NO. 01-05-00843-CR.
Opinion filed March 1, 2007 DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).
On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 1001710.
PANEL CONSISTS OF JUSTICES NUCHIA, KEYES, and HIGLEY.
SAM NUCHIA, Justice
MEMORANDUM OPINION
Appellant, Damon C. Howard, was charged by indictment with possession of at least 400 grams of cocaine with intent to deliver. Appellant entered a plea of not guilty and waived a jury trial. The trial court found appellant guilty as charged and assessed punishment at confinement for 30 years. In his appeal, appellant challenges the legal and factual sufficiency of the evidence to support his conviction and asserts that his counsel was ineffective at the guilt-innocence phase of trial. He also contends that he is entitled to a new trial because the appellate record is incomplete. We affirm. BACKGROUND
Trooper O.K. Jacobs, the only witness at trial, testified to the events surrounding appellant's arrest. At about 11:15 a.m. on September 22, 2004, Jacobs stopped a car that was eastbound on I-10 moving from side to side within its lane, touching both lines. The car had two occupants, and Jacobs had seen the driver, appellant, drinking something as he drove. Jacobs approached the driver's side of the car and asked appellant to step out. Jacobs asked to see appellant's driver's license, and, when told that the car was a rental car, asked to see the rental agreement. The rental agreement was in the passenger's name, and appellant was not named as a driver. Jacobs questioned each of the men about their destination, and they gave conflicting answers. At some point, Jacobs arrested the passenger for outstanding warrants. Jacobs asked appellant for permission to search the car, and appellant consented. In the trunk of the car, Jacobs found a clear plastic grocery bag containing cleaning supplies and other items, including Comet cleaner, Tide detergent, Super Glue, and sandwich bags. A receipt in the bag indicated that three tubes of Super Glue, one 63-ounce box of Tide detergent, sandwich bags, Comet powder, and other cleaning supplies had been purchased that morning at 9:23. As Jacobs spoke with appellant during the investigation, appellant appeared to have knowledge of the bag and its contents, and, in fact, admitted that he did. Jacobs asked appellant about the cleaning supplies, and appellant said that they were going to Lafayette to clean a house. Jacobs examined the box of Tide and saw that it had been cut open and resealed with Super Glue, which was visible on the bottom of the box. He opened the box and saw a clear bag containing a white powder. He placed the bag in another plastic bag, sealed it, and sent it to the lab for testing. The lab report showed that the bag contained 499.04 grams of cocaine. DISCUSSION
Legal and Fatual Sufficiency In his first two points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction. In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the verdict to determine "whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been the factfinder. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the factfinder's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the factfinder's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the factfinder's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Under both legal and factual sufficiency, the factfinder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Jaggers v. State, 125 S.W.3d 661, 671 (Tex App. — Houston [1st Dist.] 2003, pet. ref'd). The factfinder may believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). This standard of review applies to both direct and circumstantial evidence cases. King, 29 S.W.3d at 565. Appellant argues that a rational trier of fact could not have found, beyond a reasonable doubt, that he committed the offense of possession of a controlled substance because the record reflects that appellant was not alone in the car, did not own the car, consented to the search of the car, and had no outstanding warrants; appellant's name was not on the rental agreement; no fingerprints link appellant to the cocaine; the passenger rented the car, had outstanding warrants, and was placed under arrest for his warrants; and the facts suggest that the cocaine found in the car trunk was put there by the passenger. A person commits the offense of possession of cocaine with intent to deliver if the person knowingly possessed cocaine with intent to deliver. Tex. Health Safety Code Ann. §§ 481.002(8), 481.102(3)(D), 481.112(a) (Vernon 2003 Supp. 2006). To establish knowing possession, the State must prove that the accused (1) exercised actual care, custody, control, or management over the contraband and (2) the accused knew the substance he possessed was contraband. Tex. Health Safety Code Ann. § 481.002.