Opinion
No. 05-08-01067-CR
Opinion Filed June 16, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80093-06.
Before Justices MOSELEY, O'NEILL, and MURPHY.
OPINION
Appellant was charged with possession with intent to deliver of four grams or more but less than 200 grams of methamphetamine. The jury convicted appellant of the lesser-included offense of possession of methamphetamine. The trial court assessed punishment, enhanced by one prior conviction, of twenty-five years' imprisonment. In three issues, appellant contends the evidence is legally and factually insufficient to support the verdict, trial counsel was ineffective by failing to preserve error in the selection of the jury and by failing to request a jury instruction on the need for independent corroboration of accomplice-witness testimony, and the sentencing procedure violated appellant's due process rights. We affirm the trial court's judgment.
Background
Detectives Brian Quinn and George Johnson, narcotics officers for the City of Plano, were working drug interdiction on Highway 75 when they saw a car that appeared to be speeding. The officers paced the car at sixty-five miles per hour in a sixty miles per hour zone and initiated a traffic stop. Misty Jeffries was driving the car. Tiffany Rolfing was in the front passenger seat and appellant was in the rear passenger seat behind Rolfing. As Quinn approached the passenger side of the car, he saw appellant making a furtive movement with his left hand. According to Quinn, a person typically makes such a movement when the person is trying to hide or reach something. Due to appellant's movement and a faint odor of burnt marijuana, Quinn believed there might be illegal substances in the car. According to Quinn, Jeffries said they had come from Hugo, Oklahoma to Dallas to pick up a friend. Jeffries and Rolfing left appellant at an apartment complex on Forest Lane where appellant's girlfriend lived. Jeffries and Rolfing then looked for Jeffries's friend at several locations, but could not find her. Rolfing, the owner of the car, gave Quinn permission to search it. Quinn found a heat-sealed package on the backseat floorboard on the passenger side. The package was approximately nine inches long, two inches deep, and two inches wide. Quinn cut open the package and observed what he believed to be methamphetamine. Later testing confirmed the package contained 110 grams of methamphetamine. After Quinn found the package, Johnson asked Jeffries, Rolfing, and appellant if it belonged to them. Rolfing said it did not belong to her. Jeffries said she did not know the package was in the vehicle. Appellant denied the package belonged to him. Johnson saw appellant say something to Rolfing that Johnson could not understand. Rolfing then said the drugs belonged to her. In response to Quinn's questions, Rolfing again said the drugs belonged to her and that the drug was "ice" — the street name for methamphetamine. When Quinn questioned appellant about the drugs, appellant said Rolfing had already said the drugs belonged to her. Appellant said nothing to Quinn to indicate appellant was not aware of the package at his feet on the floorboard, that he did not know what was in the package, or that the package was not on the floorboard prior to the stop. Quinn arrested Rolfing for possession of the methamphetamine. Subsequently, the district attorney informed Quinn there also was enough evidence at that time to charge appellant with possession of the methamphetamine. Rolfing testified she did not really know appellant. She was coming to Dallas with Jeffries to pick up Jeffries's friend and Jeffries said appellant needed a ride. Rolfing confirmed that she and Jeffries left appellant at an apartment complex on Forest Lane. They then searched unsuccessfully for Jeffries's friend. Although Jeffries can be heard on the videotape of the stop telling Quinn that Rolfing left Jeffries for a period of time, Rolfing denied that she separated from Jeffries during the day. Rolfing did not notice whether appellant had the package when they picked up appellant to return to Hugo. After Jeffries got out of the car following the traffic stop, appellant said, "here, take this," and tried to hand Rolfing a package. Rolfing did not take the package. She allowed the search of the vehicle because she did not think she had anything to hide. After Quinn found the package in the backseat where appellant was sitting, appellant said to Rolfing "Look what you got me into." Jeffries and appellant both told Rolfing to take the blame because she was young and nothing would happen to her. They told Rolfing that she would get off easily and they would get her out of jail the next day. Rolfing was scared and felt threatened. Because Rolfing was seventeen, she was still a minor in Oklahoma. She subsequently learned she was not a minor in Texas. Rolfing was convicted of possession of the methamphetamine and is on probation. Rolfing testified the drugs belonged to appellant and that it is not fair that she is being punished for something that did not belong to her.Sufficiency of the Evidence
In his first issue, appellant argues the evidence is neither legally nor factually sufficient to support the conviction. Additionally, appellant contends Rolfing was an accomplice as a matter of law and there was insufficient evidence to corroborate Rolfing's testimony the methamphetamine belonged to appellant.Sufficiency of Corroboration
