Affirmed and Memorandum Opinion filed February 28, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00292-CR

JUSTIN WILSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 64700

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

Appellant was convicted of murder and sentenced to life imprisonment. In 

two issues, we consider whether he was denied the effective assistance of trial 

counsel, and whether the trial court erred by denying a request for a lesser-included 

offense. We affirm the trial court’s judgment.
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BACKGROUND

On the night of the incident, appellant and two other males attempted to rob 

a house in which they believed drugs and money would be found. The attackers 

forced their way into the home over the resistance of two male occupants. During 

the ensuing struggle, appellant discharged his shotgun, causing the death of one of 

the occupants. The attackers abandoned the robbery and fled the scene.

The next day, police received a letter and a phone call, both anonymous, 

linking appellant and one of his accomplices to the murder. Police investigated the 

home of the accomplice, where he and appellant were both discovered. When the 

two suspects were separated for questioning, police observed that appellant was 

shaking and visibly nervous. Concerned for the safety of all involved, police 

handcuffed appellant, placed him in the back of a patrol car, and transported him 

back to the station for further questioning.

Once at the station, the police removed appellant’s handcuffs and placed him 

in an interrogation room. After waiving his constitutional rights, appellant gave a 

statement to police, in which he confessed to the murder. The confession was 

recorded on video. After his interview, appellant agreed to guide police to the 

location where he had disposed of the murder weapon and other evidence. When 

the evidence was retrieved, appellant signed a written statement admitting his 

involvement in the murder.

Prior to trial, appellant moved to suppress his confessions on the basis of 

voluntariness. Appellant argued that his statements were coerced because the 

officers had allegedly indicated that he would never be released without a 

confession. Appellant also argued that he was so tired or under the influence of 

drugs that he was unable to know what he was doing. Following an evidentiary 

hearing, the trial court denied appellant’s motion to suppress. Both the recorded 
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confession and the written statement were published to the jury during the trial on 

the merits. 

ASSISTANCE OF COUNSEL

In his first issue, appellant argues that he was denied effective assistance of 

trial counsel because counsel did not move to suppress his confessions on an

alternative basis—namely, that police lacked probable cause for appellant’s arrest. 

We examine such claims under the standard set forth in Strickland v. Washington, 

466 U.S. 668 (1984). Under Strickland, appellant must prove that his trial 

counsel’s representation was deficient and that the deficient performance was so 

serious as to deprive him of a fair trial. Id. at 687. Counsel’s representation is 

deficient if it falls below an objective standard of reasonableness. Id. at 688. This 

deficiency will deprive appellant of a fair trial only when counsel’s performance 

prejudices appellant’s defense. Id. at 691–92. To demonstrate prejudice, appellant 

must show a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different. Id. at 694. Failure to make 

the required showing of either deficient performance or sufficient prejudice defeats 

the claim of ineffectiveness. Id. at 697. This test is applied to claims arising under 

both the United States and Texas Constitutions. See Hernandez v. State, 726 

S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

Our review of defense counsel’s performance is highly deferential, 

beginning with the strong presumption that the attorney’s actions were reasonably 

professional and were motivated by sound trial strategy. Jackson v. State, 877 

S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to trial 

counsel’s strategy, we will not conclude that appellant received ineffective 

assistance unless the challenged conduct was ―so outrageous that no competent 

attorney would have engaged in it.‖ Goodspeed v. State, 187 S.W.3d 390, 392 
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(Tex. Crim. App. 2005). Rarely will the trial record contain sufficient information 

to permit a reviewing court to fairly evaluate the merits of such a serious 

allegation. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the 

majority of cases, the appellant is unable to meet the first prong of the Strickland

test because the record on direct appeal is underdeveloped and does not adequately 

reflect the alleged failings of trial counsel. Mata v. State, 226 S.W.3d 425, 430 

(Tex. Crim. App. 2007).

A sound trial strategy may be imperfectly executed, but the right to effective 

assistance of counsel does not entitle a defendant to errorless or perfect counsel. 

See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). ―[I]solated 

instances in the record reflecting errors of omission or commission do not render 

counsel’s performance ineffective, nor can ineffective assistance of counsel be 

established by isolating one portion of trial counsel’s performance for 

examination.‖ McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), 

overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 

1994). Moreover, ―[i]t is not sufficient that appellant show, with the benefit of 

hindsight, that his counsel’s actions or omissions during trial were merely of 

questionable competence.‖ Mata, 226 S.W.3d at 430. Rather, to establish that the 

attorney’s acts or omissions were outside the range of professionally competent 

assistance, appellant must show that counsel’s errors were so serious that he was 

not functioning as counsel. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 

1995).

