Broussard v. State

¶1concurring with decision on en banc consideration.

¶2Although it is true that ineffective assistance of counsel may be shown on direct appeal without evidence of counsel’s trial strategy in “rare ” cases, this is not one of those “rare ” cases. Here, appellant simply failed to prove by a preponderance of the evidence that his trial counsel was ineffective. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). He failed to overcome the strong presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance. See id. at 813. I write separately to emphasize the record does not affirmatively demonstrate that appellant’s trial counsel failed to take an action in defending his client that no reasonably competent attorney could have believed constituted sound strategy.

¶3Appellant claims that his trial counsel was ineffective for not asserting, as an additional ground for suppressing the cocaine found in his residence, that the officers’ “no-knock” entry into his residence violated the Fourth Amendment. Appellant argues that this failure was “objectively deficient” and “cannot be explained by any reasonable trial strategy.”

¶4Generally, police officers entering a dwelling to execute a search warrant must knock and announce their identity and purpose before attempting forcible entry. Wilson v. Arkansas, 514 U.S. 927, 929, 934, 115 S.Ct. 1914, 1915, 1918, 131 L.Ed.2d 976 (1995). There is no blanket exception to this knock-and-announce requirement for felony drug investigations. Richards v. Wisconsin, 520 U.S. 385, 387-88, 117 S.Ct. 1416, 1418, 137 L.Ed.2d 615 (1997).1

¶5As noted by Justice Thomas in Wilson, “the reasonableness of a search may depend in part on whether law enforcement officers announced their presence and authority prior to entering.” Wilson, 514 U.S. at 931, 115 S.Ct. at 1916 (emphasis added). The common law rule generally requiring announcement is “justified in part by the belief that announcement generally would avoid ‘the destruction or breaking of any house ... by which great damage and inconvenience might ensue....’” Id.,514 U.S. at 936-37, 115 S.Ct. at 1918 (quoting Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K.B.1603)) (emphasis added). It is important to note:

[N]o precise form of words is required in a case of this kind. It is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority....

¶6Wilson, 514 U.S. at 932, 115 S.Ct. at 1917 (quoting Case of Richard Curtis, Fost. 135, 137, 168 Eng. Rep. 67, 68 (Crown 1757)) (emphasis added). The Court stated as follows:

We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish *203the reasonableness of an unannounced entry.

¶7Wilson, 514 U.S. at 936, 115 S.Ct. at 1919 (emphasis added).

¶8Thus, in evaluating the reasonableness of the officers’ search in this context, the important factor is whether the officers announced their presence and authority prior to entering appellant’s residence, not whether they actually knocked on his door.

¶9Although the police officers in this case did not knock or ring a door bell, they did in fact announce their presence and authority prior to entering appellant’s residence. This is explicitly shown in the record from the direct examination of Houston Police Officer S.M. Kwiatkowski:

State: And what happened once you got there?

Officer: We ran up to the front door, I opened the screen door and let Officer Fuller use the battering ram to force the front door of the house open.

State: Before Officer Fuller — did he actually use the battering ram?

Officer: He did.

State: Did you-all make your presence known or did you announce yourself?

Officer: Yes. We yelled. When we were running up there we yelled, “police, search waiTant. ”

State: Okay. And did you do that in a loud voice?

Officer: Yes, I did.

State: And is that normally — is that procedure for the Houston Police Department?

Officer: Yes, it is.

¶10(Emphasis added.)

¶11The record also contains a photograph, State’s Exhibit 3, which shows the front of appellant’s residence. It illustrates that, after yelling “police, search warrant” while running up to the house, Officer Kwiat-kowski, in fact, had to stop and open a screen door to allow Officer Fuller onto a screened-in front porch. Only after stopping to have opened the screen door and entering onto the screened-in front porch could the officers reach appellant’s front door. By even the most conservative estimate in favor of appellant’s position, many seconds transpired from the time the officers yelled “police, search warrant” to the time of actual entry through appellant’s front door.

¶12The record also reveals that the “battering-ram” used to force open appellant’s door was “a large round piece of metal and plastic” approximately “three or four feet in length.” Officer Fuller swung it to strike the door to force it open. The record reveals the only damage caused by the use of the battering-ram was that the “locking mechanism” to the door was “destroyed.” It simply cannot be said that “great damage and inconvenience” could have ensued from the precise use of such a tool.

