Opinion
Nos. 05-04-01500-CR, 05-04-01501-CR, 05-04-01502-CR, 05-04-01503-CR, 05-04-01504-CR
Opinion issued April 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F97-46196-KN, F01-56561-PN, F01-56638-PN, F01-56639-MN, F01-75372-PN. Affirmed as modified.
Before Justices WHITTINGTON, WRIGHT, and MAZZANT.
OPINION
Juan Manuel Delbosque appeals his convictions for possession of marijuana, possession of cocaine, possession of metal or body armor by a felon, and the revocation of his probation. In eight issues, he claims (1) this court has jurisdiction over these appeals; (2) the trial court erred in denying his motion to suppress; (3) the search warrant affidavit was insufficient to establish probable cause; (4) the evidence is legally insufficient; (5) the evidence is factually insufficient; (6) the trial court erred in admitting punishment phase testimony that he was a member of a street gang; (7) the trial court erred in denying his motion to quash the indictment; and (8) his trial counsel was ineffective. We affirm the trial court's judgments.
This issue is offered in response to the State's motion to dismiss these appeals based on lack of jurisdiction.
Background
In late 2000 or early 2001, Dallas Police Detective Paul Ellzey received a complaint from a concerned citizen about possible narcotics-related activity occurring inside a Dallas apartment complex at 5811 Birchbrook in Dallas, Texas. The citizen, who claimed to be a resident of the complex, reported seeing people arriving late at night and early in the morning carrying bags of various sizes from different types of vehicles into apartment 204, staying there a short time, and then leaving. Over several hours, the resident saw several cars drive up and their occupants go inside the apartment, where they would remain for a few moments before leaving. Ellzey testified that, after receiving the citizen complaint, he began conducting surveillance on the apartment, which he later determined was leased to appellant and appellant's wife, Cristina Delbosque. During the surveillance, he observed the same kinds of activities reported by the citizen-informant. Ellzey saw people arriving at night and carrying boxes or nylon gym bags into the apartment. Ellzey recalled that they usually drove leased vehicles, would remain inside the apartment anywhere from forty-five minutes to an hour and one-half before leaving, and did not take these boxes or bags with them when they left the apartment. After they left, a stream of cars would begin arriving at the apartment. People would get out of their cars, go inside the apartment for a few minutes, and then leave. Additional investigation revealed that some of the vehicles seen coming and going from apartment 204 were registered to individuals with criminal records for narcotics violations. The prevalence of leased vehicles at the apartment made Ellzey very suspicious because narcotics distributors often use leased vehicles to avoid civil forfeiture statutes. Ellzey's surveillance and investigation of apartment 204 continued for a period of approximately eight or nine months, until approximately 9:15 p.m. on the evening of September 5, 2001, when he received a telephone call from a person who claimed he lived at the apartment complex. The caller told Ellzey that he had seen several individuals carrying large garbage bags over their shoulders from a Suburban to apartment 204. The informant gave Ellzey the Suburban's license plate number. Ellzey looked up the registration and discovered that the vehicle, a 2001 Chevrolet Suburban, belonged to an automobile leasing company and was rented to Veronica Gamboa. Ellzey went immediately to the apartment complex, arriving there somewhere between 9:15 and 9:30 p.m. He saw the Suburban parked in the same location described by the caller. Ellzey walked over to the vehicle and looked into one of the windows. He saw a garbage bag lying on the rear floorboard between the front and center passenger seats. The bag was open, and Ellzey could see there was something inside but could not tell what it was. He asked for assistance from other officers and set up a perimeter around the apartment complex. Approximately fifteen minutes after Ellzey arrived at the apartment complex, appellant and another man, later identified as Eduardo Gamboa, were seen leaving apartment 204. The two men entered the Suburban and drove away. Ellzey notified uniformed patrol officers, who were participating in the surveillance, and told them to make an investigative stop of the Suburban. Dallas Police Officers Paul Lapiano, David Durica, and a third officer followed the vehicle in a marked patrol car as it headed south on Central Expressway. After they saw the vehicle cross three lanes of traffic without signaling, they initiated a traffic stop. As the officers approached the Suburban, they noticed a strong odor of marijuana coming from the interior of the vehicle after the driver, Gamboa, rolled down the window. Lapiano used his flashlight to perform a visual sweep of the interior of the vehicle and saw an open trash bag on the floorboard behind the passenger's seat. He could see that the bag contained a green, leafy substance that he believed to be marijuana. Appellant, who was the passenger, and Gamboa were then taken out of the vehicle and placed under arrest. The garbage bag recovered from the vehicle was later found to contain approximately six and one-half pounds of marijuana. After learning of the discovery of the marijuana in the Suburban, Ellzey prepared a search warrant affidavit for a search of the apartment. The warrant was signed by a magistrate and executed sometime during the early morning hours