Pickens v. State

Full title: DENNIS EARL PICKENS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Jul 15, 2004

No. 08-02-00164-CR (Tex. App. Jul. 15, 2004)

Opinion

No. 08-02-00164-CR

July 15, 2004. DO NOT PUBLISH.

Appeal from the 195th District Court of Dallas County, Texas, (Tc# F-0153824-Hn).

Before Panel No. 1, LARSEN, McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

Appellant Dennis Earl Pickens appeals his conviction for the offense of possession of a controlled substance, to wit: heroin, in an amount by aggregate weight, including any adulterants or dilutants, of four grams or more but less than 200 grams. A jury found Appellant guilty and assessed punishment at 25 years' imprisonment in the Texas Department of Criminal Justice, Institutional Division.¹ On appeal, Appellant asserts jury charge error and argues that his trial counsel rendered ineffective assistance. We affirm.

1 In a consolidated trial, the jury convicted Appellant of possession of cocaine in cause number F-0153823-HN and possession of heroin in cause number F-0153824-HN. Appellant has also appealed his conviction in cause number F-0153823-HN. We affirmed that conviction in an unpublished opinion issued this same date. Pickens v. State, No. 08-02-00163-CR (Tex.App.-El Paso July 15, 2004, no pet.h.).

FACTUAL SUMMARY

On June 19, 2001, the Dallas Police Department received several citizen's complaints about illegal drug sales at a car wash in the 2400 block of Starks in South Dallas. Officers Thomas Peterson and Scott Sayers were working on special assignment in the area and were dispatched to investigate the drug complaints. Officer Peterson conducted field surveillance on foot some distance from the scene while his partner stayed in the patrol car at another location. Officer Peterson concealed himself behind some cut tree limbs in the backyard of a nearby residence and observed the activities at the car wash with a pair of binoculars. From the hidden location, which was about fifteen to twenty yards away from the car wash, Officer Peterson observed Appellant standing out in the parking lot, engaging in what appeared to be a hand-to-hand drug transaction with personal property exchanged for something Officer Peterson could not see. The officer then saw Appellant walk over to a vehicle, get into the driver's seat, and lean the seat back. Appellant was the only passenger in the vehicle and he kept the door of the vehicle open. An unknown individual then approached the vehicle and handed Appellant money. Officer Peterson observed Appellant lift up the plastic cup holder console and remove a clear plastic baggie which contained several capsules. Appellant shook a few of the capsules into the palm of his hand and the unknown individual removed several capsules and left. In a period of ten to fifteen minutes, Officer Peterson observed two other similar hand-to-hand transactions. Based on previous experience, Officer Peterson knew from the packaging that such capsules typically contain powdered heroin and powdered cocaine. After witnessing what he believed to be a felony in progress, Officer Peterson radioed Officer Sayers a description of Appellant and told him to get backup. Officer Sayers later radioed and told Officer Peterson that he was en route to detain Appellant until backup arrived. Officer Peterson then observed Officer Sayers approach Appellant and ask him to exit the vehicle. Officer Sayers testified that when he approached the vehicle, Appellant was sitting on the driver's side with his legs hanging out of the vehicle and the door open. When Appellant exited the vehicle, Officer Sayers frisked him for weapons. Appellant was taken into custody and backup officers at the scene conducted an inventory search of the vehicle prior to having it towed to the city pound. The officers recovered from the vehicle a plastic bag with white and brown pills from underneath the cup holder and discovered additional drugs in the glove box. The drugs tested positive for cocaine and heroin. The drug analysis report showed the drugs recovered were controlled substances, which consisted of 59 capsules of brown powder, containing heroin and weighing 9.9 grams, and 31 half-pink capsules, containing cocaine and weighing 2.2 grams. Money inside an organizer, totaling $540, was also seized from inside the vehicle. Appellant testified that in the morning on the day he was arrested, he called a wrecker to pick up his car and take it to a mechanic's garage for wiring repair. Appellant lead the tow truck driver to the garage in another vehicle he had purchased the day before. After leaving the garage, Appellant planned to take the vehicle he was driving back to the seller for brake work. Appellant arranged for an acquaintance, Wayne Pratt, to follow him to the seller's business, so he could drop the vehicle off and not have to sit around and wait for the repairs to be done. Appellant left with Mr. Pratt and another person named Charles Frazier. Mr. Pratt was driving them around, making stops on their way back to South Dallas. At the intersection of Starks and Bexar, Mr. Pratt pulled into a car wash and Appellant got out of the vehicle to talk with a friend. Appellant was talking with his friend when Officers Peterson and Sayers pulled into the car wash and parked by a dryer. People started running away. The officers left and went to another building down the street. Appellant continued talking with friends. Officer Sayers then returned to the car wash by himself. Officer Sayers pointed at Appellant, who was standing by a Suburban van, called him over and asked him what he was doing. The officer told Appellant to stand at the back of the vehicle that Mr. Pratt had been driving. Officer Sayers got into the car and started to look around for a few seconds. The officer then exited and told Appellant to go stand at the front of the vehicle. Officer Sayers then handcuffed Appellant and escorted him to the patrol car. Appellant testified that the vehicle the police searched that day was not his. Appellant explained that his organizer was on top of the vehicle. The cash in his organizer was money he earned by driving around a handicapped woman. Appellant denied possessing the heroin and cocaine. The vehicle was registered to someone named Pamela Jean Conley who lived at 4927 Bonnie View. Appellant admitted that he lived at that address prior to his incarceration, but did not know the individual listed as the owner. Appellant knew nothing about the drugs found in the vehicle.

DISCUSSION Jury Charge Errors

In Issues One and Two, Appellant complains that the trial court erred by including in its charge an instruction regarding reasonable doubt (and erred by failing to include an Article 38.23 instruction.