¶13This case is readily distinguishable from Wilson, in which “the officers entered the home while they were identifying themselves. ...” Wilson, 514 U.S. at 930, 115 S.Ct. at 1916. Here, the officers loudly announced their presence and authority prior to entering the residence, putting any occupant on notice that they were coming, not as mere trespassers, but under proper legal authority.

¶14Thus, appellant’s argument that his trial counsel was “objectively deficient” for not asserting, as an additional ground for suppressing the cocaine found in the residence, that the officers’ “no-knock” entry into the residence violated the Fourth Amendment is without merit. In fact, such an assertion, based on the record, would arguably have been futile.

¶15*204Further, because appellant failed to litigate the issue fully in a motion for new trial, we do not know if his trial counsel knew of other reasons not to assert the “no-knock” grounds in his motion to suppress evidence. We do not know whether, if counsel had raised it, the State would or could have called other witnesses on the issue; whether, if other witnesses had been called, they would have testified in ways favorable to appellant or the State on the issue; or whether, had such a record been developed, it would have supported appellant’s position as a matter of law.

¶16Conclusion

¶17Appellant’s argument can prevail only if his trial counsel’s raising the issue below would necessarily have resulted in a ground that undisputedly should have prevailed. His argument that the “no-knock” entry into his residence violated the Fourth Amendment would arguably, based on the record, have been futile. Thus, his claim that his trial counsel’s performance was “objectively deficient” fails. Further, given the uncertainties of this underdeveloped issue, we may not speculate on his trial counsel’s strategy. See, e.g., Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.Houston [1st Dist.] 1996, no pet.). Therefore, I concur with the decision of the En Banc Court affirming the judgment of the trial court.

¶19dissenting to the decision on en banc consideration, joined by Justice JACKSON B. SMITH, JR.

¶20I agree with the majority’s opening sentence that “in rare cases,” ineffective counsel can be shown on direct appeal without evidence of counsel’s trial strategy. Unfortunately, the majority’s commendably correct statement conflicts with holdings by at least five courts of appeals, which have held that, before relief can be granted, a record “must” contain evidence of counsel’s strategy. Those misstatements of the law should be fully answered, and I will do so now.

¶21What is the Correct Standard of Review for Ineffective Assistance of Counsel Claims?

¶22The following statement is not now, nor has it ever been, the law:

The record must contain evidence of counsel’s reasoning, or lack thereof, to rebut that presumption [that the challenged acts were sound trial strategy].

¶23Moreno v. State, 1 S.W.3d 846, 865 (Tex.App.-Corpus Christi 1999, pet. ref'd). Although that is not the law, many courts of appeals’ opinions say it is.1 They are *205wrong. The quoted language is an erroneous paraphrase of Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994), which does not say that. Fortunately, some of the same courts that made that erroneous statement have not followed it, at least not always. Instead, they have reversed for ineffective assistance of counsel with no evidence of counsel’s reasoning.2

¶24This is the law:

[I]n the rare case where the record on direct appeal is sufficient to prove that counsel’s performance was deficient, an appellate court should obviously address the claim in the first instance.

¶25Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim.App.2000) (emphasis supplied; citing Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999); holding that no new trial motion was required to preserve an ineffectiveness claim and remanding for consideration of that claim) (emphasis supplied); see also Vasquez v. State, 830 S.W.2d 948, 950, ns. 3, 4, 951 (Tex.Crim.App.1992) (reversing, no evidence of trial strategy). Thus, ineffective assistance of counsel claims should never be automatically overruled solely because the record contains no evidence of defense counsel’s strategy. First, the court must decide if the case before it is “the rare case in which the record on direct appeal is sufficient to prove counsel’s performance was deficient....” Robinson, 16 S.W.3d at 813 n. 7. In short, the presumption is rebuttable, not conclusive, and the law is clear, especially after Robinson, that in “rare cases” (including at least 22 cited below that were decided after Jackson), the record on direct appeal will be sufficient to rebut the presumption even without evidence of counsel’s reasoning.

