Bean v. State

Full title: ROBERT LEE BEAN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 8, 2007

Nos. 05-06-01487-CR, 05-06-01488-CR, 05-06-01489-CR (Tex. App. Nov. 8, 2007)

Opinion

Nos. 05-06-01487-CR, 05-06-01488-CR, 05-06-01489-CR

Opinion issued November 8, 2007. DO NOT PUBLISH Tex. R. App. P. 47

On Appeal from the 422nd Judicial District Court Kaufman County, Texas, Trial Court Cause Nos. 24350-422, 24673-422, 24680-422.

Before Justices RICHTER, FRANCIS, and LANG-MIERS.

MEMORANDUM OPINION

ELIZABETH LANG-MIERS, Justice.

A jury convicted Robert Lee Bean of possession of a controlled substance, cocaine, with intent to deliver in the amount of four grams or more but less than two hundred grams,¹ unlawful possession of a firearm by a felon,² and possession of a prohibited weapon.³ The trial court heard punishment evidence, found enhancement paragraphs in each case true, and assessed appellant's punishment at confinement for forty years for the cocaine offense, confinement for twenty years and a $2500 fine for the unlawful possession of a firearm offense, and confinement for thirty years for the prohibited weapon offense. Appellant argues as grounds for reversal double jeopardy, legal insufficiency of the evidence, invalid search warrant and unreasonable search, and ineffective assistance of counsel. We affirm the judgments of the trial court.

1 Appeal number 05-06-01487-CR, trial court cause number 24350-422.

2 Appeal number 05-06-01488-CR, trial court cause number 24673-422.

3 Appeal number 05-06-01489-CR, trial court cause number 24680-422.

Background

Police officers with Terrell Police Services executed a search warrant on a house in Terrell and arrested appellant and four others who were in the house. During the search, led by narcotics investigator Jeremy Mack, police seized crack cocaine, marijuana, and drug paraphernalia in plain view; crack cocaine hidden under a chair cushion; a sawed-off shotgun from under a bed; a razor blade with a white powder residue; $561 from appellant's front pants pocket, folded over and organized by 20s, 10s, 5s, and 1s; and papers belonging to appellant. Appellant was the only person in the house in possession of cash. Additionally, police observed that the table the razor blade was found on was covered with a white powder substance and appeared to have been used to cut crack cocaine. The police also found clothes appellant had been seen wearing piled on the floor in the same bedroom where the shotgun was found. Outside on the ground, by a vehicle parked in the driveway, the police seized crack cocaine, a baggie containing cocaine residue, a ten dollar bill, and drug paraphernalia. Appellant was charged with possession of cocaine with intent to deliver. He was charged with two offenses related to the sawed-off shotgun: unlawful possession of a firearm by a felon and possession of a prohibited weapon.

