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Opinion issued July 28, 2015

In The

Court of Appeals 

For The 

First District of Texas 

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NOS. 01-14-00124-CR, 01-14-00125-CR

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EVAN STUART FAIRBANKS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Case Nos. 1388074 & 1388075

MEMORANDUM OPINION

Appellant Evan Stuart Fairbanks pleaded guilty to possession of marijuana 

in an amount between five and fifty pounds (trial court case number 1388074; 

appellate court case number 01-14-00124-CR) and to possession of 

methamphetamine in an amount less than one gram (trial court case number 
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1388075; appellate court case number 01-14-00125-CR). The trial court denied his 

subsequent motion to withdraw his guilty plea. In accordance with the plea 

bargain, the court sentenced Fairbanks to two years in prison for possession of 

marijuana and 180 days in state jail for possession of methamphetamine. However, 

because the court had denied the motion to withdraw the guilty plea, it certified 

Fairbanks’s right to appeal. 

On appeal, Fairbanks contends that this court should have abated his appeal 

to allow him to further develop the record in the trial court to support a motion for 

new trial. He also argues that his trial counsel was ineffective for giving him faulty 

advice and for failing to file a motion to suppress the marijuana and 

methamphetamine. We affirm.

Background

A police officer stopped appellant Evan Stuart Fairbanks for failure to signal 

a turn. He was detained and taken to a nearby house in Houston, where law 

enforcement officers executed a previously issued search warrant. Illegal drugs and 

weapons were found at the house, and Fairbanks was arrested and charged with 

possession of marijuana and methamphetamine. A notation on a case reset form 

stated that he was charged with felony offenses of “POM, PCS, FPW,” which 

stand for possession of marijuana, possession of a controlled substance, and felon 

in possession of a weapon.
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Fairbanks retained an attorney, Jyll Rekoff, who filed a motion to suppress

evidence. The motion alleged that the traffic stop was unlawful because a 

videorecording showed that Fairbanks used his turn signal. The motion further 

alleged that his arrest was warrantless and without probable cause. It sought 

suppression of any statements made while Fairbanks was in custody, testimony 

about any actions he took while in custody, and testimony about the arrest. The 

motion to suppress did not address the warrant for the search of the house.

On the day when the motion to suppress was set for hearing, and before the 

trial court considered the motion, the State offered Fairbanks a plea bargain. 

Although he had previously rejected a plea offer of five years in prison in 

exchange for his pleas of guilty, he accepted a plea agreement in which he pleaded 

guilty to the two charges of drug possession in exchange for a punishment 

recommendation of two years in prison and the State’s agreement to drop the 

charge against him of being a felon unlawfully in possession of a weapon. In 

connection with his guilty pleas, Fairbanks stated in writing and in open court that 

he was guilty of the alleged offenses. 

Sentencing was scheduled for approximately two months later. Just before 

the sentencing hearing, Fairbanks obtained new counsel, and he filed a motion to 

withdraw his guilty plea. He contended that Rekoff pressured him to plead guilty, 

urged him to forego a hearing on the motion to suppress, and advised him that if he 
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needed additional time to consider the State’s plea-bargain offer, he could hire 

another attorney to represent him. He argued that this advice “led [him] to believe 

that he could change his plea before [the] sentencing date.” In light of Rekoff’s 

alleged actions, Fairbanks argued that his guilty plea was not free and voluntary. 

The trial court denied the motion to withdraw his guilty plea, but it certified his 

right to appeal.

Fairbanks filed a motion for new trial on the grounds of ineffective 

assistance of counsel, i.e., that Rekoff erroneously advised him to plead guilty and 

failed to file a motion to suppress the evidence of marijuana and 

methamphetamine. The trial court held an evidentiary hearing on the motion for 

new trial. Three witnesses testified: Fairbanks, his mother, and Eric Locasio, the 

prosecutor who made the plea offer.

Fairbanks testified that he was 32 years old and one semester shy of earning 

a master’s degree. He said that he had planned to go to trial and had not discussed 

a plea bargain with Rekoff prior to the day he pleaded guilty. He said there were 

multiple issues to be raised as part of his defense, including his contention that 

there was an illegal stop and the fact that he was not named in the search warrant. 

He testified that when Rekoff presented him with the plea-bargain offer, she told 

him he had only five minutes to decide whether to accept it. Fairbanks also said 

that the prosecutor looked at him and made tapping motions on his watch. 
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Fairbanks explained, “That means hurry up. I’ve got other things to do.” He 

testified that Rekoff told him to take the plea, replace her with a new attorney, and 

then withdraw his guilty plea. 

On cross-examination, Fairbanks testified that he had prior convictions for 

misdemeanor possession of marijuana to which he had pleaded guilty, and theft 

from a person for which he received deferred adjudication and later pleaded guilty, 

in accordance with a plea bargain, on the State’s motion to adjudicate. He 

conceded that on five or six prior occasions in the course of this case, he had sat in 

court and watched other plea bargains, including the judge’s admonishments. He 

also conceded that the judge had asked him at the plea hearing if he was pleading 

guilty because he was guilty, and he had said “yes.” But at the hearing on the 

motion for new trial, Fairbanks testified that he previously lied when he told the 

judge he was guilty. He testified that his plea was given freely and voluntarily, 

saying, “no one held a gun to my head and made me take the plea; but I did what 

my lawyer recommended me to do.”

