Opinion
NO. 01-17-00351-CR
07-10-2018
THOMAS RIVERA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court Harris County, Texas
Trial Court Case No. 1519093
MEMORANDUM OPINION
A Harris County grand jury indicted Thomas Rivera for possession with the intent to deliver a controlled substance, namely cocaine, weighing at least 400 grams by aggregate weight. Rivera pleaded not guilty to the charge, and the case was tried to a jury. The jury found Rivera guilty, and the trial court assessed his punishment at 30 years' confinement and a $5,000 fine.
On appeal, Rivera contends that (1) the evidence is legally and factually insufficient to show that he exercised care, control or management of at least 400 grams of cocaine; (2) the Court of Criminal Appeals' rejection of the factual-sufficiency standard of review in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), which this court is bound to follow, violates Rivera's right to due process and equal protection as well as the separation of powers provision in the Texas Constitution, and (3) Rivera received ineffective assistance of counsel in violation of his rights to due process and a fair trial guaranteed under the United States Constitution and the Texas Constitution, and the right to legal representation under article 1.05(a) of the Texas Code of Criminal Procedure. We affirm.
BACKGROUND
During the summer of 2016, M. Hernandez, a narcotics officer with the Houston Police Department, received a call on the citizen tip line reporting that an individual, later identified as Roldan Casas, was selling narcotics out of a house located in the Near Northside area of Houston. Hernandez went to the location and found that it matched the description that the tipster provided. She conducted surveillance for about an hour, looking for foot and vehicle traffic. She did not see Casas.
Hernandez conducted additional surveillance and sent in a confidential informant to make a controlled buy. Based on this activity, HPD obtained a warrant to search the house for narcotics. A team of officers, including Hernandez's supervisor and six others from her narcotics squad, prepared to execute the warrant. At the same time the narcotics squad arrived at the house, patrol officers in marked vehicles parked in front and ran their lights to alert neighbors to the police action.
Hernandez's role in executing the warrant required her to take a position outside the house. She stood in a grassy area of the yard near the edge of the driveway. From her vantage point, she could see the front and a portion of the side of the house.
At the same time, other officers were preparing to enter the house. Officer B. Smith of the narcotics division detonated non-lethal "flash bang" explosives to create a distraction, while another officer used a device to ram a hole into the front door. Through the hole in the door, Smith could see four men in the kitchen, who had begun to run from the officers. One of the men—the only one wearing glasses, who was later identified as Rivera—was the first to run into a bedroom. He was carrying a bag of something white in his hand. Smith assumed that the bag contained narcotics.
As Smith observed Rivera run into the bedroom, Hernandez, from her vantage point outside, saw two objects fly out of a second-story window. Hernandez then saw Rivera stepping out of the same window. Hernandez later found out that the objects she saw fly through the window were two plastic bags, both of which contained white powder that tested positive for cocaine.
From his patrol car, Officer A. Cabrera also saw the items fly through the open window. Cabrera did not see who threw the items, but immediately following them, Rivera jumped through the same window. Rivera landed on the roof over the front porch and from there jumped to the ground. Cabrera called out "jumper" and ran toward Rivera. Rivera began to run from Cabrera, but Cabrera caught up with Rivera and motioned for him to stop. As Rivera complied, Cabrera maneuvered around Rivera until he had a better view of Rivera's hands. Cabrera then held Rivera at gunpoint until another officer arrived to assist. Cabrera kept his gun trained on Rivera while the other officer handcuffed Rivera and put him under arrest.
Cabrera, and his partner, Officer I. Lira, each recovered one of the bags that had been thrown from the window. One bag had landed on the porch roof and the other on the ground. Officer Lira testified that "once the scene was secured," the officers "were able to identify the substance as being a narcotic, I think it was crack cocaine." Cabrera described both as the same size—approximately six inches long—and containing a "powder, white substance" that he assumed was cocaine. Lira confirmed that State's Exhibit 38 consisted of the same bags that were recovered at the scene and that they had not been altered in any way. Smith testified that he, too, believed that he saw Rivera holding the bags. In addition to the cocaine, the search uncovered a significant quantity of materials used for making and distributing drugs, drug paraphernalia, and other narcotics.
S. Galioto, a forensic analyst at Houston Forensic Science Center, tested the contents of the bags. She confirmed they contained cocaine. She testified that the net weight of one bag was 223.77 grams and the net weight of the other bag was 249.74 grams, amounting to a cumulative net weight of 473.51 grams of cocaine.
