Ricky Sharrod Brown v. the State of Texas

Opinion issued February 3, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00167-CR
———————————
RICKY SHARROD BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court
Harris County, Texas
Trial Court Case No. 1684666

MEMORANDUM OPINION

A jury convicted Ricky Sharrod Brown of murder.1 Brown pleaded true to

two punishment enhancements and the trial court assessed punishment at

confinement for life. Brown now argues on appeal that the trial judge was biased,

1
See TEX. PENAL CODE § 19.02.
the jury charge was incorrect, his motion to suppress was erroneously overruled,

and his trial counsel was ineffective. We affirm.

Background

Jose D. Cruz was “dumpster diving” for scrap metal at an apartment

complex in Houston, Texas when he discovered a dead body wrapped in a carpet.

The police determined that the dead person was Derick Randle and that he was a

resident at an adjacent apartment complex.

Sergeant M. Brady of the Houston Police Department and his partner went

to the apartment complex the next day and spoke with the manager, Tina Fuentes.

Fuentes confirmed that Randle was a tenant and that he shared an apartment with

Brown. They also learned that Brown drove a white Chevrolet pickup truck.

Sergeant Brady determined that the night before, a 9-1-1 caller had reported

a disturbance and shots fired near Randle’s apartment. The police responded

without incident. Brady sought to determine whether the 9-1-1 call was connected

to the murder, so he spoke with the 9-1-1 caller, Nicholas Jones. Jones told

officers that he and his wife had been walking through the complex when they

heard an argument and “noises like a car, like people in between the cars and their

bodies hitting the car.” He then heard two gunshots near a white truck in the

parking lot.

2
Jones and his wife ran away from the direction of the gunshots and returned

to their apartment—where he called 9-1-1 and reported the shots. Jones then stood

on a generator outside the apartment while he waited for the police. While doing

so, he looked in the direction of the shots and saw a white truck with the driver

door opened. He also saw a man standing next to the open truck door who then

walked across the driveway and into an alley. Jones recognized the man as

someone he saw frequently around the apartment complex. He later identified

Brown in a police line-up as the man he saw.

The police also spoke with Raynette Watts, a cashier at a nearby

convenience store. She indicated that on the morning of the murder Brown and

Randle came in the store together. While they were waiting in line, Brown yelled

at Randle, “stop f***ing with me, I will—I will kill you, you know I will kill you.”

Later that night Watts, who lived in the same apartment complex as Randle, heard

gunshots in the complex. About 15 minutes later she saw Brown walking back and

forth between his white truck and Randle’s apartment. Watts also said that two

days after the murder, she saw Brown at the grocery store and he told her, “they

can’t f*** with me, they can’t hold me.” Watts understood Brown to be referring

to the police’s inability to charge him with a crime.

Police also spoke with Watts’s husband, Thadeus Haywood. He told the

police that about a week and a half before the murder, he was talking with Brown,

3
who told him that he “was going to put something on [Randle’s] ass.” Haywood

understood that to be a threat of “[v]iolence, [or to] hurt him some kind of way.”

Haywood also heard gunshots on the night of the murder, but he did not see

anything.

A few days later, the police obtained a search warrant for Randle’s

apartment. They did not take a crime scene unit with them because it was the

height of the Covid crisis, and they were short-staffed. They also believed that the

crime scene was in the parking lot, not the apartment. At that time, they did not

collect any evidence of value.

Shortly thereafter, the police received an anonymous tip that they needed to

speak to Paul Hopkins about the murder. After speaking with Hopkins, the police

determined it was necessary to go back to the apartment to look for further

evidence. The previous warrant had expired, but the detectives did not obtain a

new warrant because they believed the apartment was abandoned. Also the

apartment manager and Randle’s family had given them permission to re-enter it.

And they knew that the family intended to clean out the apartment the next day.

On re-searching the apartment—with a CSU team this time—the officers

recovered blood evidence and an empty bottle of bleach. They also searched the

parking lot again and found a .380 caliber shell casing.

4
Police then spoke with Rochelle Lockridge, another resident at the apartment

complex. She told the police that on the night of the murder, Hopkins was at her

apartment. Brown had knocked on the door “about 10:00 or 11:00, 11:00” and was

agitated and upset with Hopkins. The two men left the apartment together.

Hopkins returned to her apartment at approximately 6:00 a.m. the next morning.