Standard of Review

When reviewing charge error, we utilize a two-step process. Orona v. State, 52 S.W.3d 242, 249 (Tex.App.-El Paso 2001, no pet.). We first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985); Orona, 52 S.W.3d at 249. If error exists, we must then determine whether sufficient harm was caused by the error to warrant reversal. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). If the charge error was the subject of timely objection, reversal is required if that error was calculated to injure the rights of the defendant thereby causing "some harm." Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000). If error exists, we must then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171. In a case where the defendant did not properly object at trial, we will reverse only if the error is so egregious and created such harm that he was denied a fair and impartial trial. Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171. In both circumstances, the harm suffered is examined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

Reasonable Doubt Instruction

In Issue One, Appellant argues the trial court erred in including a sentence regarding reasonable doubt in the jury charge. Appellant admits that he did not object to the following instruction:

The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all 'reasonable doubt' concerning the defendant's guilt. [Emphasis added].

The court's charge in this case contained a portion of the reasonable doubt instruction approved in Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991), overruled by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). In Paulson, the Court disavowed the requirement that the reasonable doubt standard be defined and instead, determined that the better practice is to give no definition of reasonable doubt in the jury charge. Paulson, 28 S.W.3d at 573. However, the Court also determined that no reversible error would occur if both the State and defense agreed to give the Geesa instruction to the jury. Id. Appellant argues that the instruction favored the State because it emphasized to the jury that the State did not have to prove its case beyond all possible doubt and constitutes egregious harm in that it is still a definition whose purpose was to favor the State. This Court recently addressed the same complaint in Hanks v. State, 104 S.W.3d 695, 702 (Tex.App.-El Paso 2003, pet. granted). In Hanks, this Court held that the same challenged instruction does not constitute a definition of reasonable doubt and therefore, does not violate Paulson. Hanks, 104 S.W.3d at 702; see also Minor v. State, 91 S.W.3d 824, 828-29 (Tex.App.-Forth Worth 2002, pet. ref'd) (adopting the analysis followed by the First District Court of Appeals in the Carriere case); Carriere v. State, 84 S.W.3d 753, 759 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). As in Hanks, the charge here did not give a reasonable doubt definition, therefore no error exists. See Carriere, 84 S.W.3d at 759. Issue One is overruled.

Article 38.23 Instruction

In his second issue, Appellant asserts that the trial court erred in failing to instruct the jury that it could disregard the evidence if it believed or had a reasonable doubt about whether the officers illegally obtained the evidence pursuant to Article 38.23 of the Texas Code of Criminal Procedure. TEX. CODE CRIM.PROC.ANN. art. 38.23 (Vernon Supp. 2004). Appellant points to his testimony as evidence that Officer Sayers without any justification, probable cause, or reasonable suspicion, searched the vehicle. In reviewing the record, we find that Appellant failed to request an Article 38.23 instruction on the vehicle search at trial and therefore did not preserve error on this issue. Tex.R.App.P. 33.1; Kelly v. State, 669 S.W.2d 720, 726 (Tex.Crim.App. 1984) (failure to request the instruction waives error); Oberg v. State, 890 S.W.2d 539, 544 (Tex.App.-El Paso 1994, pet. ref'd). Issue Two is overruled.

Ineffective Assistance of Counsel

In Issue Three, Appellant contends he was denied effective assistance of counsel because his trial counsel failed to request an Article 38.23 instruction and failed to object to the definition of reasonable doubt in the charge. We review claims of ineffective assistance under the two-pronged test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prevail, the defendant must show that trial counsel's performance was deficient, that is, counsel's representation fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. The defendant must also show that counsel's deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the defendant to show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Jackson, 877 S.W.2d at 771. It is the defendant's burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. In reviewing a claim of ineffective assistance of counsel, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Id.; see Jackson, 877 S.W.2d at 771. In the majority of instances, this task is extremely difficult because "the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 813-14. When faced with a silent record as to counsel's strategy, we will not speculate as to the reasons for counsel's actions. See Jackson, 877 S.W.2d at 771. In this case, Appellant filed a motion for new trial, but did not challenge the alleged ineffectiveness of his counsel. The record before this Court does not contain trial counsel's explanations of the reasons for the alleged errors, therefore it will be difficult for Appellant to rebut the strong presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d. at 814. Appellant asserts that his trial counsel failed to request an Article 38.23 instruction, which precluded the jury from giving effect to the illegality of the search.² Specifically, Appellant points to evidence in the record concerning the Appellant's first trial for the offense, which resulted in a hung jury because at least one of the jurors questioned the legality of the search.³ If the instruction had been allowed, he asserts that he could have obtained another hung jury if not an acquittal. Appellant, however, concedes that in the first trial, the trial court refused Appellant's request for an Article 38.23 instruction, therefore we can only speculate as to whether this trial would have reached the same outcome as the mistrial based on the alleged error. The record before us provides no discernible explanation for trial counsel's motivation in not requesting an Article 38.23. When faced with a silent record as to counsel's strategy, as we are in this case, we will not speculate as to the reasons for counsel's actions. See Jackson, 877 S.W.2d at 771. Appellant has failed to prove ineffective assistance of counsel based on this contention. Appellant also asserts that his trial counsel was ineffective for failing to object to the reasonable doubt language contained in the jury charge, which Appellant asserted in Issue One was jury charge error. In addressing that issue, we concluded that the challenged portion of the jury charge did not constitute a definition, therefore no error existed. It follows that Appellant has failed to show ineffective assistance of counsel on that ground. Issue Three is overruled. Accordingly, we affirm the trial court's judgment.