COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

EX PARTE: L UI S GANDARA. § § § § § § No. 08-10-00234- CR

Appea l from Criminal District Court No. 1 of El Paso County , Texas (TC # 20060D05186-384- 1)

O P I N I O N
L uis Ganda

ra appea ls from an order denying his a pplication for writ of habea s corpus. For the re asons that follow, we aff irm.
F ACTUAL SUMMA RY On September 13, 2006, El Paso Cou n t y Deputy Sheriff David Carroll was on patrol in a marke d unit when he observe d a vehicle driven by Appellant turn from a public street into an alley without first signaling his intent to t urn. Carroll initiated a traff ic stop and made contac t with the driver. Carroll did a warra nts chec k and placed Appellant under arre st on four outstanding traff ic

war rants. The passeng er, Norman Har dy , was arr ested for possession o f coca ine. At the scene , Har dy told Carroll that he had boug ht the coca ine from Appellant and that more coca ine was hidden in the vehicle. Carroll transporte d Appellant to the Vinton patrol station and inventoried Appellant’s
persona l belong ings, including his wallet. Carroll found three clea r bag g ies of coca ine inside the wallet and place d Appellant under arr est for possessing more than one but less than four ounces of

coca ine. He also found approximately $500 on Appellant’s person and scatter ed throug h o ut th e f ront seat of the vehicle, but he did not find any coca ine in the vehicle

.A g rand jury indicted Appellant for possession of coca ine. He waived his rig ht to a jury trial

and enter ed a neg otiated plea of g uilty on April 16, 2007. Pursuant to the plea ba rg ain ag ree ment, the trial court defe rre d adjudicating Appellant’s g uilt an d p l ac ed him on defe rre d adjudication community

supervision for f

our y ear s. Fa cing deporta tion, Appellant filed a writ application pursuant to Article 11.072 of the Code of Criminal Proc edure on J anuar y 27, 2010. Appellant alleg ed that his trial counse l, Ruben Ortiz, provided inef

fec tive assistance beca

use he did not pursue a motion to suppress the coc aine a nd he did not advise him of his rig ht to an Article 38.23 jury instruction. Additionally , he asser ted that trial counsel’s defic ient perf

ormanc e rende red his g uilty plea involuntary

. I n support of his writ application, Appellant attache d the trial court’s docket sh ee t s , the offe nse repor ts prepa red by Carroll, the g uilty plea paper s, a copy of the motion to suppress evidenc e filed by Ortiz, and a copy of the waiver of evidentiar y hear ing on the motion to suppress signe d by Appellant and Ortiz. I n its

answe r, t he S t at e co n t ended that Appellant had failed to sustain his burden of proving ineffe ctive assistance of counsel. Attache d to the S tate’s a nswer were Carroll’s offense reports and probable

cause statement. Ortiz later filed his aff idavit responding to Appellant’s. On J une 10, 2010, the trial
court denied relief without an evidentiar y hear ing and the court enter ed written finding s of fac t and conclusions of law as require d by Article 11.072. See T E X .C O D E C R I M .P R O C .AN N
. art. 11.072, § 7 (West 2005).AF F IDAVIT OF TRIAL COUNSEL

I n his first issue, Appellan t asser ts that the aff

idavit of trial counsel is incompetent under Rule 602 of the Texas Rules of Evidence b eca use Ortiz lacke d persona l knowledg e. The State responds that this c omplaint is waived beca use Appellant failed to raise this objec tion a t a ny point during the habe as proc eeding below. We ag ree . At Appellant’s reque st, an evidentiar y hear ing was set for April 29, 2010. Ortiz’s aff idavit had been filed that same day

. Appellant moved for a continuance on the g round that he require d additional time to prepar e for the hearing g iven t hat he had rece ived t he affidavit earlier that da y . The court g rante d the motion and re- set the evidentiar y hear ing for J une 3, 2010. Appellant did not raise any objection to the aff idavit prior to the next setting. At the J une 3, 2010 hear ing, the parties
appea red befor e the court and Appellant ag ain did not state any objection to trial counsel’s aff idavit. Appellant reque sted another continuance and the court g rante d his motion. A few day s later, the case

was transfe rre d from the 384th District Court to Criminal District Court Number One and the judge of that court denied habea s relief without an evidentiar y hear ing. Despite having approximately one

