Case Information

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148-15

NO. 14-13-60630-Ce

ORIGINAL

IN THE
CAUT OF APPEALS FOR
THE FOUR TERNTM DISTRICT OF TERMS
AT Housstan

LASH ADABEEN SCOTT V.

APPELIAMECEIVED IN COURT OF CRIMINAL APPEALS MAR 232015

THE STATE OF TEXAS APPEILE 'hal Acosta, Clerk

APPEAL IN PALSE NO. 1371691 IN THE 1938 DISTRICT CAUT OF HARRIS CAUTY, TEXAS

LASH ADABEEN SCOTT THE 4 18637339 COURT OF CRIMINAL APPEALS CAUZA CAST 11 NUT MAR 232015 4304 HAV ZOE BEEVILLE, TX 78102 Abel Acosta, Clerk PROSE

*2 STATEMENT REBARDINA DISCREATONARY REVIEW

ON This DAY 210.2015, this BURT Has GENDED THE AME HANTS PRO SE MOTION FOR AN EXTENSION OF THE TIME IN WHICH TO FILE THE PETITION FOR DISCREATIONARY REVIEW. THE TIME TO FILE THE PETITION Has been Extended TO MONDAY, March 23, 2015. PETITIONEL IN His MOST LAYMEN ATTENTT IS FING THE DISCREATIONELY REVIEW PRO. SE. AND PETITIONER PRAY'S THE APPEALS GENIT'MOTION! PETITION FOR DISCREATIONARY REVIEW.

*3

To The Honeable Curet of Aftents:

Recliminatly Statement

Aftent was chaedied by Inoictment with Fntait to odive a conteoled substance. Rettinue Hean "not Guilt" To The Fnactment ans The one Reoeded To Teinl before the Curet, tolowing the Teial The thode found Rettinue "Guilt" The case then Reoeded To the Runishment Phase ans the they asesesce funishment At as Tares confinement In the Fnstitutional Division TOC J. It Is Peom this conviction that he Aftents as an Enbitent Retitione Tmely Pled Retion foe Discectomert Revisu.

*4 SHAPE 19,2012, SHEGEMENT HANEY WAS IN AN UNMARKED PATED VENICE FANSTIGATIONS WALD GOLDING MENITY NEAR 2700 GENE of WONDON, THERE WEEZ MULTIPLE CONTRANTS FROM POLICE AND CITIZENS, SHEGEMENT HANEY SAW RESPONSE SMOUNGS ON THE SODE WALD with A GIVEL FANNIC ONA SICYCLE. THE FANNIC HAS SAND to be HONING HELM HANS GUT WITH SOME HANEY EN THE MAIDS.

The officers RULKU WY To the RELIGIONE ANO JUNIEN out of THEIR UNT, THEY SOUNDS THERE UNEUEE ABOUT SO FEST FROM RELIGIONE. OFFICIAL QUICKLY EXTED THE UN. SHEGEMENT HANEY MADE EME CONTINUET WITH RELIGIONE. APPELIMAT RELIGIONE MAVED HAS EIGHT HANS TO HAS WAYSTEAND. The officers DEDUCED RELIGIONE TO CROUG HAS HANDS, OFFICE DERICTOME TONE RELIGIONE DANN AND DEGRAIN PATHO AGYUH THE NEAR HANDS RELIGIONE WASTEAND, OFFICE DERICTOME USSEWED A GROSSIE CONTAINING WHEEL FANTHENEMENT TO DE SEVEREAL FANCLS. SHEGEMENT HANEY THER RESECCUED THE GROSSIE. THE GROSSIE ARRIVED IS CONTAIN MANT AS LOCKS. THE LOCKS FELM TOTAL RATIOC FOR CERAPLE.

*5 Aunt of Eeleve bine Artibonse was Denies effective Assis Tance of Cun sel Due to Tesal Canseels Failure To mave To Suifless Enadmissible Evidence. Artibonse Contons that He was Denied effective Assis Tance of Cunsel due to failure of Eefense Cunsel to obiect to The startes En Teoducton of Enamissible Evidence. Eiethelenue, The Me senbation of Each Evidence to the Devet, without obiecton, Seved to CenY. retikance His Bsht to a fane teinl, although the state Fiteoduced Omnagime, Enamissible Evidence bethes the Tesal, Eefense Counsel fation to make an obesection de mode toe exclusion of the Evidence witen Reaferly Reauired. effective Assistance Demano netive Precterization of Cunsel The EGHT to Assisance of Cunsel Is Guneated by the Sxth Anenument to the unites states constitution. as, Cunst. Amend UX. Conseduently, It has been Re Coginized that the Eisht to Cunsel SeEves to Replect a Ceminini De Pronts funlamentol fisht to a fial Tewl Receves will show the Enetitive Assis tance of Cunsel In the Retikances Afflate Beiet.

