Nos. 05-08-01012-CR, 05-08-01013-CR
Opinion issued August 5, 2010. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F07-57832-XK and F07-57833-XK.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice BRIDGES.
Appellant Timothy Jerdell White appeals his convictions for the offenses of unlawful possession with intent to deliver a controlled substance and unlawful possession of a firearm by a felon. We affirm.
Background
Appellant was charged by indictment with the offense of possession with intent to deliver cocaine in an amount of 4 grams or more but less than 200 grams. The indictment included two enhancement paragraphs. Appellant was also charged in a second indictment with the offense of unlawful possession of a firearm by a felon. The two indictments included enhancement paragraphs with regard to appellant's previous convictions: (1) unlawful possession of a firearm by a felon; (2) aggravated assault with a deadly weapon; and (3) delivery of a controlled substance. On July 7, 2008, appellant indicated that he was rejecting the State's plea bargain offers and pled not guilty to each offense. Voir dire was conducted and a jury was selected. Appellant filed an election in each case, requesting that the judge assess punishment if the jury returned a guilty verdict. The next day, a hearing was held on appellant's motion to suppress and the motion was denied. Appellant was then arraigned and entered a plea of guilty to each offense. The trial court then advised appellant that, in light of his guilty pleas, the court would instruct the jury to find him guilty. Defense counsel then indicated the jury was to set punishment, and the trial court admonished appellant accordingly. Defense counsel stated, and the trial court acknowledged, that the State was dropping the enhancement paragraphs, but would still ask the jury to make a deadly weapon finding. The trial court then swore in the jurors. The prosecutor read the indictments in the presence of the jury, and appellant pled guilty to both charges before the jury. Following the presentation of the evidence, the jury found appellant guilty on the drug case and assessed punishment at imprisonment for fifteen years and also made an affirmative finding that appellant used a deadly weapon during the commission of the offense. In the firearm case, the jury assessed punishment at imprisonment for ten years. The trial court entered the judgments and appellant filed motions for new trial, which were overruled by operation of law. This appeal ensued. Analysis
Appellant raises four issues on appeal. First, appellant contends he was denied his constitutional right to an impartial jury when the trial court denied appellant's request to qualify the jury on punishment. Next, appellant argues he was denied his right to the effective assistance of counsel when his trial counsel failed to timely object to proceeding with a jury which had not been qualified on punishment. In his third and fourth issues, appellant argues the evidence was legally and factually insufficient to support the deadly weapon finding in Cause No, F07-57832-XK, the drug case. We turn to appellant's first issue, whether he was denied his constitutional right to a fair and impartial jury when the trial court denied his request to qualify the jury on punishment. At the commencement of trial, both the prosecutor and defense counsel made an opening statement to the jury, in which they both acknowledged they did not have the opportunity to question the jury about punishment during voir dire. After the State presented its first witness, the trial court recessed for lunch. At that time, defense counsel objected on the record that he did not have an opportunity to question the jury on the range of punishment during voir dire and asked the trial court to qualify the jury. Because the trial court did not consider the objection timely, it declined to qualify the jury. The trial court has broad discretion over the process of selecting a jury. Sells v. State, 121 S.W.3d 748, 755-56 (Tex. Crim. App. 2003) (citing Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002)). Here, appellant argues he was denied his constitutional right to a fair and impartial jury because, despite his request, he was denied the opportunity to reopen voir dire and qualify the jury on punishment. Appellant contends he made his request at the first available opportunity, given the way the trial proceedings changed course and the trial court's desire to begin the case. The course of the proceedings changed once appellant changed his plea from guilty to not guilty. When the trial court then inquired whether the court or a jury would assess punishment, defense counsel requested a jury. The court admonished appellant accordingly. Appellant could have made his request to reopen voir dire at that time, because the jury had not yet been sworn. See Green v. State, No. 01-07-00207-CR, 2009 WL 469553, at *3 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) (not designated for publication) (holding appellant waived error by failing to request time to conduct voir dire questions because that request was not made until after the jury was sworn in and empaneled). Therefore, we conclude the request to reopen voir dire examination at a time when testimony had already begun and when no basis had been presented for questioning the impartiality or qualification of the seated jurors was untimely. Tex. R. App. P. 33.1(a)(1). See also S.D.G. v. State, 936 S.W.2d 371, 381 (Tex. App.