m onth to revie w Ortiz’s aff idavit from the time it was first filed until the next hear ing, Appellant

never objected to trial counsel’s aff idavit or otherwise made his complaint known to the trial court. To prese rve a complaint for appellate revie w, the rec ord must show that the complaint was made to the trial court by a timely reque st, objection, or motion that stated the g rounds for the ruling that the complaining party soug ht from the trial court with sufficie nt specific ity to make the court

awa re of the complaint. T E X .R.A P P .P. 33.1; Peralta v. State , 338 S.W .3d 598, 609 (Tex.App.--El
Paso 2010, no pet.). By failing to object to the aff idavit on the g rounds raised on appea l, Appellant failed to prese rve his complaint for our re v i ew . S ee Bunton v. State , 136 S.W .3d 355, 366 (Tex.App.--Austin 2004, pet. ref ’d)( failure to raise an objection based on Rule 602 or the witness’slack of persona l know ledg e constituted waiver of issue raised on appea l). I ssue One is ove rruled.
INEF F ECTIVE ASS ISTANCE OF COUNSEL
I n his s econd, third, and fifth issues, Appellant contends that the trial court err ed by concluding that he did not establish ineffe ctive assistance of counsel. More specific ally , he alleg es in I ssue Two that trial counsel rende red ineffe ctive assistan ce b y faili ng to investigate the fac ts rela ted to the suppression issues and by failing to pursue the motion to suppress. I n I ssue Three , he complains that trial counse l failed to advise him that he could prese nt the s uppression i ssue t o the jury by means of an Article 38.23 instruction. I n his fifth issue, Appellant arg ues that counsel was ineffe ctive becau s e he failed to challeng e the investigate detention on the g round that the office r handcuf fed A ppellant shortly

afte r stopping the vehicle. Standard of Review
To preva il in a post-conviction writ of habea s corpus proce eding, t h e ap p licant bear s the burden of proving , by a preponde ranc e of the evidenc e, the fac ts that wo u ld entitle him to relief

. Ex parte Richardson , 70 S.W .3d 865, 870 (Tex.Crim.App. 2002). I n a habea s proce eding , the trial
court is the sole judge of the cre dibilit y of the witnesses and the weig ht to be g iven their testimony , and the court may acc ept s ome, all, or none of a witness’s t estimony

. See Ex part e Peterson , 117 S.W .3d 804, 819 n.68 (Tex.Crim.App. 2003), overruled on othe r grounds by Ex parte Lewis , 219 S.W .3d 335 (Tex.Crim.App. 2007). I n revie wing a trial judge ’s decision to g rant o r d en y habea s

re l i ef , we aff ord almost total defe renc e to the trial judge ’s deter mination of the historical fac t s supported by the rec ord, espec ially when the fac t finding s are based on an evalua tion of cre dibilit y and deme anor. Ex parte Peterson , 117 S.W .3d at 819. We aff ord t hat s ame level of defere nce to

a trial court’s ruling on application of law to f act questions, a lso known as mix ed questions of law

an d fac t, if the resolution of those ultimate questions turns on an evalua tion of cred i b i l i t y an ddemea

nor. Id. We revie w de novo those mix ed questions of law and fac t tha t do not de pend upon evalua tion of cre dibilit y

and deme anor. Id.

Relev ant Law The standard for deter

mining claims of i neff

ective assistance under the Si x th Amendment is the t wo-step analy sis adopted by the Unit ed S tates Supreme Court in Strickland v. W ashington , 466 U.S. 668, 104 S.C t. 2052, 80 L .Ed.2d 674 (1984). See Ex parte Varelas , 45 S.W .3d 627, 629 (Tex.Crim.App. 2001); Hernande z v. State , 988 S.W .2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong , the habea s applicant must show that counsel’s perf ormanc e was defic ient. S

tr ic k la n d , 466 U.S. at 687, 104 S.Ct

. at 2064; Ex parte Varelas , 45 S.W .3d at 629. To satisfy this prong , the habea s applicant must de monstrate that counsel’s perf ormanc e fe ll below an objec tive standard of

rea sonablene ss, as judge d on the fac ts of a p ar t i cu l ar case and viewed at the time of counsel’s conduct. See Strickland , 466 U.S. at 688, 690, 104 S.Ct