¶26An appellant must show that his lawyer was deficient and that, in “reasonable probability,” the proceeding’s result would have differed but for that deficiency. See, e.g., Jackson, 877 S.W.2d at 770-71. A “reasonable probability” does not mean “that counsel’s deficient conduct more likely than not altered the outcome in the case.... ” Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). Rather, “the appropriate standard of prejudice should be somewhat lower.” Id.,466 U.S. at 694, 104 S.Ct. at 2068. “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id.; accord Snow v. State, 697 S.W.2d 663, 666-68 (Tex.App.-Houston [1st Dist.] 1985), pet. dism’d, 794 S.W.2d 371 (Tex.Crim.App.1987). A “single egregious error” may constitute ineffective assistance. Thompson, 9 S.W.3d at 813. Frequently, it has.3

¶27*206Texas Cases Reversing Without Evidence of Trial Strategy

¶28In at least 22 cases decided after the Court of Criminal Appeals decided Jackson v. State, Texas courts have reversed even though no evidence of trial counsel’s reasoning was presented. See Woods v. State, 59 S.W.3d 833, 835-38 (Tex.App.-Texarkana 2001, pet. filed); Mares v. State, 52 S.W.3d 886, 893 (Tex.App.-San Antonio 2001, pet. ref'd); Jaubert v. State, 65 S.W.3d 73 (Tex.App.-Waco 2000, pet. granted) (designated for publication) (recognizing the rule in Robinsonand reviewing the merits of ineffectiveness claim without evidence of trial counsel’s strategy); Robison v. State, 35 S.W.3d 257, 265 (Tex.App.-Texarkana 2000, pet. ref'd); In re R.D.B., 20 S.W.3d 255, 258-61 (Tex.App.-Texarkana 2000, no pet.); Stone v. State, 17 S.W.3d 348, 350-53 (Tex.App.-Corpus Christi 2000, pet. ref'd) (“[W]e find the record is adequate to show trial counsel’s ineffectiveness with regard to admitting the prior murder conviction. The reason for developing a record here would be to ask Stone’s attorney what his strategy was in offering the prior conviction evidence through the defendant when it would not come in otherwise. We are convinced that nothing trial counsel could say would make this court believe that it was sound trial strategy to offer the prior conviction under the circumstances here. We are able to determine from the statement of facts from the trial and pre-trial proceedings that counsel rendered ineffective assistance of counsel. Thus, we find the record sufficient in this case.We believe that where, as here, the record affirmatively demonstrates that counsel took some action in defending his client that no reasonably competent attorney could have believed constituted sound trial strategy, the defendant has shown he received ineffective assistance of counsel.”); Bone v. State, 12 S.W.3d 521, 524-27 (Tex.App.-San Antonio 1999, pet. granted); Young v. State, 10 S.W.3d 705, 715-16, 716 n. 53 (Tex.App.-Texarkana 1999, pet. ref'd), cert. denied, 528 U.S. 1063, 120 S.Ct. 618, 145 L.Ed.2d 513 (1999); Brown v. State, 974 S.W.2d 289, 293-95 (Tex.App.-San Antonio 1998, pet. ref'd); Ramirez v. State, 987 S.W.2d 938, 944-46 (Tex.App.-Austin 1999, no pet.); Gifford v. State, 980 S.W.2d 791, 793-94 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd); Mitchell v. State, 974 S.W.2d 161, 167 (Tex.App.San Antonio 1998), vacated and remanded, 989 S.W.2d 747 (Tex.Crim.App.1999) (remanding for determination of prejudice), on remand, 23 S.W.3d 582, 588 (Tex.App-San Antonio 2000, pet. ref'd, pet. granted) (en banc) (San Antonio court reversing, with no evidence presented of trial counsel’s strategy); Yzaguirre v. State, 938 S.W.2d 129, 132-33 (Tex.App.-Amarillo), rev’d on other grounds, 957 S.W.2d 38 (Tex.Crim.App.1997) (reversing because appellant failed to show prejudice, not because of lack of evidence on trial strategy), abrogated on other grounds, Howland v. State, 990 S.W.2d 274 (Tex.Crim.App.1999); Greene v. State, 928 S.W.2d 119, 123-27 (Tex.App.-San Antonio 1996, no pet.); Owens v. State, 916 S.W.2d 713, 718-19 (Tex.App.-Waco 1996, no pet.); Durst v. State, 900 S.W.2d 134, 141-42 (Tex.App.-Beaumont 1995, pet. ref'd); Austin v. State, 899 S.W.2d 834, 838 (Tex.App.-Beaumont 1995), rev’d on other grounds, 934 S.W.2d 672 (Tex.Crim.App.1996); Green v. State, 899 S.W.2d 245, 248-49 (Tex.App.-San Antonio 1995, no pet.).

