No. 05-02-00678-CR
Opinion Filed July 8, 2003 Do Not Publish
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-54007-JR. Affirmed
Before Justices JAMES, FRANCIS, and LANG.
Opinion by Justice Francis.
Ronald Charles Ervin appeals his conviction for possession of cocaine in an amount of four grams or more but less than two hundred grams. A jury convicted appellant of the crime. Before the trial court, appellant pleaded true to two enhancement paragraphs. The court found the enhancement paragraphs true and assessed punishment at thirty-three years in prison. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response, presenting five grounds he asserts are arguable issues. We have reorganized appellant's grounds for ease of discussion. Appellant contends the indictment in this case is defective, he received ineffective assistance of counsel at trial and on appeal, there is insufficient evidence to support his conviction, and he was incorrectly sentenced. To support some of his arguments, appellant relies on several "exhibits" attached to his pro se response or mailed under separate cover. We will not consider those "exhibits" that do not appear in the appellate record. See Bell v. State, 938 S.W.2d 35, 53 (Tex.Crim.App. 1996).
Defective Indictment
In his first ground, appellant complains the indictment in this case is "deficient." Appellant contends the address listed at the top of the indictment is not sufficiently specific and that the indictment does not show a violation of law on its face because it does not "contain a certification from the secretary of state" or an "enacting clause." Appellant also contends that rule of evidence 609(b) precludes the use of the two enhancement paragraphs. Defects of form or substance in indictments must be raised before trial, or else any error in the indictment is waived. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003); Ramirez v. State, 90 S.W.3d 884, 886 (Tex.App.-San Antonio 2002, pet. ref'd). Therefore, appellant has waived his complaints. Moreover, appellant's arguments are without merit. Although appellant correctly contends that Texas laws require an enacting clause and that the Texas Secretary of State must "authenticate the publication of the laws," see Tex. Const. arts III, § 29, IV, § 21, he provides no authority, and we can find none, requiring each indictment returned by a Texas grand jury contain an enacting clause or be approved by the Secretary of State. Similarly, appellant presents no authority that rule of evidence 609(b) applies to enhancement paragraphs. Rule 609(b) limits the use of prior convictions to impeach a witness, not the use of prior convictions to enhance punishment. See Tex.R.Evid. 609(b); Hudspeth v. State, 31 S.W.3d 409, 412 (Tex.App.-Amarillo 2000, pet. ref'd). Therefore, rule 609(b) is inapplicable in this situation. We conclude appellant does not present an arguable issue in his first ground. Ineffective Assistance of Counsel
In his second ground, appellant complains he received ineffective assistance of counsel at trial. Specifically, appellant contends counsel was ineffective for failing to file a motion to quash the indictment, file a discovery motion, file a motion to suppress, explain certain jury selection procedures, make a "request" under rule of evidence 404(b) or article 38.37 of the code of criminal procedure, or to object during the course of the trial. Appellant asserts counsel's performance was so defective that it amounted to no assistance, and requests we use the standard of review announced in United States v. Cronic, 466 U.S. 648 (1984). We decline appellant's request to apply Cronic in this case. Cronic created a "very limited exception" to the standard announced in Strickland v. Washington, 466 U.S. 668 (1984), for reviewing claims of ineffective counsel. See Haynes v. Cain, 298 F.3d 375, 380 (5th Cir. 2002). Under Cronic, prejudice is presumed if a defendant's counsel "completely fails to challenge the prosecution's case." Id. at 381. The record in this case shows counsel lodged objections to certain portions of the State's evidence, cross-examined the State's chemist and one of the arresting officers, presented evidence on appellant's behalf, and argued to the jury that the State had not proven its case beyond a reasonable doubt because of conflicts in the evidence and lack of evidence. Therefore, we cannot conclude appellant's trial counsel failed to challenge the State's case. We will apply the Strickland standard to review appellant's claims of ineffective assistance of counsel at trial. To prevail under the Strickland standard, appellant must show counsel's representation fell below an objective standard of reasonableness and a reasonable probability that a different outcome would have resulted but for counsel's error. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). We indulge a strong presumption of counsel's competence. Bone, 77 S.W.3d at 833. If the record does not affirmatively reflect ineffective assistance, we cannot say counsel's performance was deficient. Id. at 835-37. Appellant complains counsel should have flied a motion to quash, asserting the enhancement paragraphs or the entire indictment would have been quashed. Appellant does not offer any authority in this argument demonstrating that a motion to quash would have been successful. To show counsel was ineffective for failing to file a particular motion, appellant must prove the motion would have been granted. See LaFleur v. State, 79 S.W.3d 129, 137 (Tex.App.-Texarkana, 2002, no pet.) (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998)). Because appellant wholly fails to do so, we cannot say counsel was ineffective in this regard. Appellant next contends counsel should have filed a discovery motion, asserting it would have produced a defense. Appellant does not describe what defense could have been presented had a discovery motion been granted. Appellant fails to show any such defense would have been successful. Appellant also fails to show what would have been gained had counsel filed a "request" under rule of evidence 404(b) or article 38.37 of the code of criminal procedure. Thus, appellant fails to show how the results of his proceedings would have been different had counsel filed a discovery motion or made a "request" under rule of evidence 404(b) or article 38.37 of the code of criminal procedure. Therefore, appellant fails to show counsel's ineffectiveness in these regards. Bone, 77 S.W.3d at 833. Appellant also complains counsel did not inform appellant that he could request a jury shuffle or "could have challenged the racial mix of the jurors." There is no evidence in the record showing what, if anything, counsel told appellant regarding jury selection procedures. Moreover, appellant does not demonstrate how the results of his proceedings would have different had he been aware of these procedures. Therefore, appellant does not demonstrate counsel's ineffectiveness in this regard. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Next, appellant complains counsel should have filed a motion to suppress. Appellant contends there was no probable cause to seize the drugs he allegedly possessed. Appellant points out the arresting officers were responding to a kidnaping call, but no evidence was presented showing a kidnaping actually occurred. Appellant asserts the testimony of the arresting officers conflicted. Appellant also contends that article 38.17 of the code of criminal procedure requires two witnesses to testify to the seizure of the drugs. The State presented evidence at trial that officers Walker and McDonnald were investigating a kidnaping report when they spotted appellant standing near a house. As they approached appellant, he entered the house, ignored the officers' demands to stop, and tried to prevent the officers from coming inside. In his hand, appellant held a Styrofoam sandwich box. McDonnald thought appellant was the kidnaping suspect they were looking for, and attempted to detain him. A struggle ensued, resulting in appellant's arrest. During the struggle, appellant dropped the box inside the house, and the box opened. Walker took appellant to his police car. McDonnald went back into the house to check for other people, noticed the box on the floor, and saw it contained "a clear baggie with a white substance in it." The white substance was later identified as cocaine. Appellant's mother testified that McDonnald twice went back into the house after her son was taken to the police car. She saw nothing in the sandwich box as it lay open on the floor, and suggested McDonnald had planted the cocaine in the box. On a motion to suppress, the trial court is the exclusive fact finder and is in the best position to resolve fact issues. State v. West, 20 S.W.3d 867, 870 (Tex.App.-Dallas 2000, pet. ref'd). In this case, the trial court could have reasonably found that the officers had reasonable suspicion to detain appellant based on the kidnaping call. Appellant matched the description of the suspect, was seen outside the house where the victim was supposedly taken, and was near a car believed to have been used in the incident. See, e.g., Goldberg v. State, 95 S.W.3d 345, 360-61 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Appellant's flight gave the officers probable cause to arrest him for evading detention. See Tex. Pen. Code Ann. § 38.04 (Vernon 2003); Mottley v. State, 841 S.W.2d 550, 551 (Tex.App.