of September 6, 2001. When the team of narcotics officers entered the two bedroom apartment, they found it empty. Inside the apartment, officers found a variety of weapons and ammunition, including military-style assault rifles, shotguns, large caliber semi-automatic handguns, and "hollow point" ammunition. The officers also found a high-impact bulletproof vest, thirty-one pounds of marijuana, over four thousand grams of cocaine, a large-capacity money counting machine of the kind used by banks, and approximately $11,000 cash. The officers also found a variety of documents, including personal papers, bill collection notices, and utility bills. Among the personal papers recovered by police were court documents with appellant's name on them and birth certificates of appellant, his wife, and their son. Police officers found bill collection notices and utility bills addressed to appellant's wife, Cristina Delbosque. The officers also found a copy of a lease agreement for apartment 204 bearing the signatures of appellant and his wife and a statement from the City of Dallas municipal court system regarding overdue traffic fines incurred by appellant. The legal document was addressed to appellant at the home of his mother. When asked about this apparent discrepancy, Ellzey explained that, based on his surveillance, he believed appellant had been living at apartment 204 with his wife and child, not at his mother's house, and that the municipal court document was only sent to his mother's house because appellant failed to update his driver's license information. Appellant was indicted for possessing the marijuana found in the apartment and in the Suburban.See Tex. Health Safety Code Ann. § 481.121(a), (b)(4) (Vernon 2003). Appellant was also indicted for possession with intent to deliver the cocaine found in the apartment.See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(a), (f) (Vernon 2003). Because he had a previous felony conviction for possession of a controlled substance, appellant also was indicted for possessing the body armor found in the apartment.See Tex. Penal Code Ann. § 46.041 (Vernon 2003). The three drug offenses and the body armor offense were consolidated for trial. A jury was selected on March 17, 2003, and appellant entered pleas of not guilty in all cases. Appellant also entered a plea of not true to the allegations in the State's motion to revoke his probation for a prior 1997 drug offense involving the possession with the intent to deliver between one and four grams of cocaine. The trial court told the parties it would hear evidence on the motion to revoke at the same time evidence was presented on the four new charges. On March 19, 2003, appellant failed to appear for court. The trial court denied defense counsel's oral motion for continuance, concluding appellant had absconded from the proceedings. The trial court ruled the trial would continue. Diomantia Delbosque, appellant's mother, testified that her son lived with her and had never lived at the apartment. She also said that appellant came home every night and that the signature on the apartment lease agreement was not her son's. Appellant's mother claimed that her son and his wife with whom he had a child had never lived together. Cristela Robles, appellant's girlfriend for three years, also testified that appellant did not live at the apartment. Linda James, a forensic document examiner, also testified as a defense witness. She testified that she had been hired by defense counsel to examine the lease agreement to determine whether the signature purporting to be appellant's was genuine. James stated that in her opinion, appellant's wife signed appellant's name to the lease. The jury convicted appellant on the charges of possessing a useable quantity of marijuana in an amount of fifty pounds or less but more than five pounds, possession with intent to deliver cocaine, and possession of metal or body armor by a felon. The jury also found appellant used or exhibited a deadly weapon during commission of one of the marijuana-possession offenses and during the cocaine offense. The jury imposed punishments of ten years in prison for each of the marijuana cases, five years for the body armor charge, and life confinement for the cocaine charge. The trial court also granted the State's motion to revoke appellant's probation, and assessed punishment at five years in prison. On March 21, 2003, judgment was entered against appellant in all five cases in absentia. After appellant was apprehended, he was returned to court on July 22, 2004, for formal pronouncement of sentence.Discussion
Jurisdiction In his first issue, appellant argues that this court has jurisdiction over these appeals. The issue is appellant's response to the State's motion to dismiss, which argues this court does not have jurisdiction because appellant's notices of appeal are untimely. Specifically, the State argues that the time for filing the notices of appeal started to run when the trial court sentenced appellant in absentia on March 21, 2003. Appellant claims he invoked our jurisdiction by filing motions for new trial within thirty days after the day the trial court pronounced the sentences in his presence on July 22, 2004, and then by filing notices of appeal on October 8, 2004, which is well within the ninety-day time frame contemplated by rule 26.2(a) of the Texas Rules of Appellate Procedure. Article 42.03 § 1(a) of the Texas Code of Criminal Procedure directs the trial court to pronounce "sentence" in the defendant's presence. See Tex. Code Crim . Proc. Ann. art. 42.03 § 1(a) (Vernon Supp. 2004-05); Marshall v. State, 860 S.W.2d 142, 143 (Tex.App.