Opinion
No. 06-07-00044-CR
Date Submitted: August 28, 2007.
Date Decided: September 5, 2007. DO NOT PUBLISH.
On Appeal from the 124th Judicial District Court, Gregg County, Texas, Trial Court No. 33109-B.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Ronnie Lee Andrews was convicted by a jury for possession of a controlled substance and assessed a punishment by that jury of fifteen months' confinement in a state-jail facility. On appeal, Andrews raises three points of error, maintaining that: (1) the evidence is legally insufficient, (2) the evidence is factually insufficient, and (3) he received ineffective assistance of counsel.
Facts
Officer Harry Christopher Clark, a traffic officer for the City of Longview Police Department, was dispatched around one o'clock in the morning to a convenience store in Longview, Texas, regarding a suspicious circumstance involving what was reported to involve a blue Ford LTD with Colorado license plates. When Clark arrived, he found Andrews at that location, sitting at the wheel of a blue Mercury Grand Marquis; he was accompanied in the car by Kelly Jones (seated in the front passenger seat) and Stephanie Wiley (seated in the back seat). Officer Clark testified he detected the odor of burning marihuana when he approached the Mercury. Nearby was a black Toyota with Colorado license plates. The occupants of the vehicles claimed that there was no reason for suspicion, that they were merely sitting in the vehicles and talking with one another. When asked by Officer Clark if he had any drugs in his possession, Andrews handed the officer a prescription bottle that contained several different prescription medications. At some time during the confrontation, a second officer, Officer Niebert, arrived. A warrant check requested by Clark revealed that an outstanding warrant existed for Jones's arrest for a parole violation. While in the process of placing Jones under arrest on that outstanding warrant, Officer Clark observed Wiley "reaching down between her legs doing something." The officers discovered a glass cylindrical pipe typical of a pipe used to smoke crack cocaine and a leafy residue, which Clark believed to be the remains of marihuana, in a cigar wrapper in the area of the car where Wiley had been seated. The police officers further discovered a second glass pipe of the type often used for the smoking of crack cocaine, which contained a small quantity of crack cocaine; the record is not clear whether it was on the seat where Andrews had been seated or whether it was beneath that seat. Officer Clark testified that he could not recall whether any of the passengers remained in the vehicle after Andrews exited the vehicle, but Andrews testified that Jones was still in the vehicle when he exited the car.Legal Sufficiency
In his first point of error, Andrews argues that the evidence is legally insufficient to sustain his conviction because there was insufficient evidence to link him to the crack cocaine which was found in the car in which he was located. In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). When an accused is not in exclusive possession of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances which affirmatively link him to the contraband. Poindexter v. State, 153 S.W.3d 402 (Tex.Crim.App. 2005); Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995). The "affirmative links" or "links" must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous. Brown, 911 S.W.2d at 747. When determining whether the requisite independent facts link the defendant to the contraband, some recognized factors which courts should take into account include whether:(1) the contraband was in plain view or recovered from an enclosed place; (2) the accused was the owner of the premises or the place where the contraband was found; (3) the accused was found with a large amount of cash; (4) the contraband was conveniently accessible to the accused; (5) the contraband was found in close proximity to the accused; (6) a strong residual odor of the contraband was present; (7) the accused possessed other contraband when arrested; (8) paraphernalia to use the contraband was in view, or found on the accused; (9) the physical condition of the accused indicated recent consumption of the contraband in question; (10) conduct by the accused indicated a consciousness of guilt; (11) the accused attempted to flee; (12) the accused made furtive gestures; (13) the accused had a special connection to the contraband; (14) the occupants of the premises gave conflicting statements about relevant matters; (15) the accused made incriminating statements connecting himself or herself to the contraband; (16) the quantity of the contraband; and (17) the accused was observed in a suspicious area under suspicious circumstances.Washington v. State, 215 S.W.3d 551, 554 (Tex.App.