-Houston [14 Dist.] 1996, writ denied) (at the time appellant made his offer of proof, there was nothing the court could do to rectify the alleged error.) Because appellant's objection was not timely, he waived any error. See Janecka v. State, 823 S.W.2d 232, 244 (Tex. Crim. App. 1990). We overrule appellant's first issue. In his second issue, appellant alleges he was denied his right to the effective assistance of counsel when his trial counsel failed to timely object to proceeding with a jury which had not been qualified on punishment. A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as "ineffective." Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is "simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). The record is silent as to why appellant's trial counsel chose not to timely object to proceeding with a jury which had not been qualified on punishment. Therefore, appellant has failed to rebut the presumption counsel's decisions were reasonable, and we overrule appellant's second issue. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. In his third and fourth issues, appellant argues the evidence is legally and factually insufficient to support the deadly weapon finding in Cause No, F07-57832-XK, the drug case. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). "Deadly weapon" includes a firearm. Tex. Penal Code Ann. § 1.07(17)(A) (Vernon Supp. 2009). A deadly weapon finding can be made if a deadly weapon "was used or exhibited during the commission of a felony offense . . . and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited." Tex. Code Crim. Proc. Ann. art. 42.12 § 3(g)(a)(2) (Vernon Supp. 2009). The term "used" extends to "any employment of a deadly weapon, even simple possession, if such possession facilitates the associated felony. Tyra v. State, 897 S.W.2d 796, 797 (Tex. Crim. App. 1995) (citing Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). Furthermore, a weapon is "exhibited" if it is consciously shown or displayed during the commission of the offense. Patterson, 769 S.W.2d at 941. The record reflects that when Detective Garcia entered the apartment, he observed appellant sitting on a couch and a female sitting in a chair. He ordered them to get on the ground. In a pat down search of appellant, Officer Payne removed a set of keys from appellant, which included a key to the door of the apartment. In the search, the officers seized two handguns. A loaded Smith Wesson handgun was lying on a pool table in plain view of anyone who would have entered the apartment. A loaded .380 handgun was seized from under a cushion of the couch on which appellant had been sitting. The couch was approximately 20 feet from the pool table. The officers seized a substance that contained cocaine from the kitchen. They also seized a plate on which there were razor blades, a scale, and crack cocaine rocks individually wrapped in baggies, as well as a baggie of marijuana. Detective Ragsdale testified that these items demonstrate a "drug distribution enterprise." Detective Ortiz affirmed that drug dealers have weapons at drug houses to protect the drugs and intimidate buyers. Detective Ragsdale testified that guns are "tools of the trade" in the drug business, used to intimidate customers who are potential robbers and to protect their product. He also explained guns are used against police officers. In his brief, appellant recognizes that, in pleading guilty to the offense of possession of a firearm by a felon, he admitted possession of at least one of the guns found in the apartment. He argues, however, that his admission to possession of the gun does not constitute an admission that such possession facilitated the drug offense. We disagree. Based upon (1) the testimony of the officers about the use of guns in the drug trade, (2) that possession alone can constitute "use," and (3) that one gun found in plain view was "exhibited," we conclude the evidence was sufficient to demonstrate that a deadly weapon was used or exhibited during the commission of a felony offense and that appellant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. See Tex. Code Crim. Proc. Ann. art. 42.12 § 3(g)(a)(2); see also Tyra, 897 S.W.2d at 797; Patterson, 769 S.W.2d at 941. We overrule appellant's third and fourth issues. Having overruled all of appellant's issues, we affirm the judgment of the trial court.