### 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. 03-12-00797- CR

Marc helo Lamont P ryce , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 700 52, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

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

A j u ry found appellant Marc helo L amont Pry ce g uilty of unlawful possession of a firea rm by a felon. See Tex. Penal Code § 46.04(a) (1). The jury assessed punishment at ten y ear s’ im p r is o n me n t. O n a

p p e a l, Pr y c e a s s e r ts th a t h e r e c e iv e d in e f

f e c ti v e a s s is ta

n c e o f c o u n s e l. We a f

f ir m the trial cour

t’s judgme nt of conviction.

BACK GR OUND Offic er Micah Goodrich of the Killeen Police Depa rtment testified that he executed

a traff ic stop of an SUV afte r observing that the vehicle did n o t h av e a front license plate and its inspection sticker had been expired for two months. Offic er Goodrich stated that he asked the driver, la te r id e n ti f ie d a s Pr y c e , f o r h is d r iv e r ’ s li c e n s e a

n d p r o o f o f in s u

r a n c e . A c c o r d in g to O f

f ic e r G o o d r ic h , Pry ce rea ched over the passeng er seat as if to retrie ve documents from the g love box , at which point Pry ce “f l i ck ed ” a t o wel on top of the passeng er’ s seat. Pry ce then told Offic er Goodrich that hedid n o t h av e h i s driver’ s license with him and did not have insurance , but Pry ce did provide his

Texas I D ca

rd. Offic er Goodrich returne d to his patrol car and, using the information on Pry ce’ s I D

car d, called dispatch to deter mine whether Pry ce had a valid driver’ s license. Acc ording to Offic er Goodrich, dispatch informed him that Pry ce’ s driver’ s license was suspended and that Pry ce had
two outstanding arr est war rants rela ting to two misdemeanors. Offic er Goodrich reque sted backup,

arr ested Pry ce based o n t h e outstanding war rants, and place d him in the back seat of a patrol car . I n acc ordanc e with the Kille en P o lice Depa rtment’s policy , Offic er Goodrich impounded Pry ce’ s vehicle. Of

fi cer Goodrich and another responding office r conducte d an on-site inventory of the vehicle. During this inventory , Offic er Goodrich moved the towel that was located on the passeng er
seat a nd found a loa ded handg un. After Offic er Goodrich impounded Pry ce’ s vehicle and beg an taking inventory , two

women arr ived at the scene . Pry ce told Offic er Goodrich that one of the women was his mother and the ot her was hi s g irlfriend. Neither of t hese women approa ched the vehicle, a nd there is nothing in the rec ord to indicate that either woman offe red to take possession of Pry ce’ s vehicle in order to
preve nt it from being impounded.

Pry ce was subsequently i n d icted for unlawful possession of a firea rm by a felon. See id. § 46.04(a) (1), (e) (making possession of firea rm within five y ear s of convicted felon’s rele ase f r o m c o n f inement, community supervision, or parole third-deg ree felony ). At trial, Offic er G o o d

r ic h testified abo u t the events outlined above. The State also introduced a cer tified copy of Pry ce’ s p re v i ous judgme nt of conviction for unlawful possession of a firea rm and called an expert in

2fing erpr int analy sis to confirm that Pry ce was the same person who was identified in that judgme nt.

The jury found Pry ce g uilty of the offe nse alleg ed an d , following a punishment hear ing, assessed punishment at ten y ear s’ imprisonment. The trial court enter ed a judgme nt of conviction consistent with the jury ’s ver dict. This appea l followed.

DISCUSSIO N I n his sole issue on appea l, Pry ce ass er ts that he rec eived ineffe ctive assistance of counsel at trial. Specifica lly , Pry ce arg ues that his trial coun s el was defic ient for (1) failing to adequately investiga te and interview potential witnesses, (2) failing to file a motion to suppress the
g un that was re cover ed fr om Pry ce’ s car , and (3) failing to file a wr itten motion for continuance

.

