Trevor Fuller v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00232-CR

TREVOR FULLER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 106th District Court
Garza County, Texas
Trial Court No. 20-3353, Honorable Reed A. Filley, Presiding

April 17, 2024
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Trevor Fuller, Appellant, was convicted by a jury of possession of a controlled

substance in an amount of four grams or more but less than two hundred grams,

enhanced by a prior conviction.1 The jury assessed his punishment at thirty years’

incarceration. By his appeal, Appellant raises three issues. We affirm the trial court’s

judgment.

1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (d); TEX. PENAL CODE ANN. § 12.42(b).
BACKGROUND

Trooper Nathaniel Washburn, a state trooper for the Texas Department of Public

Safety, was on patrol in Garza County on January 9, 2020. Using his radar unit, he

clocked Appellant’s vehicle at fifty-nine miles per hour in an area where the posted speed

limit was fifty-five miles per hour. He performed a traffic stop and informed Appellant that

he would be given a warning. He asked Appellant to exit the vehicle. Appellant sat in the

front seat of the trooper’s vehicle while the trooper checked his driver’s license, vehicle

registration, and insurance. Appellant was “breathing really heavily” and seemed

“extremely nervous” even though he was told several times he was going to receive a

warning. While performing the records check, Appellant told the trooper he lived in

Roswell, New Mexico, instead of a Ruidoso address listed on his driver’s license. When

Trooper Washburn inquired about the purpose of his trip, Appellant explained he was

travelling from Roswell to Sweetwater, Texas, to purchase a used 2012 truck for $27,000.

Appellant did not have the name or the phone number of the person he was meeting in

Sweetwater, and he did not have the money with him to purchase the truck. According

to Appellant, his brother, who lived in the Dallas-Fort Worth area, was going to provide

the money once Appellant determined whether he wanted the truck. Appellant did not

have any luggage in his vehicle for an overnight stay and the itinerary for the trip seemed

suspicious. When Trooper Washburn asked if he could search Appellant’s vehicle,

Appellant initially gave permission but then changed his mind. After speaking with

Appellant, Trooper Washburn believed he had reasonable suspicion to request a canine

unit to come to the scene.

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Officer Bobby Dean, a police officer with Post I.S.D., was dispatched to the scene.

He arrived at the scene with his drug dog within four to six minutes. Officer Dean’s dog

alerted twice on Appellant’s vehicle. When Trooper Washburn asked Appellant if there

was any reason why the canine would alert, Appellant responded that “there was a little

bit of methamphetamine in the car.” Trooper Washburn asked Appellant how much and

he said, “5 to 8 grams.” After Appellant indicated the location of the methamphetamine,

Trooper Washburn found a white box in the front seat containing two bags of a white

crystal substance. The larger bag contained methamphetamine weighing 7.31 grams

while the smaller bag contained methamphetamine weighing 3.01 grams. Appellant was

arrested and subsequently charged with possession of a controlled substance.

The case was tried to a jury in June of 2023. At trial, Appellant disputed Trooper

Washburn’s testimony that Appellant was speeding. Appellant testified, “I was running—

really, everybody was passing me. I wasn’t speeding. [Trooper] pulled out—there was a

car went by me right in front of [Trooper.] I don’t know why he didn’t pull him over because

he was speeding. And this officer was speeding. They got laws . . . . This officer keeps

saying things, but he ain’t telling the truth.” Appellant admitted he told the trooper he had

used methamphetamine the day before he was stopped. According to Appellant, “I just

put a little bit in my coffee.” Appellant acknowledged that he purchased two baggies of

methamphetamine for $50 from a “guy” he met at an Allsup’s convenience store at 5:00

a.m. in Roswell on the morning of January 9, 2020. Appellant claims he never looked in

the box containing the methamphetamine that the “guy” threw in his car. He usually buys

“six-tenths, seven-tenths” of a gram of methamphetamine for $50. Appellant disputed the

amount of methamphetamine that the trooper found during the stop, testifying, “I don’t

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think that’s the meth I had . . . . I think the officer put that in there.” The jury found

Appellant guilty. Appellant pled true to an enhancement paragraph and the jury assessed

punishment in the Texas Department of Criminal Justice for thirty years.

Appellate counsel filed a motion for new trial urging that Appellant received

ineffective assistance of counsel due to trial counsel’s failure to call mitigation witnesses.

However, there is nothing in the record to indicate that the motion for new trial was

presented to the trial court and there was no hearing on the motion. Appellant timely filed

his appeal.

RELEVANT LAW

The Sixth Amendment guarantees a criminal defendant the effective assistance of

counsel. U.S. CONST. amend. VI.; Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App.

2017). To establish a claim based on ineffective assistance, an appellant must show that

(1) his counsel’s representation fell below the objective standard of reasonableness and

(2) there is a reasonable probability that but for counsel’s deficiency the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Nava v. State, 415 S.W.3d 289, 307−08 (Tex. Crim.