-Dallas 1993, no pet.). A sentence is "that part of the judgment . . . that orders that the punishment be carried into execution in the manner prescribed by law." Tex. Code Crim. Proc. Ann. art. 42.02 (Vernon Supp. 2004-05); see Marshall, 860 S.W.2d at 143. The sentencing date begins the running of the appellate time requirements. Pruit v. State, 737 S.W.2d 622, 623 (Tex.App.-Fort Worth 1987, pet. ref'd). Although the trial court sentenced appellant in absentia on March 21, 2003, the Texas Code of Criminal Procedure requires sentence to be pronounced in the defendant's presence. See Pruit, 737 S.W.2d at 622-23. The appellate timetable did not begin to run until after appellant was apprehended and the trial court pronounced sentence in his presence on July 22, 2004. See Pruit, 737 S.W.2d at 622-23; see also Roberson v. State, 171 S.W.3d 904 (Tex.App.-Amarillo 2005, no pet.) (rule 42.4 of the rules of appellate procedure, which provides for dismissal of an appeal when a defendant escapes from custody pending appeal, did not apply to a defendant who fled during trial and was recaptured three years later and brought to court for pronouncement of sentence). This court has jurisdiction over these appeals. Motion to Suppress Appellant's second and third issues concern the trial court's denial of his motion to suppress. In his second issue, appellant claims the trial court erred in denying his motion to suppress the evidence seized as a result of the traffic stop and subsequently the search of the apartment. He argues the officers lacked reasonable suspicion that he was involved in any criminal activity. Appellant's motion to suppress was originally heard and denied before trial. He filed a motion to reconsider the suppression issue and the judge who presided over the trial agreed to reconsider the suppression issue based on the evidence presented at trial. The trial judge ultimately denied the motion to reconsider. The trial judge's decision to reconsider the motion to suppress and carry it with the trial allows us to consider the entire trial record. Cf. Pierce v. State, 32 S.W.3d 247, 253 (Tex.Crim.App. 2000). A trial court's ruling on a motion to suppress is reviewed under a bifurcated standard of review. 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 court's application of the law to those facts. Id. When, as here, the trial court does not file findings of fact, we review the evidence in the "light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We analyze the legality of traffic stops for Fourth Amendment purposes to determine whether the officer's acts were justified at their inception and the search or seizure was reasonably related to the circumstances that justified the stop in the first place. Terry v. Ohio, 392 U.S. 1, 19-20 (1968). Police officers may lawfully stop any motorist who commits a traffic violation. Walter v. State, 28 S.W.3d 538, 543 (Tex.Crim.App. 2000). A police officer may seize property in a pretext stop for traffic violations if the officer had probable cause to believe a traffic violation existed. See Whren v. United States, 517 U.S. 806, 819 (1996); Crittenden v. State, 899 S.W.2d 668, 673-74 (Tex.Crim.App. 1995). Officers Lapiano and Durica testified they saw the driver of the Suburban commit a traffic violation by crossing three lanes of traffic without using a turn signal. Under the Texas Transportation Code, the operator of a vehicle must use a lamp signal to indicate an intention to turn, change lanes, or start from a parked position. Tex. Transp. Code Ann. §§ 545.104(a), 545.106 (Vernon 1999). Furthermore, any peace officer may arrest a person without a warrant if found committing a violation of the Texas traffic laws. See id. § 543.001. The traffic violation observed by the officers provides an objective justification for the detention. See Walter, 28 S.W.3d at 543. Appellant argues that the real reason for the traffic stop was Ellzey's belief that the Suburban contained narcotics. Appellant points out that both officers freely acknowledged during their testimony that the real reason they pulled over the Suburban was because they were told to do so by Ellzey and not because it changed lanes without signaling. It is well-settled that the officer's motives for conducting a traffic stop are irrelevant to the validity of the detention. See Garcia v. State, 43 S.W.3d 527, 530 (Tex.Crim.App. 2001) (noting that "reasonable suspicion" standard is objective; subjective intent of the officer conducting the stop is irrelevant). The officers are free to enforce the traffic laws and detain an individual for an actual violation, and their subjective reasons for making the stop are irrelevant. See id. Therefore, the fact that the officers may have had another reason apart from the traffic violation for making the stop does not invalidate an objectively reasonable seizure. See State v. Gray, 158 S.W.3d 465, 469 (Tex.Crim.App. 2005). Appellant also argues that the officers' testimony about the traffic violation was not credible because they only remembered the violation at trial and after being prompted by the prosecutor. However, it was the trial court's duty to assess the credibility of the witnesses. In its role as the finder of fact, the trial court chose to believe the officers' testimony that they saw the Suburban commit a traffic offense. The officers therefore had probable cause to stop the vehicle when they observed the traffic violation. After seeing marijuana in plain view, the officers then had probable cause to arrest the occupants of the vehicle. Accordingly, the trial court did not err in denying the motion to suppress. Appellant's second issue is overruled. In his third issue, appellant argues that Ellzey's search warrant affidavit did not establish probable cause. The search warrant application must be supported by an affidavit setting forth substantial facts establishing probable cause. Tex. Code Crim. Proc Ann. art. 18.01(b) (Vernon Supp. 2004-05). The sufficiency of the affidavit is determined by considering the totality of the circumstances as set forth within the four corners of the affidavit. Illinois v. Gates, 462 U.S. 213, 234 (1983); State v. Bradley, 966 S.W.2d 871, 873 (Tex.App.