-Houston [1st Dist.] 1992, no pet.). McDonald saw the baggie containing cocaine in plain view and seized it. See Walter v. State, 28 S.W.3d 538, 541 (Tex.Crim.App. 2000). Under these factual circumstances, the trial court could have reasonably concluded that the cocaine was legally seized. Appellant asserts article 38.17 of the code of criminal procedure applies to the seizure of the cocaine. Article 38.17 provides that: [i]n all cases, where, by law, two witnesses, or one with corroborating circumstances, are required to authorize a conviction, if the requirement be not fulfilled, the court shall instruct the jury to render a verdict of acquittal, and they are bound by the instruction. Tex. Code Crim. Proc. Ann. art. 38.17 (Vernon 1979). Appellant provides no authority, and we can find none, to support his assertion that article 38.17 applies to suppression proceedings or to prosecutions for cocaine possession. We conclude appellant has not shown that a motion to suppress would have been successful and does not show counsel's ineffectiveness in this regard. Appellant contends counsel should have objected more often during trial. However, appellant does not specify in his response instances in the record where his counsel should have objected or indicate what legal grounds counsel could have used to lodge an objection. Without references to the record to support his assertions, we cannot evaluate appellant's claims. See, e.g., Thompson v. State, 915 S.W.2d 897, 906 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Thus, appellant does not demonstrate the ineffectiveness of his counsel. We conclude appellant does not present an arguable issue in his second ground. Sufficiency of the Evidence
In his third ground, appellant contends the evidence is insufficient to support his conviction because much of it was illegally obtained. Appellant does not clearly state he is challenging the factual sufficiency of the evidence. Therefore, we conclude appellant's complaint is to the legal sufficiency of the evidence. See Dorsey v. State, 940 S.W.2d 169, 173 (Tex.App.-Dallas 1996, pet. ref'd). When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). Even erroneously admitted evidence should be considered in a legal sufficiency review. See Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). To prove the crime of possession of cocaine as alleged in the indictment, the State was required to show appellant knowingly exercised care, custody, and control over the cocaine and that the cocaine weighed four grams or more but less than two hundred grams. See Tex. Health Safety Code Ann. § 481.115(d) (Vernon 2003); Warren v. State, 971 S.W.2d 656, 661 (Tex.App.-Dallas 1998, no pet.). In this case, appellant attempted to elude police while holding a white box in his hand. During a struggle with the police, appellant dropped the box, which popped open. Inside the box was cocaine. Appellant does not dispute the amount of cocaine found was fifty-six grams. We conclude this evidence is legally sufficient to support appellant's conviction. See, e.g., Warren, 971 S.W.2d at 661-62. Therefore, appellant does not present an arguable issue in his third ground. Invalid Sentence
In his fourth ground, appellant complains he was incorrectly sentenced because the enhancement paragraphs in the indictment were invalid. Appellant does not indicate why the enhancement paragraphs were invalid. We have already discussed appellant's argument concerning the application of rule 609(b) of the rules of evidence to his enhancement paragraphs and concluded it was meritless. Intentional possession of cocaine in an amount of four grams or more but less than two hundred grams is a second-degree felony punishable by imprisonment for not more than twenty years but no less than two years and an optional fine not to exceed $10,000. Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.115(d) (Vernon 2003); Tex. Pen. Code Ann. § 12.33 (Vernon 2003). Upon a showing of two prior consecutive felony convictions, the applicable penalty range is elevated to twenty-five to ninety-nine years or life imprisonment. See Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003). Here, the jury convicted appellant of second-degree felony possession of cocaine, and the trial court found appellant had two prior consecutive felony convictions. Therefore, appellant's thirty-three year sentence is within the proper range of punishment under section 12.42(d) of the penal code. We conclude appellant does not present an arguable issue in his fourth ground. Ineffective Assistance of Counsel on Appeal
In his fifth ground, appellant complains he received ineffective assistance of counsel on appeal. Specifically, appellant complaints counsel never contacted him and failed to present the complaints appellant presents in his pro se response. Because we ultimately conclude there is nothing in the record that might support this appeal, we decline to address appellant's contentions regarding his counsel on appeal. Conclusion
We have reviewed the record, counsel's brief, and appellant's response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.