(38) (Vernon Supp. 2006); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Knowledge may be inferred from the circumstances. Linton v. State, 15 S.W.3d 615, 618 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). When the defendant is not in exclusive possession of the place where the contraband is found, additional independent facts and circumstances must affirmatively link the defendant to the contraband. Avila v. State, 15 S.W.3d 568, 573 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Intent to deliver is a question of fact and may be established by circumstantial evidence. Id. In this case, appellant was the driver of the automobile in which the cocaine was found; appellant told Jacobs that he was going to use the cleaning supplies to clean a house in Lafayette, thus establishing that he knew the cleaning supplies were in the trunk; and the occupants of the car gave conflicting statements about where they were going. In addition, Jacobs indicated that appellant admitted that he knew what was in the bag. These facts are sufficient to show that appellant had actual control over the cocaine and knew that it was cocaine, and they affirmatively link appellant to the cocaine, even though his possession may not have been exclusive. We hold that this evidence is legally sufficient to support appellant's conviction. With regard to factual sufficiency of the evidence, appellant asks us to review the credibility of the evidence, arguing that "the entire point of the state constitutional grant of authority to review factual sufficiency is precisely to allow this court to review credibility." Appellant cites no authority for his argument, and it is clearly wrong. We reiterate our standard of review: the factfinder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses' testimony. Jaggers, 125 S.W.3d at 671. At trial, appellant produced no evidence contrary to the State's evidence of guilt. We hold that the evidence is not factually insufficient. We overrule appellant's first two points of error. Ineffective Assistance of Counsel
In his third point of error, appellant contends that he received ineffective assistance of counsel. The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for the counsel's error, there is a reasonable probability that the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). It is the defendant's burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93. Our review of trial counsel's representation is highly deferential, and we must presume that counsel's actions came within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59,63 (Tex.Crim.App. 2001). The Court of Criminal Appeals has often noted that, usually, the record on appeal is insufficient to establish that an appellant's representation at trial was ineffective, and that a petition for writ of habeas corpus is the more appropriate vehicle by which to raise a claim of ineffective assistance of counsel. See, e.g., Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Here, appellant argues that his counsel was ineffective because he did not (1) move to weigh the cocaine without the packaging, (2) make an opening statement, (3) object to the admission into evidence of the cocaine, and (4) object to Jacobs's testimony that appellant appeared to know what was in the trunk. Appellant filed a motion for new trial in which his only complaint was, "The verdict is contrary to the law and evidence." Although appellant filed a motion for new trial, the record does not show that he requested a hearing on the motion. The record is silent as to why appellant's trial counsel did not move to weigh the cocaine without the packaging, make an opening statement, object to the admission into evidence of the bag of cocaine, or preserve error on his objection to the officer's testimony that appellant appeared to know what was in the trunk. See Gamble, 916 S.W.2d at 93. To find that trial counsel was ineffective based on the asserted grounds would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Gamble, 916 S.W.2d at 93. We overrule appellant's third point of error. Missing Record
In his fourth point of error, appellant contends that he is entitled to a new trial under rule 34.6(f)(3) of the Texas Rules of Appellate Procedure because the pre-sentence investigation (PSI) report, the transcription of the hearing on the PSI, and the exhibits are missing from the record, although they were requested by appellant. Appellant contends that the missing record is necessary to his appeal because he "can claim ineffective assistance of counsel during punishment." Appellant does not specify the exhibits he considers to be necessary to his appeal, and the record does not contain any request for exhibits. However, we note that the PSI report includes 12 personal letters of support from appellant's family and friends. The district clerk has filed a supplemental clerk's record containing the PSI report, and the court reporter has filed the transcription of the hearing on the PSI in a supplemental reporter's record. Thus, the record is now complete. After the supplemental records were filed, this Court afforded appellant the opportunity to file a supplemental brief, limited to the issue raised in his initial brief: ineffective assistance of counsel at the pre-sentence investigation report/punishment phase hearing. Appellant did not file a supplemental brief. Therefore, he has waived his fourth point of error. CONCLUSION
We affirm the judgment.