*6 Point two of Enkove The Teral Asset mishecally entered a chusment that Bettisnce Pieno "Guilty" to The Endictment.

The dusiment entered on June 24, 2015 states that Bettisnces Pien to the Endictments was "Guilty." However it is Obne. From the Recous taken at the teral that the Bettisnce Pieno "not Guilty" Reve to his Teral by The Asset was The Reve the enter made in the dusiment is En Enkove. An Affiliate Asset has nthuilty to letien a dusiment To Ineluse an Affiemative Inonions to make the Revo Shere, the Truth when the matter has been ended to Its Attention. The nthuilty of the Affentiate Assets to letien dusment Is not limited to those situations involving misthes if a ideal ad active. It is thetive Restettully Reveated that this can cede this discerfiontely Revo Rececionsis as Inoieates by statement of rents.

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Conclusion and Rarise the Reilet

It Is Respectully submitted that a Retitioners Convention should be Reserved + Reversed and the Case be Remanded to the Analocat, the A New Text. It Is also Respectfully Requested That the Judgment be Reformed to Creeceat The Creece Responding Retibinesis Discerdonsy Revivis.

Respectully submitted,

Meal Scent

No. 22 and moneen sent, 470831167335 Cmean sent Unit 4304 Huy202 Cercille, TX. 71102

*8 This is so exebly that a Tue and Cueset app of the Aive lection the o'sclcbiomay bevew Hos been Qfiused do the Caret of Cerminial. Adents Cheek mod heoshe on this 10 , Day of Amech 2015.

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*9

Affirmed as Reformed and Memorandum Opinion filed December 23, 2014.

In The Fourteenth Court of Appeals

NO. 14-13-00630-CR

LASH ADARRIN SCOTT, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 1371641

MEMORANDUM OPINION

In two issues, appellant Lash Adarrin Scott appeals his conviction for possession with intent to deliver a controlled substance, a first-degree felony. See Tex. Health &; Safety Code Ann. §§ 481.102(3)(D), 481.112(a) (West 2010). The first issue is whether appellant's trial counsel provided the effective assistance required by the Sixth Amendment. Because the record contains no evidence rebutting the presumption that trial counsel's performance fell within the wide

*10

range of reasonably professional assistance, we overrule appellant's first issue. The second issue is whether this court can modify the trial court's judgment. Because the judgment incorrectly states that appellant pleaded "guilty" to the charged offense, we sustain appellant's second issue.

Accordingly, we reform the judgment to correctly reflect appellant's plea of "not guilty" and affirm the judgment as reformed.

I. Facts and Procedural Background

On December 19, 2012, in response to complaints from a concerned citizen regarding possible narcotics transactions occurring on the 2700 block of Winbern Street in Houston, Harris County, Texas, officers from the Houston Police Department initiated a "jump-out" operation. Sergeant Haney, Officer Weiner, Officer Matson, Officer Delasbour, Officer Penrod, and Officer Amador were part of the operation. Sergeant Haney testified that he and the other officers drove to the location in question to reconnoiter the area. Sergeant Haney and Officer Matson observed appellant meeting with a black female. Sergeant Haney testified that the female had money in her hand and appellant was in the process of exchanging something for the money. At that point, the officers drove their van towards appellant and the female, stopped approximately thirty feet from appellant and the female, and jumped out of the vehicle.

The officers ordered appellant to show his hands. Appellant did not comply. Believing that appellant might be armed, the officers ordered appellant and the female to lie on the ground. Officer Delasbour secured appellant and conducted a pat-down search. During the pat-down search of appellant, Officer Delasbour found a baggy that appeared to contain approximately 33 rocks of crack cocaine. Officer Penrod field-tested the contents of the baggy. The contents tested positive for cocaine.

*11 Appellant was indicted for felony possession with intent to deliver a controlled substance. The indictment alleged two prior convictions. On June 27, 2013, the day of trial, appellant's trial counsel filed a motion to suppress the cocaine on the grounds that the seizure and arrest violated appellant's constitutional rights. The trial court did not hold a separate hearing or explicitly rule on the motion to suppress. On the day of trial, appellant also signed a stipulation of evidence, in which he stated:

I, the Defendant in the above entitled and numbered cause, in open court, agree to stipulate the evidence in this case and I waive the appearance, confrontation, and cross-examination of witnesses. I consent to the oral stipulation of evidence and to the introduction of affidavits, written statements of witnesses and other documentary evidence. I waive my right against self-incrimination and confess the following facts:

1. The controlled substance that is marked State's Exhibit number 1 is, in fact, cocaine and is a controlled substance. That same State's Exhibit is the same controlled substance that I was in possession of on December 19, 2012 in Harris County, Texas.
2. The controlled substance that is marked as State's Exhibit number 1 is weighs [sic] more than 4 grams and less than 200 grams by aggregate weight, including any adulterants and dilutants.
3. The Laboratory Report that is marked as State's Exhibit number 2 is a correct analysis of the controlled substance and all of the methods of testing were done accurately and correctly.