DISCUSSION
I. Legal Sufficiency
A. Standard of review and applicable law
We first address Rivera's contention that the evidence is legally and factually insufficient to show that he exercised actual care, control or management over at least 400 grams of cocaine. The same standard applies to review both legal and factual sufficiency: we view all of the evidence in the light most favorable to the verdict and determine whether a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). We do not re-evaluate the weight or credibility of the testimony; rather, we defer to the jury's resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
To obtain a conviction for unlawful possession of cocaine with the intent to deliver, the State must prove beyond a reasonable doubt that the defendant (1) exercised control, management, or care over the drug, (2) knew it was cocaine, and (3) intended to deliver it to another. TEX. HEALTH & SAFETY CODE §§ 481.102(3)(D), 481.112(a); Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Possession of the drug need not be exclusive—evidence that shows the defendant jointly possessed the drug with another can suffice. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985); Woodard v. State, 355 S.W.3d 102, 110 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
Whether direct or circumstantial, the evidence must establish that the defendant's connection with the drug was more than fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015); Wiley v. State, 388 S.W.3d 807, 813 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd). This is the "affirmative links" rule. Poindexter, 153 S.W.3d at 406 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). This rule is designed to protect an innocent bystander from conviction based solely upon his mere presence in the vicinity of someone else's drugs. Id. It recognizes that a defendant who is not in exclusive possession of the place where the controlled substance was found may not have knowledge of and control over the drugs; in such cases, additional independent facts and circumstances beyond mere presence must link him to the drugs. Tate, 500 S.W.3d at 413-14 (citing Poindexter, 153 S.W.3d at 406, and Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981)).
The Texas Court of Criminal Appeals has instructed that evidence of one or more of the following links may provide the logical force that demonstrates possession and not mere presence:
(1) whether the defendant is present when a search is conducted;Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006); Burrell v. State, 445 S.W.3d 761, 765 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). The State need not prove all of these links. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). It is not the number of links that is dispositive, but the cumulative weight of the evidence. Evans, 202 S.W.3d at 162; James, 264 S.W.3d at 219. Although these links guide an appellate court's analysis of the evidence, the dispositive inquiry remains the one set forth in Jackson—whether the combined and cumulative force of the evidence and any permissible inferences permit a jury to rationally find the defendant guilty of the offense beyond a reasonable doubt. Tate, 500 S.W.3d at 414.
(2) whether the drugs were in plain view;
(3) the defendant's proximity to and the accessibility of the drugs;
(4) whether the defendant was under the influence of drugs when arrested;
(5) whether the defendant possessed other drugs or contraband when arrested;
(6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee;
(8) whether the defendant made furtive gestures;
(9) whether there was an odor of drugs;
(10) whether drug paraphernalia or other contraband were present;
(11) whether the defendant owned or had the right to possess the place where the drugs were found;
(12) whether the place where the drugs were found was enclosed;
(13) whether the defendant was found with a large amount of cash; and
(14) whether the defendant's conduct indicated a consciousness of guilt.
B. Analysis
Rivera claims that the evidence does not sufficiently link him to the two bags of powder cocaine that the State relied on to prove beyond a reasonable doubt that he possessed more than 400 grams of cocaine. The evidence at trial showed that these bags were the same bags thrown out of the window together just before Rivera leapt out of the same window. In challenging the evidentiary sufficiency, Rivera observes that Officer Lira described the substance contained in the bag as crack cocaine, and in searching the house, the authorities recovered a bag of crack cocaine, which, when weighed together with either bag of powder cocaine, amounted to less than 400 grams. But other evidence in the record would allow a rational juror to find that the two bags of powder cocaine, which have a cumulative weight of more than 400 grams, are the same two bags that went airborne before Rivera's leap from the window. Officer Smith testified that Rivera carried these same bags as he ran toward the bedroom. Officer Cabrera also attested the two similarly-sized bags of powdery white substance were the ones that he saw and recovered at the scene. Finally, Officer Lira confirmed that the "two Ziploc bags of white substance" marked as State's Exhibit 38 were the same ones recovered at the scene and that they had not been altered in any way. We defer to the jury's resolution of conflicts or inconsistencies in the evidence concerning the bags' contents.
The evidence is sufficient to support Rivera's conviction under the affirmative links analysis. The narcotics were in plain view inside the house; Officer Smith saw Rivera carrying the bags of powder cocaine as he ran toward the bedroom. Rivera remained physically close to the bags, jumping from the window immediately after they flew out. At first, Rivera ran away from Smith and then briefly from Cabrera, but he stopped and complied with the officers' commands once Cabrera caught up to him. The combined and cumulative force of this evidence, as well as the reasonable inferences it supports, permit a rational factfinder to find beyond a reasonable doubt that Rivera is guilty of possession with the intent to deliver cocaine, weighing at least 400 grams by aggregate weight. See Tate, 500 S.W.3d at 414.
