Edgar Tecum-Sajche v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00246-CR
________________

EDGAR TECUM-SAJCHE, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. F21-37570
________________________________________________________________________

MEMORANDUM OPINION

A jury found Edgar Tecum-Sajche (“Tecum-Sajche”) guilty of possession of

a controlled substance, in an amount equal to or less than one gram, a state jail

felony, and the trial court sentenced him to 180 days in jail probated over two years.

See Tex. Health & Safety Code Ann. § 481.115. In one issue, Tecum-Sajche

complains that he received ineffective assistance of counsel when his trial attorney

failed to move to suppress an officer’s search of his pockets where the cocaine was

located. As discussed more fully below, we affirm the trial court’s judgment.

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Background

The trial evidence showed that on the night of April 17, 2021, Tecum-Sajche

attempted to enter Red’s Icehouse with a group of friends. Mark Greene, a Red’s

employee working the door that night, testified that Tecum-Sajche was paying for

the group, and when Tecum-Sajche went to open his wallet to pay Greene the money,

something fell out of his wallet. Greene believed that what fell out of Tecum-

Sajche’s wallet was cocaine. He specifically denied that it was trash. Greene told

Tecum-Sajche that he dropped something, and he testified that Tecum-Sajche

appeared to know what it was, “because he picked it up real fast.” Greene explained

that it was like Tecum-Sajche did not want other people to see it. Greene said that

Tecum-Sajche entered the club and went to the bar. After thinking about it briefly

and dealing with some other customers, Greene got his manager. It was Greene’s

practice not to intervene but to get his manager, because they have police officers

working there. Greene also identified a small white baggie containing a powdery

substance as being what fell out of Tecum-Sajche’s pocket.

Beaumont police officer Joshua Jackson testified he was working a secondary

job at Red’s that night when the manager got his attention “about one of his

employees observing something that occurred” at the business’s entry. He then

found Officer Gerber, who was working with him that night, and after speaking with

Gerber and the manager, Jackson located the person who supposedly dropped the

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drugs. Jackson said he easily located the man and identified him as Tecum-Sajche,

who he also identified in court. Jackson explained that he made contact with Tecum-

Sajche inside the establishment and detained him. It was loud, though, so Jackson

walked him outside so they could speak in a quieter environment. Jackson explained

that once outside,

I started to investigate whether he had drugs on him or not. . . . my
understanding was he pulled some money out of his pocket, a bag of
drugs fell out with the money and I.D. or one or the other and then
picked up the bag and put it back in his pocket. So, I was confident he
still had drugs on his person if that was, indeed, drugs. So, I detained
him inside, brought him outside, talked to him there, and asked if I
could search his person.

Tecum-Sajche allowed Jackson to search his pocket, and when he did, he pulled out

a “wad of dollar bills” and a “small clear bag . . . containing a white powder

substance.” He then said he handed the money to Officer Gerber but kept the

cocaine. At the time he found the baggie, he believed it to be cocaine, and when

weighed, it was less than a gram.

Jackson’s body camera video was admitted into evidence showing his

interaction with Tecum-Sajche. Jackson said he detained Tecum-Sajche, which he

explained meant that he stopped to investigate further whatever is occurring or has

been reported. He put Tecum-Sajche’s hands behind his back for safety reasons,

because he was unsure if he had a weapon, plus people who have been drinking can

sometimes be aggressive, and he did not want that to happen. Jackson agreed the

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video showed the drugs fell out of the money he handed Officer Gerber, which was

slightly different than what he testified to initially, but it had been almost two years,

and the bodycam showed what happened. Jackson did not recall finding a wallet; he

thought it was just money and an I.D. Tecum-Sajche confirmed it was cocaine and

said that someone must have put it in his pocket. Tecum-Sajche claimed someone

was trying to frame him by putting drugs on him, but Jackson never observed that.