. at 2066; Ex parte Vare las , 45 S.W .3d at 629. Under the second prong , the applicant m u st establish that counsel’s defic ient perf ormanc e prejudice d the defe nse at trial. Strickland , 466 U.S. at 687, 104 S.Ct

. at 2064; Ex parte Varelas , 45 S.W .3d at 629. I t is not enoug h for the applicant to show that the err ors had some conce ivable eff ect

on the outcome of the proce eding

. Strickland , 466 U.S. at 693, 104 S.Ct

. at 2067; Ex parte Varelas , 45 S.W .3d at 629. R ather , applicant must show there is a reasonable probability that the result of the proc eeding would have be en diffe rent but for the er rors made by counsel. See Strick land , 466 U.S. at 694, 104 S.Ct . at 2068; Ex parte Vare las , 45 S.W .3d at 629. A reasonable probability is a probability sufficie nt to undermine confide nce in the outcome. See Strickland , 466 U.S. at 694, 104 S.Ct . at 2068; Ex parte Vare las , 45 S.W .3d at 629. Failure to Inve

stigate We will first addre ss Appellant’s claim that he was denied the eff ective assistance of counselbeca

use trial counsel failed to investiga te the fac ts rela

ted to the suppression issue. Appellant alleg es that Ortiz did not inter

view Appellant extensively and instead simply relied on the evidenc e in the State’s ca se file in dete rmining the fac ts related to the suppr ession issues. The re cord r efle cts that counsel f iled a motion to suppress the evidenc e on the gr ound that Appellan t wa s arr ested without a war rant and without probable cause or rea sonable suspicion. Appellant and trial counsel later waived an evidentiar y hear ing on the motion. Ortiz addre ssed the extent of his investi g ation and his rea sons f or not pur suing the motion to s uppress in his aff idavit: As is my customary prac tice, I met with Mr. Ganda ra and discussed the fac ts and circ umstances of the offe nse with him. Ba s ed u p o n what he told me, I filed a motion to suppress the coca ine. Also as is my customary prac tice, I reque sted testing on the coca ine and obtained a la b repor t. I also spoke with the prose cutor a nd rea d the District Attorney

case file.
Ba sed upon my co n fe rences with my client, my discussions with the prosec utor, my revie w of the evidenc e, and my revie w of all the information befor e me and the re levant ca se law, and any confe renc es t hat I may have had wit h Mario Ortiz and/or J org e L opez [associate attorney s ] , I m ade a strateg ic decision not to pursue the motion to suppress beca use I believe that there wer e no meritorious issues to raise during the time of the hear ing. S p ecif ically , the arg uments raised by Mr. L ucas and/or Mr. Millan that the office r lacke d rea sonable suspicio n to detain Mr. Gandara for committ in g a traffic violation and that the detention exceede d the scope of the stop did not seem to be cre dible arg uments during a suppression hear ing in the Drug I mpact Court at that time since the evidenc e that I revie wed showed that Mr. Ganda

ra was pulled over for a valid traff ic violation and afte r the traff ic violation it was discovere d that Mr. Ganda ra had outstanding arr est war rants and it was not u n t i l afte r Mr. Ganda

ra was being booked, that the coca ine was found inside hi s wallet. I n my opinion, under these fac ts and circ umstances, and based upon the law, the coc aine would not have been suppr essed.
M y standard prac tice in dealing with suppression m otions is to pursue i t t o the fullest extent if, based upon my profe ssional leg al o p inion, there is even the slightest ch an ce that we will preva il or if the issues involve undevelope d or g ray are as of law. I f we had not had the signific ant hurdle of the fac t that the coca ine was found in his wallet when Mr. Ganda ra wa s b o oked into jail on his multipl e o u ts ta n d in g a r r e st war rants, we might have g iven the suppr e s s io n mo r e c o n s id e r a ti o n . Unfortuna tely , there wer e no meritorious issues to raise, and there fore, I m ad e a strateg ic decision not to p u rs u e i t

. And I do not believe that a court would have g rante d suppression on the g rounds claimed by Mr. Ganda ra in his writ application.I am awa re that M r. Ga ndara has claimed that there wer e other fac ts and circ umstances that would have shown this to be an unlawful prete x t stop, including that he was eng ag ed in activities consistent with narc otics traff icking

