Affirmed as Reformed and Memorandum Opinion filed July 16, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00347-CR

DERRICK LEDON RAY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 1373949

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

Appellant Derrick Ledon Ray appeals his conviction for possession of a 

controlled substance. Following a jury trial, the trial court found two enhancement 

allegations to be true and assessed punishment at twenty-six years in prison. In two 

issues, appellant contends that (1) the evidence is legally insufficient to support his 

conviction; and (2) trial counsel rendered ineffective assistance of counsel. In a 

cross-point, the State asks that this court reform the judgment to accurately reflect
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appellant’s pleas to the enhancement allegations and the trial court’s findings on 

the enhancement allegations. We reform the trial court’s judgment and affirm the 

judgment as reformed. 

BACKGROUND

On January 15, 2013, Officers Gallegos and Perez were driving down Scott 

Street while on patrol in a high-crime area of Houston known for high levels of 

narcotics activity. The officers approached the Barberry intersection and saw a 

white Chevrolet Lumina at a stop sign. The officers noticed that the two males in 

the vehicle were not wearing seatbelts. The two men then gave the officers a 

“surprised look.” The officers decided to initiate a traffic stop and turned on their 

lights and siren. The vehicle did not immediately pull over and continued driving 

down the street. The officers then observed the appellant lift up his body from the 

passenger seat and drop his right shoulder down so that he could reach toward his 

back. 

Once the vehicle stopped, Officer Gallegos approached the driver’s side and 

Officer Perez went to the passenger’s side. Officer Gallegos saw that the driver and 

appellant were not wearing seatbelts and then he noticed a plastic water bottle with 

purple liquid on the floorboard. Based on his experience, Officer Gallegos believed 

that the bottle contained liquid codeine and asked the driver to step out of the 

vehicle. Officer Gallegos then conducted a pat down of the driver for weapons, 

handcuffed him, and placed him in the back of the patrol vehicle.

While Officer Gallegos was detaining the driver, Officer Perez was speaking 

to the appellant. Officer Perez testified that appellant seemed extremely nervous 

because he did not make eye contact, was breathing heavily, and his hands were 

shaking. Officer Perez noticed that the front of appellant’s shirt was tucked, but his 

back waistband was untucked. Thinking that appellant was hiding a weapon, 
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Officer Perez asked appellant to step out of the vehicle. Officer Perez attempted to 

pat him down for weapons but appellant resisted. Officer Perez handcuffed the 

appellant and asked Officer Gallegos to assist him in restraining the appellant. 

Officer Perez lifted up appellant’s shirt, pulled his pants back, and pulled a plastic 

bag out of appellant’s waistband. Based on his experience, Officer Perez believed 

that the plastic bag contained crack cocaine. At trial, a forensic scientist testified 

that the substance in the plastic bag tested positive for 16.97 grams of cocaine.

Appellant was indicted for possession of a controlled substance, namely 

cocaine, weighing more than four grams and less than 200 grams by aggregate 

weight. Tex. Health & Safety Code § 481.112(d). Appellant pleaded not guilty to 

the indictment. A jury found appellant guilty as charged. Appellant pleaded “not 

true” to two enhancement allegations. The trial court found the enhancement 

allegations to be true and sentenced appellant to twenty-six years in prison. 

ISSUES AND ANALYSIS

In two issues, appellant contends that (1) the evidence is legally insufficient 

to support his conviction for possession of a controlled substance because the State 

failed to prove that he intentionally and knowingly possessed the cocaine; and (2) 

trial counsel rendered ineffective assistance of counsel. In a cross-point, the State 

asks that this court reform the judgment to accurately reflect appellant’s pleas to 

both enhancement allegations and the trial court’s findings on the same.

I. Legal Sufficiency 

Appellant first contends that the evidence is legally insufficient to support 

his conviction for possession of a controlled substance. 

When reviewing the legal sufficiency of the evidence, we view all of the 

evidence in the light most favorable to the verdict to determine if any rational 
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factfinder could have found the essential elements of the crime beyond a 

reasonable doubt. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

The jury is the exclusive judge of the credibility of the witnesses and the weight to 

be given to the evidence. See id. Although our analysis considers all evidence 

presented at trial, we may not re-evaluate the evidence and substitute our judgment 

for that of the factfinder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 

2000). 