The accomplice-witness rule provides that a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). To determine if the testimony is sufficiently corroborated, we eliminate all of the accomplice testimony from consideration and then examine the remaining portions of the record in the light most favorable to the jury's verdict to see if there is any evidence that could be viewed by a rational juror as tending to connect the defendant to the commission of the offense. Simmons v. State, No. 0791-09, 2009 WL 1175047, at *3-4 (Tex.Crim.App. Apr. 29, 2009); Brown v. State, 270 S.W.3d 564, 567 (Tex.Crim.App. 2008), cert. denied, 129 S.Ct. 2075 (2009). It is not necessary that the corroborating evidence be sufficient by itself to establish guilt; there simply needs to be "other" evidence "tending to connect" the defendant to the offense alleged in the indictment. Castillo v. State, 221 S.W.3d 689, 691 (Tex.Crim.App. 2007). Although the defendant's mere presence in the company of the accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the accused to the offense. Davis v. State, 68 S.W.3d 273, 281-82 (Tex.App.-Dallas, pet. ref'd) (citing Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999)). Viewing the evidence in the light most favorable to the jury's verdict, there was sufficient evidence tending to connect appellant to the offense to corroborate Rolfing's testimony that the drugs belonged to appellant. Appellant was in the car with Rolfing when the offense was committed. As Quinn approached the car, he saw appellant make a "furtive gesture," leading Quinn to believe appellant was hiding or reaching for something. Quinn found the methamphetamine on the floorboard of the rear passenger seat where appellant was sitting. After Quinn found the drugs, Rolfing denied the methamphetamine belonged to her. Appellant then said something to Rolfing, after which Rolfing claimed the drugs. The package containing the drugs was fairly large and would have been noticeable to appellant. When questioned about the drugs, however, appellant said only that Rolfing had said the drugs were hers. He did not indicate the package had not been at his feet or that he was unaware of the package. We conclude the evidence was sufficient to corroborate Rolfing's testimony the methamphetamine belonged to appellant.Legal and Factual Sufficiency of the Evidence
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. Klein v. State, 273 S.W.3d 297, 302 (Tex.Crim.App. 2008). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S. Ct. 282 (2007). We will set aside the verdict only if the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 704-05; Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S. Ct. 87 (2007). To establish appellant had knowing possession of the methamphetamine, the State had to prove appellant exercised actual care, custody, control, or management over the methamphetamine and that he knew the drugs were contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The evidence, whether direct or circumstantial, must establish to the requisite level of confidence that appellant's connection with the contraband was more than just fortuitous. Id. at 405-06. In this case, appellant was not in exclusive possession of the place where the methamphetamine was found. Accordingly, we cannot conclude he had knowledge of and control over the contraband unless other direct or circumstantial evidence establishes appellant's possession of the contraband beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 161-62 n. 9 (Tex.Crim.App. 2006). The number of factors linking appellant to the contraband is less important than the logical force with which all the evidence, both direct and circumstantial, connects appellant to the contraband. Id. at 162. Possible links include (1) the defendant's presence when a search is 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 narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics 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 contraband was found; (12) whether the place where the contraband was 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 n. 12. In deciding whether the evidence is sufficient to link appellant to the contraband, the trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Poindexter, 153 S.W.3d at 406. Rofling testified the methamphetamine belonged to appellant, Further, appellant was in an enclosed space with Rolfing when the offense was committed and, as Quinn approached the car, he saw appellant make a "furtive gesture." Based on this gesture, Quinn believed appellant was hiding or reaching for something. Quinn found the methamphetamine on the floorboard of the rear passenger seat where appellant was sitting. The package containing the drugs was fairly large and would have been noticeable to appellant. After Quinn found the drugs, Rolfing denied the methamphetamine belonged to her. Appellant then said something to Rolfing, after which Rolfing claimed the drugs. When questioned about the drugs, however, appellant said only that Rolfing had said the drugs were hers. He did not indicate the package had not been at his feet or that he was unaware of the package. Applying the appropriate standards to the facts of this case, we conclude the evidence as a whole was both legally and factually sufficient to support the conviction. We overrule appellant's first issue.Ineffective Assistance of Counsel
In his second issue, appellant asserts trial counsel was ineffective by failing to preserve error in the selection of the jury and by failing to request an accomplice witness instruction in the jury charge. To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability the result of the proceedings would have been different in the absence of his counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Bone, 77 S.W.3d at 833. Accordingly, allegations of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). With regard to allegations of deficient performance, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003)). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia v. State, 57 S.W.3d 436, 442 (Tex.Crim.App. 2001)).Jury Selection
