(Umiri of Appeals

JTtfttf Btsirtrt of ©exas at Dallas

BE IT REMEMBERED:

ROBERT LEE COLEMAN, Appellant

No. 05-91-01726-CR V.

STATE OF TEXAS, Appellee

Appeal from the 283rd Judicial District

Court of Dallas County, Texas. (Tr.Ct.No.

F91-66590-T).

Opinion delivered by Justice Morris,

Justices Baker and Barber participating.

Based on the Court's opinion of this date, the judgment of the trial court is

REVERSED and the cause REMANDED for further proceedings.

I, MELANIE KEETON, CLERK of the Court of Appeals for the Fifth District of

Texas, at the City of Dallas, hereby certify that the foregoing is a true copy of the opinion,

judgment and all orders entered by this Court in the above cause.

IN WITNESS WHEREOF, I hereunto set my hand and affix the seal of said Court

at Dallas this 12th day of March, 1993.

MELANIE KEETON, CLERK

By yF/]/)A/»<ju UAxjaS

Deputy Clerk
REVERSED and REMANDED. Opinion filed January 12, 1993.

In The

(Saixrt of Appeals

W\filj Btstrtrt of Qfrxas at Dallas

No. 05-91-01726-CR

ROBERT LEE COLEMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court

Dallas County, Texas

Trial Court Cause No. F91-66590-T

OPINION

Before Justices Baker, Barber,1 and Morris2

Opinion By Justice Morris

Robert Lee Coleman appeals a conviction for burglary of a habitation, enhanced by

a prior conviction. The trial court found appellant guilty and assessed punishment at fifteen

years' confinement. In one point of error, appellant contends he was denied effective

1Justice Will Barbersucceeds Justice JeffKaplan, amember oftheoriginal panel. Justice Barber has reviewed thebriefs and

record in this case.

2Justice Joseph B. Morris succeeds Justice Kevin B. Wiggins, a member ofthe original panel. Justice Morris has reviewed

the briefs and record in this case.
assistance of counsel because no objections were made regarding (1) the legality of his initial

detention by the police, and (2) the admission of evidence gathered as a result of that

detention. Finding appellant was denied effective assistance ofcounsel at trial, we sustain

his sole point of error, reverse the trial court's judgment, and remand the case for further

proceedings.

FACTS

On the morning of August 19, 1991, at approximately 8:10 a.m., Officers Jeffrey

Kirksey and Doris Smith were on routine patrol. As they approached a vacant lot on

Roseland Avenue in Dallas, they saw appellant walking across the lot carrying a new red

Craftsman toolbox. Officer Kirksey knew appellant for approximately two years, saw him

almost every day, and knew he did not have a regularjob.

Thinking it unusual for appellant to have a new toolbox, Officer Kirksey pulled into

thevacant lot, stopped appellant, and asked him where he obtained the toolbox. Appellant

told the officers a friend left the toolbox outside a vacant house. He stated he picked up

the toolbox and was walking across the vacant lot to return it to the friend.

Appellant was also carrying a plastic bag, which the officers found contained a drill,

a cordless screwdriver, and a radio. Officer Kirksey then placed a general call over his

police radio inquiring whether anyone had made a report of any kind involving a red

toolbox.

Meanwhile, Officers Eddie Padilla and Terrence King were investigating a burglary

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on Adolph Street, approximately two blocks from where appellant was stopped. Ared

Craftsman toolbox, a cordless screwdriver, a radio, and other items had been taken from

the complainant's garage. Upon receiving Officer Kirksey's inquiry, Officer Padilla informed

Officer Kirksey he was investigating a burglary involving a red Craftsman toolbox. Officers

Padilla and King proceeded to Roseland Avenue to question appellant. When interviewed

appellant told Officer King someone gave him the toolbox and items in the bag to sell.

Officers Padilla and King took appellant and the items in his possession back to the

complainant's residence where the complainant identified the items as his property. The

officers then arrested appellant and charged him with burglary of a habitation.

Before trial, appellant's attorney made no effort to challenge the legality of

appellant's detention at the vacant lot orthe admission of evidence gathered as a result of

the detention. Similarly, he made no objections at trial concerning this evidence. At trial,

the only evidence the State offered to support appellant's guilt was his possession of the

toolbox and his inconsistent explanations regarding how he obtained it. The State offered

no fingerprints from the scene of the burglary and no eyewitness testimony to connect

appellant to the burglary. Based upon appellant's possession of the property and his

inconsistent explanations regarding how he obtained the property, the trial court found

appellant guilty.

DISCUSSION

In his sole point of error, appellant contends he was denied effective assistance of
counsel because his attorney failed to object to the legality of his detention or to the

admission of evidence gathered as aresult of the detention. Specifically, appellant argues

his detention was illegal because Officer Kirksey did not have a "reasonable suspicion" to

justify it. Consequently, appellant asserts his possession of the toolbox and his inconsistent

explanations regarding how he obtained the toolbox were inadmissible evidence. Appellant

claims if his attorney had objected, the trial court would have excluded this evidence, and

there would have been no evidence before the court upon which to base a conviction.

