### 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. 03-17-00117- CR

Tajay Stephens, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT NO. D-1 -DC- 16- 3015 43, H ONO RAB LE TAMARA NEEDLES, J UDGE P RESIDING

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

After the t rial court denied his motion to suppress evidenc e, a jury found appellant Tajay Stephens g uilty of possession with intent to deliver a penalty g roup 2-A controlled substance (sy nthetic marihuana ) in an amount of four g rams or more but less than 400 g rams, a first-degree felony

. See Tex. He alth & Safety Code § 481.113(d). The jury assessed punishment at five y ear s’ imprisonment. In two appellate issues, Stephens contends that he rec eived ineffe ctive assistance of counsel and that the judgme nt should be ref ormed to ref

lect the offe nse for which he was convicted. We will modi fy

the trial cour

t’s judgme nt of conviction and a ffirm the judg ment as modified.BACK GR OUND 1 T h e in d ic tm e n

t a g ainst Stephens alleg ed that he possessed a contro ll e d s u b s ta n c e w it h intent to de liver. Be fore trial, Stephens filed a motion to suppress evidenc e. At the hear ing on the motion to suppress, Offic er Trac y Z immerman with the Austin Police Depa rtment testified that he

was patrolling downtown Austin in May 2016 when he noticed unusual activity happening ear ly in the morning near t h e Austin Resource Center for the Homeless (ARCH). Offic er Z immerman testified, “T h er e’ s a larg e well-doc umented perc entag e of criminal activity that happens around the ARCH.” Suspecting criminal activity , Offic er Z immerman went to the “HAL O came ra room,” wher e he was able to view t h e s u s p i ci ous activity using “a sy stem of came ras downtown.” Acc ording to Offic er Z immerman, he “saw a g roup of males” that “we re working in conce rt and they

wer e making numerous hand-to-ha nd transac tions with random pedestria ns that wer e walking up.” Offic er Z immerman viewe d this activity for “ [a] bout an hour.” Offic er Zimmer

man further t estified that he suspe cted the group was distributing a cate g ory of drug known as “K2,” or sy nthetic marihuana , beca

use K2 use was “one of the big issues that we have down at the ARCH” and beca use people from the ARCH a re sometimes hospitalized afte r using K2. Offic er Z immerman testified that he watche d the g roup of males handling cig arillos that had been torn open and had the tobacc o remove d. Acc ording to Offic er Z immerman, the g roup

was rese aling the cig arillos and distributing them to pedestria ns. Offic er Z imme rman identified Stephens as one of the men he saw in the video and testified that he believed Stephens was in char g e

The fac ts rec ited in this opinion are taken from the testimony and exhibi ts admitted at the 1 hear ing on the motion to s uppress a nd at trial. 2of the operation. Offic er Z immerman testified that there was a backpa ck near the g roup and that

Stephens went back and forth to the backpa ck during the hand-to-ha nd exchang es, rea ching into the backpa ck “on numerous occa sions.” Officer Z immerman further testified that he contac ted other office rs who appr oache d the g roup on the stre et. These office rs seized the bac kpack a nd place d it

on the hood of the patrol car . The office rs remove d items from the backpa ck and then returne d the backpa ck to Stephens.

In addition, Offic er Z immerman testified that office rs arr ested Stephens at the

scene for outstanding war rants. He was later arr ested for delivering sy nthetic marihuana

. On crossexamination, Offic er Z immerman admitted that he did not “know for cer tain what wa s being transac ted” by watching throug h the HAL O s y stem but aff irmed t hat t he activity was “rea sonab ly suspicious.” Stephens’s trial counsel argued at the hear ing that Stephens’s arr est was illega l. The trial court denied the motion to suppress, and the case went to trial. At trial, Offic er Z immerman and other officer s testified t o the events partially descr ibed above. Th e j u ry al s o hear d testimony that later tests showed that the backpa ck contained controlled substances. Stephens was convicted and sentenc ed, and this appe al followed.