. Pretext stops are not unlawful. I do not specific ally re ca l l wh et h er I was awa re of any of these alleg ations, b u t I believe, based upon my revie w of ever y thing befor e me and my customary prac tice, that it would have been even less likely that suppression would have been g rante d if we would of [si c] put that evidenc e in front of the I mpact Court J udg e. As I previously stated, prete x t stops are lawful, and the trial judge would have been put on notice that Mr. Ganda ra had been observe d eng ag ing i n n ar co t ics traff icking , in my opin io n , th a

t in f o r ma ti o n w o u ld have streng thened the prosec utions case ag ainst Mr. Ganda

ra, dur ing both, a

suppression hea

ring and/or a

jury trial.
A criminal defe nse attorney has a duty to make an independe nt investigation of the fac ts of

a ca s e, which includes seeking out and interviewing potential witnesses. Ex parte W elborn , 785 S.W .2d 391, 393 (Tex.Crim.App. 1990). A brea ch of the duty to investigate may result in a finding of ineffe ctive assistance “whe re the result is tha t a ny viable def

ense available to the acc used is not advanc ed.” Ex parte Y

barra , 629 S.W .2d 943, 946 (Tex.Crim.App. 1982). A particular decision
not to investigate must be direc tly assessed for rea sonablene ss in a ll the circumstanc es, apply ing a heavy measure of defe renc e to c ounsel’s judgme nts. W iggins v

. Smith , 539 U.S. 510, 521-22, 123 S.Ct . 2527, 2535, 156 L .Ed.2d 471 (2003); Strickland , 466 U.S. at 691, 104 S.Ct . at 2066. Contrary to Appellant’s asser tions that Ortiz reli ed solely on the State’s file and did not investiga te the fac ts rela

ted to the suppression issues, the aff idavit ref lects that Ortiz had confe renc es with his client in addition to revie wing the State’s file. B ased upon this investig ation of the fa cts, Ortiz conclude d that the initial stop was v al i d and the coca ine was not discovere d until afte r Appellant had been taken into custody on outstanding arr est war rants. The rec ord does not support Appellant’s asser

tion that Ortiz failed to interview Appe l l ant reg arding the fac ts rela ted to the suppression issues. Failure to Pursue Motion to Suppress
We turn now to Appellant’s complaint that he was denied the eff ective assistance of counselbeca

use counsel failed to pursue t h e m o t i on to suppress the coca ine. To satisfy his burden under Strickland , Ap p el l ant was require d to prove that a motion to suppress would have been g rante d. Jack son v. State , 973 S.W .2d 954, 957 (Tex.Crim.App. 1998); see Robe rson v. State , 852 S.W .2d 508, 510 -1 2 (T ex.C rim.App. 1993)(unless there is a showing t hat a pretria l motion had merit and that a ruling on the motion would have chang ed the outco m e o f t h e ca se, counsel will not be ineffe ctive for failing to asser t the motion). App el l an t had the burden to produce evidenc e that defe ats the pre sumption of proper police conduct. Jack son , 973 S.W .2d at 957.
A law enfor ceme nt of

fice r may lawfully stop a motorist who commits a traff ic violation in the office r’s prese nce. See Garcia v. State , 827 S.W .2d 937, 944 (Tex.Crim.App. 1992); T E X .C O D E C R I M .P R O C .AN N
. art. 14.01(b)( “A peace o fficer may arr est an offe nder without a war rant for any offe nse committed in his prese nce or within his view.”) ; T E X .T R A N S P .C O D E AN N
. § 543.001 (West 2011)(“ Any peac e office r may arr est without war rant a person found committing a violation of this subtitl e.”)

. The decision to stop an automobile is rea sonable when an office r has probable cause to believe that a traff

ic violation has occ urre d. W hren v. U nited States , 517 U.S. 806, 810, 116 S.Ct

. 1769, 1772, 135 L .Ed.2d 89 (1996); W alter v. S t ate , 28 S.W .3d 538, 542 (Tex.Crim.App. 2000). During a routine traff

ic stop, an office r is permitted to detain the individual in order t o ch eck for outstanding w arr ants. W

alter , 28 S.W .3d at 542. Section 545.104 of the Tr ansportation Code provide s: (a) An operator shall use the signa l authorized b y Section 545.106 to indicate an 1 intention to turn, chang e lane s, or start fr om a par ked position. (b) An opera

tor intending to turn a vehicle rig ht or left shall signa l continuously for not less than the last 100 fee t of movement of the ve hicle bef ore the turn.