He tried to tell Lockridge about what he and Brown had done, but she told him she

“didn’t want to hear about what’s going on.”

Having developed Brown as a suspect, officers brought him in for

questioning—which was done by Sergeant M. Casso. During the interview,

Brown initially denied shooting Randle or even being present at the scene. He told

Casso that he did not live with Randle and they were not in a relationship. Brown

said that, while he had stayed with Randle for a while, he had not been at the

apartment in about a year and a half. Brown also denied being at the apartment on

the day of the murder. He further denied driving a white truck—but when shown a

cell phone photograph of himself standing next to a white truck, he “said it looked

like him” and did not refute owning the truck after that. When shown a

photograph of Hopkins and Lockridge, he denied knowing either of them. But he

later stated that they must have disposed of the body.

When Casso asked Brown again whether he had been at the apartment on the

day of the murder. Brown changed his story and said that he was there but did not

5
go in the apartment. Confronted with evidence that he had been identified in a

police line-up, Brown claimed that “everyone was lying on him.”

When Sergeant Casso told Brown that they had his phone and DNA

evidence, Brown changed his story. Brown admitted to an altercation with Randle

and claimed that Randle tried to hit him with a hammer. He said that he noticed

the hammer when the gun went off. Brown also tried to show Casso where Randle

hit him with the hammer, but Casso did not see any marks or injuries.

Brown eventually told Casso that a fight took place in the cab of his truck.

He also said that he got rid of the hammer, but Casso did not believe that there ever

was a hammer. When asked what kind of gun he used, Brown said it was a .380

caliber automatic, the same as the casing recovered from the parking lot. Brown

said that he also got rid of the gun, but he would not tell Casso where it was. After

initially claiming that he shot Randle once, Brown admitted to shooting him twice.

Brown was convicted of murder and sentenced to life in prison. He now

appeals.

Trial Court Bias

Brown initially claims that he was deprived of due process because the trial

judge was allegedly impartial. According to Brown, the judge, during a mid-trial

motion to suppress, “took over the State’s advocacy role and tried to lead the

witness into different answers he clearly hoped would help the state to establish

6
exigent circumstances.” Brown admits that he made no objection at the time but

argues that this was structural error and cannot be waived.

A. Background

There were two searches of Brown’s apartment—one with a warrant and

then a another one after that warrant had expired. During the trial, and outside the

presence of the jury, the trial court held a suppression hearing regarding the second

search.

During its questioning of Sergeant Brady, the State elicited testimony that,

when conducting the second search, police (1) considered the apartment

abandoned; (2) had permission from Randle’s family and the apartment manager;

and (3) entered the apartment with a key provided by the manager. On cross-

examination, defense counsel elicited information that Randle’s family “wanted to

start moving out on the 19th [the day after the second search].” Once defense

counsel passed the witness and the State indicated that it had no further questions,

the trial court proffered the following questions to Sergeant Brady:

COURT: Why did you feel the need that you had to go back in the
second time?

WITNESS: Can I answer that?

COURT: It was a question.

DEFENSE COUNSEL: Judge, technically—

7
COURT: Well, I’m just curious. You had a valid search warrant and
you executed that search warrant and obviously you recovered
evidentiary items that you felt would be important, and then after the .
. . beyond the three days, you felt the need to go back into the
apartment. And my question is, did you get some further information
in your investigation that might make you want to do that?

WITNESS: Yes, sir, we did, on the 17th [the day before the second
search]. We spoke to a witness that was involved with disposing of
the body and told us that there was—the body had been taken into the
apartment and there was bleach that was used to clean up some of the
scene. And we didn’t know anything about this until the 17th, so then
that’s when we went back on the 18th.

COURT: So on the 16th you had some information as a part of your
investigation that the family wanted to go into the apartment and
remove the contents, right?

WITNESS: Correct.

COURT: Did that set off any alarms in your brain?

WITNESS: No.

COURT: But then on the 17th, as a result of your investigation, you
found that there might be some other evidentiary items in there,
correct?

WITNESS: That’s correct.

COURT: And then you obtained the consent on the 18th [the day of
the second search]. Would there have been any reason why you could
not have gone back to a magistrate and obtained an additional search
warrant?

WITNESS: We could have. We—we thought it was abandoned
property, and so we didn’t.

COURT: Was there some concern that if you didn’t do that that
whatever information that you had about evidence being in that
8
apartment might be removed by the family? Was that of some
concern to you?