Beaumont police officer Kory Gerber also testified that he was working a

secondary job at Red’s that night when a manager flagged him down and told him

that a subject came in to pay, and when he did, he dropped a small packet of

narcotics. Gerber then relayed that information to Officer Jackson, and they detained

the subject and brought him outside. Once outside, Officer Jackson began talking to

Tecum-Sajche and asked if he could look in Tecum-Sajche’s pockets, which he

allowed. Jackson then “pulled out a wad of money,” and handed it to Gerber, and

when Gerber was sorting the money, trying to rearrange it, “a small packet of

narcotic fell from the money.” Gerber picked up the drugs then handed them to

Officer Jackson and did not handle the drugs after that.

Gerber’s body camera video was also admitted and played for the jury. Gerber

explained that when they took Tecum-Sajche outside, he denied having cocaine and

offered to let them check his pocket, so Jackson reached into his pocket. Jackson

pulled “[a] wad of money” out of his pocket, and Gerber did not recall if Tecum-

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Sajche had a wallet. The video showed a small baggie of drugs falling out of Tecum-

Sajche’s pocket when Jackson pulled the money out. Gerber believed that Tecum-

Sajche knew what the drugs were, because they were his and fell out of his pocket.

Tecum-Sajche denied using drugs and offered to be drug tested. Initially, Gerber

believed the substance may have been methamphetamine, since it appeared

crystallized, but when Gerber said that is what he thought it was, Tecum-Sajche

corrected him and said, “[N]o, it was cocaine.” Gerber said that Tecum-Sajche did

not appear surprised about the drugs and seemed confident it was cocaine.

Marsha Cox, a forensic scientist and chemist with the Jefferson County

Regional Crime Lab also testified. The preliminary tests on this substance were

positive for cocaine, which she then confirmed with additional testing. The

substance weighed .157 grams. Cox made a report of her findings, which was

admitted into evidence.

During opening, the defense theory was that Tecum-Sajche did not knowingly

or willingly have the cocaine and instead inadvertently picked up the cocaine that

was on the ground believing it was trash. During opening, trial counsel stated,

I think the evidence is going to show that Edgar showed up to a bar at
Red’s Icehouse. And as he’s going in, he and his buddies are all pulling
out their I.D.s and showing their I.D.s and paying their cover charge,
that the bouncer himself says, hey, man, pick that up thinking it’s just
trash or something on the floor. Picks it up and puts it in his pocket and
then he’s asked to go outside with some officers. He complies. They
ask if they can search his pockets. Sure, I don’t have any cocaine on

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me, not knowing that the trash he picked up was a very, very small bag
of cocaine. And they arrest him.

During closing, the defense again focused on this theory. The defense also pointed

out discrepancies between Greene’s testimony and the officers’ testimonies.

In his sole issue, Tecum-Sajche asserts he received ineffective assistance of

counsel since his attorney failed to move to suppress an officer’s search of his

pockets where the cocaine was located.

Standard of Review and Applicable Law

To establish ineffective assistance of counsel, a defendant must satisfy the

following test:

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890,

892–93 (Tex. Crim. App. 2010). “Any allegation of ineffectiveness must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A

defendant is not entitled to errorless representation. Frangias v. State, 450 S.W.3d

125, 136 (Tex. Crim. App. 2013). We examine the totality of the representation when

analyzing a claim of ineffectiveness. See id.; see also Thompson, 9 S.W.3d at 813.
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“To show prejudice, ‘the defendant must show that there is a reasonable probability

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

been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.’” Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994) (quoting Strickland, 466 U.S. at 694); see also Graves v. State, 310

S.W.3d 924, 929 (Tex. App.—Beaumont 2010, pet. ref’d).

“Appellate review of defense counsel’s representation is highly deferential

and presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

“Under normal circumstances, the record on direct appeal will not be sufficient to

show that counsel’s representation was so deficient and so lacking in tactical or

strategic decisionmaking as to overcome the presumption that counsel’s conduct was

reasonable and professional.” Id.; see also Estrada v. State, 313 S.W.3d 274, 311

(Tex. Crim. App. 2010) (explaining record was insufficient to show counsel’s

representation was ineffective when record failed to show that counsel’s

representation lacked tactical and strategic decision-making). If trial counsel is not

given the opportunity to explain his actions, “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.’” Menefield v. State, 363 S.W.3d 591,

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593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005)).