S e c t i o n 5 4 5

. 1 0 6 ( a ) p r o v i d e s f o r t h e u s e o f

h a n d a n d a r m o r s i g n a l l a m p w h e n a n o p e r a t o r i s r e q u i r e d t o g i v e 1
a s t o p o r t u r n s i g n a l

. T E X
. T R A N S P
. C O D E A N N
. § 5 4 5

. 1 0 6 ( a )

.T E X .T R A N S P .C O D E AN N
. § 545.104. The offense reports attached to Appellant’s writ appli ca t i o n

and the State’s answe r ref lect that Carroll observe d Appellant make a left turn without signa ling his intent to do so. Appellant alleg ed in his sworn writ application that he signa led his intent to turn.
More specific ally , he stated t h at : “U pon enter ing FM 259, [Appellant] proce eded about 50 fee t befor e he came to a stop and activate d his left-ha nd turn signa l for the purpose of signa ling his intent
to tur n onto a dirt road which ra n next t o a ca

nal.” The trial court f

ound that nothing in the rec ord substantiated Appellant’s asser tion that he had not committed a traff ic violation a

nd his a lleg ation in that reg ard was not cre dible. The court also conclude d, based on Appellant’s statement in his writ application, that he did not signa l his intent to turn until he had alre ady stopped at the intersec tion.
Fr om this evidenc e, the court conclude d that Appellan t’ s w r it a p p li cation objectively established that he commit ted a tra ffic violation by failing to continuously signa l his intent to turn 100 fee t befor e the turn as re q u i re d b y Section 545.104(b) of the Transpor tation Code. Viewing the trial court’s finding s of fac t with the appropr iate amount of defe renc e, we conclude that the trial court corr ectly deter mined that Appellant failed to show that his motion to suppress would have been g rante d. Fr om these same fac t finding s, we conclude that Carroll had probable cause to stop Appellant for a traff ic violation. See T E X .T R A N S P .C O D E A N N
. § 54 5

. 1 0 4 (a) , (b). An attorney does not rende r defic ient perf ormanc e by failing to pur sue a motion to suppress which lacks merit. See Ex parte W hite , 160 S.W .3d 46, 53 (Tex.Crim.App. 2004)(tria l cou n s el is not ineffe ctive for failing to make futile objections); Mooney

v. State , 817 S.W .2d 693, 698 (Tex.Crim.App. 1991)(counse l is not require d to file futile motions). I ssue Two is over ruled. Article 38.23 Instruction
I n his third issue, Appellant alleg es that trial counsel failed t o ad v i s e him that he could
prese nt the suppress i o n i ssue to the jury by means of an Article 38.23 instruction. A defe ndant’srig ht to the submissi on of jury instructions under Article 38.23(a) is limit ed to disputed issues of fac t that are materia l to his claim o f a co n s t i t u tional or statutory violation that would rende r evidenc e inadmissible. Madden v. State , 242 S.W .3d 504, 509-10 (Tex.Crim.App. 2007). There is no issue for t h e j u ry when the question is one of law only

. Pierce v. State , 32 S.W .3d 247, 251 (Tex.Crim.App. 2000). The terms of the statute are mandatory , and when an issue of fac t is raised,

a defe ndant has a statutory rig ht to have the jury char g ed acc ording ly

. Madden , 242 S.W .3d at 510.
T h e o n l y question is whether under the fac ts of a particula r case an issue has been raised b y t h e evidenc e so as to re quire a jury instruction. Id. Where no issue is ra ised by the evidenc e, the tria l
court a cts proper ly

in refusing a re quest to char g e the jury

. Id. Appellant’s writ application failed to raise any issue of materia l fac t that would have require d submiss i o n o f an Arti cle 38.23 instruction. I n his writ application, Appellant asser ted that he signa led his intent to turn as follows: “Upon enter ing FM 259, [Appellant] proce eded about 50 fee t befor e he came to a stop and activate d his left-ha nd turn signa l for the purpose of signa ling his intent
to turn onto a dirt road which ran next to a cana l. ” R at h er t h an demonstrating he did not violate Section 545.104, this statement shows that Appellant di d not signa l continuously for not less than the last 100 fee t of movement of the ve hicle bef ore the turn as re quired by Section 545.104(b). Appellant has there fore failed to show that he would have been entitled to a n Article 38.23 instruct i o n h ad he exercised his rig ht to a jury trial. Consequently , his ineffe ctive assistance of counsel c laim also fails. I ssue Thre e is overr uled. Scope of the D etention
I n his fifth issue, Appellant asser ts that trial counsel was ineffe ctive beca use he failed to
pursue a motion to suppress on the g round that the office r place d Appellant in handcuf fs during the traff ic stop. Appellant all eg ed in his writ application that the office r, shortly afte r stopping thevehicle and befor e commencing a war rants chec k, order ed Appellant out of the car and handcuf fed him. Appellant further alleg ed that the office r sear ched his v ehicle by “tea ring up panels on the inside of the vehicle.” The office r’s written repor ts do not ref