Appellant pleaded "not guilty" to the charged offense. Appellant pleaded "true" to the two prior offenses.

The case was tried to the court. During trial, the State introduced as Exhibit Number 1 the crack cocaine that was discovered during the pat-down search of appellant. Appellant's counsel did not object to the admission of this evidence. In closing argument for the guilt-innocence phase of the trial, defense counsel argued that the cocaine was seized in violation of appellant's Fourth Amendment rights.

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The trial court ultimately found appellant guilty of the charged offense. Appellant was sentenced to twenty-five years in the Institutional Division of the Texas Department of Corrections. Appellant timely appealed.

II. Discussion

A. Appellant did not meet his burden to overcome the strong presumption that trial counsel's performance fell within a wide range of reasonably professional assistance.

In his first issue, appellant contends that he received ineffective assistance of counsel because his trial counsel did not object to the admission of the crack cocaine found by the police during the pat-down search.

The Constitution guarantees effective assistance of counsel. Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013). To prevail on a claim of ineffective assistance of counsel, a defendant "must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defense." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Under the first prong, a defendant must prove by a preponderance of the evidence that trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms. Id. Under the second prong, a defendant must show that there is a reasonable probability that, but for the counsel's deficient performance, the result of the proceeding would have been different. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id.

Our review of the reasonableness of trial counsel's conduct is highly deferential. Id. at 101. We view trial counsel's conduct in context and indulge a strong presumption that trial counsel's performance fell within a wide range of

*13 reasonably professional assistance. Lopez, 343 S.W.3d at 142; Andrews, 159 S.W.3d at 101. "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." Lopez, 343 S.W.3d at 142-43. Rather, "allegations of ineffectiveness must be based on the record, and the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney's reasons for his conduct." Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011). When the record is silent on trial counsel's reasons for failing to take the action identified by appellant, as it is here, we can only hold counsel's performance deficient if the challenged conduct was so outrageous that no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). When direct evidence demonstrating trial counsel's deficiency is not available, we must assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined. Lopez, 343 S.W.3d at 143; see McCook v. State, 402 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). The kind of record necessary for a defendant to meet his or her burden to rebut the presumption is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Perez v. State, 56 S.W.3d 727, 731 (Tex. App.Houston [14th Dist.] 2001, pet. ref'd).

In this case, appellant did not file a motion for new trial, and the trial record is silent as to why trial counsel did not object to the admission of the drug evidence. Appellant signed a stipulation of evidence that was admitted at trial prior to the admission of the actual cocaine. Therefore, it is possible that appellant's trial counsel may have reasonably decided, in this bench trial, to attack the pat-down search of appellant on Fourth Amendment grounds rather than generally

*14 challenging the admissibility of the cocaine. Counsel did not object to the admission of the cocaine but did assert in final argument that the cocaine was unlawfully seized in violation of the Fourth Amendment. Only further inquiry would provide the information necessary to properly determine whether counsel provided the effective assistance envisioned under the Sixth Amendment. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

Appellant has failed to rebut the presumption that trial counsel's actions resulted from a reasonable decision and has therefore failed to meet his burden on the first prong of Strickland. See Aldaba v. State, 382 S.W.3d 424, 434 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd). As a result, we need not consider whether appellant met his burden with respect to the second prong of Strickland. See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim. App. 2011) (declining to analyze first prong of Strickland when applicant's claim failed under second prong).

We overrule appellant's first issue. B. Modification of the trial court's judgment is appropriate because the judgment incorrectly states that appellant pleaded guilty to the charged offense.

In his second issue, appellant contends the trial court's written judgment of conviction erroneously states that he pleaded guilty to the charged offense. The State concedes that the judgment is incorrect in this regard. "An appellate court has the power to correct and reform the trial court's judgment to make the record speak the truth when it has the necessary data and information to do so." Peyronel v. State, — S.W.3d —, —, No. 01-13-00198-CR, 2014 WL 4109589, at *7 (Tex. App.—Houston [1st Dist.] Aug. 21, 2014, pet. granted); see Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.

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Crim. App. 1993). Here, during his arraignment, appellant pleaded "not guilty" to the charged offense. The trial court's judgment, however, states that appellant pleaded "guilty."

We therefore sustain appellant's second issue and reform the trial court's judgment to reflect that appellant pleaded "not guilty" to the charged offense.

III. CONCLUSION

We affirm the trial court's judgment as reformed. /s/ Marc W. Brown Justice

Panel consists of Justices McCally, Brown, and Wise. Do Not Publish — Tex. R. App. P. 47.2(b).