-Austin 1998, no pet.). In conducting this review, we determine whether there is a fair probability, not an actual showing, that contraband or evidence of a crime will be found in a particular place in light of the totality of the facts set forth in the affidavit. See Gates, 462 U.S. at 238. The issuing magistrate's determination of probable cause is entitled to great deference on appeal and will be sustained if the magistrate had a substantial basis for concluding a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236; Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004); Bradley, 966 S.W.2d at 873. We must remember that it is not our task to determine de novo whether the search warrant affidavit stated probable cause to search the apartment but only to ensure the issuing magistrate had a substantial basis for concluding that probable cause was shown. Gates, 462 U.S. at 239; Swearingen, 143 S.W.3d at 810. "The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Bradley, 966 S.W.2d at 876 (citing United States v. Ventresca, 380 U.S. 102, 109 (1965)). The affidavit in the present case recites the following pertinent facts:On September 5, 2001, at about 10:00 PM, the Affiant received information from a confidential informant that a Maroon Chevrolet Suburban with Texas License Plate 5ZT-Z26 arrived at 5811 Birchbrook and parked in the rear parking lot. The confidential informant also observed three Latin males exit the vehicle and each person was observed to be carrying a large plastic garbage bag over their shoulder. The Affiant is currently conducting a Narcotics investigation and has identified Juan Delbosque as a person who distributes narcotics in the Dallas Metroplex area. Based on the information above which was given to the Affiant along with the vehicle being a rent car from Enterprise Leasing and the garbage bags that was [sic] removed from the suburban and deposited inside 5811 Birchbrook #204, the Affiant, along with other Detectives set up a surveillance of this location and the Chevrolet suburban. At approximately 11:00 PM, September 5, 2001, the Affiant observed a heavy set Latin male exit apartment # 204 and enter the suburban. The Affiant, along with other Detectives followed this vehicle south bound on N. Central Expressway where a traffic stop was conduct by Patrol officers. The Patrol Officers approached the vehicle and while standing on the outside of the drivers [sic] door smelled the heavy [sic] of Marijuana coming from inside the vehicle when the window was rolled down. Officer David Durica then recovered a large plastic garbage [sic] from the rear floorboard that contained between five and ten pounds of marijuana. The Affiant believes, based on personal facts learned during the course of this investigation, along with facts stated by the confidential informant that the other three bags which was removed from the Chevrolet suburban and placed inside 5811 Birchbrook # 204 which are currently still there also contain a quantity of Marijuana.Appellant argues that Ellzey's affidavit does not provide a substantial basis for concluding probable cause existed to believe drugs would be found in the apartment. According to appellant, "[t]he most glaring deficiency" in Ellzey's affidavit is the absence of any allegation that the informant is credible and reliable. An anonymous tip, standing alone, will not establish probable cause. The police can provide other indicia of reliability by independent corroboration of the informant's information. See State v. Steelman, 93 S.W.3d 102, 108 (Tex.Crim.App. 2002); Elardo v. State, 163 S.W.3d 760, 768 (Tex.App.-Texarkana 2005, pet. ref'd). In the present case, the search warrant was not issued based solely on the information provided by the confidential informant. Instead, the information provided by the informant was a starting point for Detective Ellzey's own investigation, which led to the discovery of the marijuana in the Suburban. "While information from an unnamed informant alone does not establish probable cause, the informant's tip combined with independent police investigation may provide a substantial basis for the probable-cause finding." Lowery v. State, 843 S.W.2d 136, 141 (Tex.App.-Dallas 1992, pet. ref'd). Appellant also argues that the facts set forth in the affidavit are insufficient to indicate he was involved in narcotics distribution on September 5, 2001. In effect, appellant argues that the affidavit is insufficient because it does not implicate him in any criminal activity. In determining the validity of a search warrant, the relevant question is whether the facts in the affidavit "are sufficient to justify a conclusion that the items, which are the object of the search, are probably on the premises to be searched at the time the warrant issues." Uresti v. State, 98 S.W.3d 321, 336 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Massey v. State, 933 S.W.2d 141, 149 (Tex.Crim.App. 1996)). The State was only required to establish a probability that marijuana would be found in appellant's apartment. Whether appellant was present during distribution is irrelevant. See Uresti, 98 S.W.3d at 336. The