To preva il on an ineffe ctive-a ssistance-of -counse l claim, Pry ce must satisfy the two-prong test set out in Strickland v. W ashington , 466 U.S. 668, 687 (1984); see also He rnandez

v. State , 726 S.W .2d 53 , 5 7 (T ex . C ri m. App. 1986) (adopting Strickland standard for claims of ineffe ctive assistance of counsel). Under Strickland , a defe ndant must show (1) that counsel’s perf ormanc e was defic ient and (2) that the defe ndant was prejudice d by the defic ient perf ormanc e. 466 U.S. at 687. Effe ctiveness is judge d by the “totality of the re p re s en t at i o n,” rathe r than by an isolate d act or omission. See Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). Counsel’s perf

ormanc e is defic ient when it falls “below an o bjective standard of rea sonablene ss” based upon “pre vailing professional norms.” Strickland , 466 U.S. at 689; see also Perez v. State , 310 S.W .3d 890, 893 (Tex. Crim. App. 2010).

Our revie w of counsel’s perf ormanc e must be highly defe rential

— we presume that counsel makes all signific ant decisions in the exercise of rea sonable j u d gm ent. Strickland , 3466 U. S

. at 6 8 9

. Pry ce has the duty to bring forth a rec ord that aff irmatively demonstrates the alleg ed ineffe ctiveness of his counsel by a preponde ranc e of the evidenc e. See Scheane tte v. State , 144 S.W .3d 503, 509–10 (Tex. Crim. App. 2004). Perfor mance of counsel u s u al l y cannot be adequately examined based on a trial-cour t rec ord; this ty

pe of rec ord is best develope d in a motion for ne w trial. See id. Wit hout a rec ord, finding counsel c onstitut ionally ineffe ctive would re quire

us to assume that there was no so u n d t ri al s t ra t eg y , which we are not permitted to do unless the counsel’s decision was “so outrag eous th at n o co m petent attorney would have eng ag ed in it.” Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001).

Pry ce did not file a motion for new trial in this case . Thus, Pry ce’ s trial counsel has
not been g iven an opportunity to ex p l ai n his perf ormanc e or his complained- of decisions. See Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005) (“Tr ial counsel should ordinarily be g iven an oppor

tunity to expl ain his acts or omiss ions befor e being denounced as ineff ective.” ). Fur thermore , Pry ce has not produce d any aff idavi t s o r ev idence to demonstrate what information his trial counsel could ha ve int roduce d that would have affe cted e ither his conviction or sente nce. There fore , Pry ce must rely solely on the trial rec ord to support his ineffe ctive-a ssistance-of -counse l claim. See Sc heanette , 144 S.W .3d at 509–10.

First, Pry ce complains that his trial counsel was defic ient for failing to adequately investiga te P ry ce’ s g irlfriend as a potential witnes s. Pry ce’ s g irlfriend testified at t he punis hment phase of trial, duri ng which she asser ted that Pry ce was a g ood and car ing man. Howeve r, she

conce ded that both she and Pry ce had been convicted of sever al offe nses in the past. Fur thermore , Pry ce’ s g irlfriend’ s testimony does not indicate that she could provide any additional in formation

4th a

t w o u ld h a

v e b e e n r e le v a

n t d u r in g th e g u il t- in n o c e n c e p h a s e o f tr ia l. B a s e d o n th is r e c o r d , Pr y c e ’ s counsel could have rea sonably conclude d that Pry ce’ s g irlfriend was not a cre dible witness and did not know any

rele vant information that would have supported additional investiga tion. Si milarly , the rec ord does not aff

irmatively demonstrate that Pry ce was prejudice d by his counsel’s failure to interview Pry ce’ s g irlfriend more thoroug hly befor e trial. Pry ce also asser