WITNESS: Yes, we wanted to get there before the family was
cleaning it up, on the 19th.

COURT: And I believe, if I recall your testimony, that you had some
difficulty in obtaining the search warrant the first time, the first search
warrant because the judge was—

WITNESS: Correct.

COURT: —delayed—I don’t want to get too—delayed in—you went
to him and said come back the next day and then it was the end of the
next day before you got a search warrant.

WITNESS: Correct. We wrote it on the 11th [two days after the
murder] and he finally signed it on the morning of the 13th.

COURT: Was that thought in your mind that that could very well
happen again and that possibly you’d lose the opportunity to obtain
some evidence because the family removed it, was that of some
concern?

WITNESS: Yes.

COURT: Is that one reason why you didn’t go back and get a search
warrant?

WITNESS: Yes, we—yes.

COURT: So I guess what you’re saying is—I don’t want to put words
in your mouth, I’ll just ask you—are you saying that because of the
additional information that you obtained in your investigation about
property being in that apartment and your knowledge that the family
was wanting to get in there to remove the contents of the apartment
and the difficulty that you had in obtaining a warrant the first time and
your feeling that the apartment had been abandoned, that the
apartment project manager had control of the property, that’s the
reason you didn’t get a search warrant; is that correct or incorrect?
9
WITNESS: That is correct.

Brown argues that this was structural error because the trial judge “appeared

intent on eliciting, contrary to what Brady had previously testified, that Brady felt

he and his team felt an inescapable urgency to search the apartment without a

warrant because the family would be removing items a couple days later,” and that

“[t]his line of questioning was designed to assist the State in its attempt to establish

that there were exigent circumstances and consent justifying Brady’s warrantless

search.”

B. Applicable Law and Standard of Review

“Due process guarantees ‘an absence of actual bias’ on the part of a judge.”

Williams v. Pennsylvania, 579 U.S. 1 (2016) (quoting In re Murchison, 349 U.S.

133, 136, 75 S. Ct. 623 (1955)), Ex parte Halprin, 708 S.W.3d 1, 4–5 (Tex. Crim.

App. 2024). When a judge is not impartial, the error is structural and immune to

harmless-error analysis. Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991)

(“The entire conduct of the trial from beginning to end is obviously affected . . . by

the presence on the bench of a judge who is not impartial.”) (citing Tumey v. Ohio,

273 U.S. 510 (1927)); Halprin, 708 S.W.3d at 4.

Thus, when a judge’s actual subjective bias against a defendant is

established, the defendant is entitled to a new trial without a showing of harm.

Fulminante, 499 U.S. at 309–10; Halprin, 708 S.W.3d at 4. And we conduct an
10
independent review of the record to determine claims of actual judicial bias.

Halprin, 708 S.W.3d at 3.

A reviewing court presumes that the trial court was neutral and detached—

absent a clear showing to the contrary. Brumit v. State, 206 S.W.3d 639, 645 (Tex.

Crim. App. 2006). A trial judge is permitted to question a witness when seeking

information, clarifying a point, or to obtain a clearer idea of the merits of the case.

Moreno v. State, 900 S.W.2d 357, 359 (Tex. App.—Texarkana 1995, no pet.);

Burks v. State, 693 S.W.2d 747, 750 (Tex. App.—Houston [14th Dist.] 1985, pet.

ref’d);

In a bench trial, a judge may go beyond asking for mere clarification and ask

questions that an advocate might ask in order to assist the fact-finding process.

Moreno, 900 S.W.2d at 359. It is also permissible for a trial judge to question a

witness “for the purpose of clarifying an issue before the court” if, during such

questioning, the trial judge “maintain[s] an impartial attitude.” Brewer v. State, 572

S.W.2d 719, 721 (Tex. Crim. App. 1978). But a judge must avoid becoming “so

entangled as an advocate that he could not at the end of the proceeding make an

objective finding of fact in the case.” Moreno, 900 S.W.2d at 360.

C. Preservation of Error

The State maintains that Brown failed to preserve error on this issue because

he failed to object to the trial court’s questions during the suppression hearing.

11
According to Brown, “a trial court’s acts and behavior constituting fundamental

constitutional due process error may be reviewed in the absence of a proper

objection[.]”