¶29*207This Court has also reversed, both before and after Jackson, without evidence of trial counsel’s strategy. See Valencia v. State, 891 S.W.2d 652 (Tex.App.-Houston [1st Dist.] 1993), vacated, 946 S.W.2d 81 (Tex.Crim.App.1997), on remand, 966 S.W.2d 188, 191 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (reversing for ineffectiveness, with no evidence presented of trial counsel’s strategy); Glivens v. State, 918 S.W.2d 30, 32-34 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (same); Thomas v. State, 923 S.W.2d 611, 613 (Tex.App.Houston [1st Dist.] 1995, no pet.) (same); Everage v. State, 893 S.W.2d 219, 222-24 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (same); Fernandez v. State, 830 S.W.2d 693, 696-98 (Tex.App.-Houston [1st Dist.] 1992, no pet.) (same); Cooper v. State, 769 S.W.2d 301, 305 (Tex.App.Houston [1st Dist.] 1989, pet. ref'd) (same); Snow, 697 S.W.2d at 667 (same).

¶30The case of Vasquez v. State is important. 830 S.W.2d at 950 n. 3, 950-51. In Vasquez, the Court of Criminal Appeals declared: “Although Stricklandmandates that we should not second-guess trial strategy, we state without hesitation that the failure to seek an instruction on necessity would not have been acceptable trial strategy under the facts of this case.” Id.at 950 n. 3. The VasquezCourt found counsel ineffective for a single error, reversing this Court’s holding to the contrary, even though there was no hearing concerning, and no evidence of, counsel’s strategy. Id.,830 S.W.2d at 950, n. 3, 951, n. 4; id. at 951 (Benavides, J., dissenting).

¶31We should not presume that counsel had a trial strategy that could not exist. As the Court of Criminal Appeals and the Dallas, Corpus Christi, Texarkana, San Antonio, Beaumont, and Houston (14th) Courts of Appeals have stated, “[W]hen a ‘cold record’ clearly confirms no reasonable trial counsel could have made such trial decisions, to hold counsel ineffective is not speculation.” Tapia v. State, 933 S.W.2d 631, 634 (Tex.App.-Dallas 1996, pet. ref'd); accord Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App.2001) (“Also, in the absence of counsel’s reasons for the challenged conduct, an appellate court ‘commonly will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it”) (citations omitted; emphasis supplied); Chavero v. State, 36 S.W.3d 688, 701 (Tex.App.-Corpus Christi 2001, no pet.); Wilson v. State, 15 S.W.3d 544, 550 (Tex.App.-Dallas 1999, pet. ref'd); Young, 10 S.W.3d at 716 n. 53 (Texarkana); Chavez v. State, 6 S.W.3d 66, 71 (Tex.App.-San Antonio 1999, pet. ref'd); Campbell v. State, 2 S.W.3d 729, 734 (Tex.App.-Houston [14th Dist.] 1999), rev’d on other grounds, 49 S.W.3d 874 (Tex.Crim.App.2001); McCoy v. State, 996 S.W.2d 896, 900 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Ryan v. State, 937 S.W.2d 93, 98 (Tex.App.-Beaumont 1996, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 391, 392 (Tex.App.-Dallas 1994, no pet.); see also Blount v. State, 64 S.W.3d 451, 455 (Tex.App.-Texarkana 2001, no pet. h.) (designated for publication) (holding counsel deficient because she could have had no reasonable basis for not objecting to certain inadmissible evidence, despite no evidence of counsel’s strategy).

¶32The Fourth Amendment Law Governing this Case

¶33Officers entering a dwelling generally must knock and announce their identity and purpose before attempting forcible entry. Wilson v. Arkansas, 514 U.S. 927, 929, 934, 115 S.Ct. 1914, 1915, 1918, 131 L.Ed.2d 976 (1995). There is no blanket exception to this knock-and-announce re*208quirement for felony drug investigations. Richards v. Wisconsin, 520 U.S. 385, 387-88, 117 S.Ct. 1416, 1418, 137 L.Ed.2d 615 (1997). Rather, to justify any no-knock entry, the police must have reasonable suspicion that knocking and announcing their presence would, under the particular circumstances, be dangerous or futile or would inhibit the effective investigation of the crime by, for instance, allowing the destruction of evidence. Richards, 520 U.S. at 394, 117 S.Ct. at 1421. Texas courts have applied the rules established in Wilson and Richards. See Stokes v. State, 978 S.W.2d 674, 676 (Tex.App.-Eastland 1998, pet. ref'd); see also Robinett v. Carlisle, 928 S.W.2d 623, 627 n. 5 (Tex.App.Fort Worth 1996, writ denied).

¶34The Facts Governing this Case

¶35Of those executing the search warrant, only Officer Kwiatkowski had driven by appellant’s home the night before, received the informant’s tip, and sworn out the search warrant affidavit. Officer Kwiat-kowski testified as follows about the entry:

¶36Direct Examination:

State: And what happened once you got there?