affidavit contains information that several large, plastic garbage bags were taken out of a Suburban and carried into the apartment. A short while later, a large plastic garbage bag was recovered from that same Suburban which was found to contain a large quantity of marijuana. Given the totality of the circumstance as alleged in the four corners of the affidavit, we conclude the magistrate had a substantial basis for determining that marijuana would be found inside the apartment. Therefore, the trial court did not err when it denied appellant's motion to suppress. Appellant's third point is overruled. Factual and Legal Sufficiency In his fourth and fifth issues, appellant contends the evidence is legally and factually insufficient to support the convictions for the marijuana, cocaine, and body armor charges from the apartment. In attacking the legal and factual sufficiency of the evidence, appellant argues the evidence does not support the jury's determination that he had care, custody, control, or management of the contraband found pursuant to the search warrant. Specifically, appellant claims no documents found at the apartment linked him to the contraband, compelling evidence indicates his name was forged on the lease, a number of documents indicate he lived at a different address, and his mother and girlfriend both testified he lived at all times at a different residence. When reviewing a challenge to the legal sufficiency of the evidence, we apply a familiar standard. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001). Viewing the evidence in the light most favorable to the verdict, we determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)); Goodrich v. State, 156 S.W.3d 141, 146 (Tex.App.-Dallas 2005, pet. ref'd). The question under this standard is whether, considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (1) it is too weak to support the finding of guilt beyond a reasonable doubt or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). To establish possession in a case involving possession of contraband, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The State does not have to prove the accused had exclusive possession of the contraband; joint possession is sufficient to sustain a conviction. See Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App. 1986). When, as in this case, there is no evidence appellant was in exclusive control of the place where the contraband was found, the State must offer additional, independent facts and circumstances affirmatively linking him to the contraband. See Poindexter, 153 S.W.3d at 406. The purpose of affirmatively linking the accused to the contraband is to protect innocent bystanders from conviction based solely on their fortuitous proximity to the contraband. See id. In determining whether sufficient affirmative links exist to establish possession, we review factors such as whether the contraband was in plain view, whether appellant owned the residence where the contraband was found, whether he was in close proximity to the contraband and had ready access to it, whether contraband was found on appellant, whether he attempted to flee, whether his conduct indicated a consciousness of guilt, whether he had a special connection to the contraband, whether it was found in an enclosed space, and whether he made incriminating statements. See Robles v. State, 104 S.W.3d 649, 651 (Tex.App.-Houston [1st Dist.] 2003, no pet.); see also Poindexter, 153 S.W.3d at 412. No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.). It is the "logical force" of the factors, not the number of factors present, that determines whether the elements of the offense have been established. Id.; Nhem v. State, 129 S.W.3d 696, 699-700 (Tex.App.-Houston [1st Dist.] 2004, no pet.). After examining the record, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant knowingly possessed the contraband found inside the apartment. Several individuals were seen taking large garbage bags out of a vehicle and carrying them into apartment 204. Appellant was later pulled over in that same vehicle and a large garbage bag of marijuana was recovered. Inside the living room closet of the apartment, officers found assault weapons, ammunition, and a bulletproof vest. Inside the master bedroom closet and bathroom, officers found large quantities of marijuana and cocaine. Smaller amounts of cocaine were recovered from what appeared to be a baby's room. Appellant's name was on the apartment lease as a co-tenant with his wife. Appellant's name also appeared on personal documents found in the residence. Ellzey testified that he knew, from observations during the investigation and from documents recovered during the search of the apartment, that appellant had been living in the apartment with his wife since at least January 1, 2001. Ellzey also testified that he had seen appellant at the apartment on approximately fifty separate occasions between January 1 and September 5, 2001. He saw appellant and his wife walking with their child around the apartment complex and to a nearby grocery store on a regular basis. Viewing the evidence in the light most favorable to the verdict, a rational jury could have found that these facts sufficiently linked appellant to the apartment and the contraband found inside. Accordingly, we conclude that the evidence is legally sufficient to support the convictions for the marijuana, cocaine, and body armor charges. Appellant's fourth point is overruled. Appellant also claims the evidence is factually insufficient. As the factfinder in this case, the jury was free to reject the testimony of appellant's mother, girlfriend, and document expert. Giving