In Avilez v. State, 333 S.W.3d 661 (Tex. App.—Houston [1st Dist.] 2010,

pet. ref’d), we explained that certain legal rights cannot be forfeited and may be

raised for the first time on appeal, because they “are widely considered so

fundamental to the proper functioning of our adjudicatory process as to enjoy

special protection in the system.” Id. at 671. We also noted that a prior decision

from our court had “reviewed for fundamental error an unpreserved complaint that

the trial court was not impartial.” Id. at 672 (citing Jaenicke v. State, 109 S.W.3d

793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Accordingly, we

assumed without deciding in Avilez that the appellant’s complaints implicated that

kind of systemic error that could be addressed in the first instance on appeal. Id.;

see also Riggins v. State, 714 S.W.3d 74, 91 (Tex. App.—Houston [1st Dist.]

2023, pet. ref’d) (assuming, but not deciding, error preserved when addressing

issue of judicial bias raised for first time on appeal).

We do so again here.

D. Discussion

In this case, the trial judge’s questions were made outside the presence of the

jury, thus there was no danger that his questions conveyed his opinion of the case

12
to the jury and influenced its decision. See Moreno, 900 S.W.2d at 359. Moreover,

the judge’s questions clarified the reasons for the warrantless search and requested

further information on issues that had already been presented by the parties’

witnesses, i.e., the family’s plan to clean out the apartment, the delay involved in

getting the first warrant, and the family’s and apartment manager’s consent to the

second, warrantless entry.

As in Moreno, the trial court “appear[ed] to be seeking facts for his fact-

finding role, and the questions were within the bounds of what would have been

allowed by the attorneys in the case.” Id. And we note that not all the trial judge’s

questions at the suppression hearing were prosecutorial. Some of his questions

were defense oriented, such as when he elicited testimony that Brown and Randle

were a couple and that Brown regularly stayed at Randle’s house.

Our independent review of the record thus shows that the trial judge here

asked clarifying questions at the suppression hearing that were relevant to his fact-

finding and that he maintained an impartial attitude in doing so. See Brewer, 572

S.W.2d at 721. As such, no structural error is shown.

We overrule Brown’s first issue.

Jury-Charge Error

In the jury charge, the paragraphs instructing the jury about Brown’s claim

of self-defense stated:

13
Therefore, if you find from the evidence beyond a reasonable doubt
that the defendant, Ricky Sharrod Brown, did shoot Derick Randle
with a firearm, as alleged, but you further find from the evidence, as
viewed from the standpoint of the defendant at the time, that from the
words or conduct, or both of Derick Randle it reasonably appeared to
the defendant that his life or person was in danger and there was
created m his mind a reasonable expectation or fear of death or serious
bodily injury from the use of unlawful deadly force at the hands of
Derick Randle, and that acting under such apprehension and
reasonably believing that the use of deadly force on his part was
immediately necessary to protect himself against Derick Randle's use
or attempted use of unlawful deadly force, he shot Derick Randle,
then you should acquit the defendant on the grounds of self-defense,
or if you have a reasonable doubt as to whether or not the defendant
was acting in self-defense on said occasion and under the
circumstances, then you should give the defendant the benefit of that
doubt and say by your verdict, not guilty[.] (emphasis added).

Brown contends that the trial court reversibly erred by instructing the jury

that it “should acquit”—rather than “must acquit”—if it had a reasonable doubt

about Brown’s self-defense claim.

A. Standard of Review

Claims of jury-charge error are reviewed under the two-pronged test in

Almanza v. State, 686 S.W.2d 157, 171–74 (Tex. Crim. App. 1985) (op. on reh’g).

First, a reviewing court must determine if there is jury charge error. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Second, if the reviewing court finds

error, it then must analyze that error for harm. Id.

If a defendant does not timely object to error in the jury charge, the record

must show “egregious harm.” Almanza, 686 S.W.2d at 171. Error in a jury charge

14
is egregiously harmful if it affects the very basis of the case, deprives the accused

of a valuable right, or vitally affects a defensive theory. Id. at 172. We must make

that determination “in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of [the] probative evidence, the argument

of counsel and any other relevant information revealed by the record of the trial as

a whole.” Id. at 171. Moreover, any determination of egregious harm must be

based on “actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777

(Tex. Crim. App. 2011).

Egregious harm is a difficult standard to meet, and the analysis is a fact-

specific one. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015);

Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). But neither party

bears the burden to show harm or lack thereof under this standard. Marshall v.

