Opinion filed February 1 1 , 2011



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 09

- 000 90

- CR

__________ RODERICK DAMON MILES , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 2nd District Court Tarrant County, Texas Trial Court Cause No. 1118577D

M E M O R A N D U M O P I N I O N
A jury found Roderick Damon Miles guilt y of the offense of possession of a controlled
substance , namely cocaine, of less than one gram . Miles pleaded true to an enhancement allegation related to a prior conviction for possession of a controlled substance. The trial court sentenced him to eight years confinement

. We affirm.
While Officer Mark Richard Schneider was patrolling the area around the Stop and Save
Food Mart

– an area known for its high criminal activity

– he saw Miles and a woman talking in the parking lot of the Stop and Save. Officer Schneider knew that the woman was a drug addict. When Officer Schneider pulled up to the convenience store, Miles and the woman turned their backs to each other and began to walk away

. Officer Schneider went up to Miles
, asked for his2

identification
, and asked if Miles would consent to a search of his p erson. Miles consented to the
search
, but when Officer Schneider reached into Miles’s front right pocket
, Miles made a fist
, hit
Officer Schneider’s hand
, turned
, and assumed a fight stance. Officer Schneider reached for his
T aser , but Miles began runnin g away

. Officer Schneider chased after Miles and saw him t hrow a white bag in to the g utter by the street. After a chase , Officer Schneider apprehended Miles

. Officer Schneider then recovered the white bag that Miles h a d thrown away. The bag was found

t o contain .67 grams of cocaine.
Miles filed a motion to suppress the evidence obtained at the scene . He argued that it was
obtained as a result of an illegal search and seizure. The trial court denied the motion to

suppress. Miles pleaded not guilty to the offense and proceeded to a jury trial.
In Miles’s first issue on appeal, he argues that the trial court erred when it denied his

mo tion to suppress. In his second issue
, Miles argues that he received ineffective assistance of

c ounsel because his counsel failed to request an instruction in the jury charge on the legality of the stop
, the search, and the seizure of evidence.
We review a trial court’s ruling on a motion to suppress for an abuse of discretion, applying a bifurcate d standard of review. St. George v. State , 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The bifurcated standard requires that we give great deference to the trial court’s findings of historical facts supported by the record and to mixed questions of law a nd fact that
turn on an evaluation of credibility and demeanor. Herrera v. State , 241 S.W.3d 520, 526

- 27 (Tex. Crim. App. 2007). However, we review de nov o the trial court’s determination of the law and its application of law to facts that do not turn on an evaluation of credibility and demeanor.
Id

. at 527; Davila v. State , 4 S.W.3d 844, 847

- 48 (Tex. App.

— Eastland 1999, no pet.). W e view the evidence in the light most favorable to the trial court’s ruling. Carmouche v. State , 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The Fourth Amendment guarantees people the right to be ―secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.‖ U.S. C ONST

. amend. IV. A n encounter with law enforcement does not always impli cate the Fourth
Amendment. Florida v. Bostick , 501 U.S. 429, 434 (1991). Police may approach a person on the street or in a public place to ask questions or ask for identification even if they have no basis for suspecting a particular individual of a cri me. United States v. Drayton , 536 U.S. 194, 200

- 01 (2002). Police officers may ask questions of an individual, ask to see identification, or request3

consent to search as long as the officer do es not convey the message that compliance with their request i s required. State v. Velasquez , 994 S.W. 2 d 676, 678 (Tex. Crim. App. 1999); Hunter v.
State , 955 S.W.2d 102, 104 (Tex. Crim. App. 1997). In this case, the Fourth Amendment is not implicated. Officer Schneider approached
Miles and asked him for identification and for consent to search his person. Officer Schneider
testified that Miles was free to leave. Miles consented to the search of his person. This was a consensual police/citizen encounter and was not a violation of Miles ’s Fourth Amendmen t rights. Further, even if the Fourth Amendment was implicated, Officer Schneider articulated facts supporting a reasonable suspicion that criminal activity was a foot. Officer Schneider testified that there had been at least two robberies in the recent p ast involving the convenience
store where the incident occurred. He also testified that t he owner of the convenience store had requested that the police provide extra patrolling in the area due to the high