C. Factual sufficiency
Rivera seeks a factual-sufficiency review of the evidence and contends that the failure of Texas courts to conduct a separate factual-sufficiency review of the evidence in criminal cases violates the Texas Constitution's dictate that "the decision of the [Texas Courts of Appeals] shall be conclusive on all questions of fact brought before them on appeal or error. TEX. CONST. art. V, § 6(a). According to Rivera, Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), ignored this constitutional command in abolishing a separate standard for factual-sufficiency review in criminal cases, thereby depriving him of his right to due process and equal protection guaranteed under both federal and state constitutions. Texas courts, however, apply one standard of review to evaluate the sufficiency of the evidence, whether legal or factual.
Brooks held that "the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." 323 S.W.3d at 895 (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789); Carmichael v. State, 416 S.W.3d 133, 135 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The evidentiary-sufficiency standard of review that the United States Supreme Court formulated in Jackson satisfies due process. See 443 U.S. at 315-19; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (referring to Jackson standard as "due-process guarantee"). The Texas Court of Criminal Appeals has directed us to apply Jackson's standard to review all evidentiary-insufficiency claims; as a lower court, we are bound to follow its directive. Kiffe v. State, 361 S.W.3d 104, 109-10 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). We therefore reject Rivera's constitutional challenges on these grounds.
II. Ineffective Assistance of Counsel
A. Standard of review and applicable law
Rivera renews the complaint, first made in his motion for new trial, that he received ineffective assistance of counsel in violation of his rights to due process and a fair trial guaranteed under the United States Constitution and the Texas Constitution, and the right to legal representation under article 1.05(a) of the Texas Code of Criminal Procedure. See Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 2064-69 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To show ineffective assistance of counsel, Rivera must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) but for counsel's errors, there is a reasonable probability the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 2542 (2003); Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). It is the defendant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813; Jackson, 973 S.W.2d at 956; McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992).
We look to the "totality of the representation and the particular circumstances of each case" in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. In so doing, we recognize the presumption that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. To defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland, 928 S.W.2d at 500.
Rivera's motion for new trial does not include an affidavit from trial counsel. When the record is silent as to trial counsel's strategy, if any, we may not speculate about why counsel pursued or failed to pursue a particular line of inquiry. Instead, we must presume that counsel made all significant decisions in the exercise of reasonable professional judgment. Broussard v. State, 68 S.W.3d 197, 199 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd); see Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (explaining that silent record that provides no explanation for trial counsel's actions will not overcome strong presumption of reasonable assistance).
To prevail in a motion for new trial, the defendant must establish that (1) trial counsel failed to act as a reasonably competent attorney; and (2) a reasonable likelihood exists that the trial's outcome could have been different without counsel's error. See Smith v. State, 286 S.W.3d 333, 340-41 (Tex. Crim. App. 2009); Goody v. State, 433 S.W.3d 74, 81 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); see also Hobbs v. State, 298 S.W.3d 193, 199-200 (Tex. Crim. App. 2009) (explaining that, although defendant need not plead a prima facie case in motion for new trial, "he must at least allege sufficient facts that show reasonable grounds to demonstrate that he could prevail"). The likelihood of a different result must be substantial, not merely conceivable. Goody, 433 S.W.3d at 81 (quoting Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011)); see also Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994) (holding that bare allegation that trial counsel failed to subpoena two witnesses without stating what they would have said to exculpate defendant was insufficient to require court to hold hearing on motion for new trial).
B. Analysis
Rivera complains that his trial counsel provided ineffective assistance because he failed to argue that one of the bags in Rivera's possession may have held crack cocaine, rather than powder cocaine, which would mean that he possessed less than the 400 grams of cocaine with which he was charged. Rivera also complains of trial counsel's failure to focus the jury's attention on the lack of evidence showing that Riviera exercised control, management, or care over the narcotics found in the house. The record, however, is devoid of any explanation that trial counsel may have had for these omissions. Defense counsel reasonably may have decided that, because the State limited its possession charge against Rivera to the amount contained in the two bags of powder cocaine, a strategy that emphasized the presence of other narcotics at the residence may have harmed Rivera's cause rather than helped it. Rivera thus has not satisfied his burden to overcome the presumption that counsel made this decision in the exercise of reasonable professional judgment. See Broussard, 68 S.W.3d at 199. Accordingly, we hold that the trial court acted within its discretion in declining to grant Rivera's motion for new trial.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Justices Keyes, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).