Failing to file a motion to suppress evidence is not per se ineffective assistance

of counsel. See Kimmelman v. Morrison, 477 U.S. 365, 384 (1986); Carmen v. State,

358 S.W.3d 285, 295 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). “Counsel is

not required to engage in the filing of futile motions.” Hollis v. State, 219 S.W.3d

446, 456 (Tex. App.—Austin 2007, no pet.) (citing Mooney v. State, 817 S.W.2d

693, 698 (Tex. Crim. App. 1991)). To succeed on an ineffective-assistance claim

based on counsel’s failure to file a motion to suppress, “‘an appellant must show by

a preponderance of the evidence that the result of the proceeding would have been

different—i.e., that the motion to suppress would have been granted and that the

remaining evidence would have been insufficient to support his conviction.’”

Carmen, 358 S.W.3d at 295 (quoting Hollis, 219 S.W.3d at 456). To satisfy this

burden, an appellant must produce evidence defeating the presumption of proper

police conduct. See id. Thus, an appellant must develop sufficient facts and details

of the search to conclude that the search is invalid. See id.

There are three categories of police and citizen interactions: (1) consensual

encounters; (2) investigative detentions requiring reasonable suspicion; and (3)

arrests or their custodial equivalent. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim.

App. 2016); Crain v. State, 315 S.W.3d 43, 49 (Tex. Crim. App. 2010). During an

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investigatory detention, officers may use reasonably necessary force to maintain the

status quo, effectuate an investigation, or protect the safety of individuals at the

scene. Balentine v. State, 71 S.W.3d 763, 771 (Tex. Crim. App. 2002); Rhodes v.

State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997).

“Under the Fourth Amendment, a search is unreasonable when conducted

without a warrant or probable cause.” Tucker v. State, 369 S.W.3d 179, 185 (Tex.

Crim. App. 2012) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).

Voluntary consent is an exception to the warrant requirement for searches, and a

person can consent orally or by action. Id.; Valtierra v. State, 310 S.W.3d 442, 448

(Tex. Crim. App. 2010). The State must prove the voluntariness of consent by clear

and convincing evidence. See Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim.

App. 2011). The ultimate question is whether a person’s “‘will ha[s] been overborne

and his capacity for self-determination critically impaired,’ such that his consent to

search must have been involuntary.” Id. (quoting United States v. Watson, 423 U.S.

411, 424 (1976)). The voluntariness of consent to a search is a fact question

determined from all the circumstances. See id. at 460. Factors we consider in

determining the voluntariness of consent include (1) the length of detention before

giving consent, (2) whether the defendant was physically mistreated, (3) whether the

police used violence or threats of violence, (4) whether the police made promises or

inducements, (5) whether the police used deception or trickery, (6) the physical and

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mental condition and capacity of the defendant, and (7) whether the police told the

defendant that he had a right to refuse consent. See Tucker, 369 S.W.3d at 185.

Analysis

In this case, Tecum-Sajche’s ineffective-assistance claim fails on both

Strickland prongs. First, he has failed to show trial counsel’s performance was

deficient, as the alleged ineffectiveness is not firmly founded in the record. See

Strickland, 466 U.S. at 687 (outlining two-prong test for ineffective assistance

claims); Perez, 310 S.W.3d at 892–93 (same); see also Thompson, 9 S.W.3d at 813

(explaining that ineffectiveness must be firmly founded in the record). Here, Tecum-

Sajche filed a Motion for New Trial contending that a motion to suppress would

have been granted and asserting that his statement about the drugs was custodial but

did not challenge the search’s validity. Nevertheless, the record does not show a

hearing took place where trial counsel was afforded an opportunity to explain his

actions, and absent this, our review is highly deferential, and we presume “counsel’s

actions fell within the wide range of reasonable and professional assistance.” Bone,