Appellant argues that his trial counsel was ineffective because counsel 

moved to suppress his statements only on the absence of voluntariness, and not on 

the basis that his statements were the fruit of an illegal arrest. This argument is 
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premised on appellant’s claim that he was arrested without probable cause and not 

merely detained for investigative purposes.

Before being condemned as unprofessional or incompetent, counsel is 

normally afforded an opportunity to explain his actions, such as through 

testimonial evidence in a hearing on a motion for new trial or with the filing of an 

affidavit. See Bone, 77 S.W.3d at 836. Appellant filed no motion for new trial in 

this case, and the record contains no explanation regarding counsel’s reasons for 

not moving to suppress the confessions on an alternative basis. Any allegation of 

ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999). Because the record here is 

underdeveloped, appellant has not rebutted the strong presumption that counsel’s 

actions were the product of sound trial strategy.

Assuming that counsel’s performance was constitutionally deficient, 

appellant must still carry his burden of showing that the motion to suppress would 

have been granted had it been properly presented. See Jackson v. State, 973 

S.W.2d 954, 957 (Tex. Crim. App. 1998) (noting that in the context of a complaint 

that counsel failed to pursue a motion to suppress, the defendant can only show 

prejudice under Strickland if he proves that the motion to suppress would have 

been granted). Appellant contends that he meets this standard for prejudice, 

arguing that his incriminating statements would have been suppressed as ―fruit of 

the poisonous tree‖ because they were obtained from an arrest made unlawful for 

lack of probable cause. See Tex. Code Crim. Proc. art. 38.23 (providing that 

evidence must be excluded if obtained in violation of state or federal law); Wong 

Sun v. United States, 371 U.S. 471, 484–85 (1963) (providing that physical and 

verbal evidence must generally be excluded if obtained from an illegal arrest).
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However, the record supports a finding that appellant was not under arrest when he 

made his incriminating statements; he had only been detained.

An investigative detention constitutes a seizure under the Fourth 

Amendment, but it is characterized by a lesser amount of restraint than an arrest. 

See Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996). It occurs when 

an officer stops an individual for questioning and the individual is not free to leave, 

at least for some period of time. Id. Unlike an arrest, an officer is not required to 

have probable cause to stop an individual. Rather, to conduct a lawful temporary 

detention, he need only have a reasonable suspicion to believe that the individual 

actually is, has been, or soon will be engaged in criminal activity. See Ford v. 

State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if 

the officer has specific, articulable facts that, when combined with rational 

inferences from those facts, would lead him to reasonably conclude that the 

individual is involved in crime. Id. This is an objective standard that disregards any 

subjective intent of the officer making the stop and looks solely to whether an 

objective basis for the stop exists. Id.

A reasonable-suspicion determination is made by considering the totality of 

the circumstances. Id. at 492–93. Courts have considered the following factors 

when conducting this analysis: 

[T]he amount of force displayed, the duration of a detention, the 

efficiency of the investigative process and whether it is conducted at 

the original location or the person is transported to another location, 

the officer’s expressed intent—that is, whether he told the detained 

person that he was under arrest or was being detained only for a 

temporary investigation, and any other relevant factors.

State v. Sheppard, 271 S.W.3d 281, 291 (Tex. Crim. App. 2008) (footnotes 

omitted). There is no bright-line test providing that the use of handcuffs is always 
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the equivalent of an arrest. See Rhodes v. State, 945 S.W.2d 115, 118 (Tex. Crim. 

App. 1997). As much as a bright-line rule would be desirable, courts must consider 

the reasonableness of the detention, and reasonableness is judged from the 

perspective of a reasonable officer at the scene. Id. ―[C]ommon sense and ordinary 

human experience must govern over rigid criteria.‖ Id. (citing United States v. 

Sharpe, 470 U.S. 675, 685 (1985)).

In this case, police received two anonymous tips—one letter, and one phone 

call—identifying appellant and another individual as possible suspects in the

murder. The tips were received less than twenty-four hours after the crime was 

committed. When police went to the home of the other individual, both suspects 

were found together. Police separated the two men, with appellant being removed 

to an outside porch. As he waited for police to finish their investigation inside, 

appellant was observed to be nervous and visibly shaking. During the suppression 

hearing, one officer testified that he grew concerned for the safety of everyone 

involved at the scene after witnessing appellant’s shaking and mannerisms. The 

officer testified that because of this concern, he ―grabbed [appellant] and put him 

in handcuffs, [and] advised him he was being detained.‖ Police then transported 

appellant to a police station where they interrogated him without handcuffs or any 

other physical restraints.