State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). Rather, a reviewing court

must independently examine the entire record to determine whether the appellant

suffered actual egregious harm as a result of the error. Id.

B. Discussion

Here, Brown maintains that the word “should” is a permissive term that

“undercut[] the presumption of innocence and undermine[d] the State’s burden to

disprove self-defense beyond a reasonable doubt.” Brown relies on a single case

from the State of Washington to argue that instructing the jury it “should acquit”

15
rather than “must acquit” is structural error. See State v. Smith, 298 P.3d 785, 790

(Wash. Ct. App. 2013) (“Erroneously instructing the jury that it may acquit if in

reasonable doubt is structural error.”).

This Court has considered and rejected this same argument in Marshall v.

State, No. 01-23-00503-CR, 2025 WL 1759021 (Tex. App.—Houston [1st Dist.]

June 26, 2025, pet. filed)2 and Thomas v. State, No. 01-23-00892-CR, 2025 WL

2797603 (Tex. App.—Houston [1st Dist.] October 2, 2025, pet. ref’d) (mem. op.)

(not designated for publication). In Thomas, we explained that “while it would

have been preferable for the trial court to have used more uniform mandatory

language throughout its charge, the trial court’s self-defense instructions were not

erroneous in the context of its jury charge as a whole.” Thomas, 2025 WL 2797603

at *6; see also Marshall, 2025 WL 1759021, at *15 (“Although ‘must’ may be a

preferable term, in the context of the jury charge as a whole, any rational jury

would have concluded that isolated references to “should acquit”—paired with

“will acquit” references—were mandatory commands not permissive

suggestions.”).

2
After issuing our decision in Marshall, we granted the appellant’s motion to
reconsider publication of the opinion, making it a published opinion.
16
As in Thomas and Marshall,3 we hold that use of the phrase “should acquit”

in the jury charge was not erroneous in light of the charge as a whole.

We overrule Brown’s second issue.

Motion to Suppress

Next, Brown argues that the trial court reversibly erred in denying his

motion to suppress evidence derived from the second warrantless search of

Randle’s apartment. We agree with the State that Brown failed to preserve this

issue for appellate review.

A. Background

After questioning Sergeant Brady about the initial search of Randle’s

apartment, the State questioned him about the follow-up search and the following

exchange took place:

PROSECUTOR: Did you later through your investigation come to
learn that there was something of evidentiary value there?

WITNESS: Yes.

PROSECUTOR: And what was that?

WITNESS: A bottle of bleach, an empty bottle of bleach.

3
As in those cases, in several other places in the charge the jury was instructed “you
will find the defendant guilty of murder,” “you will find the defendant guilty of
manslaughter,” “you must resolve that [reasonable] doubt in the defendant’s favor,
“you will acquit,” and “the State must prove beyond a reasonable doubt, that self-
defense does not apply.”
17
PROSECUTOR: And in that utility closet we saw where you had
mentioned that the photographs were out of order. Was there
something of evidentiary value there that you discovered on a
subsequent search?

WITNESS: Yes.

PROSECUTOR: And what was it?

WITNESS: Blood, blood evidence.

PROSECUTOR: Where was the blood evidence?

WITNESS: It was in the back room along the door frame, some on
the interior side of the door, and inside, inside the room on the floor.

PROSECUTOR: Describe how apparent the blood was?

WITNESS: Well, we didn’t see it the first time we were there.

This testimony about the second, warrantless search—including the

discovery of an empty bleach bottle and blood evidence—was admitted without a

Fourth Amendment objection.4 Once the State resumed questioning about the

second search, defense counsel then objected as follows:

PROSECUTOR: And do you remember approximately when you
spoke to Paul Hopkins?

WITNESS: On the 17th of June.

PROSECUTOR: Did you receive other information regarding Derick
Randle’s apartment?

4
Defense counsel did object to the search on relevancy grounds and because
Hopkins, the witness who led police to believe a second search was necessary, was
deceased by the time of trial and unavailable to testify.
18
WITNESS: Yes.

PROSECUTOR: What information?

WITNESS: The family was going to go to the apartment on the 19th
and begin to clear it out.

PROSECUTOR: So what did you do?

WITNESS: So we went on the 18th.

PROSECUTOR: And this time who did you take with you?

WITNESS: We brought a CSU with us.