ts that his counsel was defic ient for failing to i n vestig ate and subpoena a person named Allen Ble vins who, acc ording to Pry ce, could have testified that Pry ce did not know the g un was in the car . After the State rested and Pry ce had testified in his ow n defe nse, Pry ce’ s counsel informed the court that Pry ce’ s g irlfriend had g iv en h im a letter alleg edly written by Ble vins stating that he place d t h e gun in the vehicle without Pry ce’ s knowledg e. Howeve r, Pry ce’ s counsel conce ded that when he called a man who identified himself as Ble vins, Ble vins stated that he was not willing to testify in court and ref used t o gi v e h i s addre ss. When Pry ce’ s counsel a sked for a continuance to investiga te t he matter further , the State noted that B levins also had a rec ent felony conviction and would need to be repr esente d by counsel befor e confe ssing to unlawful possession of a firea rm by a felon. The trial court denied Pry ce’ s motion for a continuance and proc eede d to closing a rg uments. There is nothing in the rec ord to indicate that had Pry ce’ s counsel conducte d a more thoroug h investiga tion, h e co u l d h ave discovere d Ble vins’s identity or lear ned of his potentially favor able testimony

. Pry ce did not mention B levins in his testimony about the events surrounding Pry ce’ s arr est, nor is there any explanation in the rec ord about who Ble vins is or how he could have place d a gun in Pry ce’ s passeng er seat wit hout Pry ce’ s knowledg e. Fur thermore , g iven Blevins’s

5reluc tance to testify about possession of a firea rm

— wh i ch, acc ording to the State, could have subjected Ble vins to criminal prosec ution fo r t h is same offe nse—we cannot deter mine whether Ble vins would have provided useful information to Pry ce’ s counsel had counsel contac ted him befor e trial. Ba sed on this limit ed rec ord, we cannot conclude that Pry ce’ s counsel was defic ient for failing to investiga te Ble vins as a potential witness, nor can we conclude that Pry ce was prejudice d by that failure to investiga te.

Next, Pry ce asser

ts that his counsel was defic ient for failing to file a m o tion to
suppress the g un that formed the basis for his conviction of unlawful possession of a fire ar m. Specifica lly , Pry ce asser ts that Offic er Goodrich’ s decisi on to impound Py rce ’s vehicle was “pate ntly unrea sonable” beca use Pry ce’ s mother and g irlfriend arr ived at the scene and could have taken possession of the car . See generally South Dakota v. Opperman , 428 U.S. 364, 368–69 (1976) (conc luding that impounding vehicles afte r ar rest as pa rt of “community car etaking function” and th e n in v e n to r y in g c o n te n ts o f im p o u n d e d v e h ic le to p r o te c t o w n e r ’ s p r o p e r ty a n d e n s u r e n o d a n g e r o u s contents is not unrea sonable sea rch) . There fore , acc ording to Pry ce, a motion to suppress the gun based on the unrea sonable sear ch and seizure would have been g rante d and there would have been no basis to convict him of unlawful possession of a firea rm. Offic er Goodrich testi fied that neither Pry ce, his mother, no r his g irlfriend lived at the apartment complex wher e the arr est occu rr ed and, therefor e, Officer Goodrich could not have left the vehicle at t h e ap ar t m ent complex beca use it would have been abandone d and unsecur ed. Fur thermore , t h er e is nothing in the rec ord to indicate that Pry ce’ s mother or g irlfriend offe red
to t ake possession of t he vehicle. Finally , even if Pry ce’ s mother or g irlfriend had offe red to take

6possession of the vehicle, they could not have lawfully driven it to another location b ecause its

inspection had ex pired. There fore , Pry ce’ s counse l co u l d have rea sonably believed that a mot ion to suppr ess the g un on the theory that the police unr easona bly impounded and inventoried Pry ce’ s

v e h ic le w o u ld h a

v e b e e n d e n ie d

. S

e e id

. ; R o b e r ts v
. S

ta te , 4 4 4 S. W. 3 d 7 7 0 , 7 7 6

– 7 7 ( T e x. A p p . — F o r t Worth 2014, pet. filed) (discussing bases f or re asonably

impounding vehic le). Given that Pry ce’ s counsel could have rea sonably believed that a motion to suppress would have been unsucce ssful, we
cannot conclude that counsel’s decision not to file such a motion constituted defic ient perf ormanc e. See Holland v. State , 761 S.W .2d 307, 318–19 (Tex. Crim. App. 1988) (“[T]rial counsel is under no obliga tion to do what would amount to a futile ac t.”).