The evidence supports a finding that police had reasonable suspicion to 

detain appellant for further questioning. Police had received tips linking appellant 

and another individual to the murder, and both suspects were found together 

shortly after the crime. Appellant was visibly distraught and shaking when police 

first arrived to conduct their investigation. This court has justified an investigatory 

detention based on similar evidence in the past. See Kelley v. State, 807 S.W.2d 

810, 814 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (―Furtive gestures can 
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be a valid indicia of mens rea when coupled with reliable information or other 

suspicious circumstances.‖); see also Illinois v. Wardlow, 528 U.S. 119, 124 

(2000) (―[N]ervous, evasive behavior is a pertinent factor in determining 

reasonable suspicion.‖); Balentine v. State, 71 S.W.3d 763, 769 (Tex. Crim. App. 

2002) (holding that officer had reasonable suspicion to detain suspect who was 

exhibiting nervous behavior in the early morning hours after reports of gun fire). 

The temporary use of handcuffs did not convert the detention into an arrest, nor did 

the fact that appellant was taken to a police station for questioning. See Dowthitt v. 

State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (―Stationhouse questioning 

does not, in and of itself, constitute custody.‖). An individual may be placed in 

handcuffs for officer protection, and in this case, the officer who applied the 

handcuffs even informed appellant that he was being ―detained,‖ not arrested. See 

Rhodes, 945 S.W.2d at 117–18 (noting that an officer’s testimony that he was not 

arresting appellant when he handcuffed him is another factor to be considered 

when determining whether an arrest has taken place).

Based on the totality of the circumstances, the record supports a finding that 

appellant was detained under reasonable suspicion. He was not under arrest at the 

time of his statement, and police did not require probable cause to hold him for 

questioning. Accordingly, appellant cannot show a reasonable probability that the 

trial court would have granted a motion to suppress based on a theory that his 

statements were the fruit of an illegal arrest. Appellant’s first issue is overruled.

LESSER-INCLUDED OFFENSE

In his second issue, appellant argues that the trial court erred by refusing to 

instruct the jury on the lesser-included offense of manslaughter.

We review the trial court’s decision on the submission of a lesser-included 

offense for an abuse of discretion. Jackson v. State, 160 S.W.3d 568, 575 (Tex. 
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Crim. App. 2005). The trial court abuses its discretion when its decision is 

arbitrary, unreasonable, or without reference to guiding rules or principles. Makeig 

v. State, 802 S.W.2d 59, 62 (Tex. Crim. App. 1990). Because the trial court has no 

discretion in determining the applicable law, the trial court also abuses its 

discretion when it fails to analyze the law correctly and apply it to the facts of the 

case. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).

We apply a two-prong test when determining whether a defendant is entitled 

to an instruction on a lesser-included offense. Rousseau v. State, 855 S.W.2d 666, 

672 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. 

App. 1981); Penaloza v. State, 349 S.W.3d 709, 711 (Tex. App.—Houston [14th 

Dist.] 2011, pet. ref’d). First, the lesser-included offense must be included within 

the proof necessary to establish the charged offense. See Tex. Code Crim. Proc. art. 

37.09; Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). Second, some 

evidence must exist in the record that would permit a jury to rationally find that if 

the defendant is guilty, he is guilty of only the lesser-included offense. Aguilar v. 

State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). Courts have recognized that 

manslaughter is a lesser-included offense of murder. See, e.g., Cardenas v. State, 

30 S.W.3d 384, 392 (Tex. Crim. App. 2000). Thus, the first prong is satisfied.

A person commits manslaughter if he recklessly causes the death of an 

individual. Tex. Penal Code § 19.04. A person acts recklessly if he engages in 

conduct and is aware of but consciously disregards a substantial and unjustifiable 

risk associated with that conduct. Id. § 6.03(c). In support of his requested 

instruction, appellant cites to evidence in the record affirmatively showing that 

discharge of the weapon may have been reckless. However, even if his actions 

were reckless, appellant admitted that the weapon was discharged during the 

course of a robbery, which would preclude a rational jury from finding that he was 
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guilty of only manslaughter. When a homicide is committed in the course of a 

robbery, evidence of recklessness at most raises the issue of felony murder, not 

manslaughter. See Ross v. State, 861 S.W.2d 870, 876 (Tex. Crim. App. 1992) (op. 

on reh’g); Gadsden v. State, 915 S.W.2d 620, 623 (Tex. App.—El Paso 1996, no 

pet.). Accordingly, appellant was not entitled to an instruction on manslaughter, 

and the trial court did not abuse its discretion in denying his request. Appellant’s 

second issue is overruled.

CONCLUSION

The judgment of the trial court is affirmed.

/s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).