Fairbanks’s mother testified that she was with her son when Rekoff advised 

him to accept the plea bargain and hire another attorney to handle the case. She 

said her son asked Rekoff some questions, and the lawyer answered him. But the 

parties were unable to locate Rekoff for the hearing on the motion for new trial, 

and she did not appear or testify.
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Finally, Locasio testified that he had offered to dismiss one of the three 

charges against Fairbanks and to recommend the minimum punishment on the two 

remaining charges in exchange for pleas of guilt. Locasio said that he had shared 

with Rekoff some legal research that demonstrated why the motion to suppress 

should have been denied by the court. He denied that Rekoff had raised any issues 

pertaining to the adequacy of the affidavit that supported the warrant to search the 

house.

The trial court denied the motion for new trial. The judge said that he found 

Fairbanks’s testimony not credible on the question of whether he was pressured 

into taking the plea and that his mother’s testimony was not helpful. As to the 

claim that Rekoff was ineffective in regard to the motion to suppress, the trial 

judge said he was not in a position to rule on it because she had not appeared for 

the hearing and he had no evidence as to her reasons for not attacking the search 

warrant in the motion to suppress. 

Fairbanks appealed. He sought abatement of the appeals so that he might 

further develop the record in the trial court. We denied his motion to abate the 

appeals. 

Analysis

Both of Fairbanks’s issues concern allegations of ineffective assistance of 

counsel. He first challenges this court’s decision not to abate this appeal to allow 
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him to further develop the record. Next he argues that trial counsel was ineffective 

for failing to pursue a motion to suppress.

I. Abatement of the appeal is not authorized

In his first issue, Fairbanks argues that this court erred by denying his 

motion to abate the appeals to allow him another chance to develop the record to 

assert ineffective assistance of counsel on direct appeal. 

Fairbanks was represented by appellate counsel during the stage of 

proceedings when a motion for new trial could be filed. He filed a motion for new 

trial, and the trial court held an evidentiary hearing. The court held the hearing on 

two separate days to afford Fairbanks an additional opportunity to secure the 

testimony of his trial counsel, who was not located and did not appear. The court 

denied the motion after specifically finding that Fairbanks’s testimony was not 

credible and noting that the record was silent as to trial counsel’s strategy in regard 

to the motion to suppress. 

In this court, Fairbanks filed a motion to abate. He sought to secure 

testimony from Rekoff to support his claim of ineffective assistance of counsel. 

However, he has provided no authority supporting his contention that abatement to 

the trial court is appropriate, and the Texas Court of Criminal Appeals has 

disavowed the practice for hearings on motions for new trial. See Benson v. State, 

224 S.W.3d 485, 492–95 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (en banc) 
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(citing Jack v. State, 149 S.W.3d 119, 124 (Tex. Crim. App. 2004)). We are aware 

of no legal basis for granting the requested relief, particularly when Fairbanks was 

represented by appellate counsel for the purposes of the motion for new trial stage 

and the trial court held a hearing on the motion. However, we note that a defendant 

may collaterally attack a conviction on the basis of ineffective assistance of 

counsel through habeas corpus proceedings. See id. at 495 n.5; see also Jackson v. 

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Ex parte Torres, 943 S.W.2d 

469, 475 (Tex. Crim. App. 1997). 

We overrule Fairbanks’s first issue.

II. Ineffective assistance of counsel

In his second issue, Fairbanks argues that his trial counsel was ineffective 

for advising him to plead guilty and later withdraw his plea, and also for failing to 

pursue a motion to suppress the evidence found in the house. Because he raised the 

issue of ineffective assistance of counsel in a motion for new trial, we must 

determine whether the trial court abused its discretion by denying the motion for 

new trial. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). We 

defer to the trial court on factual matters, viewing the evidence in the light most 

favorable to the court’s ruling. Id. We will reverse the court’s ruling onl if it was 

arbitrary, clearly erroneous, or not supported by any reasonable view of the record. 

Id.
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A guilty plea entered after a proper demonstration of ineffective assistance 

of counsel is considered involuntary and therefore invalid. See Ex parte Moody,

991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). To prevail on a claim of 

ineffective assistance of counsel, an appellant must demonstrate by a 

preponderance of the evidence that (1) his trial counsel made errors so serious that 

counsel was not functioning as counsel under the Constitution and (2) a reasonable 

probability exists that, but for trial counsel’s deficient performance, the result of 

the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Bone v. State, 77 S.W.3d 828, 

833 (Tex. Crim. App. 2002). Under the first prong, we indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance and that the challenged act might be considered sound trial 

strategy. Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011) (quoting 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). In the context of a guilty plea, the 

second prong of Strickland is satisfied by a demonstration of a “reasonable 

probability that, but for counsel’s errors, [the defendant] would have not have 

pleaded guilty and would have insisted on going to trial.” Ex parte Moody, 991 

S.W.2d 856, 858 (Tex. Crim. App. 1999) (quoting Ex parte Morrow, 952 S.W.2d 

530, 536 (Tex. Crim. App. 1997)).
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To the extent that Fairbanks contends that his plea was involuntary because 

Rekoff advised him that he could later withdraw his plea, we must defer to the trial 

court’s assessment of his credibility. See Riley, 378 S.W.3d at 457. Thus, this 

contention fails the first prong of Strickland and cannot support a determination 

that the trial court abused its discretion in denying the motion for new trial. 