lect that he handcuf

fed Appellant prior
to placing him under formal arr est based on the outstanding warra n t s . W h i l e the office r’s repor t ref lects that office rs sear ched Appellant’s vehicle, it does not state whether the sear ch was conducte d b ef o re or afte r Appellant’s arr est on the war rants. Appellant states in his brief that his fac tual

asser tions reg arding the handcuffing and search of his vehicle hav e n o t been controver ted by trial counsel and he sug g ests that the fac ts must be acc epted as true. Appellant does not cite any authority in support of his claim that his writ alleg ations must be acc epted as true if trial co u n s el fa ils to specific ally contra dict eac h asser tion of fac t. See T E X .R.A P P .P. 38.1(I ). Fur ther, the State disputes Appellant’s a ssessment of trial counse l’s aff idavit.
I n his aff idavit, Ortiz conclude d, based on his revie w of his own case file and the State’s file, that there wer e no meritorious suppression issues to raise. Additionally , he aver red that Appellant’s

asser tion that the detention exceede d the scope of the stop lacke d cre dibilit y since the evidenc e that counsel revie wed showed that Appellant was stopped for a valid traff ic violation. Ortiz also stated that Appellant’s writ alleg ations wer e false, basele ss, and frivolous. Contrary to Ap p ellant’s

asser tions, trial couns el d i s puted the vera city of Appellant’s fac tual claims reg arding whether the office r excee ded the sc ope of the detention. The trial c ourt made the following finding s of fa ct re lated to this alleg ation: 32. The rec ord ref

lects that the applicant was arr ested pursuant to f our outstanding arr est war rants.

. . . 58. This Court finds not cre dible the applicant’s alleg ations that the office r committed any

of the a cts he a lleg es excee ded the law ful scope of the detention.. . .

76. Other than his u ncorr oborate d alleg ation, nothing in the record or his attache d exhibi ts substantiates his alleg ation that shortly afte r t h e traff ic stop, the office r order ed him out of the ca r, patted him down, a

nd handcuf

fed him.
77. This Court finds not cre dible the applicant’ s alleg ation that short l y af t er the traff ic stop, the office r order ed him out of the car , patted him down, and handcuf fed him. 78. This Court finds not cre dible the applicant’ s alleg ations that the office r eng ag ed in any of the conduct the applicant alleg es t o have exceede d the scope of the detention. 79. Even if the applicant was h an d cu ff ed, nothing in the rec ord shows the rea son why he wa s place d in handcuf fs. 80. Nothing in the rec ord s h o ws whether he was handcuf fed befor e or afte r the office r lea

rned of his outstanding ar

rest wa rra nts. 81. Other than the act of handcuf fing the applicant, the applicant does not arg ue what other fa cts might have shown that the de tention had esc alated into an a rre st. 82. The police repor

t in this case states t hat t he applicant was ‘placed under arre st for f our outstanding Sherriff

’s [sic] Offic e tra ffic w arr ants.... ’ 83. The a pplicant’s cla im that a motion to s uppress on the g rounds t hat t he officer arr ested him without probable cause constitutes mere specula tion that the trial court would have found cre dible his asser tion that the office r promptly arr ested him for no rea son. 84. The applicant has failed to substantiate his specula t i ve claim that this Court would have found cre dible his asser tion that the office r promptly arr ested him for no rea son and without probable cause and would have g rante d the suppression motion. 85. The applicant’ s failure to signa l his int ent to turn left g ave the office r probable cause to arre st him for committi ng a tra ffic violation in his prese nce. Appellant has not specific ally challeng ed any of the trial court’s finding s of fac t. As the trier of fac t, the trial court was fre e to disbelieve Appellant’s unsubstantiated acc ount of the events surrounding the traff ic stop and his subsequent arr est pursuant t o fo ur outstanding war rants. Even if the trial
court acc epted Appellant’s claim that the office r handcuf fed him shortly afte r stopping him for thetraff