DISCUSSIO N Ineff ect ive Assistance of Counsel In his first appellate issue, Stephens contends that he rec eived ineffe ctive assistance of counsel in that his trial couns el did not move to suppress the contents of the backpa ck on the g round that the war

rantless sear ch of the backpa ck violated Stephens’s Four th A mendment rig hts.
3To preva il on his claim of ineffe ctive assistance of couns el, Stephens must

demonstrate by a preponde ranc e of the evidenc e both defic ient perf ormanc e by counsel and that he suffe red prejudice as a result. See Strickland v. W ash i n gton , 466 U.S. 668, 687 (1984); Nava v. State , 415 S.W .3d 289, 30 7 (T ex . C ri m. App. 2013). In addition, as t he Tex as C ourt of C riminal Appea ls has explained,

Direc t appea l is usually an inadequate vehicle for raising such a claim beca use the rec ord is g ener ally undevelope d. This is true with reg ard to the question of defic ient perf ormanc e—in which counsel’s conduct is revie wed with g reat defe renc e, without th e d is to r ti n g e f f e c ts o f h in d s ig

ht— wh e r e c o u n s e l’ s re a s o n s f

o r f a il in g to d o s o me th in g do not appea

r in the rec ord. We h av e s aid that trial counsel should ordinarily be aff orded an opportunity to explain his actions befor e being denounce d as ineffe ctive. Absent such an opportunity , an appellate court should not find defic ient perf ormanc e unless the challeng ed conduct was so outrag eous that no competent attorney would have e ng ag ed in it. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005) (clea ned up). T he failure of Stephens’s trial counsel to challeng e the seizure of the backpa ck in the motion to suppress is not per se ineffe ctive assista n ce o f counsel. See Harris v. State , No. 01-11-0041 5 -C R , 2 0 14 WL 1912539, at *5 (Tex. App.—Houston [1st Dist.] May 13, 2014,

no pet.) (m em . op., not desig nated for publication); Hollis v. State , 219 S.W .3d 446, 456 (Tex. App.—Austin 2007, no pet.). This is beca use “[ c]ounsel is not require d to eng ag e in th e filing of futile motions.” Hollis , 219 S.W .3d at 456 (citing Mooney v. St a t e , 817 S.W .2d 693, 698 (Tex. Crim. App. 1991)). There fore , Stephens must show that the result of the pr ocee dings w ould have been differ ent if his trial counsel had made the arg ument he now raises—that is, that the trial court would have g rante d the motion to suppress and that the rema ining evidenc e wo u l d have been insufficient to obtain a con v i ct i on. See Jack son v. State , 973 S.W .2d 954, 957 (Tex. Crim. App. 41998) (per curiam) (“[T]he appellant was still oblige d to prove that a motion to suppress would have

been g rante d in order to satisfy Strickland .”); id. (“To preva il on his claim of ineffe ctive assistance

o f counsel the appellant had the burden to develop fac ts and details of the sear ch sufficie nt t o conclude that the sear ch was invalid.”); see also Pratt v. State , No. 02-16-00395- CR, 2018 WL 2054623, at *8 (Tex. App

. — Fo rt W o rth May 3, 2018, no pet. h.) (mem. op., not desig nated for publication); Martinez v. State , No. 08-14-00130- CR, 2016 WL 4447660, at *4 (Tex. App.— E l Pa s o Aug

. 24, 2016, pet. re f’d) (not desig nated for publication), cert. denied, 137 S. Ct. 2170 (2017); Ray v. State , No. 1 4 -14-00347- CR, 2015 WL 4366108, at *4 (Tex. App.—Houston [14t h Dist.] J uly 16, 2015, no pet.) (mem. op., not desig nated for publication); Harris , 2014 WL 1912539, at *5; Hollis , 219 S.W .3d at 456.