Double Jeopardy

In his first issue, appellant argues his convictions for both unlawful possession of a firearm by a felon and possession of a prohibited weapon violate his double jeopardy rights because possession of a prohibited weapon is a lesser-included offense of unlawful possession of a firearm. When, as here, a defendant is convicted of two or more crimes in a single trial, it implicates the guarantee against multiple punishments contained in the double jeopardy clauses of the United States and Texas Constitutions. Villanueva v. State, 227 S.W.3d 744, 747 (Tex.Crim.App. 2007); see Ervin v. State, 991 S.W.2d 804, 807 (Tex.Crim.App. 1999). Appellant concedes he raises the double jeopardy claim for the first time on appeal. However, he argues his claim is not waived. We agree. A double jeopardy claim may be raised for the first time on appeal if two conditions are met: (1) the undisputed facts show the double jeopardy violation is clearly apparent from the face of the record; and (2) enforcement of the usual rules of procedural default serves no legitimate state purpose. See Langs v. State, 183 S.W.3d 680, 682 (Tex.Crim.App. 2006); Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000). We conclude the first condition has been met. Appellant was tried for both offenses in the same trial; the trial court knew or should have known of a potential jeopardy issue; appellant has brought forward a complete record on appeal; if a double jeopardy violation exists, we can determine it from the undisputed facts clearly apparent on the face of the record; and we can resolve the double jeopardy claim without the necessity of further proceedings to add new evidence to the record. See Saenz v. State, 131 S.W.3d 43, 49-50 (Tex.App.-San Antonio 2003), aff'd, 166 S.W.3d 270 (Tex.Crim.App. 2005); Roy v. State, 76 S.W.3d 87, 93-94 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We also conclude the second condition has been met. If appellant is successful on his double jeopardy claim, the appropriate remedy is to retain the conviction with the most serious punishment and vacate the conviction for the offense with the least serious punishment. See Saenz, 131 S.W.3d at 50; Roy, 76 S.W.3d at 94. A successful double jeopardy challenge will not require a retrial or remand to the trial court. See Saenz, 131 S.W.3d at 50; Roy, 76 S.W.3d at 94. As a result, there are no legitimate state interests that would be negatively impacted by allowing appellant to raise his double jeopardy claim for the first time on appeal. See Saenz, 131 S.W.3d at 50; Roy, 76 S.W.3d at 94-95. We now consider the merits of appellant's double jeopardy claim. If a single act violates two different penal statutes, it is considered the same offense for double jeopardy purposes if one of the offenses contains all of the elements of the other. Blockburger v. United States, 284 U.S. 299, 304 (1932); Villanueva, 227 S.W.3d at 747-48; Ervin, 991 S.W.2d at 815. Under Blockburger, greater and lesser-included offenses are the same for double jeopardy purposes. Roy, 76 S.W.3d at 96. An offense is a lesser-included offense if it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged. See Tex. Code Crim. Proc. Ann. art. 37.09(a) (Vernon 2006). We determine whether an offense is a lesser-included offense by comparing the statutory elements of the offense, as modified in the indictment, with the statutory elements of the allegedly lesser-included offense, as modified in the indictment. See Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). We do not consider the evidence that was presented at trial in this analysis. Id. at 536. In this case, the statutory elements of unlawful possession of a firearm by a felon, as modified by the allegations in the indictment, are:

(1) appellant

(2) having been previously convicted of a felony

(3) intentionally or knowingly

(4) possessed

(5) a firearm

(6) after release from confinement.

See Tex. Pen. Code Ann. § 46.04(a) (Vernon Supp. 2007). The statutory elements of possession of a prohibited weapon, as modified by the allegations in the indictment, are: (1) appellant

(2) intentionally or knowingly

(3) possessed

(4) a short-barrel firearm.

See Tex. Pen. Code Ann. § 46.05(a)(3) (Vernon Supp. 2007). The question is whether the elements of the lesser offense, possession of a prohibited weapon, are established by proof of the same or less than all of the facts required to establish the commission of the greater offense, unlawful possession of a firearm. See Hall, 225 S.W.3d at 536. We conclude they are not. The indictment in the prohibited weapon offense requires proof that the firearm was a short-barrel firearm. This proof cannot be established by proof of the same or less than all of the facts required to establish commission of the offense of unlawful possession of a firearm by a felon, because the unlawful possession offense does not require proof the firearm was a short-barrel firearm. As a result, the possession of a prohibited weapon offense is not a lesser-included offense of unlawful possession of a firearm by a felon. Appellant argues there is no meaningful distinction between the allegation that he possessed a "firearm" and that he possessed a "short-barrel firearm." However, the Texas Court of Criminal Appeals has stated "the ultimate inquiry in a double jeopardy analysis is whether the legislature intended to impose multiple punishments" for violation of two separate penal statutes. Langs, 186 S.W.3d at 688; see Villanueva, 227 S.W.3d at 747; Ervin, 991 S.W.2d at 816. To determine this legislative intent, we consider whether: (1) the penal statutes' provisions are contained within the same statutory section; (2) the offenses are phrased in the alternative; (3) the offenses have similar titles; (4) the offenses have common punishment ranges; (5) the offenses have a common focus or gravamen; (6) the common focus tends to indicate a single instance of conduct; (7) the differing elements between the offenses can be considered the "same" under an imputed theory of liability; and (8) the legislative history shows an intent to treat the offenses as the same or different for double jeopardy purposes. See Villanueva, 227 S.W.3d at 748; Ervin, 911 S.W.2d at 814; Roy, 76 S.W.3d at 95-96. In this case, both offenses are contained within title 10 of the penal code, entitled "offenses against public health, safety, and morals" and within section 46, entitled "weapons." See Tex. Pen. Code Ann. §§ 46.04, .05. However, they are not contained within the same subsection, and they are not phrased in the alternative. Although the offenses have similar names and common punishment ranges (both, as alleged, are third-degree felonies), they arguably have a different focus or gravamen: one is designed to protect society from felons by prohibiting them from possessing firearms of any kind; the other is designed to protect society from certain extremely dangerous weapons, such as explosives, machine guns, short-barrel firearms, and silencers, by prohibiting anyone from possessing these weapons. See id. Additionally, a person charged with possessing a prohibited weapon cannot also be charged with unlawful possession of a firearm by a felon if that person has not been previously found guilty of a felony. And a felon charged with unlawfully possessing a firearm cannot also be charged with possession of a prohibited weapon unless that firearm is a short-barrel firearm. See Villanueva, 227 S.W.3d at 748-49 (serious bodily injury committed against same victim at same time should be considered same offense for purposes of double jeopardy). Finally, the legislative history does not contain any statement that the legislature intended these offenses to constitute one offense for double jeopardy purposes. See State v. Mason, 980 S.W.2d 635, 638-39 (Tex.Crim.App. 1998) (analyzing statutory history of offense of unlawful possession of firearm by felon and explaining purpose of statute is to "prohibit all felons from possessing weapons at any time at all places away from their residence"); Ford v. State, 868 S.W.2d 875, 877 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd) (explaining purpose of statute prohibiting possession of short-barrel firearm is because weapon has "little or no lawful use"). Taken together, we conclude the legislature did not intend these offenses to constitute one offense for purposes of the double-jeopardy prohibition against multiple punishments. We resolve appellant's first issue against him.