the appropriate deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the evidence is not too weak to support the findings of guilt beyond a reasonable doubt and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. As a result, we conclude the evidence is factually sufficient to support the convictions. See Robles, 104 S.W.3d at 652. Appellant's fifth point is overruled. Admission of Gang-Affiliation Evidence In his sixth issue, appellant claims the trial court erred in admitting testimony that he was a member of a street gang during the punishment phase of the trial. Appellant claims the testimony was improper reputation evidence and was more prejudicial than probative. During the punishment phase of the trial, Barrett K. Nelson, a Dallas police officer assigned to the gang unit, testified over defense objection about appellant's membership in a gang called "El Barrio." Nelson testified that "El Barrio" conducts a lucrative drug-trafficking operation. He also said the gang has been involved in other crimes, including aggravated assaults and murders, during the approximately eleven years it has been in existence. Regarding appellant's affiliation with "El Barrio," Nelson testified as follows:
Q. [PROSECUTOR]: And with regards to the defendant, can you tell the members of the jury when you came into contact or if you have come into contact with this individual?
A. Yes, I have. I pulled him over back in 2001. At that time he admitted membership to the criminal street gang El Barrio. Took some information from him; name, date of birth, where he lives, and he also demonstrated the gang sign.
Q. Can you demonstrate to the members of the jury what kind of gang sign that El Barrio uses?
A. This is the El Barrio gang sign (indicating).
Q. With regards to him demonstrating the gang sign and telling you that he was a member of this gang, did he have any identifiable marks on him that identified him as a member of the gang El Barrio?
A. Yes, ma'am, he has a tattoo on his neck.We review a trial court's ruling admitting testimony under an abuse of discretion standard, meaning we will uphold the trial court's decision if it is within "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153 (Tex.Crim.App. 2001). Article 37.07, section 3(a) of the Texas Code of Criminal Procedure governs the admissibility of evidence at punishment in non-capital cases. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999). The provision reads in part:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-05). This language grants trial courts wide latitude in the admission of evidence deemed relevant, including evidence arising after the offense. See Contreras v. State, 59 S.W.3d 362, 365 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Even relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Testimony regarding a defendant's affiliation with a gang may be relevant and admissible at the punishment stage of a trial to show the character of the accused. See Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App. 1995); Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App. 1995). In Anderson, the court of criminal appeals held evidence must show the purpose of the gang to which the defendant belongs so that the factfinder can conclude whether membership in the gang is a positive or negative character trait of the defendant. See Anderson, 901 S.W.2d at 950. In Beasley, the court held that it is not necessary to link the accused to the bad acts or misconduct generally engaged in by gang members, so long as the factfinder is (1) provided with evidence of the defendant's gang membership, (2) provided with evidence of character and reputation of the gang, (3) not required to determine if the defendant committed the bad acts or misconduct, and (4) only asked to consider reputation or character of the accused. See Beasley, 902 S.W.2d at 457. In the instant case, Nelson's testimony showed that (1) appellant was a member of the gang and (2) the gang was a criminal street gang involved in narcotics trafficking. This evidence establishes the bad reputation of the "El Barrio" gang. The jury, as the factfinder, only had to determine appellant's character and reputation and was not required to determine if the defendant committed extraneous offenses attributed to the "El Barrio" gang. Therefore, under Anderson and Beasley, the State met the evidentiary predicate. Having found the trial court did not abuse its discretion in admitting evidence of appellant's gang membership, we overrule appellant's sixth issue. Motion to Quash; Variance In his seventh issue, which concerns only the body armor charge, appellant contends (1) the trial court erred when it denied his motion to quash that part of the indictment referring to his previous conviction for possession of a controlled substance and (2) a fatal variance existed between the allegations in the indictment and the proof introduced at trial. A person who has been convicted of a felony commits an offense if after the conviction the person possesses metal or body armor. Tex. Penal Code Ann. § 46.041(b) (Vernon 2004). The indictment alleged that appellant,