-Texarkana 2007, no pet.). Andrews argues that the only evidence presented by the State to establish a link between him and the cocaine was that he was the driver and owner of the vehicle. The evidence, however, established several other links of Andrews to the contraband. The contraband was found in close proximity to Andrews, the driver, and easily accessible by him. In addition, Andrews admitted to being addicted to cocaine and testified he has been addicted for "[m]ay be eight or ten years" and testified he would "always be addicted." Andrews had testified it had been a "[c]ouple of years or so" since he had used crack cocaine before the arrest, but acknowledged that it was possible that he had used it since he was arrested for the offense for which he was on trial. On cross-examination, Andrews admitted he was "paying out" on a ticket he received; although the testimony is not definitive, this may have been for possession of a crack pipe. The car in which Andrews was seated also contained a strong odor of marihuana and was observed in a suspicious area under suspicious circumstances. The number of links is not as important as the degree to which the independent facts and circumstances tend to link the defendant to the controlled substance. Id. at 555. In other words, the question to be answered is "whether there was evidence of circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance." Evans v. State, 202 S.W.3d 158, 161 n. 9 (Tex.Crim.App. 2006). The independent evidence is sufficient for the jury to tend to link the defendant to the controlled substance. The evidence is legally sufficient to support Andrews's conviction. Shumate testified that the substance in the second glass pipe that the officers found beneath the seat contained approximately 0.04 grams of crack cocaine. We conclude that a rational trier of fact could have found beyond a reasonable doubt that Andrews exercised care, custody, control, and management over the contraband and that he knew the substance possessed was contraband.
Factual Sufficiency
In his second point of error, Andrews claims the evidence is factually insufficient. In a factual sufficiency review, we review all the evidence, but do so in a neutral light and determine whether the evidence supporting the verdict is so weak or is so outweighed by the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). Andrews denied having possession of the crack pipe containing the cocaine or to the knowledge or awareness that contraband was in the car. According to Andrews, he would not have allowed anyone to smoke marihuana in his car. Andrews testified that he had "always owned up to what [he'd] done" and that he believed the cocaine found in the car belonged to Jones, one of the other occupants. According to Andrews, Jones remained in the vehicle for "quite some time" after Andrews had exited the car pursuant to Officer Clark's instruction to do so. Although Andrews admitted to his addiction to cocaine, he denied having used cocaine on the night he was arrested. The great weight and preponderance of the evidence does not establish that the jury's verdict is clearly wrong or manifestly unjust. Reconciliation of conflicts in the evidence is within the exclusive province of the jury as the sole judge of witness credibility. Clewis, 922 S.W.2d at 132 n. 10. The jury was not required to believe Andrews's version of events and the evidence is not so weak that the jury's verdict is clearly wrong. The fact that the State did not present evidence of every conceivable link which the courts have recognized as being pertinent or affirmative ties does not lead us to conclude that the evidence is factually insufficient. "Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur." Roberts, 220 S.W.3d at 524. We are unable to reach the high level of skepticism required to reverse the jury's verdict. Andrews's second point of error is overruled.Ineffective Assistance of Counsel
In his final point of error, Andrews contends that he received ineffective assistance of counsel. To succeed on appeal in raising a claim that one's trial counsel provided ineffective assistance, an appellant must demonstrate by a preponderance of the evidence (1) that counsel's representation fell below an objective standard of reasonableness and (2) that this deficient performance prejudiced the appellant's defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Andrews v. State, 159 S.W.3d 98, 100-01 (Tex.Crim.App. 2005); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Under Strickland, the appellant "must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686; Mosley v. State, 141 S.W.3d 816, 826 (Tex.App.-Texarkana 2004, pet. ref'd). The appellant must meet his burden as to both prongs of the Strickland test; should the proof fail as to either, then we must overrule the claim of ineffective assistance. Mosley, 141 S.W.3d at 825-26. For example, under Strickland's first prong, if we can envision a legitimate trial strategy to explain counsel's alleged ineffectiveness, then we are precluded from sustaining the appellant's claim of reversible error. See Goodspeed v. State, 187 S.W.3d 390, 392-93 (Tex.Crim.App. 2005). We begin our analysis of an ineffective assistance claim with the presumption that counsel performed competently at trial. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We also presume that counsel's decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). We will not conclude that the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.; see Thompson, 9 S.W.3d at 814. Andrews argues that he received ineffective assistance of counsel because his trial counsel failed to object to inadmissible impeachment evidence. Specifically, Andrews claims that some of the convictions elicited by the State were too remote in time to be admissible as impeachment evidence and that the State solicited details concerning prior convictions (such as the sentences which were assessed and the underlying facts) which were inadmissible. On direct examination, Andrews preemptively admitted to numerous prior convictions in an attempt to minimize any damage. As mentioned previously, Andrews admitted to at least four convictions for possession of less than one gram of a controlled substance since 1997. On cross-examination, Andrews admitted to having been arrested for possession of crack cocaine in his car and at his house on "many" occasions. In addition, Andrews admitted on cross-examination to having been convicted of delivery of a controlled substance in 2003. The State also questioned Andrews concerning a 1976 conviction for the burglary of a habitation (for which he received an eleven-year sentence) as well as a conviction for possession of a controlled substance in 1996. When a defendant voluntarily testifies before a jury, he is subject to the same rules governing cross-examination as any other witness. See Bryan v. State, 837 S.W.2d 637, 643 (Tex.Crim.App. 1992). However, Rule 608(b) of the Texas Rules of Evidence provides that specific instances of a witness's conduct may not be the subject of inquiry on cross-examination of the witness for the purpose of supporting or attacking the witness's credibility except for impeachment of the witness regarding a conviction of a crime as provided in Rule 609. See Tex. R. Evid. 608, 609. Under Rule 609(b), impeachment of this nature has its limits; a prior conviction is presumed to be too remote after ten years from the date of conviction or the release of the witness from custody (whichever is the later date). Tex. R. Evid. 609(b); Jackson v. State, 50 S.W.3d 579, 591 (Tex.App.-Fort Worth 2001, pet. ref'd). Nevertheless, even convictions which are presumed to be remote may be admitted should the court determine that, "in the interests of justice" and under "specific facts and circumstances," the probative value of the conviction substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). Whether to admit remote convictions lies within the trial court's discretion and depends on the facts and circumstances of each case. Jackson, 50 S.W.3d at 591. Trial counsel may have reasonably concluded that an objection based on remoteness would be overruled, believing it possible that the probative value under these circumstances substantially outweighed the prejudicial effect, rendering such an objection futile. Even making the assumption (which we do not) that the specific details concerning Andrews's prior convictions were subject to valid objections had they been interposed, counsel may have decided not to object to this evidence for reasons of trial strategy. When, as in this case, trial counsel's reasons for the challenged conduct do not appear in the record, we will assume a strategic motivation if any can be imagined. Garcia, 57 S.W.3d at 440. The strategy of trial counsel may have been to convince the jury his client was being open and forthright, not attempting to conceal any evidence from the jury. It is common lore, and trial counsel may have believed, that a jury prefers to hear the full story and that a jury often may resent what it perceives as efforts to restrict the evidence it hears. Based on this strategy, trial counsel may have decided to withhold objections so as to prevent the jury from developing an impression that counsel was being overly litigious and objecting at every possible opportunity in an effort to stonewall evidence. Ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 835. Further, ineffective assistance of counsel claims must be evaluated based on the totality of the circumstances. Strickland, 466 U.S. at 693. "Isolated failures to object to certain procedural mistakes or improper evidence or argument do not constitute ineffective assistance of counsel." Wenzy v. State, 855 S.W.2d 52, 53 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). Andrews was not entitled to errorless counsel. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). Andrews has failed to show, under the totality of the circumstances, that his trial counsel's performance was so outrageous that no competent attorney would have engaged in it. Trial counsel's performance was not shown to be deficient. Finally, Andrews failed to meet the second prong of Strickland. Other than claiming that the harm is "obvious and clearly contributed to the conviction," Andrews fails to make any effort to prove "reasonable probability" that the result of the trial would have been different if counsel had taken the steps which Andrews now says he should have taken. Even had Andrews shown the performance of trial counsel was deficient, Andrews has failed to show a "reasonable probability" that, absent trial counsel's alleged errors, the end result of the trial would have been different. "It is critical that an appellant demonstrate the record shows both the alleged deficiency(ies) and the alleged prejudice." Bessey v. State, 199 S.W.3d 546, 555 (Tex.App.-Texarkana 2006, pet. granted). We overrule Andrews's third point of error. We affirm the judgment.Officer Clark testified the occupants of the blue Mercury and the occupants of the black Toyota were inconsistent concerning whether they knew each other. The record suggests, but is unclear, that there may have been a fourth occupant of the blue Mercury.