Finally , Pry ce asser

ts that his counsel was defic ient for failing to file a written motion for continuance on the first day of trial. Specif

ically , Pry ce note s that his c ounsel orally reque sted

a continuance —explaining to the court that on the morning of trial, Pry ce provided him with names of witnesses who, if subpoenae d, “potentially could neg ate the rea sonable suspicion for the stop in this case .” The trial court denied the oral motion for a continuance

. Pry ce’ s counsel indicated that h e wo u l d be filing a written motion for continuance to prese rve the issue for appea l, but no s u ch motion wa s filed. See Tex. Code Crim. Proc. art. 29.03 (re quiring party reque sting continuance in criminal ac tion to file written motion demonstrating suff icient ca use). A motion for continuance must be in writing in order to prese rve a complaint about the trial court’s denial of the motion for appellate revie w. See Anderson v. State , 301 S.W .3d 276, 2 7 9 ( T e x. Cr im

. A

p p . 2 0 0 9 )

. H o w e v e r , Pr

y c e ’ s c o u n s e l’ s o r a l s ta

te me n t a b o u t w h y h e w a s r e q

u e s ti n g a continuanc e does not e x plain what witnesses he could have subpoenae d, what information those

7witnesses could have provided about Offic er Goodrich’ s rea sonable suspicion to perf orm this traff

ic stop, or why counsel had g ood cause for failing to subpoena these witnesses ea rlier. F urthermor e, Pry ce did not file a motion for new trial with acc ompany ing aff idavits to identify who these potential witnesses we re or

what they

could have testified to. Ba sed on th i s re co rd, we cannot conclude t hat t he trial court would have gr anted a written motion for continuance had one been filed. Simil arly , even if Pry ce’ s complaint about the denial of his motion for continuance had been prese rved for appellate revie w, there is nothing in the

rec ord to indicate that this Court would have reve rsed the trial court’s decision to deny that motion. See Gallo v. State , 239 S.W .3d 757, 764 (Tex. Crim. App. 2007) (noting that appellate court revie ws trial co u rt ’s decision to deny motion for continuance for abuse of discretion). There fore , Pry ce’ s counsel could have rea sonably believed that he could not demonstra te g ood cause for reque sting a continuance , and thus filing a written motion for continuance would have been futile. See Holland , 761 S.W .2d at 318–19 (noting trial counsel not de ficient for failing to pe rfor m f utile a ct). Finally , as out lined above, the rec ord does not identify what addit ional information P ry ce’ s counsel could have obtained had a continuance been g rante d, and thus we cannot deter mine if Pry ce was prejudice d by counsel’s f

ailure to file a

written motion for continuanc e. Pry ce has failed to bring forth a reco rd t hat aff irmatively demonstrates that his

c o u n s e l’ s p e r f

o r ma n c e w a s d e f

ic ie n t o r th a

t Pr y c e w a s p r e j u d ic e d b y th a

t p e r f o r ma n c e . S e e S c h e a n e tt e , 144 S.W .3d at 509–10 (no ting that it is defe ndant’s burden to produce rec ord that supports i n e f f e c t i v e - a s s i s t a

n c e - o f

- c o u n s e l c l a i m )

. T h e r e f

o r e , w e c a nn o t c o n c lu d e th a

t Pr y c e r e c e iv e d in e f

f e c ti v e assistance of counse l. We overrule Pry ce’ s sole issue on appea l.

8CONCLUSION Having overr

uled Pry ce’ s only appellate issue, we a ffirm the trial court’s judgme nt of convic tion.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: De cembe r 23, 2014 Do Not Publish

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