having been convicted of the felony offense of possession of a controlled substance on November 24, 1997, in cause number F97-75543-KN in the 195th Judicial District Court of Dallas County, Texas, in a case on the docket of said Court and entitled The State of Texas vs. JUAN DELBOSQUE, intentionally and knowingly possess metal or body armor.Before trial, appellant filed a motion to quash the indictment on the ground that the allegation regarding the prior conviction for possession of a controlled substance was "surplusage unnecessary to the indictment." Appellant also argued that the probative value of its inclusion was outweighed by its "prejudicial effect since the Defendant also stands trial for a drug case at the same time as this case." The trial court denied the motion to quash. The general rule is that an indictment must provide adequate notice of the charges the accused must prepare to meet and enable him to plead acquittal or conviction in bar to future prosecution for the same offense. Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989); Sanchez v. State, 928 S.W.2d 255, 259 (Tex.App.-Houston [14th Dist.] 1996, no pet.). Article 27.08 of the Code of Criminal Procedure specifies four possible defects of "substance" that may be alleged against an indictment. See Tex. Code Crim. Proc. Ann. art. 27.08 (Vernon 1989). Article 27.09 lists three defects of "form" that may be alleged against an indictment and incorporates the nine "requisites" of an indictment from article 21.02. See Tex. Code Crim. Proc. Ann. arts. 21.02, 27.09 (Vernon 1989). Appellant's motion to quash did not allege a defect of either "substance" or "form." See Alexander v. State, 820 S.W.2d 821, 823 (Tex.App.-Waco 1991, pet. ref'd). Therefore, the trial court did not err in denying the motion to quash. Appellant also claims the evidence is insufficient to support the conviction in the body armor case because the prior conviction alleged in the indictment as the predicate felony was not the prior conviction proved at trial. Appellant points out that the indictment alleged a prior conviction for possession of a controlled substance while the proof at trial demonstrated a prior conviction for delivery of a controlled substance. Appellant argues this is a fatal variance because he "was not sufficiently informed of the charge against him to allow him to prepare an adequate defense at trial." A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App. 2001). In a variance situation, the State has proven the defendant guilty of a crime but has proven its commission in a manner that varies from the allegations in the charging instrument. Id. A variance between the allegations in the charging instrument and the evidence adduced at trial is a sufficiency issue. See id. at 247. However, even when viewed as a sufficiency question, a variance claim is subject to an additional materiality analysis which is not required under a traditional sufficiency of the evidence review. Id. at 248. Only a material variance will render the evidence insufficient. Id. at 257. A variance is material if the charging instrument, as written, did not give the defendant adequate notice of the charge against him or if the charging instrument, as written, subjected the defendant to the risk of a second prosecution for the same crime. Id. In the present case, the proof at trial conformed to the indictment as far as the classification of the offense, the date of the prior conviction, the cause number, and the court. The only variance was in the specific offense committed. The State was not required to plead the specific offense that was the subject of the prior felony conviction in order to provide appellant fair notice of the charge against him. See State v. Mason, 980 S.W.2d 635, 641 (Tex.Crim.App. 1998) (legislature intended only for defendant's status as felon to be an element of felon-in possession statute). Furthermore, there is no indication in the record that appellant was unaware of the felony offense the State was alleging he had been convicted of or that he was surprised by the allegations and proof at trial. Nor is there any indication that the allegation of the wrong offense impaired appellant's ability to prepare a defense or would subject him to the risk of being prosecuted later for the same crime. Under such circumstances, we therefore conclude the variance was not material. Appellant's seventh issue is overruled. Ineffective Assistance of Counsel; Motion for New Trial In his eighth and final issue, appellant claims his trial counsel was ineffective because he failed to communicate a plea bargain offer that appellant would have accepted. We evaluate claims of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance of counsel claim, appellant must show (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. Appellate review of counsel's performance is highly deferential, and there is a presumption that counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). An accused is entitled to effective assistance of counsel during the plea bargaining process. Ex parte Battle, 817 S.W.2d 81, 84 (Tex.Crim.App. 1991); Callahan v. State, 24 S.W.3d 483, 485 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Reasonably effective assistance includes a duty by defense counsel to inform his client of any plea offer by the State. Ex parte Wilson, 724 S.W.2d 72, 74 (Tex.Crim.App. 1987); Callahan, 24 S.W.3d at 485. At the hearing on appellant's motion for a new trial, appellant presented affidavits from two assistant district attorneys, Robbie McClung and Danni Harris, who were involved in the trial of these cases. In her affidavit, McClung stated that a plea offer was conveyed to appellant before trial through his trial counsel for a resolution of all five pending cases. McClung stated that she offered appellant "a forty (40) year sentence to run concurrently in exchange for his plea of guilty in all the cases." Harris likewise claimed in her affidavit that a plea offer was conveyed to appellant's attorney prior to trial, but she does not describe the offer. She stated that appellant was not present at the time the plea offer was conveyed to appellant's attorney. In an affidavit presented by the State, assistant district attorney Vanita White, who assisted Danni Harris in jury selection, said she was unaware of any plea negotiations that took place in these cases and that her assumption had been the cases were going to trial. The trial court admitted into evidence two affidavits from defense counsel-one signed and one unsigned. The unsigned affidavit, which was offered by the defense, asserted that prosecutors offered a forty-year plea bargain to counsel before trial but that at no time did he communicate the offer to appellant. Appellant's counsel on appeal testified at the hearing that she had prepared this affidavit but was unable to get trial counsel to sign it. The signed affidavit, which was offered by the State, reads in part as follows:
