Shancey Tymane Franklin v. The State of Texas

On July 1, 2015, Jeremy Cox, a sergeant with Sherman police department, and Brian

McClaran, a detective with the Sherman police department, were parked at the Cross Roads

Motel. Sergeant Cox testified at the suppression hearing that they were in this location because

it is a high crime area known for drug trafficking. One of the occupants of the hotel advised the





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officers that a woman named Rebecca was on her way to deliver drugs and would probably go to

room 6. The officers were told that Rebecca was a white female driving a black car with her

black boyfriend. Sergeant Cox testified that a short time later a black vehicle drove up and

parked alongside of room 6. When a white female got out of the car, the officers approached the

occupants. Sergeant Cox testified that Officer Jeremy Jones, a canine handler, performed an

open air search around the vehicle and the canine alerted on the vehicle. Sergeant Cox searched

the vehicle and located a zipper pouch with a marijuana smoking pipe, a glass pipe with

methamphetamine residue, and a set of digital scales. The occupants of the car were identified as

Rebecca Renovado, Kandis Dreher, and appellant. Sergeant Cox testified that he patted down

appellant for contraband and he noticed that he was clenching his “butt cheeks” together. Based

on his experience, Sergeant Cox suspected that appellant was hiding contraband in his body.

The police then escorted appellant to a motel room. Sergeant Cox testified that Detective

McClaran, another officer and himself were in the room. Appellant refused to take his own

shorts down and when the officers tried to assist, appellant began to resist and pull away. At that

point, Sergeant Cox testified that they decided to stop and arrest appellant for resisting arrest and

resisting search. Appellant was transported to the Grayson County jail and the jail staff

conducted a strip search in which they recovered a bag containing 7.76 grams of

methamphetamine.

Appellant was indicted for the offenses of tampering/fabricating physical evidence with

the intent to impair and possession of a controlled substance. Each offense was enhanced with a

prior felony conviction. Prior to trial, appellant filed a motion to suppress in which appellant

alleged that the strip search was conducted while appellant was not under arrest and in violation

of the Fourth Amendment. Following a hearing, the trial court denied the motion to suppress.

At trial, appellant pled not guilty but was found guilty by the jury. Appellant was then sentenced





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to twenty-five years’ confinement for the offense of tampering/fabricating physical evidence

with the intent to impair and forty years’ confinement for the offense of possession of a

controlled substance. Appellant then filed a notice of appeal.

ANALYSIS

A. The Trial Court Did Not Err in Denying Appellant’s Motion to Suppress Evidence

In his second issue, appellant contends that the trial court erred in denying his motion to

suppress evidence because the evidence and testimony showed a clear violation of the

appellant’s Fourth Amendment right against illegal search and seizure. We disagree.

1. Standard of review

We apply a bifurcated standard of review of a trial court’s ruling on a motion to suppress

by giving almost total deference to the trial court’s determinations of fact and reviewing de novo

the trial court’s application of law. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App.

2011).

2. Additional facts

In his motion to suppress, appellant argued as follows:

On the date and time in question, Defendant was subjected to a strip search while not under arrest. This warrantless search violated Defendant’s Fourth Amendment right prohibiting unreasonable searches and seizures. Furthermore, arresting officers did not obtain a search warrant prior to the search.

The trial court denied the motion to suppress by order dated November 18, 2015. Appellant’s

trial commenced on May 23, 2016. When the State moved to admit the methamphetamine

during trial, appellant’s trial counsel stated “no objection.”

3. Analysis

Texas courts have repeatedly held that when a court overrules a pretrial motion to

suppress evidence, the defendant need not subsequently object to the admission of the same





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evidence to preserve error. See Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004).

However, when a defendant affirmatively asserts during trial that he has “no objection” to the

admission of the complained-of evidence, he waives any error in the admission of the evidence,

despite the pretrial ruling. See Brown v. State, 183 S.W.3d 728, 741 (Tex. App.—Houston [1st

Dist.] 2005, pet. ref’d). Here, appellant originally preserved error by obtaining an adverse ruling

on his motion to suppress and he was not required to object again at trial. However, when the

State sought to admit the evidence (the bag of methamphetamine) at trial, appellant’s trial

counsel affirmatively stated that she had “no objection.” Accordingly, appellant waived any

complaint regarding admission of the evidence that was the subject of the motion to suppress.

See id.

However, even if we had concluded that error had been preserved, appellant would need

to demonstrate that the trial court abused its discretion in denying the motion to suppress. To

evaluate the trial court’s ruling on the motion to suppress, we must review the search of

appellant’s person. A warrantless search of a person or property is considered per se

unreasonable subject to a few specifically defined and well-established exceptions. Minnesota v.