Sufficiency of the Evidence

In his second issue, appellant argues the evidence is insufficient to support the conviction for possession of a controlled substance with intent to deliver because there is no evidence connecting him to the cocaine. We construe appellant's issue as challenging the legal sufficiency of the evidence to support the conviction. In reviewing a challenge to the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, 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 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App. 2006). Under this review, we defer to the jury's determination of the weight and credibility of the witnesses. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). As indicted, the State had to prove appellant knowingly or intentionally possessed four or more grams but less than two hundred grams of cocaine with intent to deliver. Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2003). To carry its burden, the State had to show appellant exercised actual care, custody, control, or management of the cocaine, and he knew it was contraband. Id. § 481.002(38) (Vernon Supp. 2007). When an appellant is not in exclusive possession of the place the contraband was found, the State must show "circumstances, in addition to mere presence, that would adequately justify the conclusion that the defendant knowingly possessed the substance." Evans, 202 S.W.3d at 162 n. 9 (quoting Womack, J., concurring, at 166-67).⁴ The non-exclusive factors "Texas courts have recognized as sufficient, either singly or in combination, to establish a person's possession of contraband" include: (1) whether the defendant was present when the search was conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of a controlled substance when arrested; (5) whether the defendant possessed other 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 contraband; (10) whether other contraband or drug paraphernalia 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 conduct of the defendant indicated a consciousness of guilt. Id. at 162-63 (quoting Evans v. State, 185 S.W.3d 30, 36 (Tex.App.-San Antonio 2005), rev'd, 202 S.W.3d 158 (Tex.Crim.App. 2006)). Additionally, in a possession with intent to deliver case, the "intent to deliver" element may be proved by circumstantial evidence, such as the quantity of drugs possessed and the manner of packaging. Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). Intent to deliver is a question of fact for the jury to resolve, and it may be inferred from the acts, words, or conduct of the accused. Id. Appellant argues there is no evidence connecting him to the cocaine because he was not in exclusive control of the house where the cocaine was found; others in the house were in closer proximity to the cocaine; there was no evidence he knew the cocaine was there; and the mail and clothes found in the house only link him to the mail and the clothes and not to the house or the cocaine. We do not agree. The evidence showed appellant was in the house when it was searched; crack cocaine was in plain view on the kitchen table; a razor blade with powder residue was in plain view on a table and both appeared to have been used to cut crack cocaine; police seized 20.99 grams of crack cocaine-enough, according to Officer Mack, for the personal use of the five people in the house and for distribution; drug paraphernalia was in plain view; a baggie of marijuana was in plain view; Officer Mack testified the items found in the house were consistent with the distribution of cocaine; appellant had over $500 in his pocket arranged by 20s, 10s, 5s, and 1s; Officer Mack testified drug dealers often arrange their money in this way for ease in conducting drug transactions; appellant was the only person in the house in possession of cash; appellant's clothes were found in the bedroom; the bedroom appeared to be lived in; the police had seen appellant coming and going from this location prior to the search; and a sixth person was sitting outside in a vehicle in the driveway where police found crack cocaine, drug paraphernalia, a ten dollar bill, and a baggie containing cocaine residue on the ground next to the car door. The jury could have inferred from the quantity of cocaine seized, the fact some of the cocaine was in plain view, and the presence of the razor blade on the table with powder residue that the cocaine was being distributed rather than consumed for personal use and that appellant knew it was there. The jury also could have inferred appellant was living in the house from the presence of appellant's clothing in the bedroom and Officer Mack's testimony that he saw appellant coming and going from the house. Additionally, because appellant was the only person with cash, and he had a large amount of cash arranged by denominations, the jury could have inferred appellant was selling the crack cocaine. We conclude this evidence, when viewed in combination, constitutes legally sufficient evidence connecting appellant to the cocaine. As a result, we conclude the evidence is legally sufficient to support the conviction for possession of a controlled substance with intent to deliver. We resolve appellant's second issue against him.