I never received a plea bargain offer of 40 years TDC from the District Attorney's Office in conjunction with the above cases. If I had received an offer of 40 years TDC, I would have relayed said offer to my client, Juan Delbosque. An offer of 60 years was communicated to me shortly before the trial and this offer was communicated to Juan Delbosque. Mr. Delbosque rejected this offer of 60 years and we proceeded to trial.Appellant also presented an affidavit at the hearing. In his affidavit, appellant claimed that counsel "never told me that the prosecutors offered me any deals" during the entire time he was represented by counsel. Appellant also asserted that he had only recently discovered, through his appellate attorney, that the prosecutors had made a plea offer "in which I would get sentenced to forty (40) years in exchange for my plea of guilty to run concurrently in all the cases pending against me." Appellant claims that if counsel had informed him of this offer, he would have accepted it. Because the trial court ruled on appellant's ineffective assistance claim by denying his motion for new trial after a hearing, we review his claim under an abuse of discretion standard. See State v. Gill, 967 S.W.2d 540, 542 (Tex.App.-Austin 1998, pet. ref'd). We view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against appellant were made against him. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004) (holding appropriate standard of review for ineffective assistance claim based upon affidavits brought forth in motion for new trial is abuse of discretion). We defer to the trial court's ruling to the extent any reasonable view of the record evidence will support it. See id. at 210. In this case, the trial court, as factfinder, was free to believe either some, all, or none of the statements in the affidavits. See Charles, 146 S.W.3d at 213 ("the trial judge could have reasonably disbelieved some or all of the affiants' statements, found them inconclusive, contradictory, internally inconsistent, or ambiguous. Or, as stated by the court of appeals, the trial judge may have viewed the affidavits with skepticism because they were not supported by any offer of live testimony"). The trial court could have reasonably believed no forty-year plea offer was even made to defense counsel and that any plea offers which were made by the State were duly conveyed to appellant by his trial counsel. Given the conflicting evidence presented at the hearing and our deferential standard of review, we conclude the trial court did not abuse its discretion when it denied appellant's motion for new trial based on ineffective assistance of counsel. Appellant's eighth point is overruled. Revocation of Appellant's Probation Appellant does not bring any issues contesting the trial court's revocation of his probation. To the extent any of his appellate issues or arguments can be construed as challenges to the trial court's revocation of his probation, we overrule them for the same reasons noted above. We affirm the trial court's judgment revoking appellant's probation. State's Cross-Point The State raises a cross-point asking us to modify the judgment in the cocaine case to reflect the jury's affirmative finding as to the use or exhibition of a deadly weapon during the commission of the offense. Before trial, the State filed written notice of its intent to seek a deadly weapon finding pursuant to article 42.12, section 3g(a)(2) of the Texas Code of Criminal Procedure. The State alleged the evidence would show appellant had used or exhibited a "a revolver, handgun, machine gun and/or rifle" during the commission of the offense. At the guilt/innocence phase of the trial, the trial court submitted to the jury a special issue asking whether appellant had "used or exhibited a deadly weapon, to-wit: a firearm, during the commission of the offense of possession with intent to deliver a controlled substance, to-wit, cocaine, as alleged in the indictment." The jury answered this special issue "yes." The judgment, however, states that the jury made "no finding" as to the use or exhibition of a deadly weapon. "This court has the power to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary data and information to do so, or make any appropriate order as the law and the nature of the case may require." Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd) (reforming judgment on State's cross-point to add deadly weapon finding), modified on other grounds, Lockett v. State, 874 S.W.2d 810, 818 (Tex.App.-Dallas 1994, pet. ref'd). We therefore modify the trial court's judgment in cause number F01-56639-MN, appeal number 05-04-01503-CR, to reflect the jury's finding that appellant used or exhibited a deadly weapon, to-wit: a firearm, during the commission of the offense. See Tex.R.App.P. 43.2(b). The State's cross-point is sustained. As modified, we affirm the trial court's judgments.