guments pertaining
to that issue w ere not fleshed out.
Further , we d o not have def ense counsel ’ s explanatio n regarding why he did

n ot file a motion to sup press and object to the disputed evi dence at tria l

. B efore being
denoun ced as ineffective , t rial couns el should ordinar ily be given a n op portunity to explain his actions

. See Menefi eld , 363 S.W.3d at 593. And t he reco rd, such as it i s, does
not allow us to conclude that th e challenged co nduc t was so outr ageous that no compete nt attorney would ha ve engaged in it. See Nava , 415 S.W.3d at 308.

of mar ijuana (2006) , a ssault causing bodil y injury fa mily violence (2011), and criminal trespass (1998).10 Bec ause Wurtz has not carried h i s burden to sho w that his trial cou nse l
rendered ineffective as sistance, we overrule h is third issue.
I II. Conclusion
Hav ing overruled Wurtz ’ s three issues, we affirm the t rial court ’ s ju dgment. /s/ Wade Birdwell
Wade Birdwell J ustice
Do Not Publish Tex. R. App. P. 47.2 ( b)
Delivered : December 22, 2022