The trial court denied appellant's trial counsel's challenges for cause to five members of the venire who stated they would be biased against appellant if he did not testify. Although the challenged individuals were not seated on the jury, appellant asserts counsel was ineffective by failing to preserve any error by the trial court in denying the challenges for cause. See Busby v. State, 253 S.W.3d 661, 670 (Tex.Crim.App.), cert. denied, 129 S.Ct. 625 (2008); Allen v. State, 108 S.W.3d 281, 282 (Tex.Crim.App. 2003) (to preserve error with respect to denial of a challenge for cause, defendant must (1) assert clear and specific challenge for cause; (2) use peremptory strike to remove veniremember whom trial court should have excused for cause; (3) exhaust all statutorily allotted peremptory strikes; and (4) unsuccessfully request additional peremptory strike to remove another veniremember whom defendant identifies as objectionable and who actually sits on jury). Appellant did not raise his complaint by motion for new trial and the record does not reflect counsel's strategy in exercising any peremptory challenge or in failing to preserve any error by the trial court in denying the challenges for cause. See State v. Morales, 253 S.W.3d 686, 698 (Tex.Crim.App. 2008) (decision to waive alleged error in denial of challenge for cause by using peremptory challenges on other prospective jurors could be reasonable tactical choice by counsel). Because the record is silent regarding any explanation for trial counsel's actions, we conclude appellant has not met his burden to overcome the strong presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.").Failure to Request Accomplice-Witness Testimony Instruction
Appellant also argues counsel was ineffective by failing to to request a jury instruction about the need for independent corroboration of accomplice-witness testimony. Rolfing was convicted of possession of the methamphetamine and, therefore, was an accomplice-witness as a matter of law. Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004) ("An accomplice as a matter of law is one who is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense."). Because the State's case depended heavily on Rolfing's testimony that the methamphetamine belonged to appellant, counsel should have requested on instruction an accomplice-witness testimony. Davis v. State, 278 S.W.3d 346, 352 (Tex.Crim.App. 2009). Counsel's failure to do so allowed the jury to base its verdict on Rolfing's testimony alone, regardless of whether the jury believed any of the corroborating evidence. Counsel's performance, therefore, was objectively deficient, and appellant has satisfied the first prong of the Strickland test. Id. We next turn to whether appellant has established a reasonable probability the result of the proceedings would have been different in the absence of his counsel's errors. Strickland, 466 U.S. at 687; Davis, 278 S.W.3d at 352. This analysis turns on "whether there was a substantial amount of non-accomplice evidence and whether the record reveals any rational basis on which the jury could have doubted or disregarded that evidence." Davis, 278 S.W.3d at 353. A significant amount of evidence was presented at trial that tended to connect appellant to the methamphetamine, and the record reveals no rational basis on which the jury could have doubted or disregarded that testimony. The non-accomplice evidence, if believed, established (1) appellant was at the scene of the offense at the time of its commission; (2) he was in the company of the accomplice, Rolfing, at the time of the offense; (3) the drugs were found on the floorboard of the rear passenger seat of the car where appellant was sitting; (4) the package of drugs was fairly large and likely would have been noticed by appellant; (5) as Quinn approached the car, appellant made a "furtive gesture," indicating to Quinn that appellant was trying to hide or reach for something; (6) appellant did not tell Quinn the package was not in the floorboard at appellant's feet or that appellant had not seen the package; (7) after Rolfing denied the drugs belonged to her, appellant said something to Rolfing; and (8) after appellant talked to her, Rolfing claimed ownership of the drugs. Given the quantity and quality of the non-accomplice evidence that tended to connect appellant to the offense, we conclude there is no reasonable probability that, but for counsel's deficient performance, the jury's verdict would have been different. Id. at 352-53. Because appellant failed to establish he received ineffective assistance of counsel, we overrule appellant's second issue.Sentencing Procedure
In his third issue, appellant argues the trial court's sentencing procedure violated due process. Appellant was charged with possession with intent to deliver of four grams or more but less than 200 grams of methamphetamine, a first-degree felony. See Tex. Health Safety Code Ann. § 481.112(d) (Vernon 2003). The offense had a penalty range of five to ninety-nine years or life imprisonment. Tex. Penal Code Ann. § 12.32(a) (Vernon 2003). The State gave notice to appellant of its intent to have appellant sentenced as an habitual offender and, if appellant was sentenced as an habitual offender, the penalty range for the offense would be fifteen to ninety-nine years or life imprisonment. See Tex. Penal Code Ann. § 12.42(c)(1) (Vernon Supp. 2008). The notice told appellant that, in support for its request for enhanced punishment, the State intended to introduce a 1999 conviction in Oklahoma for conjoint robbery and a 1999 conviction in Oklahoma for assault with a deadly weapon. Appellant was convicted of the lesser-included offense of possession of four grams or more but less than 200 grams of methamphetamine, a second-degree