ic violation, th e co u rt wo u l d not have been require d to find that Appellant had been arr ested without probable cause beca use the office r was authorized to arr est Appellant without a war rant for the traff ic violation committed in the o ff i ce r’s view. See T E X .T R A N S P .C O D E AN N
. § 543.001;
T E X .C O D E C R I M .P R O C .AN N
. art. 14.01(b); Atwater v. City of Lago Vista , 5 3 2 U. S

. 3 1 8 , 354, 121 S.Ct

. 1536, 1557, 149 L .E.2d 549 (2001)( holding that police wer e authorized to arr est motorist and take her into custody for violating provision of Te xa s T r a nsportation Code requiring motorist to wea r
seat belt). Having failed to establish that his motion to suppress would have been g rante d, Appellant has not satisfied Strickland’s require ments. I ssue Five is overrule d.

VOLUNTARINESS O F THE GUILTY PLEA
I n his fourth issue, Appellant a rg ues that the trial c ourt err ed by not se tting aside his guilty plea because it is the product of i neff ective assistance o f counsel on the grounds allege d in I ssues Two, Three , and Five. The constitutional key to validity of a g uilty plea is that it be voluntary and 2 intelligently made and, if upon advice of an attorney , that counsel be rea sonably competent and rende r eff ective assistance

. Mey ers v. State , 623 S.W .2d 397, 401 (Tex.Crim.App. 1981), ci t i ng Brady v. United States , 397 U.S. 742, 749, 90 S.Ct

. 1463, 25 L .Ed.2d 747 (1970). The purpose of Article 26.13 of the Texas Code of Criminal Procedur e is to ensure that only a constitutionally valid plea is enter ed and acc epted by the judge of the trial court. Mey ers , 623 S.W .2d at 402. This article require s a trial court to admonish a criminal defe ndant of cer tain fac ts and rig hts prior to acc epting a plea of g uilty . T E X .C O D E C R I M .P R O C .A N N
. art. 26.13 (West 2009). A re cord tha t indicates that the trial court proper ly admonished the defe ndant prese nts a prima facie showing that the g uilty plea

was made voluntarily and knowing ly

. Labib v. State , 239 S.W .3d 322, 332 (Tex.App.--Houston [1st

A p p e l l a n t d o e s n o t e x p r e s s l y a l l e g e i n h i s b r i e f t h a t h i s g u i l t y p l e a i s i n v o l u n t a r y d u e t o i n e f f e c t i v e a s s i s t a n c e 2
o f c o u n s e l a s a l l e g e d i n I s s u e F i v e , b u t w e h a v e c o n s t r u e d I s s u e F o u r a s i n c l u d i n g s u c h a n a r g u m e n t

.Dist.] 2007, no pet.), citing Martinez v. State , 981 S.W .2d 195, 197 (Tex.Crim.App. 1998). A g uilty

plea is not voluntary if made as a result of i n effective assistance of counsel, beca use it does not
repr esent a

n informed c hoice. Ex parte Burns , 601 S.W .2d 370, 372 (Tex.Crim.App. 1980). The rec ord ref

lects that the trial court prope rl y ad m onished Appellant in acc ordanc e with Article 26.13. Consequently , the burden shifted to Appellant to show that he en tere d the plea without understanding the conse q u en ce s. See Mallett v. Stat e , 65 S.W .3d 59, 64 (Tex.Crim.App. 2001). Appellant’s claim of involuntariness is based solely on his alleg ations of ineffe ctive assistance of counsel. We have a lrea dy deter mined that Appellant failed to e stablish his claims of ineffe ctive assistance addre ssed in I ssues Two, T hree , and Five. Acc ording ly , we conclude that Appellant failed to show t h at h e enter ed his g uilty plea without understanding the consequence s. We overrule I ssue Four

and af firm the judg ment of the trial c ourt deny ing ha beas c orpus re lief.

November

30, 2011 ANN CRAWFORD McCL URE, Chief J ustice
Be fore McClure, C.J ., Rivera, a nd Antcliff, JJ

. (Do Not Publish)