Dickerson, 508 U.S. 366, 371 (1993). The exceptions include voluntary consent to search,

search under exigent circumstances, and search incident to arrest. McGee v. State, 105 S.W.3d

609, 615 (Tex. Crim. App. 2003). It is the State’s burden to show that a search falls within one

of these exceptions.

On appeal, appellant argues that the unreasonable search took place in the motel room.

The facts, however, do not support this assertion. In this case, an officer patted down appellant

for contraband and the officer noticed that appellant was clenching his “butt cheeks” together.

The police escorted appellant to a motel room. Appellant, however, refused to take his own

shorts down and when the officers tried to assist, appellant began to resist and pull away. At that





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point, Sergeant Cox testified that they decided to stop and arrest appellant for resisting arrest and

resisting search. Thus, the officers did not conduct a strip search, a visual body cavity search, or

a manual body cavity search in the motel room.1

Following appellant’s arrest, he was transported to the Grayson County jail. Paul Hager,

a sergeant for the Grayson County Sheriff’s Office in the correctional division, testified at the

suppression hearing that the Sherman police department requested a strip search because of their

belief that appellant had possession of drugs on him. Sergeant Hager testified that two officers

took appellant to the strip search area. After appellant failed to comply with the officers’

requests, Sergeant Hager went to the strip search area and requested that appellant turn around

and appellant refused. Sergeant Hager testified that he physically turned appellant around and

made him face some lockers. Sergeant Hager again requested that appellant comply and

appellant refused again. Sergeant Hager testified that he removed a cartridge from his taser and

placed the cartridge in his pocket. Sergeant Hager again asked him to comply and appellant

removed a bag containing 7.76 grams of methamphetamine from his “butt cheeks.”

The Supreme Court has previously held that a search incident to arrest authorizes the

police to conduct a “full search of the person.” United States v. Robinson, 414 U.S. 218, 235

(1973). However, to determine if the search was constitutional, the search must also have been

reasonable. The test of reasonableness under the Fourth Amendment requires a balancing of the

need for the particular search against the invasion of personal rights that the search entails. See

Bell v. Wolfish, 441 U.S. 520, 559 (1979). Courts must consider the scope of the particular

intrusion, the manner in which it was conducted, the justification for initiating it, and the place in

1 The term “strip search” generally refers to an inspection of a naked person, without any scrutiny of the person’s cavities. A “visual body-cavity search” includes a visual inspection of a person’s anal or genital areas. A “manual body-cavity search” involves some degree of probing or touching a person’s body cavities. McGee, 105 S.W.3d at 615.





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which it was conducted. Id. Each analysis turns on the particular facts and circumstances of the

underlying case and no one factor is determinative. McGee, 105 S.W.3d at 616.

To the extent any search took place in this case, it occurred upon appellant’s arrival at the

Grayson County jail and we apply the four factors to this search. Here, the scope of the intrusion

was limited as appellant removed the evidence from his “butt cheeks” himself. Thus, this factor

weighs in favor of the conclusion that the search was reasonable. In regard to the manner in

which the search was conducted, one factor to consider is whether the officers conducting the

search had training and/or experience in conducting such searches. Id. In this case, Sergeant

Hager testified that he had been employed as a sergeant for seven years in the correctional

division of the Grayson County sheriff’s office, but did not testify about his experience in

conducting strip searches. Accordingly, this factor does not favor one conclusion or another.

The next factor involves the justification for the search. In this case, Sergeant Cox

testified that they parked at the Cross Roads Motel because it is an area known for drug

trafficking. One of the occupants of the hotel advised the officers that a woman named Rebecca

was on her way to deliver drugs and would probably go to room 6. The officers were told that

Rebecca was a white female driving a black car with her black boyfriend. A short time later a

black vehicle drove up and parked alongside of room 6. When a white female got out of the car,

the officers approached the occupants. The canine alerted on the vehicle and a zipper pouch with

a marijuana smoking pipe, a glass pipe with methamphetamine residue, and a set of digital scales

were found in the car. Sergeant Cox testified that he patted down appellant for contraband and

he noticed that he was clenching his “butt cheeks” together. Based on his experience, Sergeant

Cox suspected that appellant was hiding contraband in his body. Thus, based on the totality of

the circumstances, the arresting officer had probable cause to believe that appellant was engaged

in criminal activity and had sufficient justification to believe a search was necessary. Id. at 617.





