### (Umiri ofAppeals 

### JTtf ttf 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, judgmentand 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 ofAppeals W\filj Btstrtrt of Qfrxas at Dallas
No. 05-91-01726-CR ROBERTLEE 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 forburglary 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 reviewedthebriefs and record in this case. 2Justice Joseph B. Morris succeeds Justice Kevin B. Wiggins, amember ofthe original panel. Justice Morris has reviewed the briefs and record in this case.

### assistance ofcounselbecauseno objectionswere maderegarding (1) the legalityofhisinitial detention by the police, and (2) the admission of evidence gathered as a result of that detention. Finding appellant was denied effective assistance ofcounsel attrial, we sustain his sole point oferror, reverse the trial court'sjudgment, 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 inDallas, they saw appellant walking across the lot carrying a new red Craftsman toolbox. Officer Kirksey knew appellant for approximately two years, saw him almost everyday, and knew he did not have a regularjob. Thinking it unusual forappellant to have a new toolbox, Officer Kirksey pulled into thevacant lot, stopped appellant, and asked him where heobtained thetoolbox. 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, acordless screwdriver, aradio, and other items had been taken from thecomplainant'sgarage. UponreceivingOfficerKirksey'sinquiry, OfficerPadillainformed Officer Kirksey he was investigating aburglary involving ared 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 atthe vacant lot orthe admission ofevidence gathered as a result of 

### the detention. Similarly, he made no objections attrial concerning this evidence. Attrial, the only evidence the State offered to support appellant's guilt was his possession ofthe toolbox andhis inconsistent explanations regarding how he obtained it. The State offered


### no fingerprints from the scene ofthe burglary and no eyewitness testimony to connect 

### appellant to the burglary. Based upon appellant's possession ofthe 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 ofevidence gathered as aresult ofthe detention. Specifically, appellantargues his detention was illegal because Officer Kirksey did not have a"reasonable suspicion" to justifyit. Consequently, appellant asserts his possession ofthe toolbox and his inconsistent 

## explanationsregardinghowhe obtainedthe toolboxwereinadmissibleevidence. Appellant claims ifhis 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 aconviction. 

### Adefendant's rightto effective assistance ofcounsel merely ensures him therightto 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.2d558, 571 (Tex. Crim. App. 1986). To establish ineffective assistance ofcounsel, 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); Hernandezv. State, 726 S.W.2d 53, 

### 57 (Tex. Crim. App. 1986) (adoptingtestsetforthinStricklandv. Washington, 466U.S. 668, 687 (1984)). Inapplying this two-prong test, we first determine whether defense counsel's 

### acts oromissions were outside the range ofprofessionally competent assistance. Ifso, we 

### must then determine whether, but for counsel's errors, there is areasonable 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 ofadifferent outcome means aprobability

-4-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. SeeEx 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 causefor arrestmayjustifyatemporarydetentionforthepurposes ofinvestigation, 

### since an investigationis consideredto be alesserintrusion upon the personal securityofthe individual. SeeDickey v. State, 716 S.W.2d 499, 503 n.4 (Tex. Crim. App. 1986). Thus, a police officermaybriefly stop asuspicious 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). Tojustify 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 thelogical 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. SeeGarza 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 ofthe ordinary is occurring or has occurred, (2) some suggestion toconnect the person detainedwith the unusual activity, and (3) some indication the unusual activity is related to crime. See id. Thetestimony attrial was clear. OfficerKirksey testified herelied upon thefollowing facts to justify appellant's detention: (1) he knew appellant for two years and saw him almost every day; (2) heknew appellant did not work at aregularjob; and (3) he thought it unusual for appellant to be carrying a new toolbox because appellant was unemployed. Inlight ofOfficer Kirksey's personal knowledge thatappellant was unemployed, the sight ofappellant carrying a new toolbox, an activity to which he was obviously connected,

-6-might reasonably appear to be "activity out of the ordinary." However, before Officer 

### Kirksey detained appellant, he observednothing to indicate appellanthadgainedpossession ofthe 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 ofaburglary ortheft ofany kind involving ared toolbox. Onlyafterthe officerdetained appellant, questioned him, and dispatched ageneral 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 itwas with illegal activity. See Cook v. State, 832 S.W.2d 62, 66(Tex. App.-Dallas 1992,
no pet.). We conclude OfficerKirksey'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

-7-into whether defense counsel's failure toobject to theadmission oftheevidence was outside 

### the range ofprofessionally competent assistance. We must also ascertain the effect, ifany, 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 ofthe complainant's garage. No fingerprints were taken from the complainant's garage. There
was no eyewitness testimony placing appellant at the scene ofthe burglary. Appellant 

### asserts ifthe admitted evidencehadbeen excludedbyway ofan objection from his attorney, there would be noevidence upon which thetrial court could have based a conviction. Thus, appellantclaims, but for the failure ofdefense 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

-8-representation ineffective. For example, inEx 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 onaccomplice 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 appellantwas denied effective assistance of counsel. We sustain

-9-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 ofAppeals 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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