PROSECUTOR: And were you there for the entirety of the CSU
search?

WITNESS: Yes.

PROSECUTOR: May I approach the witness, Your Honor?

THE COURT: Yes, sir.

PROSECUTOR: Your Honor, may we approach?

THE COURT: Sure. Do we need to send the jury out?

DEFENSE COUNSEL: I think that would be a good
idea, Judge.

THE BAILIFF: All rise for the jury.
(Jury out.)

THE COURT: Be seated.

DEFENSE COUNSEL: Judge, at this time I’m going to object to the
search on the 18th. The search warrant, which is in evidence, gave
them three days to execute the search warrant. They did that. We’ve
seen those photographs. They’re in evidence. By the witness’ own
19
testimony this next warrant is outside the three days. They did not
have a search warrant anymore. All of this needs to be excluded as an
illegal search.

B. Discussion

To preserve error for appeal, the complaining party must make a timely,

specific objection. TEX. R. APP. P. 33.1(a)(1); Turner v. State, 805 S.W.2d 423, 431

(Tex. Crim. App. 1991). A motion to suppress made after the evidence or

substantial testimony about the evidence has already been admitted without

objection is untimely. See Coleman v. State, 113 S.W.3d 496, 500 (Tex. App.—

Houston [1st Dist.] 2003), aff’d, 145 S.W.3d 649 (Tex. Crim. App. 2004);

Gonzalez, 563 S.W.3d at 321.

Here, Brown did not make a motion to suppress evidence of the second

search until after Sergeant Brady had already testified about re-entering Randle’s

apartment and discovering an empty bleach bottle and blood evidence. Because

Brown did not object until after this testimony was already in evidence, his

objection was untimely and nothing is presented for review.

We overrule Brown’s third issue.

Ineffective Assistance of Counsel

In issues four through six, Brown maintains that his trial counsel rendered

ineffective assistance because he did not (1) preserve error on the motion to

suppress, (2) preserve a confrontation-clause objection, or (3), object to or request

20
a redaction of Brown’s invocation of his right to counsel and refusal to consent to a

DNA swab. We address each contention in turn.

A. Standard of Review

The United States Constitution, Texas Constitution, and Texas Code of

Criminal Procedure guarantee an accused the right to assistance of counsel. See

U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. art.

1.051. As a matter of state and federal law, this includes the right to reasonably

effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686

(1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997).

To prevail on a claim of ineffective assistance of counsel, an appellant must

prove by a preponderance of the evidence that (1) counsel’s performance fell

below an objective standard of reasonableness and that (2) there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different. Strickland, 466 U.S. at 687–88, 694; Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). A failure to make a showing under either prong

of the Strickland test defeats a claim for ineffective assistance. 466 U.S. at 697;

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

Under Strickland’s first prong, we must look to the totality of the

representation to determine the effectiveness of counsel—indulging a strong

presumption that counsel’s performance fell within the wide range of reasonable

21
professional assistance and was motivated by sound trial strategy. 466 U.S. at 689;

Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). Moreover,

we “must be highly deferential to trial counsel and avoid the deleterious effects of

hindsight.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “The

mere fact that another attorney might have pursued a different tactic at trial does

not suffice to prove a claim of ineffective assistance of counsel.” Ex parte Jimenez,

364 S.W.3d 866, 883 (Tex. Crim. App. 2012).

Allegations of ineffectiveness must be firmly founded in the record.

Thompson, 9 S.W.3d at 813. In most cases, a direct appeal is an inadequate

vehicle for raising an ineffective-assistance claim because the record is

undeveloped, and a silent record cannot adequately reflect the motives behind trial

counsel’s actions. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim.

App. 2003); see also Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005).

When, as here, the record does not reveal the reasons for trial counsel’s

actions, we “will assume a strategic motivation if any can possibly be imagined.”

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Trial counsel should

generally have an opportunity to explain his or her actions before we find the

performance deficient. Goodspeed, 187 S.W.3d at 392. Without that opportunity,

we should not find trial counsel’s performance deficient “unless the challenged

22
conduct was ‘so outrageous that no competent attorney would have engaged in it.’”

Id. (quoting Garcia, 57 S.W.3d at 440).

In rare cases in which counsel’s ineffectiveness is apparent from the record,

an appellate court may address the claim on direct appeal. Lopez, 343 S.W.3d at

143. But “the record must demonstrate that counsel’s performance fell below an

objective standard of reasonableness as a matter of law, and that no reasonable trial

strategy could justify trial counsel’s acts or omissions, regardless of his or her

subjective reasoning.” Id.