Officer: We ran up to the front door, I opened the screen door and let Officer Fuller use the battering ram to force the front door of the house open.

State: Before Officer Fuller — did he actually use the battering ram?

Officer: He did.

State: Did you-all make your presence known or did you announce yourself?

Officer: Yes. We yelled. When we were running up there we yelled, “police, search warrant.”

State: Okay. And did you do that in a loud voice?

Officer: Yes, I did.

State: And is that normally — is that ■procedure for the Houston Police Department?

Officer: Yes, it is.

State: Do you have to ring the bell or knock a couple of times and allow somebody to answer the door before you are allowed, with that legal search warrant, to enter the house?

Officer: No, ma’am.

State: Okay. Uhm, based on your training and experience, and the policy of the Houston Police Department, would that be feasible, to knock and just simply wait until somebody opened the door?

Officer: No, not on a narcotics search warrant, ma’am.

State: Okay. And this was a felony search warrant; is that correct?

Officer: Yes, that’s correct.

State: So Officer Fuller, uhm, after he used the, uhm, battering ram, tell the jury what happened next.

Officer: I then ran inside the residence and I ran into the kitchen area.

State: Okay. And were you the only one to enter the house?

Officer: No. The other officers entered behind me.

State: Okay. Did they enter immediately or was there some pause between the time you went in and the time they went in?

Officer: There was some pause. Like I would go through a doorway, then the other officers would follow suite [sic], go through the doorway, also.

State: Okay. And did you all have your weapons drawn?

Officer: I know that I did. I’m assuming that everybody else did, yes.

*209State: Is that normal procedure when you’re executing a felony search warrant?

Officer: Yes, it is.

State: Did you have any idea of who was going to be in the house when you entered?

Officer: At that point I did not, no.

State: Did you have any idea as to whether anybody inside the house was going to have any type of weapons?

Officer: No, I did not know at that time.

State: When you-all approached the house, can you tell us if you observed any type of vehicles in the front yard or the driveway or on the front — uhm, on the street in front of the house?

Officer: No. The only vehicle I observed there was a white Chevy pickup truck parked directly behind the house. There was [sic] no vehicles in the driveway at that time.

[[Image here]]

¶37Cross Examination:

Appellant: And when did you meet with the other officers to, uhm, to plan this raid?

Officer: Approximately a half hour before we actually executed the warrant. ...

Appellant: And you were the head of this raid; is that correct?

Officer: Yes, sir. It was my search warrant, so I was with the one that supplied all the other officers with information, yes.

Appellant: What did Sergeant Yencha do?

Officer: He is a supervisor. I mean, I wouldn’t — you know, whatever I decided to do, he would be the one ultimately decides yes, we will do it, or no, we’ll not do it.

Appellant: So you’re more or less the boss?

Officer: I mean—

Appellant: Subject to his approval?

Officer: Yes, sir, that’s comet....

Appellant: Okay. And, uhm, how do you usually plan a raid? I mean, what are your main concerns as far as police procedure goes?

Officer: Would be how to approach the house and who is going to go inside, who’s going to use the battering ram and who’s going to go to the rear of the house....

Appellant: Okay. So when you — when you and the other five officers busted into that house you didn’t have any idea who was there; did you?

Officer: At that time, no, I did not, sir.

Appellant: Uhm, and you didn’t have any idea who actually lived there; did you?

Officer: No. I mean, I was not sure.

Appellant: Of your own personal knowledge?

Officer: No, sir.

Appellant: Okay. So, you — uhm, Officer Fuller busted in the door with the battering ram, and you never, uhm, knocked on the door or rang the doorbell or anything like that; did you?

Officer: No, sir, we did not.

¶38(Emphasis added.)

¶39Applying the Law to the Facts

¶40Appellant argues that (1) Officer Kwiat-kowski’s testimony fails the knock-and-announce test as a matter of law; (2) a knock-and-announce suppression ground would thus necessarily have been meritorious; (3) no reasonable trial strategy can therefore explain omitting the knock-and-announce suppression ground; and (4) appellant’s offense would have dropped to a state-jail felony had the cocaine in the *210home been suppressed. See Tex. Health & Safety Code AnN. § 481.115(b) (Vernon 1992). On this record, I agree.

