Opinion
No. 05-04-01719-CR
Opinion issued December 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th District Court, Collin County, Texas, Trial Court Cause No. 380-81333-04. Affirmed.
Before Justices FITZGERALD, LANG-MIERS, MAZZANT.
OPINION
Appellant was convicted of possession of a controlled substance, cocaine, with the intent to deliver, in an amount of four grams or more, but less than 200 grams, within 1000 feet of a school or youth center. Tex. Health Safety Code Ann. §§ 481.102(3)(d), 481.112(a), 481.134 (Vernon 2003 and Supp. 2005). After a jury found appellant guilty, it assessed punishment, enhanced by two prior felony convictions, at eighty years. Appellant asserts two issues on appeal: (1) he was denied effective assistance of counsel; (2) the trial court erred by admitting into evidence a letter he wrote. For the following reasons we affirm the decision of the trial court.
Factual Background
The facts of this case are well known to the parties, and we do not recite them in detail. On August 30, 2003, the Plano Police Department executed a search warrant for a house located at 1320 Idaho Drive. The warrant was based on a sexual assault case unrelated to the appellant, but involving another resident of the house. During the execution of the warrant, appellant and his wife, Nichelle Wilson, were found in the master bedroom of the house. A twenty-eight gram crack cocaine cookie was sitting on a digital scale on a dresser in the master bedroom. Appellant had $455 cash in his pocket in bundles of one, five, ten, and twenty dollar bills. Grace Church and Children's Weekday School is located within 1000 feet of the house. Police arrested both appellant and his wife. At trial the State offered a letter into evidence that appellant wrote from the Collin County Detention Facility. The letter was addressed to the "Informant Department" in Dallas and stated:Dear Sir: To whom this may concern, my name is Jeremiah L. Busby. I'm currently incarcerated in Collin County Detention Facility. I'm very interested in becoming an informant for the Dallas area FBI and DEA. I have solid information containing various of things that will be very interesting to both departments ranging from kingpin drug dealers to major dog fights taking place in Terrell, Texas. My information is very reliable and I have access to any drug dealer within Dallas city limits. If any of this information interests your department and you're looking for a way into any drug ring in Dallas, please contact me ASAP. Thanks a lot.Wilson, appellant's wife, made numerous inconsistent pretrial statements assuming and denying ownership of the cocaine, and equivocating on appellant's guilt. However, she entered into a plea agreement with the State, pleaded guilty to the same charges as were pending against the appellant, and agreed to testify truthfully against the appellant in return for a reduced sentence of 15 years in prison. Her sentencing was delayed until after appellant's trial. The State chose not to call her to testify. The appellant, however, did call her as a witness at trial.
Ineffective Assistance of Counsel
In his first issue, appellant claims trial counsel was ineffective for calling Wilson as a witness at trial in light of her plea agreement and her prior inconsistent statements. Appellant also asserts that trial counsel did not interview her prior to her testimony and was therefore not properly prepared. We evaluate the effectiveness of counsel under the standard enunciated 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 his claim, appellant must prove by a preponderance of evidence (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone, 77 S.W.3d at 833. Any allegation of ineffectiveness of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996); Thompson v. State, 9 S.W.3d at 813. In this case the record is silent regarding counsel's reasons for calling Wilson as a witness and for choosing not to interview her prior to her testimony. The record does not reveal the extent of trial counsel's trial preparation nor does it contain trial counsel's explanation for his trial strategy. Therefore, we defer to counsel's decisions, if, as here, there is at least the possibility the conduct could have been a legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Without trial counsel's explanation, we cannot conclude on appeal that appellant received ineffective assistance of counsel. See Ortiz, 93 S.W.3d at 88-89; Bone, 77 S.W.3d at 836; Thompson, 9 S.W.3d at 813-14. We decide appellant's first issue against him.Admission of the Letter Into Evidence
Appellant asserts the trial court erred in admitting his letter to the "Informant Department" into evidence because (1) the letter was an attempt to settle or compromise the case pursuant to Tex. R. Evid. 408 and 410; and (2) the letter's probative value was outweighed by its prejudicial effect. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002); Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Rule 408 states:Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest or a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.The rule is limited on its face to evidence which is presented to prove "the validity for or invalidity of [a] claim or its amount." Smith v. State, 898 S.W.2d 838, 842-43 (Tex.Crim.App. 1995). Rule 408 prevents the prosecution from offering evidence the accused settled a parallel civil action to prove liability for a civil claim and thus guilt on a criminal charge. See Smith, 898 S.W.2d at 843. Nothing in the appellant's letter concerns the validity or invalidity of a claim or its amount or of conduct or statements made in compromise negotiations. Rule 408 is not applicable in this case. Texas Rule of Evidence 410 makes inadmissible any statement made in the course of unsuccessful plea discussions with an attorney for the prosecuting authority. Thus, purported plea offers or other statements to anyone other than an attorney for the prosecution, are not covered by Rule 410, regardless of what the defendant believed when he made the statement in question. Monreal v. State, 947 S.W.2d 559, 565 (Tex .Crim. App. 1997) (citing S. Goode, et al., Guide to the Texas Rules of Evidence: Civil and Criminal § 410.3 at 282 (2nd ed. 1993). A letter written to the "Informant Department" in a different county is clearly a statement made to someone other than the attorney for the prosecution and would not be excluded from evidence under Rule 410. Finally, appellant asserts the letter was not relevant and its probative value was substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 401 and 403. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." See Tex. R. Evid. 401. Evidence that is not relevant is not admissible. Tex. R. Evid. 402. In determining relevancy, a trial judge looks at (i) the purpose for offering the evidence, and (ii) whether there is a direct or logical connection between the offered evidence and the proposition to be proved. Fletcher v. State, 852 S.W.2d 271, 276 (Tex.App.-Dallas 1993, pet. ref'd). If there exists any reasonable logical nexus, the evidence will pass the relevancy test. Id. at 276-77. Texas Rule of Evidence 403 favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex.Crim.App. 1991). Once a rule 403 objection has been raised the trial court must balance the probative value of the evidence against its prejudicial effect. Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997). A silent record does not show the trial court failed to perform the balancing test. Id. at 195-96. Rather, we presume the trial court performed the balancing test unless the record affirmatively shows otherwise. See Rojas v. State, 986 S.W.2d 241, 250 (Tex.Crim.App. 1998). An abuse of discretion arises only when the probative value is small and the inflammatory potential is great. Long, 823 S.W.2d at 271. Appellant concedes his theory at trial was that the cocaine was Wilson's and that he was in the wrong place at the wrong time. The State asserts that the letter does not contain an admission of guilt, but that it was relevant to show appellant's access to drug dealers, which made it more probable he recognized the crack cocaine cookie found on his dresser and less probable he was just in the wrong place at the wrong time. The trial court allowed the parties to make their arguments on the record outside of the presence of the jury and then ruled against appellant. The trial court did not abuse its discretion in determining that the letter was relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice. We decide appellant's second issue against him. The judgment of the trial court is affirmed.