No. 05-07-00543-CR
Opinion Filed July 14, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F06-69103-V.
Before Justices MORRIS, FITZGERALD, and LANG.
KERRY P. FITZGERALD, JUSTICE.
A jury convicted Reginald Mitchell Flanagan of possession of cocaine with intent to distribute; the trial court found the enhancement allegation true and assessed punishment at twenty years' confinement. Flanagan appeals the trial court's judgment. He raises five appellate issues, alleging: (1) violation of his right to counsel; (2) erroneous denial of his oral request for a continuance; (3) legal and (4) factual insufficiency of the evidence; and (5) erroneous admission of testimony by an expert witness the State failed to place on its witness list. We affirm the trial court's judgment.
Background
Three witnesses testified at Flanagan's trial. Officer Daniel Torres testified he and his partner were patrolling in an area known for gang and drug-related activity. They were in uniform and in a marked police car. They saw Flanagan cross the street in an area other than the intersection, and Torres called to him. Flanagan waved off the invitation. Torres then told Flanagan to "come here"; Flanagan took off running. Torres pursued him on foot. When Torres had closed to about five feet behind him, Flanagan reached in his pocket and dropped a baggie containing a white substance. Torres caught up with Flanagn about fifteen yards past the baggie. He arrested Flanagan and retrieved the baggie. Monica Lopez, the supervisor of the drug laboratory at the Southwestern Institute of Forensic Sciences testified that the white substance found by Officer Torres was analyzed at her lab. The results showed the material contained cocaine. The total weight of the material was fifty-five grams. Finally Detective Barry Ragsdale testified as an expert in the field of narcotics investigation. Ragsdale described the business of cocaine trafficking in some detail, including the process of converting powder cocaine into crack cocaine, the amount of crack cocaine in one rock for individual use (one tenth of a gram), and the selling price of crack cocaine ($100 per ounce). Ragsdale described what Officer Torres retrieved as two plastic bags containing crack cocaine; in one of the bags, larger chunks had been broken down into smaller ones. Based on his knowledge and experience in the field, Ragsdale opined that an individual who possessed fifty-five grams of crack cocaine, some of which was already broken down into a size that was ready for sale, was possessing it with the intent to deliver. The jury found Flanagan guilty. The trial court assessed his punishment at twenty years' confinement. Flanagan appeals. Right to Counsel
On the eve of trial, Flanagan let it be known he was not satisfied with his court-appointed attorney. The trial court heard Flanagan's complaints ex parte, before any voir dire proceedings. Those complaints centered around Flanagan's allegations he had only seen his attorney one time in approximately eight months and that the attorney had not properly prepared for Flanagan's trial. Flanagan asserted he had sent letters to the attorney requesting the "documentation" of his case, but he had received no response. When pressed by the trial court to relate what Flanagan believed the attorney could do to assist him that he had not done, Flanagan replied: Okay. I feel like the case should be investigated. I feel like I should have Motions of Discovery, Motions to Suppress evidence, everything pertaining to my due process of the law pertaining to my case. I have been exempt, denied, anything pertaining to preparation of my case.
At the court's direction, Flanagan reviewed with his attorney the motions the attorney had filed, but that did not resolve the issue. Flanagan did not challenge the attorney's experience or credentials, only the preparation expended for this trial. Flanagan did not want to proceed pro se; he wanted a new attorney appointed. He alleged unspecified constitutional rights were being violated if he were forced to trial without a new attorney. The trial court denied his request and began trial proceedings. During the voir dire, briefly in front of the venire and in more depth before the trial court, Flanagan reasserted his complaint that he was being forced to trial when his attorney had not adequately prepared. After the jury was selected, Flanagan demanded to be removed from the courtroom; the trial court complied with his wishes. Flanagan refused to come into the courtroom during the actual trial, despite the trial court's repeated entreaties to do so. Flanagan remained in a holding area, where he was able to hear the proceedings. The trial court sent Flanagan's attorney to the holding area after each witness finished testifying so they could confer and determine whether Flanagan wanted to return to the courtroom. He did not return. In his first issue, Flanagan argues he was denied his right to counsel under the United States Constitution because he was forced to trial with an inadequate lawyer. A criminal defendant's right to the assistance of counsel in state court is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. See Hatten v. State, 71 S.W.3d 332, 333 (Tex.Crim.App. 2002). However, a defendant has no right to appointed counsel of his choice. The defendant must accept the attorney assigned by the court unless he effectively waives right to counsel in order to represent himself or can show adequate cause for appointment of a different attorney. Thomas v. State, 550 S.W.2d 64, 68 (Tex.Crim.App. 1977). The defendant carries the burden of proving he is entitled to a change of counsel. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. [Panel Op.] 1982). A trial judge is under no duty to search for an attorney agreeable to the defendant. Gonzales v. State, 532 S.W.2d 343, 345 (Tex.Crim.App. 1976). Moreover, a defendant's request for a change in counsel cannot be made so as to obstruct the orderly procedure in the courts. Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App. 1991). When a defendant makes a last minute request to change counsel, one of the options a trial court may exercise is to compel the accused (if he does not waive counsel and assert his right to self-representation) to proceed to trial with the lawyer he has, whether the defendant wants to or not. Id. We review the trial court's decision for an abuse of discretion. Carroll v. State, 176 S.W.3d 249, 256 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (citing Burgess, 816 S.W.2d at 428-29). In this case, Flanagan's request came the very morning of trial. The only specific complaint he made that was not addressed was his charge that a motion to suppress should have been filed. But Flanagan offers no principled ground that could have supported a motion to suppress in his case. Nor did he identify any harm he faced on account of the attorney's alleged failure to prepare for the trial. Disagreements concerning trial strategy are typically not valid grounds to require change of counsel. See King v. State, 29 S.W.3d 556, 566 (Tex.Crim.App. 2000). Flanagan has not carried his burden to show he was denied adequate counsel. Thus, the trial court did not err in refusing to grant his request for new counsel. We decide Flanagan's first issue against him. In his second issue, Flanagan argues the trial court erroneously denied him a continuance. Flanagan argues that he moved for such a continuance by objecting to being forced to trial when he was not prepared. A criminal action may be continued on the written motion of a party for sufficient cause shown. Harrison v. State, 187 S.W.3d 429, 434 (Tex.Crim.App. 2005). Ordinarily, the motion must be sworn to by someone who has personal knowledge of the facts relied on for the continuance. Id. However, a court may entertain an oral motion for continuance addressed to its equitable powers. See, e.g., O'Rarden v. State, 777 S.W.2d 455, 459 (Tex.App.-Dallas 1989, pet. ref'd). We review the trial court's ruling on such a motion for an abuse of discretion. Id. Flanagan argues he was entitled to a continuance because he was forced to trial "without preparation of his person or cause." We have concluded that the trial court's decision to put Flanagan to trial was not erroneous. Flanagan has not identified any issue on which his attorney was unprepared and which harmed him. Thus, Flanagan has not identified any reason why his trial should have been delayed. We conclude the trial court did not abuse its discretion in refusing to grant a continuance in this case. We decide Flanagan's second issue against him as well. Sufficiency of the Evidence
In his third issue, Flanagan argues the evidence is legally insufficient to sustain his conviction. Specifically, Flanagan contends the State offered no competent evidence that Flanagan intended to deliver the cocaine at issue. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a 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); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Flanagan acknowledges that the State's expert, Detective Barry Ragsdale "opin[ed] that the contraband in issue was possessed with the intent to deliver." But Flanagan argues that Ragsdale's opinion "possesses no evidentiary value" because it is solely based on the amount of cocaine at issue, i.e., fifty-five grams. Flanagan argues that an opinion rooted solely in the amount of cocaine possessed is flawed because the penal code also criminalizes possession of fifty-five grams (indeed, up to 400 grams) of cocaine without proof of any intent to deliver. Because this mere possession crime exists, Flanagan argues, the Legislature must have "envision[ed] that possession of amounts greater than the amount in issue here is not necessarily accompanied by an intent to deliver." Flanagan is correct that the penal code makes it a crime merely to possess fifty-five grams of cocaine. But the existence of that criminal offense is irrelevant to the charges against Flanagan. The fact that one is prosecuted for and convicted of mere possession of a large amount of narcotics does not mean there was no intent to deliver, only that the State chose not to undertake proof of intent to deliver. Moreover, Flanagan's factual premise is incorrect. Ragsdale's opinion was not based solely on the amount of cocaine Flanagan possessed. Ragsdale testified his opinion was also based on the fact that some of the crack cocaine in this case was already broken down into rocks of a saleable size. In his opinion, the combination of the amount of cocaine and the preparation of it led him to believe the cocaine was possessed with intent to deliver. We conclude Ragsdale's opinion was some evidence of Flanagan's intent to distribute. A A rational trier of fact could certainly have found that elements of the offense beyond a reasonable doubt. Sanders, 119 S.W.3d at 820. We decide Flanagan's third issue against him. In his fourth issue, Flanagan challenges the factual sufficiency of the evidence that he actually possessed the cocaine found by the police. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Again, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning the weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex.Crim.App. 2005). The State's evidence may be direct or circumstantial, but it must establish that the accused's connection with the drug was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). In this case, Flanagan argues the evidence is factually insufficient to establish that his connection to the cocaine at issue was more than just fortuitous. We disagree. Officer Torres testified that he was chasing Flanagan when he saw Flanagan reach into his pocket and throw out a baggie containing a white substance. The officer testified he was no more than five feet behind Flanagan when this occurred. He caught Flanagan and arrested him some fifteen feet past the dropped baggie; he recovered the dropped bag. He never lost sight of Flanagan while chasing him. No evidence contradicted the officer's testimony concerning Flanagan's possession and abandonment of the cocaine. Thus, looking at all the evidence in a neutral light, there is strong evidence of Flanagan's knowing exercise of control over the cocaine. Flanagan analyzes the issue using a well-known list of "affirmative links." Courts use these possible links of the defendant to contraband when the contraband is discovered somewhere that is not in the defendant's exclusive control. This Court has looked to a nonexclusive list of such possible affirmative links: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) the defendant's proximity to and the accessibility of the drugs; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband; (6) whether the defendant made any 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 drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. Taylor v. State, 106 S.W.3d 827, 830 (Tex.App.-Dallas 2003, no pet.); Porter v. State, 873 S.W.2d 729, 732 (Tex.App.-Dallas 1994, pet. ref'd). We are less concerned with the number of links than with the degree to which the links tend to link the defendant to the contraband. Taylor, 106 S.W.3d at 831. In Flanagan's case, a significant number of the listed factors, alone and in combination, tend to link her affirmatively to the cocaine: (1) Flanagan was indeed present when and where the bagged cocaine was found; (2) the drugs were in plain view; (3) the defendant was observed removing the baggie containing the cocaine from his pocket; (7) Flanagan attempted to flee; and (12) fifty-five grams of cocaine were found. We conclude Flanagan was affirmatively and strongly linked to the cocaine. Ample evidence supported the jury's findings. We decide his fourth issue against him. Unidentified Expert Witness
When the State called Detective Barry Ragsdale to testify, Flanagan objected that Ragsdale was not identified on the State's witness list. Counsel for Flanagan argued the State had never informed him they would be calling a narcotics expert and, if he had known, he would have voir dired the jury regarding expert witnesses issues. The prosecutor admitted the wrong name ("Barry Foster") had been typed on the witness list, but he stated he believed he had told counsel for Flanagan that he planned to call an expert witness. The trial court allowed counsel for Flanagan to speak to Ragsdale and to prepare his cross-examination before Ragsdale took the stand. The court also asked jurors if any of them knew Ragsdale; they did not. The court then allowed Ragsdale to testify. In his fifth issue, Flanagan contends the trial court erred when it permitted Ragsdale to testify because his name was not rightly listed on the State's witness list. We review this decision for an abuse of discretion. Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App. 1993). In doing so, we consider whether the prosecutor's actions constitute bad faith and whether the defendant could have reasonably anticipated the witness's testimony. Id. In this case, Flanagan does not charge that Ragsdale's name was withheld in bad faith; he acknowledges the record "suggests an error of misstatement or mistaken recitation." Our review of the record leads us to agree; we see no indication of bad faith in the State's actions. As to whether Flanagan could have reasonably anticipated Ragsdale's testimony, there is not such a clear answer. The prosecutor represented to the trial court that he told defense counsel there would be an expert witness; defense counsel represented he had not been told. In this Court, Flanagan claims his surprise was evident and that he was grievously harmed because Ragsdale's testimony concerning intent to deliver "was not cumulative of other witnesses." We agree Ragsdale's testimony was the "signal" evidence of intent to deliver. But for that reason, Flanagan could not have been completely surprised by the testimony itself: he had to know the State would endeavor to prove each element of its charge. And as to surprise about who Ragsdale was, or that an expert was testifying, the record does not indicate that Flanagan inquired as to the identity of "Barry Foster," who was mistakenly on the witness list. Flanagan did not ask who "Foster" was or what he was going to testify about. And Flanagan did not voir dire the jury concerning any of the witnesses on the State's list. We have no reason to conclude Flanagan's case would have been tried differently had the name on the witness list been Ragsdale's. Finally, Flanagan claims that learning Ragsdale's identity in the middle of trial precluded an investigation to determine possible grounds for assailing his credibility. Flanagan did not ask for a continuance on this ground. Thus he cannot establish harm caused by surprise. See Barnes v. State, 876 S.W.2d 316, 328 (Tex.Crim.App. 1994) ("If a witness' name is not furnished a defendant before trial despite a court order, any error in allowing that witness to testify over a claim of surprise is `made harmless' by defendant's failure to object or move for a continuance."). The trial court did not abuse its discretion in allowing Ragsdale to testify. We decide Flanagan's fifth issue against him. We affirm the trial court's judgment.