Fairbanks focuses primarily on his counsel’s failure to pursue a motion to 

suppress based on the adequacy of the search-warrant affidavit. A failure to file 

pre-trial motions does not categorically constitute ineffective assistance of counsel. 

Johnson v. State, 176 S.W.3d 74, 79 (Tex. App.—Houston [1st Dist.] 2004, pet. 

ref’d). To satisfy his burden under Strickland, Fairbanks is required to show that a 

motion to suppress would have been granted. See Jackson, 973 S.W.2d at 957; 

Keller v. State, 125 S.W.3d 600, 608 (Tex. App.—Houston [1st Dist.] 2003, pet. 

dism’d). 

Under Texas law, no search warrant may issue without a sworn affidavit that 

sets forth facts sufficient to establish probable cause. TEX. CODE CRIM. PROC. 

art. 18.01(b), (c). Probable cause exists when there is a fair probability that 

contraband or evidence of a crime will be found at the specified location at the 

time the warrant is issued. See State v. McLain, 337 S.W.3d 268, 272 (Tex. Crim. 

App. 2011). When reviewing the sufficiency of an affidavit to support a search 

warrant, we determine if there is a substantial basis upon which the magistrate 
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could have concluded that probable cause existed. Id. at 271 (citing Illinois v. 

Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)). In doing so, we view the 

affidavit in a commonsensical and realistic manner, and we defer to all reasonable 

inferences a magistrate could have made. See Rodriguez v. State, 232 S.W.3d 55, 

61 (Tex. Crim. App. 2007); Jones v. State, 338 S.W.3d 725, 733 (Tex. App.—

Houston [1st Dist.] 2011), aff’d, 364 S.W.3d 854 (Tex. Crim. App. 2012). 

In his motion for new trial, Fairbanks argued that his trial counsel was 

ineffective because she did not seek to exclude evidence found at the house. The 

search-warrant affidavit was based on information provided by a confidential 

informant. The motion for new trial challenged the adequacy of the search-warrant 

affidavit on four grounds. Specifically, the motion for new trial argued that the 

affidavit did not (1) demonstrate that the confidential informant had personal 

knowledge of the alleged facts, (2) show that the affiant independently verified the 

information, (3) state when and where the affiant spoke to the informant, or (4) 

identify Fairbanks by name.

On appeal, Fairbanks argues that his trial counsel should have sought to 

suppress the marijuana and methamphetamine found in the house on the basis that 

the affidavit was inadequate for failing to disclose when the informant obtained his 

information or when he conveyed it to the affiant. Because Fairbanks makes a 

specific legal argument in favor of suppression, we consider whether it is so 
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compelling that an attorney would be ineffective for failing to raise it. That is, we 

must consider the four corners of the affidavit and determine if Fairbanks has 

shown by a preponderance of the evidence that a motion to suppress would have 

been granted on the basis that the affidavit failed to disclose when the informant 

obtained the information and conveyed it to the affiant. See Jackson, 973 S.W.2d at

957.

The affidavit stated in relevant part:

Within the past forty eight (48) hours, Affiant and members of 

the Houston Money Laundering Initiative Task Force conducted a 

narcotics investigation at the above described location believed to be 

storing a large quantity of marijuana.

Affiant spoke to a credible and reliable person who will be 

referred to as a confidential informant (CI). Affiant has worked with 

the CI in the past and the CI has provided information about narcotics 

traffickers that Affiant has been able to independently verify.

The CI informed Affiant that the CI met the above listed 

suspect and that he has a large quantity of marijuana for sale. The 

suspect told the CI that he is storing the large quantity of marijuana at 

the described location for the purpose of selling to customers.

On a common-sense reading of the affidavit, the investigation occurred in 

the 48 hours prior to presentation of the affidavit to the magistrate. The affiant’s 

communications with the confidential informant were part of that investigation. In 

describing the information received from the confidential informant, the affidavit 

twice used the present tense: first reporting that the informant stated that the 

suspect “has” a large quantity of marijuana, and second stating that the suspect told 
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the informant that he “is storing” it at the described location. A magistrate 

reasonably could have inferred that the confidential informant both obtained the 

information and disclosed it to the affiant during the 48-hour investigation. See 

Rodriguez, 232 S.W.3d at 61; Jones, 338 S.W.3d at 733. We conclude that 

Fairbanks has not shown that a motion to suppress would have been granted, and 

therefore he has not satisfied the first prong of Strickland. See Jackson, 973 

S.W.2d at 957; Keller, 125 S.W.3d at 608.

We overrule Fairbanks’s second issue.

Conclusion

We affirm the judgments of the trial court.

Michael Massengale

Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).