Adefendant's right to effective assistance of counsel merely ensures him the right to

reasonably effective assistance. The right does not mean errorless counsel. See Ex Parte

Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Bridge v. State, 726 S.W.2d 558, 571

(Tex. Crim. App. 1986). To establish ineffective assistance of counsel, the defendant must

show a deficiency in his counsel's performance that prejudiced his defense. See Ex Parte

Drinkert, 821 S.W.2d 953, 954 (Tex. Crim. App. 1991); Hernandez v. State, 726 S.W.2d 53,

57 (Tex. Crim. App. 1986) (adopting test set forth in Strickland v. Washington, 466 U.S. 668,

687 (1984)). In applying this two-prong test, we first determine whether defense counsel's

acts or omissions were outside the range of professionally competent assistance. Ifso, we

must then determine whether, but for counsel's errors, there is a reasonable probability a

different outcome in the proceeding would have occurred. See Ex Parte Drinkert, 821

S.W.2d at 955; Washington v. State, 111 S.W.2d 537, 545 (Tex. Crim. App.), cert, denied,

492 U.S. 912 (1989). Areasonable probability of a different outcome means a probability

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sufficient to undermine confidence in the outcome. See Washington, 111 S.W.2d at 545. To

determine whether a defendant received adequate assistance, this Court looks at the totality

of the representation rather than isolated acts or omissions of trial counsel. We apply the

test as of the time of trial and not through hindsight. See Wilkerson v. State, 726 S.W.2d

542, 548 (Tex. Crim. App. 1986), cert, denied, 480 U.S. 940 (1987); Thomas v. State, 812

S.W.2d 346, 349 (Tex. App.-Dallas 1991, pet. refd).

Because we assume without deciding that appellant was detained when initially

stopped by Officers Kirksey and Smith, we need only address whether appellant's detention

*. was justified. If the detention was justified, the evidence derived from it was admissible, and

the failure of appellant's attorney to object would not have denied appellant effective

assistance of counsel. See Kizzee v. State, 788 S.W.2d 413, 415 (Tex. App.-Houston [1st

Dist.] 1990, pet. refd); Cevallos v. State, 755 S.W.2d 901, 904 (Tex. App.-San Antonio

1988, pet. refd). Conversely, if appellant's detention was not justified, the evidence

obtained from the detention was inadmissible, and his attorney's failure to object could

constitute ineffective assistance of counsel when viewed under the totality of the

representation standard. See Ex Parte Welborn, 785 S.W.2d at 396; Weathersby v. State, 627

S.W.2d 729, 730 (Tex. Crim. App. 1982); Doles v. State, 786 S.W.2d 741, 746 (Tex.

App.-Tyler 1989, no pet.); Perkins v. State, 111 S.W.2d 195, 198 (Tex. App.-Houston [1st

Dist.] 1989), affd, 812 S.W.2d 326 (Tex. Crim. App. 1991).

The Texas Court of Criminal Appeals frequently has held circumstances short of

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probable cause for arrest may justify atemporary detention for the purposes ofinvestigation,

since an investigation is considered to be alesser intrusion upon the personal security of the

individual. See Dickey v. State, 716 S.W.2d 499, 503 n.4 (Tex. Crim. App. 1986). Thus, a

police officer may briefly stop a suspicious individual to determine his identity orto maintain

the status quo momentarily while obtaining more information. See Gearing v. State, 685

S.W.2d 326, 327-28 (Tex. Crim. App. 1985). To justify such an investigatory detention, the

officer must rely upon specific articulable facts. These facts, when premised upon the

officer's experience and personal knowledge and coupled with the logical inferences from

the facts, must warrant the intrusion on the person detained. However, the facts must

amount to more than a mere hunch or suspicion. See Garza v. State, 111 S.W.2d 549, 558

(Tex. Crim. App. 1989). Moreover, the articulable facts relied upon by the officer must

create (1) a reasonable suspicion some activity out of the ordinary is occurring or has

occurred, (2) some suggestion toconnect the person detained with the unusual activity, and

(3) some indication the unusual activity isrelated to crime. See id.

The testimony at trial was clear. Officer Kirksey testified he relied upon the following

facts to justify appellant's detention: (1) he knew appellant for two years and saw him

almost every day; (2) he knew appellant did not work at a regular job; and (3) he thought

it unusual for appellant to be carrying a new toolbox because appellant was unemployed.

In light of Officer Kirksey's personal knowledge that appellant was unemployed, the

sight of appellant carrying a new toolbox, an activity to which he was obviously connected,

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might reasonably appear to be "activity out of the ordinary." However, before Officer

Kirksey detained appellant, he observed nothing to indicate appellant had gained possession

of the toolbox illegally. See Viveros v. State, 828 S.W.2d 2, 4 (Tex. Crim. App. 1992);

Garza, 111 S.W.2d at 558. Similarly, prior to stopping appellant, Officer Kirksey had

received no reports ofa burglary ortheft ofany kind involving a red toolbox. Only after the

officer detained appellant, questioned him, and dispatched a general inquiry, did hediscover

a red Craftsman toolbox had been stolen from a garage approximately two blocks away.