Motion to Suppress

Appellant's third and fourth issues challenge the validity of the search warrant and the seizure of the shotgun. He argues the warrant is void because it gave police the authority to go to the location but did not give them the authority to search that location, seize any evidence, or arrest anyone. Appellant also contends the warrant did not give police the authority to search under the bed or seize the shotgun and, as result, constituted an unreasonable search. He argues the trial court should have suppressed the shotgun because the search and seizure were unreasonable. Appellant makes these claims under the Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution. He does not argue the protections afforded by the Texas Constitution are greater than the protections afforded by the Fourth Amendment. Accordingly, we limit our analysis to the federal protections. An accused may challenge a search only if he shows he had a legitimate expectation of privacy in the place that was searched. Rakas v. Illinois, 439 U.S. 128, 143 (1978); Handy v. State, 189 S.W.3d 296, 299 (Tex.Crim.App. 2006); Kothe v. State, 152 S.W.3d 54, 59 (Tex.Crim.App. 2004). Neither party raised the issue of standing to contest the search at the trial court level or on appeal. Because we previously noted appellant's clothes were found in the house, along with papers addressed to him (albeit to a different address), and because police saw appellant coming and going from the house on numerous occasions before the search, we conclude appellant has standing to challenge the search. We review a trial court's ruling on a motion to suppress for an abuse of discretion. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). We give "almost total deference to a trial court's determination of historical facts" and review de novo the trial court's application of the law to those facts. Id. When the trial court does not make explicit findings of historical facts, we view the evidence in the light most favorable to the trial court's ruling. Id. at 328. In this case, the trial court denied the motion to suppress because it concluded that probable cause existed for issuance of the warrant, the warrant incorporated the probable cause affidavit, and the search did not exceed the scope of the warrant. The warrant issued in this case was entitled "Search Warrant." It described the location to be searched and authorized the police to "enter the suspected place, vehicles, and premises." It incorporated the probable cause affidavit by reference. The affidavit described the house to be searched, stated it was "in charge of and controlled by [appellant]," and described the items suspected to be at the house:

Drugs kept, prepared, or manufactured in violation of the laws of this state including, but not limited to, cocaine base also referred to as crack cocaine, proceeds of such crimes, property acquired with the proceeds of such crimes, United States currency, implements or instruments used in the commission of a crime including, but not limited to, telephones and cellular telephones, property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense. . . .