Karen Shumate, a chemist with the Texas Department of Public Safety, identified the pills, based on their markings, as Oxybutynin chloride, a bladder control medication; Methocarbamol, a muscle relaxant; Felodipine, a blood pressure medication; Zocor, a cholesterol medication, Omeprazole, a stomach medication; a children's aspirin; and two unmarked pills, which were not identified due to a lack of markings. Shumate testified the pills were most likely all prescription drugs that are not illegal to possess with a prescription and are unlikely to be abused. Andrews testified he had a prescription for all of the medications in the pill bottle. Andrews, a Vietnam veteran, testified he was injured during the war and the injury has gotten progressively worse. On his last medical visit before the trial, the doctors informed Andrews he had less than a year to live. Andrews testified that he had seventeen prescription drugs which he had to take every day and that he would carry them around in a single pill bottle for convenience.
The Texas Court of Criminal Appeals has indicated a preference for the term "links," reasoning that the modifier "affirmative" adds too much confusion within the context of a factual sufficiency review. Evans v. State, 202 S.W.3d 158, 162 (Tex.Crim.App. 2006).
The parties have not directed us to where in the record the ownership of the blue Mercury is established. However, a rational juror could infer from the evidence that Andrews owned the car in question. Andrews consistently refers to the car as "my car" and, when asked if he still owned the vehicle, Andrews testified he had "sold it recently" because he is no longer able to drive due to his medical conditions.
Andrews later clarified this testimony and explained he believed one could quit using crack cocaine but would, nevertheless, always remain an addict.
The events in question occurred on or about November 26, 2004, and the trial in this case occurred on February 21, 2007.
Although not clear from the record, Andrews suggested on redirect testimony that the ticket he was "paying out" may not have been for the drug paraphernalia charge, but due to a "mix up or oversight" or because the ticket had "been there for quite some time."
We note, when a defendant takes the stand and gratuitously testifies concerning certain evidence, he opens the door to the prosecutor's use of such evidence. See Gaffney v. State, 940 S.W.2d 682, 687 (Tex.App.-Texarkana 1996, pet. ref'd) (op. on reh'g). The State does not argue that Andrews opened the door.
Prior to the adoption of the Texas Rules of Evidence, it was commonly held that a defendant's more recent convictions can revive an otherwise presumptively remote conviction. We note that both the Fort Worth and Houston's First District Courts of Appeals have held that this tacking doctrine exception has survived the adoption of the new Texas Rules of Evidence. See Jackson, 50 S.W.3d at 591-92; Hernandez v. State, 976 S.W.2d 753, 755 (Tex.App.-Houston [1st Dist.]), pet. ref'd, 980 S.W.2d 652 (Tex.Crim.App. 1998) (Womack, J., concurring on refusal to grant State's petition for review). But see Hankins v. State, 180 S.W.3d 177, 180 (Tex.App.-Austin 2005, pet. ref'd) (refusing to apply the "tacking doctrine"). Under the exception, "[e]vidence of the lack of reformation through subsequent felony and certain misdemeanor convictions may then cause the prior conviction to fall outside the general rule and not be subject to the objection of remoteness." Jackson, 50 S.W.3d at 591. It is not necessary for us to decide in this case whether the above exception survived the adoption of the Texas Rules of Evidence.