Her e, the rec ord is silent as to trial counsel’s r easons f or not c halleng ing the sear ch

o f t h e b ac kpack in the motion to suppress, and Stephens has not shown that his trial counsel’s conduct was “so outrag eous that no competent attorney would have eng ag ed in it.” See Goodspee d , 187 S.W .3d at 392. I f Stephens’s counsel had challeng ed the sear ch of the backpa ck in the motion t o s up p ress, the State may have prese nted additional evidenc e in response . See Richard v. St a t e , No. 03-12-00222- CR, 2012 WL 3 7 9 3 4 1 6 , at *2 (Tex. App.—Austin Aug

. 31, 2012, no pet.) (mem. op., not de signated for publication) (“N othing in this rec ord shows what evide nce the State might have offe red in response to a motion t o s up press if it had been filed.”) ; Berry v. State , Nos. 05-05-01104- CR, 05 -0 5 -0 1 105-CR, 05-05-01106- CR, 2006 WL 1976942, at *2 (Tex. App.—Dallas J uly 17, 2006, pet. ref ’d) (mem. op., not desig nated for publication) (“[N]o rec ord has been develope d to establish t h e p o s s i b le rea sons why defe nse counsel did not file a motion to

5suppress the drug s. No r d o es t h e rec ord establish what evidenc e the State would have prese nted

had counse l filed a motion to suppress

. . . . Thus, Be rry cannot overc ome the strongpresumption of ef fec tive assistance of counse l.”).

In addition, we are not persua ded that the trial court would have g rante d the motion to suppress. The trial court could have conclude d, for example, that the sear ch of the backpa ck was

a lawful sear ch incident to arr est. Stephens argues that th e sear ch was not lawfully perf ormed incident to arr est beca

use “the arr est occur

red afte r office rs seized Mr. Ste p h ens’ backpa ck and

remove d it from his immediate control. Be cause office rs safe ly immobil ized the backpa ck prior to

arr esting Mr. Stephens, the State cannot claim that the sear ch incident to arr est exception applies.” Stephens re l i es h ea v ily on the Supreme Court’s opinion in Chadwick

. See United States v. Chadwick , 433 U.S. 1, 13 (1977) (“With the footlocker safe ly immobil ized, it was unrea sonable to undertake t h e ad d i t i o nal and g reater intrusion of a sear ch without a war rant.” ). Howeve r, Texas courts have rea d Chadwick narr owly , beca use to do otherwise would “hamstring police office rs who

are conducting sear ches incident to la wful arr ests.” Carrasco v

. State , 712 S.W .2d 120, 123 (Tex. Crim. App. 1986). Acc ording ly , “[w]hether or not an office r has reduc ed lugg ag e or other persona l proper ty not immediately associate d wi t h the person of the arr estee to his exclusive control will depend upon the totality

and the e x ige ncies of the circ umstances in ea ch ca se.” Id. (cle aned up)

. There fore , the fa ct that offic ers r emoved the ba ckpac k from Stephens and place d it

on the hood of the patrol car befor e sear ching it did n o t p re cl ude them from sear ching the bag incident t o arr est, nor i s it rele vant whether officers searc hed the bac kp ack before or after placing Stephens under a

rre st. As the Texas Court of Criminal Appeals has e x plained,

6I f an office r has prob ab le cause to arr est, a sear ch incident to arr est is valid if it is

conducte d befor e a formal arr est—at least if it is immediately befor e the arr est. The formalities associate d with arr est do not seem to matter to the Supreme Court in the sear ch-inc ident-to-ar

rest context as long as the arr est was close in time to the sear ch and the requisite probable cause to arrest (that justifies the arrest and sear ch) arose befor e the se arc h.

State v. Sanchez , 538 S.W .3d 545, 550 (Tex. Crim. App. 2017) (foo t n ote omitted); see State v. Ballard , 987 S.W .2d 8 8 9 , 8 9 2 (Tex

. Crim. App. 1999) (“It is irrele vant that the arr est occur s immediately befor e or afte r the sear ch, as long as sufficie nt pr obable cause exis ts for the office r to

arr est befor e the sear ch.”) ; Hill v. State , No. 13-16-00397- C R , 2 0 1 7 WL 5505748, at *3 (Tex. App.—Corpus Christi Nov. 16, 2017, no pet.) (mem. op., not desig nated for publication) (noting that

sear ch was incident to arr est even if “appe llant was not under arr est when he was sear ched but only detained” ); Cano v. St ate , No. 03-15-00485- CR, 2017 WL 3908640, at *10 (Tex. App.—Austin Aug