The search warrant authorized the police to enter the location, but it did not expressly authorize the police to "search" the location or to "seize" the evidence described in the probable cause affidavit. Appellant contends this makes the warrant void. We cannot agree. A search warrant and its accompanying affidavit must be read in a common sense and realistic manner. Davis v. State, 202 S.W.3d 149, 154 (Tex.Crim.App. 2006); Long v. State, 132 S.W.3d 443, 448 (Tex.Crim.App. 2004). We may draw reasonable inferences from the facts and circumstances contained within the affidavit and search warrant. See Davis, 202 S.W.3d at 154. Even though the warrant in this case did not specifically say to "search" the premises or to "seize" the described items, it is clear, when we read the search warrant and its supporting affidavit in a common-sense manner, that it authorized entry into the house and, as a result, a search of the house and the seizure of the evidence described in the affidavit. See Arrick v. State, 107 S.W.3d 710, 714 (Tex.App.-Austin 2003, pet. ref'd). Appellant also argues the search was unreasonable because it did not authorize the police to look under the bed or seize the shotgun. Again, we cannot agree. The warrant authorized the seizure of contraband and "implements or instruments used in the commission of a crime." See Tex. Code Crim. Proc. Ann. art. 18.02(7), (9) (Vernon 2005). Officer Mack testified that drug dealers commonly use firearms to "protect their product." He also testified that police discover firearms the majority of the time when they execute search warrants for drugs. Because firearms are instruments commonly used in the commission of drug trafficking, the seizure of the sawed-off shotgun in this case was authorized by the warrant. See Carmouche, 10 S.W.3d at 330; Smith v. State, 176 S.W.3d 907, 920 (Tex.App.-Dallas 2005, pet. ref'd) (citing Wilson v. State, 132 S.W.3d 695, 698 (Tex.App.-Amarillo 2004, pet. ref'd) (it is "rather settled" that weapons associated with drug trade)). We conclude the trial court did not err by denying appellant's motion to suppress the warrant and the shotgun. We resolve appellant's third and fourth issues against him.