felony. See Tex. Health Safety Code Ann. § 481.115(d). The penalty range for a second-degree felony is two to twenty years' imprisonment. Tex. Penal Code Ann. § 12.33(a) (Vernon 2003). This punishment range can be enhanced to five to ninety-nine years or life imprisonment, however, if the defendant has a prior felony conviction. Tex. Penal Code Ann. §§ 12.32(a), 12.42(b). During the punishment phase, appellant stipulated to the admission of two 1999 felony convictions in Oklahoma. Appellant also stipulated he was the person convicted of the offenses. Appellant's attorney then stated:I guess we're at the punishment phase, Your Honor. I guess being that now this case they decided the lesser included, Your Honor, there's no longer a minimum of 15 years TDC incarceration in this case. I now believe it's just a state felony one with five to 99 cap.The State responded:
The defendant has never taken responsibility for his actions on that evening and allowed a 17-year-old to take full responsibility for everything that happened that evening. He's already had a 10 year pen trip for robbery and that didn't teach him any sort of a lesson as far as becoming a law abiding citizen. I'd ask for 25 years.The trial court sentenced appellant to twenty-five years' imprisonment. The judgment entered by the trial court showed appellant was convicted of a first-degree felony with no enhancements. Five days later, the trial court entered a judgment nunc pro tunc showing appellant was convicted of a second-degree felony with punishment enhanced by a prior conviction. The trial court reconvened the sentencing hearing and stated:
[Appellant], last week I sentenced you to 25 years in the penitentiary, and I want to make it clear on the record that the reason you received the 25 years is because your sentence was enhanced by your prior felony convictions, and so for that reason, I sentence you to 25 years in the Institutional Division of Texas Department of Criminal Justice.Appellant now argues the sentencing procedure violated his right to due process because "appellant never received proper notice of any punishment being sought for a second-degree conviction by the State; appellant never was read or pled to any enhancements as the Court described, and the Court's recitation that appellant received 25 years because 'your prior felony convictions' clearly shows the Court believed appellant was habitually enhanced under Tex. Penal Code Section 12.42(d)." Appellant did not complain about the sentencing procedure either during the punishment hearing or in his motion for new trial. By failing to raise his complaint in the trial court, appellant has waived the issue for appeal. See Tex. R. App. P. 33.1(a)(1); Moore v. Illinois, 408 U.S. 786, 799 (1972) (due process argument waived by failing to raise it in trial court); Flores v. State, 245 S.W.3d 432, 439 n. 14 (Tex.Crim.App. 2008) (citing Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995) (as applied due process challenge not preserved for appeal absent specific, timely objection at trial)). Furthermore, even if we assume appellant preserved his argument for appellate review, we disagree that the sentencing procedure violated appellant's due process rights. We first consider appellant's argument he did not receive notice the State intended to seek to enhance the punishment range of a second-degree felony conviction. The State must provide the defendant notice of its intent to enhance punishment with prior convictions. Brooks v. State, 957 S.W.2d 30, 33-34 (Tex.Crim.App. 1997); Mayfield v. State, 219 S.W.3d 538, 539 (Tex.App.-Texarkana 2007, no pet.). There is no set time period, however, by which this notice must be given. Villescas v. State, 189 S.W.3d 290, 294 (Tex.Crim.App. 2006). When a defendant has no defense to the enhancement allegation and has not suggested the need for a continuance to prepare a defense, notice given at the beginning of the punishment phase satisfies the requirements of the federal constitution. Id. Appellant received notice before trial that the State intended to seek to enhance appellant's punishment with the two 1999 convictions in Oklahoma. Prior to punishment, the State informed appellant it intended to introduce his prior Oklahoma convictions and appellant stipulated to the exhibits. In closing argument, appellant's counsel indicated appellant was convicted for "a state felony one with five to 99 cap," consistent with appellant being convicted of a second-degree felony enhanced by one prior conviction. Appellant clearly had timely notice the State intended to seek an enhanced punishment on the second-degree felony conviction. We next consider appellant's argument that no enhancements were read and appellant did not plead to any enhancements. Because appellant elected to have the trial judge assess punishment, it was unnecessary for the enhancement paragraphs to be read to him or for the trial court to receive his plea. See Reed v. State, 500 S.W.2d 497, 499-500 (Tex.Crim.App. 1973); Seeker v. State, 186 S.W.3d 36, 39 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). Finally, appellant asserts he was improperly sentenced as an habitual offender. The judgment nunc pro tunc, however, reflects that appellant was sentenced on a second-degree felony with one enhancement, which elevates the punishment ranges to that for a first-degree felony. Appellant's twenty-five year sentence falls within the correct range of punishment. Absent evidence in the record to the contrary, we presume the regularity of recitations like this in judgments. See Jones v. State, 77 S.W.3d 819, 822 (Tex.Crim.App. 2002) (citing Breazeale v. State, 683 S.W.2d 446, 450-51 (Tex.Crim.App. 1985) (op. on reh'g)). We overrule appellant's third issue. We affirm the trial court's judgment.