Appellant asserts that the evidence is legally insufficient to support his 

conviction because the State failed to prove beyond a reasonable doubt that he 

intentionally and knowingly possessed cocaine. In support of his contention, 

appellant argues that (1) he and the driver were stopped for not wearing seatbelts, 

but were not arrested or ticketed for that offense; (2) the bottle of codeine was not 

tagged as evidence, tested, or admitted at trial; (3) there were no fingerprints 

linking appellant to the cocaine; (4) appellant did not confess that he possessed the 

cocaine and no confession was admitted at trial; (5) the officers probably did not 

see that appellant and the driver were not wearing seatbelts because it was dark; (6) 

Officer Perez stated “they look good” and “they’re not wearing seatbelts” before 

pulling them over; and (7) the State’s motion in limine suggested that the officers 

had disciplinary records. Although appellant attacks each piece of evidence 

individually, the court must “consider the combined and cumulative force of the 

evidence” when viewed in the light most favorable to the verdict. Clayton v. State, 

235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

To prove unlawful possession of a controlled substance, the State must 

establish that the accused (1) exercised care, control, custody, or management over 

the substance; and (2) knew the substance was contraband. Poindexter v. State, 153 

S.W.3d 402, 405 (Tex. Crim. App. 2005); see Tex. Penal Code § 1.07(a)(39). 
5

Possession can be established with direct or circumstantial evidence. Poindexter, 

153 S.W.3d at 405−06. The evidence “must establish, to the requisite level of 

confidence, that the accused’s connection with the drug was more than just 

fortuitous. This is the whole of the so-called ‘affirmative links’ rule.” Id. at 406.

The “affirmative links rule” is designed to protect the innocent bystander from 

conviction based solely upon his fortuitous proximity to someone else’s drugs. Id. 

Mere presence at the location where the drugs are found is insufficient, by itself, to 

establish actual care, custody, or control of those drugs. Evans v. State, 202 S.W.3d 

158, 162 (Tex. Crim. App. 2006). However, presence or proximity, when 

combined with other evidence, either direct or circumstantial, may be sufficient to 

establish that element beyond a reasonable doubt. Id. Evidence which affirmatively 

links the defendant to the controlled substance suffices for proof that he possessed 

it knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). It is 

not the number of links that is dispositive, but rather the logical force of all of the 

evidence. Evans, 202 S.W.3d at 162. 

Both officers testified that when they attempted to initiate a traffic stop of 

the vehicle, they saw appellant lift up his body from the passenger seat, dip his 

shoulder, and reach toward his back. Officer Perez testified that he decided to pat 

down appellant because he saw that the front of his shirt was tucked into his pants

but the back waistband was untucked. Officer Perez stated that when he conducted 

the pat down, he found the bag of cocaine. Officer Gallegos corroborated Officer 

Perez’s testimony. The determination of what weight to give testimonial evidence 

rests within the sole province of the jury because it turns on an evaluation of 

credibility and demeanor. Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—

Houston [1st Dist.] 2005, no pet.). The jury was free to believe or disbelieve any or 

part of the officers’ testimony. Id. 
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Based on the foregoing evidence, we cannot say that appellant’s connection 

to the 16.97 grams of cocaine was merely fortuitous. See Poindexter, 153 S.W.3d 

at 406. The evidence affirmatively links appellant to the cocaine. Thus, viewing the 

evidence in the light most favorable to the verdict, a rational factfinder could have 

determined beyond a reasonable doubt that appellant knowingly exercised care, 

custody, control, or management over the cocaine. 

We overrule appellant’s first issue.

II. Ineffective Assistance of Counsel

In his second issue, appellant claims that his trial counsel rendered 

ineffective assistance of counsel because trial counsel (1) failed to file a motion to 

suppress; (2) failed to impeach the officers’ credibility; (3) failed to make an 

opening statement; (4) failed to invoke “The Rule”; (5) failed to obtain a ruling on 

his motion to allow appellant to testify free from impeachment by prior criminal 

convictions; and (6) demonstrated a misunderstanding of the law when he 

requested a 38.23 instruction. 

We examine claims of ineffective assistance of counsel by applying the twoprong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Ex parte 

Jimenez, 364 S.W.3d 866, 882−83 (Tex. Crim. App. 2012). Under Strickland, 

appellant must prove by a preponderance of the evidence that (1) counsel’s 

performance was deficient because it fell below an objective standard of 

reasonableness; and (2) there is a reasonable probability that, but for counsel’s 

deficient performance, the result of the trial would have been different. See id. at 

883. 