Ineffective Assistance of Counsel

In his fifth issue, appellant argues his trial attorney was ineffective by refusing to call certain witnesses during the guilt/innocence phase of trial. Appellant contends these witnesses were crucial fact witnesses concerning ownership and possession of the residence, cocaine, and shotgun, and he was denied due process by his counsel's failure to call them to testify on his behalf. We evaluate effectiveness of counsel under the standard established in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To show counsel was ineffective by failing to call witnesses, appellant must show the witnesses were available and their testimony would have benefitted him. See Wilkerson v. State, 726 S.W.2d 542, 550-51 (Tex.Crim.App. 1986); King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). This case is one of those rare cases in which defense counsel's strategy reasons for not taking certain actions are contained in the record. See Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). After the jury found appellant guilty, and before the punishment phase of the trial began, the court held a hearing concerning appellant's desire to have certain witnesses called to testify on his behalf. Appellant testified he had asked his attorney to call witnesses to testify during the guilt/innocence phase about the ownership of the property and about his employment record. Appellant contended he needed these witnesses because the State was "saying it was my house, I wasn't employed, and I was a drug dealer. . . . and I wanted to prove to the jury that I had in fact a job and also was a visitor at that residence. That wasn't my residence as the assistant district attorneys concluded at the trial hearing, and I feel as though I didn't get a fair trial, sir." Trial counsel stated he did not subpoena these witnesses because he "was trying to keep the jury focused solely on the issues of possession and not trying to bring up . . . character issues which might bring up [appellant's] prior criminal history." Appellant nevertheless maintained these witnesses were crucial to his defense. After this preliminary hearing, the State put on its evidence regarding punishment and the court recessed the hearing to give defense counsel an opportunity to subpoena the witnesses appellant requested. When the punishment hearing resumed, defense counsel stated he was unable to find Mabel Hart, one of the witnesses appellant requested he call. However, he did locate the other witnesses and called each of those witnesses to testify in the punishment phase. Except for Hart, appellant has shown that all of the people he asked his attorney to call as witnesses were available to testify, at least during the punishment phase. However, appellant has not shown the witnesses would have benefitted him. For example, appellant complained that his attorney did not call Burnest Rhodes, the owner of the house, to testify during guilt/innocence that appellant did not own the house. Rhodes testified during punishment that he had owned the property for the last two years, had not leased it to anyone, was in the process of remodeling the house, and had posted no trespassing signs on it. He also testified about several break-ins which resulted in several thousands of dollars of damages. When someone told him they thought his house might be involved in drug activity, Rhodes testified he called the police and asked them to watch his house. He said he was not aware exactly what the police did in this case, but whatever they did, they had his permission to do it. He also said appellant did not have permission to be in his house. Even though Rhodes testified as appellant had hoped he would-that appellant did not own the residence and did not live there-this does not benefit appellant's case. The State was not required to show that appellant owned or rented the house to prove appellant possessed the cocaine and the shotgun. Instead, as we discussed under appellant's challenge to the legal sufficiency of the evidence, whether appellant was legitimately in the place searched is only one of many factors we consider in determining whether the State linked appellant to the contraband. See Evans, 202 S.W.3d at 162-63; Smith, 176 S.W.3d at 914-18. Even if Rhodes had testified during guilt/innocence that appellant did not have permission to live in the house, the jury could have inferred appellant lived in the house without permission because his clothes were piled on the bedroom floor, the police found papers belonging to him in that same bedroom, Officer Mack testified the bedroom appeared lived-in, and Officer Mack testified he had seen appellant coming and going from the house on numerous occasions prior to the search. Appellant also asked his attorney to call Hart or Robert Walker to testify that appellant did not live in the house. Walker was one of the five people in the house when the search warrant was executed and was arrested along with appellant. Walker testified during punishment that he had just arrived at the house when the police raided it. He said he was renting the house from a Mr. Maxwell who worked at a Christian college. He said he had been staying with his sister because he had been very ill and weak, and he just stopped by the house to leave the rent money. Walker testified appellant came by and asked if he could rest there for a while, and Walker asked appellant to watch the house while he went to Waxahachie to report to his parole officer. Walker gave appellant the rent money and asked him to give it to Mr. Maxwell when he came by. If Walker had testified to these facts in the guilt/innocence phase, his testimony may have provided a legitimate explanation for the substantial amount of cash found on appellant. But it also would have contradicted Rhodes's testimony that he owned the house and had not rented it to anyone. Regardless, Walker's testimony would not have benefitted appellant with regard to possession of the cocaine and shotgun. This is because Walker's testimony indicated appellant was legitimately at the house, and Walker said he did not know anything about the cocaine and shotgun found in the house. Additionally, Walker's attorney, without divulging client confidences, testified at the new trial hearing that Walker's testimony would not have been helpful to appellant. Appellant also asked his attorney to call Nicole and Rickey Nop to testify about appellant's reputation in the community, and appellant's brother, Richard King, to testify about his work history. Rickey Nop testified during punishment that he owns a liquor store in Terrell and has known appellant as a regular customer for about two years. Nop generally testified favorably about appellant's character. However, when asked if his opinion would change if he knew appellant had been found guilty of possessing a controlled substance, he said it probably would. And King testified that appellant worked various jobs for the family's businesses. However, he did not know anything about the facts of this case. It is apparent from the preliminary hearings that defense counsel investigated these witnesses and determined they would not benefit appellant's case. Defense counsel stated that one of the reasons he rejected appellant's request to call these witnesses was because he did not want to give the State the opportunity to inquire about their knowledge of appellant's past conduct. If Nop or King had testified as character witnesses, they would have been subject to impeachment using "have you heard" or "do you know" questions about specific instances of appellant's conduct. See Tex. R. Crim. Evid. 405; Wheeler v. State, 67 S.W.3d 879, 892 n. 4 (Tex.Crim.App. 2002); Lancaster v. State, 754 S.W.2d 493, 495-96 (Tex.App.-Dallas 1988, pet. ref'd); Hale v. State, 140 S.W.3d 381, 392 (Tex.App.-Fort Worth 2004, pet. ref'd). The decision not to call Nop and King for this reason was a sound trial strategy. And, as we have demonstrated, the other witnesses would not have benefitted appellant's claim that he did not possess the cocaine or shotgun: these witnesses either did not have any personal knowledge about the facts of the case or denied all knowledge about the cocaine and shotgun. Either way, their testimony would not have benefitted appellant. It is not ineffective assistance to refuse to call a witness that is as potentially dangerous as he is helpful. Damian v. State, 881 S.W.2d 102, 110 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). We conclude appellant has not met his burden of showing these witnesses would have provided beneficial testimony. As a result, appellant has not shown his trial attorney was ineffective by failing to call these witnesses to testify at the guilt/innocence phase of trial. We resolve appellant's fifth issue against him.

Conclusion

Having decided all of appellant's issues against him, we affirm the trial court's judgments.