77 S.W.3d at 833.

The record here is insufficient to show “that counsel’s representation was so

deficient and so lacking in tactical or strategic decisionmaking as to overcome” that

presumption. Id.; see also Estrada, 313 S.W.3d at 311. Here, Tecum-Sajche’s trial

counsel was not afforded the opportunity to explain his actions. See Menefield, 363

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S.W.3d at 593. Rather, the record shows that trial counsel presented a strategy of

challenging that Tecum-Sajche’s possession was not knowing or intelligent. Counsel

argued that Tecum-Sajche entered the club with a group of people, implying

someone else could have dropped the cocaine. When the bouncer thought he dropped

something and told him to pick it up, Tecum-Sajche did so, thinking it was trash and

put it in his pocket. Counsel also attacked discrepancies in the witnesses’ version of

events and noted that Tecum-Sajche would not have offered to have his pockets

searched or to take a drug test if he had known what the substance was. We cannot

say the “challenged conduct was ‘so outrageous that no competent attorney would

have engaged in it.’” Id. (quoting Goodspeed, 187 S.W.3d at 392). Thus, we

conclude that Tecum-Sajche has failed to meet the first prong of the Strickland test.

See Strickland, 466 U.S. at 687; Perez, 310 S.W.3d at 892–93.

Tecum-Sajche likewise fails to meet the second Strickland prong, as he cannot

show that he was prejudiced by counsel’s failure to move to suppress. See Strickland,

466 U.S. at 687; Perez, 310 S.W.3d at 892–93. Here, he must show that the motion

to suppress would have been granted and remaining evidence would have been

insufficient to support his conviction. See Carmen, 358 S.W.3d at 295

(quoting Hollis, 219 S.W.3d at 456). To satisfy this burden, an appellant must

produce evidence defeating the presumption of proper police conduct. See id. Thus,

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an appellant must develop sufficient facts and details of the search to conclude that

the search is invalid. See id.

The record shows officers temporarily detained Tecum-Sajche after the

manager alerted them that a Red’s employee personally witnessed Tecum-Sajche

drop a packet of what appeared to be cocaine. Officers handcuffed him, which they

explained was for their safety, then escorted him outside to a quiet environment,

which took a matter of minutes. When officers confronted him about the possibility

that he had cocaine, Tecum-Sajche offered to allow officers to search his pockets

within a couple of minutes of being detained, although officers did not tell him he

had the right to refuse. See Tucker, 369 S.W.3d at 185 (outlining factors for

determining voluntariness of consent). Officers did not mistreat him, use trickery,

threats of violence, or promise him anything. See id. Further, although Tecum-

Sajche appeared to be drinking alcohol immediately before the encounter, he was

able to answer the officers’ questions without difficulty. See id. When they searched

him and located the packet of cocaine, Tecum-Sajche corrected one of the officers

and told him it was cocaine instead of methamphetamine.

No evidence contradicts this that would show his will was overborne or his

capacity for self-determination was critically impaired. See Watson, 423 U.S. at 424;

Meekins, 340 S.W.3d at 459. After considering the totality of the circumstances and

the various factors, the record shows that Tecum-Sajche voluntarily consented,

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which is an exception to the warrant requirement. See id. at 459–60; Valtierra, 310

S.W.3d at 448. Since Tecum-Sajche failed to meet his burden to show by a

preponderance of the evidence that the motion to suppress would have been granted

and that the remaining evidence would have been insufficient to support his

conviction, he likewise cannot satisfy the second Strickland prong. See Carmen, 358

S.W.3d at 295.

We overrule his sole issue.

Conclusion

Having overruled Tecum-Sajche’s sole issue, we affirm the trial court’s

judgment.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on March 5, 2025
Opinion Delivered July 2, 2025
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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