- crime activity

. Officer Schneider observed Mile s talking to a known cocaine addict
, and he also observed Miles
and the known cocaine addict acting suspiciously when he drove up. These facts provided
Officer Schneider reasonable suspicion to detain Miles for a Terry stop. See Terry v. Ohio , 392
U.S. 1 , 21 (1968). An officer may conduct a brief investigative detention when he has reasonable suspicion to believe that an individual is involved in criminal activity. Id. Further,

once Miles hit Officer Schneider’s hand and assumed a fight stance , an offe nse had occurred providing probable cause to arrest. The trial court did not err when it deni ed Miles ’s motion to suppress, and we overrule his first issue on appeal.
Miles next argues that he received ineffective assistance of counsel because his counsel failed to request a n instruction in the jury charge on the legality of the stop , the search, and the
seizure of the evidence. In order to show that trial counsel was ineffective, Miles must show that counsel’s performance was deficient and that counsel acted outside the wide range of competent
assistance. Strickland v. Washington , 466 U.S. 668, 690 (1984). Miles must also show that there is a reasonable probability that a different result would have been reached but for counsel’s unprofessional errors. Id . at 696. As the reviewing court, we look at the totality of the representation and apply an objective standard of reasonableness. McFarland v. State , 845 S.W.2d 824, 843 (Tex. Crim. App. 1992) ; Pri ce v. State , 923 S.W.2d 214, 217 (Tex. App.

— Eastland 1996, pet. ref’d). There is a strong presumption that counsel’s conduct could be considered sound trial strategy. Strickland , 466 U.S. at 688

- 89. Consequently , allegations of4

ineffective assistance mu st be founded firmly in the record. Hawkins v. State , 660 S.W.2d 65 , 75 (Tex. Crim. App. 1983). Direct appeal is usually an inadequate avenue for raising an ineffective assistance of counsel claim because the record is generally undeveloped. Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Trial counsel should be afforded the opportunity to explain his actions before being denounced as ineffective. Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it. Rylander v. State , 101 S.W.3d 107, 110

- 11 (Tex. Crim. App. 2003). In this case, Miles filed a motion for new trial
, but the trial court did not conduct a
hea ring and the motion was overruled by operation of law . Therefore, the record is not developed enough to overcome the presumption that counsel’s actions were sound trial strategy. There are various reasons counsel may not have ask ed for a jury instruction on the legality of the stop and search
, and we will not engage in a hindsight review. See Stafford v. State , 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). Furthermore, Miles would not be entitled to a jury instruction on the legality of the stop
and sear ch even if he had requested one. T EX

. C ODE C RIM

. P ROC

. A NN

. art

. 38.23 (Vernon 2005) provides : No evidence obtained by an officer or other person in violation of any provision s of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a re asonable doubt, that the evidence was obtained in violation of the provision s of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
The trial court is required to include an instruction only if the trial evidenc e raised a factual issue concerning whether the evidence was obtained in violation of the F ederal Constitution or the
Texas Constitution or any law

. Bell v. State , 938 S.W.2d 35 , 48 (Tex . Crim. App. 1996). The trial evidence did not raise a factual dispu te concerning the legality of the search. The evidence
showed that O ffice r Schneider approached Miles in the parking lot of the convenience store
, asked him for identification
, and asked him if he would consent to a search of his person. As
discussed abo ve , this is a consensual police/citizen encounter and does not implicate the Fourth
A mendment or the laws of the State of Texas regarding proper search and seizure. Because there5

was not a factual dispute regarding the legality of the search and seizure o f evidence
, Miles’s
counsel did not err in failing to request a jury instruction. Miles did not receive ineffective
assistance of counsel , and w e overrule his second issue on appeal. The trial court’s judgment is affirmed.

JIM. R. WRIGHT
CHIEF JUSTICE

February 1 1 , 2011 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.