Under Strickland’s second prong, we must determine whether there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. 466 U.S. at 694. A “reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id. That an

error had “some conceivable effect on the outcome” will not suffice. Perez v. State,

310 S.W.3d 890, 894 (Tex. Crim. App. 2010). Rather, there must be a reasonable

probability that, absent the errors, the factfinder would have had a reasonable

doubt with respect to guilt. Id.

B. Discussion

1. Failing to Preserve Error—Motion to Suppress

Brown claims that his trial counsel was ineffective for failing to preserve

error on his motion to suppress the evidence obtained during the second search of

23
Randle’s apartment. This claim fails because (1) the evidence was admissible and

(2) there was no reasonable probability that the result of the case would have been

different without the admission of the evidence obtained during the second,

warrantless search.

First, Brown denied living with Randle. He told police that Randle had

allowed him to stay there in the past, but that Randle had “put him out,” and that he

had not been in the apartment in over a year. See Jones v. State, No. 01-03-00161-

CR, 2004 WL 396443, at *2 (Tex. App.—Houston [1st Dist.] Mar. 4. 2004, no

pet.) (memo. op., not designated for publication) (holding defendant lacked

standing to object to warrantless search of apartment after telling police he did not

live there). Because Brown had no standing to object to the second, warrantless

search of Randle’s apartment, the evidence obtained therefrom was properly

admitted. Counsel is not ineffective for failing to object to admissible evidence.

See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004) (holding counsel

not ineffective for failing to object to admissible evidence). Thus, Brown cannot

meet prong one of the Strickland test.

Second, even if defense counsel erred by failing to preserve error on

Brown’s motion to suppress, there is no reasonable probability that, but for the

error, the result of the case would have been different. Brown argues that the

evidence obtained in the second search—blood evidence and evidence that bleach

24
was used to clean the apartment—served to corroborate Sergeant Brady’s

testimony that a deceased witness, Hopkins, said that he and Brown brought

Randle’s body through the apartment, before disposing of it in a dumpster.

However, Brady’s testimony regarding Hopkins’s statement was hardly the

only evidence corroborating Randle’s murder by Brown. There was eyewitness

testimony placing Brown outside the apartment just after shots and an argument

were heard, Brown’s statement to Randle made shortly before the murder that “I

will kill you,” and Brown’s DNA on Randle’s ankles, knees, jeans, and under his

knees.

Most importantly, there was Brown’s confession that he shot Randle, even

though he claimed it was done in self-defense. In light of this overwhelming

evidence of guilt, Brown cannot meet the second prong of Strickland by showing

that, but for the alleged deficient performance, there is a reasonable probability that

the verdict would have been different. See Adekeye v. State, 437 S.W.3d 62, 73

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (finding no prejudice for

purposes of ineffective assistance based on stipulation informing jury of

appellant’s prior felony conviction when evidence of appellant’s guilt for current

offense was overwhelming).

We overrule Brown’s fourth issue.

25
2. Failing to Preserve—Confrontation-Clause Objection

Brown next contends that his trial counsel rendered ineffective assistance by

failing to preserve a confrontation-clause objection to testimony by Sergeant

Casso—who told the jury that “[the police] received information that [Hopkins]

assisted in disposing of the body of Derick Randle.” Although no statements

directly attributable to Hopkins were admitted at trial, Brown claims that the

substance of Hopkins’s statements was implied when officers testified that, based

on information received about Hopkins’s involvement, they searched the apartment

again looking for bleach and blood. And he argues that his trial counsel should

have objected to the admission of Hopkins’s implied statements on confrontation-

clause grounds because he was never able to cross-examine Hopkins.5

Even if we were to assume that Brown’s trial counsel was deficient in not

preserving a confrontation-clause objection,6 we nonetheless conclude that Brown

cannot meet the second prong of Strickland by showing that, but for the alleged

5
We note that there was significant discussion of the fact that Hopkins was
unavailable to testify at trial because he had been murdered in an unrelated crime.
The issue was resolved by allowing the State to tell the jury that Hopkins was
deceased, and that Brown was not at all involved in his death.
6
Even though we do not address the first prong of Strickland, we note that defense
counsel may have had a valid trial strategy for permitting testimony about
Hopkins’s involvement in disposing of the body. In his statement to police,
Brown indicated that, while he shot Randle in self-defense, he believed that
Hopkins and Rochelle Lockridge disposed of the body. Defense counsel might
reasonably strategize that evidence about Hopkins’s involvement corroborated
Brown’s statement that Hopkins and Lockridge disposed of the body.