App. 2013). In other words, an appellant must show his trial counsel’s performance was

deficient and that he was prejudiced by the deficiency. State v. Gutierrez, 541 S.W.3d

91, 98 (Tex. Crim. App. 2017).

A failure to make a showing under either Strickland prong defeats a claim for

ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003)

(en banc). Both prongs need not be examined on review if one cannot be met. Turner v.

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State, 528 S.W.3d 569, 577 (Tex. App.—Texarkana 2016, no pet.) (citing Strickland, 466

U.S. at 697).

A claim of ineffective assistance of counsel must be firmly demonstrated in the

record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Thompson

v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). “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 v. State, 226 S.W.3d 425, 430 (Tex.

Crim. App. 2007). We must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance. Frangias v. State, 450

S.W.3d 125, 136 (Tex. Crim. App. 2013).

In most cases, a direct appeal is an inadequate vehicle for raising a claim of

ineffective assistance because the record is generally undeveloped and cannot

adequately reflect counsel’s trial strategy. Rylander, 101 S.W.3d at 110−11. When

counsel is not afforded an opportunity to explain his strategy before being denounced as

ineffective, an appellate court should not find deficient performance unless counsel’s

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). Therefore, when the

record is silent on counsel’s trial strategy, we will assume that counsel had a strategy if

any reasonable sound strategic motivation can be imagined. Garcia v. State, 57 S.W.3d

436, 440 (Tex. Crim. App. 2001).

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APPLICATION

Complaints of Ineffective Assistance of Counsel

In his first issue, Appellant contends that he received ineffective assistance of

counsel in the trial court. Specifically, Appellant claims that his trial counsel committed

“egregious” errors by (1) failing to interview or call four potential witnesses, (2) failing to

file a motion to suppress or object to the State’s exhibits that were offered to prove that

Appellant was illegally in possession of a controlled substance, (3) failing to question the

trooper about his “reasonable suspicion” that led him to call a canine unit to the scene,

(4) failing to question the trooper about the two bags of methamphetamine found in

Appellant’s vehicle, (5) calling Appellant as a witness and not questioning him about the

circumstances relating to his “alleged possession,” (6) failing to object to the State’s

characterization of Appellant as “the same individual who was convicted of dealing meth

before and sent to federal prison” in the “case-in-chief” stage of trial, (7) failing to introduce

any mitigating circumstances on Appellant’s behalf, and (8) filing a notice of appeal which

stated that there would not be a motion for new trial. Appellant points to the cumulative

effect of trial counsel’s errors and concludes that he was denied “any representation” and

“any semblance of a fair trial.”

We first address Appellant’s reliance on the affidavits of four potential witnesses2

to establish substantive evidence of trial counsel’s deficient performance. An affidavit

attached to a motion for new trial is not self-proving. Rouse v. State, 300 S.W.3d 754,

2 The witnesses included Appellant’s former wife, daughter, son-in-law, and mother. According to
Appellant, these witnesses would have testified to Appellant’s “severe and complex medical problems, his
cognitive impairment, and his inability to care for himself properly.”

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762 (Tex. Crim. App. 2009). To constitute evidence, the affidavit must be introduced into

evidence at a hearing on the motion. Id.; Stephenson v. State, 494 S.W.2d 900, 909−10

(Tex. Crim. App. 1973). This rule applies even when constitutional issues are implicated.

Rouse, 300 S.W.3d at 762.

Here, the record shows that appellate counsel filed a motion for new trial with

accompanying affidavits from four potential witnesses. The record does not indicate that

appellate counsel sought a hearing on his motion. Moreover, the affidavits attached to

the motion were not otherwise offered to the trial court as evidence. Because Appellant’s

affidavits were never admitted as evidence, we may not consider the affidavits on appeal.

Rouse, 300 S.W.3d at 762; Stephenson, 494 S.W.2d at 909-10; Jackson v. State, 139

S.W.3d 7, 21 (Tex. App.—Fort Worth 2004, pet. ref’d).

On appeal, Appellant challenges multiple decisions of trial counsel he contends

were deficient. However, missing from Appellant’s complaints is any discussion of how

any of the purported errors would have resulted in a different outcome. See Castaneda

v. State, No. 07-22-00372-CR, 2024 Tex. App. LEXIS 109, at *3–4 (Tex. App.—Amarillo

Jan. 5, 2024, pet. ref’d) (mem. op., not designated for publication); see also Perez v.

State, 310 S.W.3d 890, 892−93 (Tex. Crim. App. 2010) (appellant was obligated to prove

not only that his counsel’s performance was deficient but that the deficiency prejudiced

him). “The lack of such substantive explanation itself warrants our rejection of the

complaint.” Castaneda, 2024 Tex. App. LEXIS 109, at *3−4.

The Court of Criminal Appeals has repeatedly observed that a record on direct

appeal is generally insufficient to show that counsel’s representation was so deficient as

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to meet the Strickland test. See Hart v. State, 667 S.W.3d 774, 783 (Tex. Crim. App.