The fact that Officer Kirksey thought it "unusual" for appellant to be carrying a toolbox

because he was unemployed amounts to no more than a mere hunch or suspicion that

appellant had obtained the toolbox illegally. See Garza, 111 S.W.2d at 558. At the time

Officer Kirksey stopped appellant, appellant's activity was as consistent with legal activity

as it was with illegal activity. See Cook v. State, 832 S.W.2d 62, 66 (Tex. App.-Dallas 1992,

no pet.).

We conclude Officer Kirksey's "articulable facts" did not create any indication that

appellant's possession of the toolbox was related to crime. As a result, Officer Kirksey

lacked reasonable suspicion to detain appellant. Therefore, the evidence regarding

appellant's possession of the toolbox and his inconsistent explanations concerning how he

obtained it were inadmissible. See Cook, 832 S.W.2d at 66; Tex. Code Crim. Proc. Ann.

art. 38.23 (Vernon Supp. 1992).

Our conclusion that the evidencewasinadmissible does not, however, end our inquiry

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into whether defense counsel's failure to object to the admission ofthe evidence was outside

the range of professionally competent assistance. We must also ascertain the effect, if any,

this evidence had on appellant's trial.

Appellant contends his possession of the toolbox and his inconsistent statements

regarding how he obtained it were the only evidence linking him to the burglary of the

complainant's garage. No fingerprints were taken from the complainant's garage. There

was no eyewitness testimony placing appellant at the scene of the burglary. Appellant

asserts ifthe admitted evidence had been excluded by way ofan objection from his attorney,

there would be no evidence upon which the trial court could have based a conviction. Thus,

appellant claims, but for the failure of defense counsel to object to this evidence, he would

have been acquitted.

In adjudicating appellant's guilt, the record reflects the trial court based its

judgment upon his possession ofthe property and his inconsistent explanations regarding

how heobtained theproperty. We conclude this was theonly evidence connecting appellant

to the burglary, and without it there would be nothing upon which to base a conviction.

As noted previously, in determining whether a defendant was denied effective

assistance of counsel, we must look at the totality of the defendant's representation rather

than isolated acts or omissions of trial counsel. See Wilkerson, 726 S.W.2d at 548; Thomas,

812 S.W.2d at 349. However, under certain circumstances a single error, notwithstanding

competent performance on other matters, may be so prejudicial as to render counsel's

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representation ineffective. For example, in Ex Parte Zepeda, 819 S.W.2d 874 (Tex. Crim.

App. 1991), the defendant alleged he was denied effective assistance of counsel because his

attorney failed to request a juryinstruction on accomplice witness testimony. See id. at 876.

The Texas Court of Criminal Appeals noted that aside from the accomplice witness

testimony, none of the other evidence tended to connect the defendant to the commission

of the offense. See id. The court found that had an instruction been given, the jurywould

have been informed it could not convict the defendant without corroborating evidence

tending to connect the defendant to the commission of the offense. See id. The court

concluded that given the state of the evidence, defense counsel's failure to request an

instruction on accomplice witness testimony was an error rendering his performance

deficient. See id. at 877.

Similarly, under the facts of this case we conclude defense counsel's failure to object

to the inadmissible evidence constituted deficient performance and was an omission so

prejudicial to appellant's case as to be outside the range of professionally competent

assistance. See Ex Parte Welbom, 785 S.W.2d at 396; Weathersby, 627 S.W.2d at 730; Doles,

786 S.W.2d at 746; Perkins, 111 S.W.2d at 198. We also conclude, but for defense counsel's

error in failing to object to the inadmissible evidence, there is a reasonable probability the

outcome of the case would have been different. See Ex Parte Drinkert, 821 S.W.2d at 955;

Washington, 111 S.W.2d at 545.

Accordingly, we hold appellant was denied effective assistance of counsel. We sustain

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his sole point of error, reverse the judgment of the trial court, and remand the case for

further proceedings.

Do not Publish

Tex. R. App. P. 90

911726F.U05

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(£aurt of Appeals

mftt| Ststrtrt of Qkxas at Eailas

JUDGMENT

ROBERT LEE COLEMAN, Appellant Appeal from the 283rd Judicial District

Court of Dallas County, Texas. (Tr.Ct.No.

No. 05-91-01726-CR V. F91-66590-T).

Opinion delivered by Justice Morris,

STATE OFTEXAS, Appellee Justices Baker and Barber participating.

Based on the Court's opinion of this date, the judgment of the trial court is

REVERSED and the cause REMANDED for further proceedings.

Judgment entered January 12, 1993.

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