. 24, 2017, pet. ref’d ) (m em . op., not desig nated for publication) (“[T]his Court has held that ‘the sea rch inc ident to arre st can pre cede the ar rest’ so long as the formal arr est occur s ‘within the

same encounter. ’” ) (quoting W iede v. State , 157 S.W .3d 87, 96 (Tex. App.—Austin 2005, pet. ref ’d)) ; Meiburg v. State , 473 S.W .3d 917, 924 (Tex. App.— Ho u ston [1st Dist.] 2015, no pet.) (“Co n s eq u ently , Chisolm ’s s ubsequent searc h of Meiburg’ s pocket was valid as a sear ch incident to arr est. I t is irrele vant that Meiburg was not actua lly arr ested until afte r the sear ch, beca use the law require s only that Chisolm had probable cause to believe that he had committed a crime.” ) (citation omitted); Nugent v. State , No. 01-12-00 2 3 4 -C R , 2014 WL 458998, at *5 (Tex. App.—Houston [1st Dist.] Fe b

. 4 , 2 0 14, pet. ref’d) (mem. op., not designated for publ ication) (“[A] sear ch is still incident to an arr est for as long as the administrative proce ss incident to the arr est and custody have

7not been completed. A sear ch may take place on th e s p o t , at t h e time of arr est, or it may be

conducte d later when the a ccuse d arr ives at the plac e of de tention.”) (c leane d up).

Her e, the office rs had probable cause to arr est Stephens beca use of the exis tence of h i s o u t s t anding war

rants and sear ched the backpa ck incident to that arr est. We also note that t h e video of the encounte r shows that other people besides Stephens wer e wande ring around the street

near the patrol car and the office rs. The office rs could hav e re as o nably been conce rned that a pedestria n could ac cess we apons or c ontraba nd from the ba ckpac k, further justify ing the sear ch. Ba sed on the rec ord befor e us, we cannot conclude that th e conduct of Stephens’s t ri al co u n sel in failing to challeng e the sear ch of the backpa ck in the motion to suppress was “so outrag eous that no competent attorney would have eng ag ed in i t , ” s ee Goodspee d , 187 S.W .3d at 39 2 , n o r ca n we conclude that Stephens has shown that the trial court would have g rante d the motion, see Jack

son , 973 S.W .2d at 957. Acc ording ly , we cannot conclude that Stephens rec eived ineffe ctive assistanc e of c ounsel, and we overr ule his first appellate issue.

Modif ying the Jud gm ent In his second appellate issue, S t ep h ens contends that the judgme nt incorre ctly indicates that he manufa cture d a controlled substance. The S t at e co n cedes this err or and further asks this Court to ref

orm the judgme nt to delete the ref eren ce t o i n d az ole. We ag ree , and we 2 there fore sustain Stephens’s second issue and will modify the judgme nt to chang e the re fer ence to

In its appellate brief, the State explains that “a p p el l an t was convicted of possessing a 2 controlled subst ance in which indaz ole was a core component
. . . . Indazole is not the controlled substance but rathe r a core component o f the penalty g roup 2-A controlled substance alleg ed in the indictment.” 8m an ufac turing of a controlled substance to possession of a controlled substance and to d el et e t h e

ref ere nce to indazole. See Tex. R. App. P. 43.2(b ); B i g l ey v. S tate , 865 S.W .2d 26, 27–28 (Tex. Crim. App. 1993).

CONCLUSION

We modify the trial court’s judgme nt of conviction to chang e the ref ere nce to manufa cturing of a controll ed s u b s t an ce to possession of a controlled substance and to delete the ref ere nce to indazole. We af firm the judg ment as modified.

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Modified and, a s Modified, Aff irmed Filed: Jul y

3, 2018 Do Not Publish

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