26
deficient performance, there is a reasonable probability that the result of the case

would have been different. See Strickland, 466 U.S. at 688.

In that regard, Brown claims that he was harmed by the absence of a

confrontation-clause objection because Hopkins’s implied statements “were the

only source of the information that someone allegedly helped [Brown] dispose of

the body, and were extremely prejudicial because they undercut [Brown’s] claim

of self-defense.”

But we have already held that the trial court properly overruled the motion to

suppress the evidence obtained during the second, warrantless search. And there

was overwhelming evidence of Brown’s guilt, including his unchallenged

confession. Additionally, there was other evidence undercutting Brown’s self-

defense claim. Brown claimed that Randle attacked him with a hammer, but no

hammer was ever recovered and police doubted that such a hammer even existed.

Randle’s neighbor, Jones, heard a scuffle, but he did not hear a hammer drop to the

ground. And Hopkins’s implied statements to police were not the only evidence of

his involvement with the disposal of Randle’s body. Lockridge testified that,

shortly after the time of the murder, Brown came to her apartment in an agitated

state and demanded that Hopkins, who was visiting, leave with him.

In light of the overwhelming evidence of both Brown’s guilt and Hopkins’s

involvement in disposing of the body, Brown cannot show that, had a

27
confrontation-clause objection been made, there is a reasonable probability that the

result of the case would have been different. See Strickland, 466 U.S. at 694.

We overrule Brown’s fifth issue.

3. Failing to Request Redaction of Invocation of Fourth and Sixth
Amendment Rights

Finally, Brown claims contends that his “defense counsel rendered

ineffective assistance of counsel in failing to object to, and request a redaction of,

[his] reference to and invocation of his right to an attorney, as well as his refusal to

consent to a DNA swab.”7 Brown does not claim that his confession was admitted

in violation of his right to counsel or that his DNA was taken in violation of the

general prohibition against warrantless searches. Rather, he only argues that his

trial counsel should have requested a redaction of the confession to omit his

invocation of such rights.

Again, even if we assume that defense counsel was deficient for not

objecting to and requesting the redaction of Brown’s invocation of his

constitutional rights,8 we conclude that Brown cannot meet the second prong of

7
The right to an attorney is guaranteed by the Sixth Amendment of the United
States Constitution, and the right to refuse a warrantless search is guaranteed by
the Fourth Amendment of the United States Constitution. See U.S. CONST.
amends. IV and VI.
8
We note that at least two of our sister appellate court have found that defense
counsel’s failure to request such a redaction was not deficient representation. See
Cacy v. State, 901 S.W.2d 691, 700 (Tex. App.—El Paso 1995, pet. ref’d (holding
that counsel was not ineffective for failing to object to admission of defendant’s
28
Strickland by showing a reasonable probability that, for counsel’s deficiency, the

result of the case would have been different.

Here, there was overwhelming evidence of Brown’s guilt, including his

unchallenged confession, eyewitness testimony placing him and his truck at the

scene of the crime, evidence that he threatened to kill Randle, as well as Brown’s

DNA on Randle’s body. It is unreasonable to believe that evidence that Brown

refused a DNA test or asked for an attorney would have so influenced the jury that

it would have returned a different verdict had it not heard such evidence.

We therefore hold that, even if trial counsel’s performance fell below the

standard of prevailing professional norms, Brown has not shown that but for

counsel’s deficiencies, the result of the proceeding would have been different. See

Strickland, 466 U.S. at 688, 694.

invocation of right to counsel and objection to search); Ex parte Owens, 860
S.W.2d 727, 730 (Tex. App.—Austin 1993, pet. ref’d) (“[C]ase law certainly does
not establish that any Texas attorney who fails to assert this rule [that refusal to
consent to a search cannot be considered evidence of guilt] is operating below the
prevailing professional norms.”).

29
We overrule Brown’s sixth issue.

Conclusion

For all the reasons above, we affirm the trial court’s judgment in all things.

Terry Adams
Chief Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.

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

30