Our review of defense counsel’s performance is highly deferential, 

beginning with the strong presumption that the attorney’s actions were reasonably 
7

professional and were motivated by sound trial strategy. See Jackson v. State, 877 

S.W.2d 768, 771 (Tex. Crim. App. 1994). When the record is silent as to trial 

counsel’s strategy, we will not conclude that appellant received ineffective 

assistance unless the challenged conduct was “so outrageous that no competent 

attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 

(Tex. Crim. App. 2005). Rarely will the trial record contain sufficient information 

to permit a reviewing court to fairly evaluate the merits of such a serious 

allegation. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the 

majority of cases, appellant is unable to meet the first prong of the Strickland test 

because the record is underdeveloped and does not adequately reflect the alleged 

failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 

2007).

A sound trial strategy may be imperfectly executed, but the right to effective 

assistance of counsel does not entitle a defendant to errorless or perfect counsel. 

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Isolated 

instances in the record reflecting errors of omission or commission do not render 

counsel’s performance ineffective, nor can ineffective assistance of counsel be 

established by isolating one portion of trial counsel’s performance for examination.

Id. It is not sufficient that appellant show, with the benefit of hindsight, that his 

counsel’s actions or omissions during trial were merely of questionable 

competence. Mata, 226 S.W.3d at 430. Instead, to establish that the attorney’s acts 

or omissions were outside the range of professionally competent assistance, 

appellant must show that counsel’s errors were so serious that he was not 

functioning as counsel. See Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. 

App. 1995).

Here, appellant did not file a motion for new trial alleging ineffective 
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assistance of counsel, or develop a record of trial counsel’s reasons for his actions. 

The record is silent as to counsel’s trial strategy. 

A. Failure to File Motion to Suppress

Appellant first argues that his trial counsel rendered ineffective assistance of 

counsel because counsel did not file a motion to suppress evidence obtained from 

an illegal search. Appellant asserts that his trial counsel should have filed a motion 

to suppress arguing that the cocaine was a product of a warrantless search that was 

unsupported by probable cause. 

While it is true appellant’s trial counsel did not file a motion to suppress the 

cocaine, he did object at trial when the State sought to admit the cocaine. 

Appellant’s trial counsel argued that the cocaine was “the product of a warrantless 

search that was unsupported by probable cause and a violation of [appellant’s] 

constitutional rights against unreasonable search and seizure.” The trial court 

overruled the objection, and therefore the issue was preserved for appellate review. 

A trial counsel’s failure to file a motion to suppress is not per se ineffective 

assistance of counsel. Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 

2007, no pet.) (citing Kimmelman v. Morrison, 447 U.S. 365, 384 (1986)). 

Appellant has not shown that the result of the proceeding would have been 

different if his trial counsel had filed a pre-trial motion to suppress rather than 

lodging the objection during trial. 

Further, appellant has not shown that a motion to suppress would have been 

granted. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) 

(holding that appellant is required to prove motion to suppress would have been 

granted to prove ineffective assistance of counsel). Here, both police officers 

testified that they initiated the traffic stop because they saw that appellant and the 

driver were not wearing seatbelts. See Walter v. State, 28 S.W.2d 538, 542 (Tex. 
9

Crim. App. 2000) (“[T]he decision to stop an automobile is reasonable where the 

police have probable cause to believe that a traffic violation has occurred.”). 

Officer Perez testified that he decided to conduct a pat-down search because he 

saw appellant reach toward his back and noticed that the back of his shirt was 

untucked. Officer Perez testified that he believed appellant could have been hiding 

a weapon. See O’Hara v. State, 27 S.W.3d 548, 550−51 (Tex. Crim. App. 2000) 

(“Before conducting a pat-down search, an officer need only be able to ‘point to 

specific and articulable facts, which, taken together with rational inferences from 

those facts, reasonably warrant [the] intrusion.’”). Appellant’s trial counsel was not 

ineffective for failing to file a motion to suppress evidence that is clearly 

admissible. 

B. Failure to Impeach Credibility of Officers

Appellant next asserts that his trial counsel rendered ineffective assistance of 

counsel because he failed to impeach the police officers’ credibility. Appellant 

argues that trial counsel was ineffective because he agreed to the State’s motion in 

limine, which prevented the parties from mentioning the officers’ disciplinary 

records or personnel files. The motion in limine also prevented the parties from 

referencing an occasion in which Officer Gallegos was suspended for failing to file 

an offense report. 