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The final factor involves where the search was conducted. Here, the search took place in

the strip search area of the sheriff’s office. Sergeant Hager testified that the strip search area is

“out of the view from the book-in, away from the public’s eye. It’s a closed room, no video or

audio is in it. It’s used for dressing out and strip searching individuals.” The search, to the

limited extent one was performed, occurred in an environment which was sufficiently sterile

considering there was no actual penetration of appellant’s person and which protected the

appellant’s privacy interests. Id. As the factors weigh in favor of the conclusion that the search

was reasonable, the trial court properly denied appellant’s motion to suppress. We overrule

appellant’s second issue.

B. Appellant Was Not Rendered Ineffective Assistance of Counsel

In his first issue, appellant contends that his attorney was ineffective in that he failed to

object to any and all testimony or evidence presented at trial which counsel had attempted to

suppress previously. Appellant contends that he was rendered ineffective assistance of counsel.

We disagree.

1. Standard of review

Texas courts apply the two-pronged Strickland test to determine whether counsel’s

representation was so inadequate as to violate a defendant’s Sixth Amendment right to counsel.

Strickland v. Washington, 466 U.S. 668, 687 (U.S. 1984); Hernandez v. State, 726 S.W.2d 53, 57

(Tex. Crim. App. 1986) (adopting the Strickland two-prong test for criminal cases in Texas.).

Under this two-part test, appellant must establish that: (1) counsel’s performance was deficient

and that his assistance fell below an objective standard of reasonableness; and (2) but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 687. Unless appellant can prove both prongs, an appellate court must not

find counsel’s representation to be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.





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App. 2011). In order to satisfy the first prong, appellant bears the burden of proving by a

preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999). Further, there is a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. To

prove the second prong, appellant must show that there is a reasonable probability, or a

probability sufficient to undermine confidence in the outcome, that the result of the proceeding

would have been different. Lopez, 343 S.W.3d at 142.

We ordinarily will not declare trial counsel ineffective where there is no record showing

counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005). Texas procedure makes it “virtually impossible” for appellate counsel

to present an adequate ineffective assistance of trial counsel claim on direct review. Trevino v.

Thaler, 133 S. Ct. 1911, 1918 (2013). This is because the inherent nature of most ineffective

assistance of trial counsel claims means that the trial court record “will often fail to ‘contai[n] the

information necessary to substantiate’ the claim.” Id. (quoting Ex parte Torres, 943 S.W.2d 469,

475 (Tex. Crim. App. 1997).

2. Analysis

Appellant argues that his trial attorney was ineffective because she “failed to object to

any and all testimony and/or evidence presented at trial although it had been challenged prior to

trial at the hearing on the Motion for Suppression.” Appellant further argues that trial counsel’s

failure to preserve error prejudiced his defense.

Under the first prong of Strickland, the appellant must show that his attorney’s

performance was deficient in that it fell below an objective standard of reasonableness under

prevailing professional norms and according to the necessity of the case. Strickland, 466 U.S. at

687–88. As stated above, trial counsel stated “no objection” to the introduction of the evidence





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that was the subject of the suppression motion and error was waived in the admission of this

evidence. See Garza v. State, 126 S.W.3d at 84. The record, however, is completely silent as to

why trial counsel failed to object to the introduction of evidence. As the court of criminal

appeals has previously held, “[a]n appellate court should be especially hesitant to declare counsel

ineffective based upon a single alleged miscalculation during what amounts to otherwise

satisfactory representation, especially when the record provides no discernible explanation of the

motivation behind counsel’s actions—whether those actions were of strategic design or the result

of negligent conduct.” Thompson, 9 S.W.3d at 814. Thus, we cannot conclude that appellant has

rebutted the strong presumption in favor of trial counsel. See Menefield v. State, 363 S.W.3d

591, 593 (Tex. Crim. App. 2012) (“Trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective. If trial counsel is not given that

opportunity, then the appellate court should not find deficient performance unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it.”) (internal

citations omitted).

Further, even if we did hold that trial counsel’s assistance fell below an objective

standard of reasonableness, appellant would still need to satisfy the second prong of Strickland.

Under that prong, the applicant must demonstrate that he was prejudiced by his attorney’s

performance or that there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Thus, to

demonstrate harm in this case, appellant must show that he would likely have been successful on

appeal had the issue been properly preserved; that is, that the trial court’s denial of the motion to

suppress was an abuse of discretion. See Ex Parte Moore, 395 S.W.3d 152, 158 (Tex. Crim.

App. 2013). As stated above, we conclude that the trial court did not err in denying appellant’s

motion to suppress. Accordingly, appellant cannot demonstrate that that he was prejudiced by





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his trial counsel’s statement of “no objection,” which waived his ability to appeal the motion to

suppress. We overrule appellant’s first issue.