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Deaver v. State

Appellant's contention that his trial counsel should have moved to suppress the cell phone video because it was discovered during an allegedly unauthorized search is dependent on his establishing that a search in fact occurred. If the officer was initially justified in gaining control over appellant's phone for safety reasons (appellant has not argued that he was not), and if the officer immediately saw the pornographic video upon controlling the phone (as may or may not have happened based on the limited, unclear record), then a motion to suppress would not have succeeded because the video was in plain view, no invasion of appellant's privacy could be shown, and no search could have therefore occurred. Because appellant therefore cannot demonstrate, on this ambiguous record, that his counsel's motion to suppress would have been successful, his sole issue of ineffective assistance is overruled. Fort Worth Court of Appeals, No. 2-08-329-CR, 04-22-2010

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OPINION

Appellant Ronnie Durant Deaver appeals his conviction for possession of child pornography. In one issue, he argues that his trial counsel provided him with ineffective assistance because they failed to challenge the admissibility of the video that contained the pornography. We affirm.

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