The motion in limine prevented the parties from mentioning “[a]ny 

reference, suggestion, or production of documentation as to Officer’s personnel 

records relating to investigations by the Internal Affairs Division of the Houston 

Police Department” and “[a]ny reference or suggestion of Officer Felipe Gallegos 

by the Houston Police Department for failing to complete an offense report in 

2013.” The record does not reflect what information is contained in the officers’ 

personnel files, nor the circumstances surrounding Officer Gallegos’s suspension. 
10

Allegations of ineffective assistance of counsel must be firmly rooted in the record 

and the record must affirmatively demonstrate ineffectiveness. See Thompson v. 

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Further, appellant’s trial counsel 

focused on attacking the police officers’ credibility throughout his entire closing 

argument. We cannot conclude from this record that appellant’s trial counsel’s 

agreement to the State’s motion in limine was deficient. 

C. Failure to Make an Opening Statement

Appellant argues that his trial counsel rendered ineffective assistance of 

counsel by failing to make an opening statement. 

Whether to deliver an opening statement is entirely optional. Darkins v. 

State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); see 

also Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.—El Paso 1997, no pet.) 

(“The option for defense counsel to deliver an opening statement immediately after 

the State makes its opening statement is entirely discretionary.”). Few matters 

during a criminal trial could be more imbued with strategic implications than the 

exercise of this option. Darkins, 430 S.W.3d at 570. Appellant’s trial counsel’s 

failure to make an opening statement was not conduct “so outrageous that no 

competent attorney would have engaged in it.” Id. (quoting Goodspeed, 187 

S.W.3d at 392). Thus, trial counsel was not ineffective for failing to make an 

opening statement. 

D. Failure to Invoke “The Rule”

Appellant contends that his trial counsel rendered ineffective assistance of 

counsel because he failed to invoke “The Rule” at the beginning of trial to prevent 

the bolstering of witnesses. 

“The Rule” refers to Rule of Evidence 614, which provides for the exclusion 
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of witnesses from the courtroom while another witness is testifying. See Tex. R. 

Evid. 614. A party may invoke “The Rule” by request. Id. Determining harm or 

prejudice by a witness’s violation of Rule 614 is based on whether the witness’s 

presence during other testimony resulted in harm for the defendant. Webb v. State, 

766 S.W.2d 236, 240 (Tex. Crim. App. 1989). Injury to the defendant is shown 

when two criteria are met: (1) whether the witness actually conferred with or heard 

the testimony of other witnesses; and (2) whether the witness’s testimony 

contradicted testimony of a witness from the opposing side or corroborated 

testimony of a witness with whom he or she had conferred with or heard. Id. 

Here, the record does not reflect whether any of the three witnesses were 

actually in the courtroom to hear the testimony of another witness. Appellant does

not argue that any specific witness was present during another witness’s testimony. 

Appellant only argues that trial counsel was deficient by failing to invoke “The 

Rule.” He points to no testimony by any witness that he contends caused him harm 

as a consequence of any violation of “The Rule.” See Webb, 766 S.W.2d at 240.

Because allegations of ineffective assistance of counsel must be firmly rooted in 

the record, we cannot say whether trial counsel’s failure to invoke “The Rule” was 

deficient. See Thompson, 9 S.W.3d at 813. 

E. Failure to Obtain Ruling on Motion to Testify Free from 

Impeachment by Prior Criminal Convictions

Appellant contends that trial counsel rendered ineffective assistance of 

counsel because he failed to obtain a ruling on his motion to allow appellant to 

testify free from impeachment of prior convictions. See Theus v. State, 845 S.W.2d 

874, 879−81 (Tex. Crim. App. 1992) (explaining factors used in evaluating 

whether probative value of evidence admissible under Rule 609 is outweighed by 

prejudicial effect). Appellant argues that if the trial court had granted the motion, 
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appellant could have testified at trial as to his version of the facts, without fear of 

being impeached by his prior convictions. 

The record contains appellant’s motion to testify free from impeachment by 

prior criminal convictions. However, the trial court did not rule on the motion. The 

motion sought to allow appellant to testify free from impeachment for his 

convictions of attempted felon in possession, manufacture/delivery of a controlled 

substance, felon in possession of a weapon, possession of marijuana, evading 

motor vehicle, and deadly conduct.

Appellant did not testify at trial and his prior criminal convictions were not 

admitted during the guilt-innocence stage at trial. When the trial court asked 

appellant’s trial counsel whether appellant wanted to testify at trial, trial counsel 

stated “[h]e wished not to testify, Your Honor . . . It was on my own advice, but he 

certainly understands he had the right to.” The trial court confirmed that appellant 

had a criminal record and asked appellant whether it was his decision not to testify. 