2023); Lopez, 343 S.W.3d at 143; Rylander, 101 S.W.3d at 110; Bone v. State, 77 S.W.3d

828, 833 & n.13 (Tex. Crim. App. 2002). The present record does not provide Appellant’s

counsel the opportunity to “defend, explain, or otherwise justify his conduct.” Garza v.

State, No. 07-13-00137-CR, 2014 Tex. App. LEXIS 415, at *5 (Tex. App.—Amarillo Jan.

14, 2014, no pet.) (mem. op., not designated for publication).

When, as here, the record regarding counsel’s strategy has been insufficiently

developed, we conclude Appellant has failed to overcome the presumption that counsel’s

decisions were the product of sound trial strategy. See Freeman v. State, 125 S.W.3d

505, 506–07 (Tex. Crim. App. 2003). The record before us does not affirmatively show,

by a preponderance of evidence, that counsel’s performance was sufficiently deficient or

that any alleged deficiencies resulted in the requisite level of prejudice to Appellant’s case

such that we can conclude the trial below did not produce a just result. 3 As such, we

overrule Appellant’s first issue.

Complaint of Unlawful Search and Seizure

In his second issue, Appellant contends his Fourth Amendment right to protection

from an unlawful search and seizure was violated when his detention was unduly

3 In this case, the record on direct appeal is not sufficiently developed and “cannot adequately

reflect the failings of trial counsel” for an appellate court “to fairly evaluate the merits of such a serious
allegation.” Lopez, 343 S.W.3d at 143. Under such circumstances, claims of ineffective assistance of
counsel rejected due to lack of adequate information may be considered on an application for a writ of
habeas corpus. Id.; see TEX. CODE CRIM. PROC. ANN. art. 11.07.

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prolonged and his vehicle was searched without his consent. Because Appellant has

failed to preserve error on this issue, it is overruled.

A timely and specific objection or motion must be made in the trial court to preserve

a complaint for appeal. TEX. R. APP. P. 33.1. Because Appellant did not file a pretrial

motion to suppress or object at trial to the length of his detention, he has not preserved

this issue for our review. See Sample v. State, 405 S.W.3d 295, 300 (Tex. App.—Fort

Worth 2013, pet. ref’d). Even constitutional errors may be forfeited by failure to object at

trial. Boulware v. State, 542 S.W.2d 677, 682 (Tex. Crim. App. 1976). As such, we

overrule issue two.

Insufficient Proof/Complaint of Egregious Errors

In his third issue, Appellant’s argument, in its entirety, is as follows:

The U.S. Constitution prohibits the criminal conviction of any person
except upon proof of guilt beyond a reasonable doubt, and the due process
guaranteed by the Fourteenth Amendment to the United States Constitution
presupposes, as the Supreme Court noted in Jackson v. Virginia, 443 U.S.
307, 309, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), that no person shall be
made to suffer “the onus of a criminal conviction except upon sufficient
proof.” Texas Code of Criminal Procedure (TCCP) 38.03 states:
All persons are presumed to be innocent and no person may
be convicted of an offense unless each element of the offense
is proved beyond a reasonable doubt. The fact that he has
been arrested, confined, or indicted for, or otherwise charged
with, the offense gives rise to no inference of guilt at his trial.
Appellant’s presumption of innocence as guaranteed in TCCP 38.03
was taken from him by his trial counsel’s total lack of any defense on his
behalf. When a trial counsel commits the egregious errors set out above,
the defendant should be deemed to have suffered a criminal conviction that
was based on insufficient proof.
The egregious errors of Appellant’s trial counsel did cause Appellant
to suffer, without sufficient proof, the onus of a criminal conviction and,
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additionally, an almost unbelievable lengthy punishment of imprisonment
for 30 years.

To the extent that Appellant challenges the sufficiency of the evidence to support

his conviction in this issue, his argument is inadequately briefed and presents nothing for

our review. See TEX. R. APP. P 38.1; Gallegos v. State, 76 S.W.3d 224, 228 (Tex. App.—

Dallas 2002, pet. ref’d). In order to properly brief a challenge to the sufficiency of the

evidence, the brief must have a summary of the testimony or other evidence relevant to

the element of the offense that is challenged, accompanied by appropriate citations to

authorities and the record. Id. Here, the evidence is not discussed, there are no citations

to the record, and no argument is presented pointing out how the evidence is insufficient

or what element of the offense is deemed as insufficiently proven.

To the extent that Appellant argues that “egregious errors” of trial counsel

contributed to his conviction, the issue has been addressed above or is inadequately

briefed and presents nothing for our review. TEX. R. APP. P. 38.1. We overrule Appellant’s

third issue.

CONCLUSION

Having overruled all of Appellant’s issues, we affirm the judgment of the trial court.

Judy C. Parker
Justice

Do not publish.

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