¶41Officer Kwiatkowski’s testimony exemplifies the sort of non-specific, blanket justification for failing to knock and announce that the U.S. Supreme Court specifically rejected in Richards.4 See id.,520 U.S. at 387-88, 117 S.Ct. at 1418. Officer Kwiat-kowski testified to no particular circumstances that would have given any of the raid officers reasonable suspicion that knocking and announcing here would have been dangerous or futile or would have inhibited their investigation. See id.To the contrary, his testimony shows the opposite of this standard: Officer Kwiatkow-ski was the only raid officer with personal knowledge of the case beforehand; he had no knowledge of who lived there, whether they were home, or whether they were armed; and he described no exigent or other emergency circumstances that would justify the officers’ failure to knock and use of a battering ram to enter.

¶42Despite all of this, counsel never challenged the home’s search on the ground of failure to knock and announce. What valid trial strategy can explain not raising what is, on the current record, a hands-down-winning challenge that, if sustained, would have reduced appellant’s crime to a state-jail felony5 and, if overruled, would have preserved a meritorious issue for appeal?6 There is none.

¶43The State suggests two possible strategies, both of which are patently without merit:

[T]he record shows appellant’s attorney vigorously attempted to suppress the search and arrest warrant....

[Ajppellant’s counsel also urged a motion in limine requesting supporting probable cause for the issuance of the warrant not be brought before the jury. Because that motion in limine was granted, and the record is void of the information contained in the supporting affidavit, it is very possible that appellant’s trial counsel actually had a strategy to not challenging the officers’ failure to knock and announce. Moreover, challenging the “no knock” execution might have defeated the purpose behind the motion in limine because the State would have then had the burden to reveal any particularized circumstances that would have justified a no-knock entry — evi*211dence likely contained in the suppressed [sic] supporting affidavit regarding information supplied by the informant.

¶44First, the fact that counsel vigorously pursued the suppression motion on other grounds does not explain or excuse his omitting the winning ground. And defense counsel’s vigorous suppression effort shows that, contrary to the en banc majority opinion, it was never defense counsel’s strategy to allow all the cocaine into evidence. The en banc majority states that counsel’s strategy may have been to let in the cocaine from the house because that would have strengthened appellant’s claim that Officer Kwiatkowski planted cocaine in both the house and the car. If that had been defense counsel’s strategy, he never would have moved to suppress the cocaine from either the house or the car on any grounds. A “vigorous” attempt to suppress either the cocaine in the car or the cocaine in the house would have been wholly inconsistent with the majority’s “all or nothing” strategy.

¶45The State’s other purported strategy asserts that if appellant had raised the knock-and-announce 'ground, the search warrant affidavit might have become admissible, thus bringing damaging evidence before the jury. That argument also has no merit because the affidavit contains no evidence that announcing would have proved dangerous or futile or would have inhibited the investigation.7 And even if that affidavit contained such information, suppression motions are not heard by the jury. See Russell v. State, 904 S.W.2d 191, 200 (Tex.App.-Amarillo 1995, pet. ref'd); Tex.R. Evid. 104(a) (“Preliminary questions concerning ... the admissibility of evidence shall be determined by the court ....”); id. 104(c) (preliminary hearing “shall be conducted out of the hearing of the jury when the interests of justice so require or in a criminal case when an accused is a witness and so requests.”). Federal constitutional law affords the same protection. Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct. 967, 973-76, 19 L.Ed.2d 1247 (1968) (search and seizure); Burgett v. Texas, 389 U.S. 109, 112-13, 88 S.Ct. 258, 260-61, 19 L.Ed.2d 319 (1967) (denial of counsel); Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App.1984) (confession); Cooper, 769 S.W.2d at 303-04 (counsel held ineffective for allowing motion to suppress to be heard in jury’s presence). Thus, even if counsel had raised the knock-and-announce ground and the State had responded with the affidavit (or other extraneous offense type evidence), the jury would not have seen it.

¶46Nor do I agree with the en banc majority’s statement, in footnote two, that the exclusionary rule might not apply here, even if the police violated the knock-and-announce rule. The United States Supreme Court may not yet have decided whether exclusion of the evidence is the proper remedy, but the Texas Legislature has: “No evidence obtained by an officer ... in violation of any provisions of ... the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” Tex.Code CRiM. Pkoc. AnN. art. 38.23(a) (Vernon Supp.2002). So has the Fifth Circuit. See United States v. Cantu, 230 F.3d 148 (5th Cir.2000) (excluding evidence to remedy Fourth Amendment violation of searching house without first knocking and announcing).

¶47I would sustain issue one, reverse the judgment, and remand the cause.