Appellant told the trial court that he understood he had a right to testify and that it 

was his decision not to testify. See Bynum v. State, 731 S.W.2d 661, 665 (Tex. 

App.—Houston [14th Dist.] 1987, no pet.) (“An accused’s decision to testify is his 

own personal right.”). In his brief, appellant asserts that he “could have testified 

before the jury regarding his version of the facts, without fear of impeachment by 

his priors.” Appellant does not explain what his testimony would have revealed, or 

whether he would have actually testified. Because allegations of ineffective 

assistance of counsel must be firmly rooted in the record, we cannot say that trial 

counsel rendered ineffective assistance of counsel by failing to obtain a ruling on 

his motion to allow appellant to testify free from impeachment by prior 

convictions. See Thompson, 9 S.W.3d at 813.

The record is silent as to the reasons behind trial counsel’s strategy for not 
13

obtaining a ruling on the motion. This court will not speculate as to what counsel’s 

trial strategy might have been with regard to this alleged error. We cannot say that 

counsel’s failure to obtain a ruling on his motion was “so outrageous that no 

competent attorney would have engaged in it.” See Goodspeed, 187 S.W.3d at 392. 

Further, appellant does not argue that if trial counsel brought the motion to the 

attention of the trial court that any prior offenses would have been excluded under 

Theus. See Jackson, 973 S.W.2d at 957.

F. Request of 38.23 Instruction

Appellant argues that trial counsel rendered ineffective assistance of counsel 

by requesting an Article 38.23 instruction even though the record reflects that no 

evidence was introduced to create a factual dispute. Appellant asserts that trial 

counsel demonstrated a misunderstanding of the law by making this request. 

At the charge conference, trial counsel requested that the jury be instructed, 

pursuant to Article 38.23 of the Texas Code of Criminal Procedure, to disregard 

any evidence obtained illegally. See Tex. Code Crim. Proc. art. 38.23. The trial 

court denied the request, stating that there was no dispute about the facts. See 

Madden v. State, 242 S.W.3d 504, 509−10 (Tex. Crim. App. 2007) (“A 

defendant’s right to the submission of jury instructions under Article 38.23(a) is 

limited to disputed issues of fact that are material to his claim of a constitutional or 

statutory violation that would render evidence inadmissible.”). Trial counsel 

admitted that there was no dispute about the facts, but he believed there was a 

dispute about the interpretation of the facts or a “question about what a reasonable 

person would have thought was the case and the fact situation.” 

Although a 38.23 instruction may not have been warranted in this instance, 

we cannot say that the alleged error was “so serious that [trial counsel] was not 

functioning as counsel.” Patrick, 906 S.W.2d at 495. Appellant has not overcome 
14

the strong presumption that trial counsel’s performance was reasonable. Id.

Further, appellant has failed to show how trial counsel’s request prejudiced his 

defense at trial. We cannot say that there is a reasonable probability that, but for 

trial counsel’s alleged error, the result of the proceeding would have been different. 

We overrule appellant’s second issue. 

III. Modification of the Judgment

In a cross-point, the State requests that this court reform the judgment to 

accurately reflect appellant’s pleas and the trial court’s findings regarding the 

enhancement paragraphs in the judgment. 

During the punishment stage of trial, appellant pleaded “not true” to both of 

the State’s enhancement allegations. The trial court found both of the enhancement 

allegations to be true. The judgment, however, incorrectly reflects that appellant 

pleaded “true” to both enhancement allegations and lists “N/A” under the trial 

court’s findings with respect to each enhancement paragraph. 

“[A]n appellate court has authority to reform a judgment to include an 

affirmative finding to make the record speak the truth when the matter has been 

called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. 

Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d) (en banc)); see also Nolan v. State, 39 S.W.3d 697, 698 

(Tex. App—Houston [1st Dist.] 2001, no pet.) (noting that appellate court has the 

power to reform a trial court judgment to make the record speak the truth when it 

has the necessary data and information). 

We conclude that the record supports modification of the judgment.

Accordingly, we reform the judgment to reflect appellant’s pleas of “not true” and 

the trial court’s findings of “true” with respect to the first and second enhancement 
15

paragraphs. 

We sustain the State’s cross-point.

CONCLUSION

We reform the trial court’s judgment and affirm the judgment as reformed. 

/s/ Ken Wise

Justice

Panel consists of Justices Christopher, Donovan, and Wise.

Do Not Publish — TEX. R. APP. P. 47.2(b).