Opinion
No. 04-17-00431-CR
07-05-2018
James Alexander HAWKINS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR8897
Honorable Kevin M. O'Connell, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
James Hawkins appeals his conviction for the offense of possession of a controlled substance, methamphetamine, with intent to deliver. Hawkins contends the evidence is legally insufficient to support his conviction; the trial court erred by improperly admitting inadmissible hearsay evidence; and he received ineffective assistance of counsel. We affirm the judgment of the trial court.
BACKGROUND
Based upon information he received from an anonymous tip, San Antonio Police Department ("SAPD") Detective Matthew Parkinson conducted surveillance for approximately one month on James Hawkins at the apartment complex the detective believed was Hawkins's residence. With the assistance of a confidential informant, Detective Parkinson arranged a drug purchase from Hawkins at Apartment 607, and then obtained a search warrant for the apartment. Inside the apartment, officers found a safe for which the apartment's occupant did not have the combination; officers broke open the safe. The search of Apartment 607 ultimately resulted in the discovery of digital scales, a BB gun that looked like a revolver, approximately 40 ounces of marijuana, drug paraphernalia, and over 27 grams of methamphetamine. A grand jury indicted Hawkins for possession of a controlled substance, methamphetamine, with the intent to deliver. A jury found Hawkins guilty of the offense, and the trial court assessed punishment at six years' imprisonment. This appeal followed.
ANALYSIS
Sufficiency of the Evidence
In his first issue, Hawkins contends the evidence is legally insufficient to show that he knowingly possessed methamphetamine with the intent to deliver because he claims he did not live in Apartment 607.
Standard of Review
When examining the sufficiency of the evidence, we consider all the evidence in the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, 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); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The standard is the same for both direct and circumstantial cases. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013).
As the factfinder, the jury is the exclusive judge of witness credibility and the weight of the evidence. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). The jury is permitted to draw reasonable inferences from the evidence so long as the inferences are supported by the record. Id. Further, the reconciliation of conflicts in the evidence is within the factfinder's exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). If a record supports conflicting inferences, we presume the factfinder resolved the conflicts in favor of the prevailing party and therefore defer to that determination. Jackson, 443 U.S. at 319; Hooper v. State, 214 S.W.3d 9, 12 (Tex. Crim. App. 2007). Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13.
Applicable Law
To prove unlawful possession of a controlled substance with intent to deliver, the State must prove the defendant exercised control, management, or care over the substance in question; knew the substance possessed was contraband; and intended to deliver the substance to another. See TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2017); TEX. HEALTH & SAFETY CODE ANN. § 481.002(38) (West 2017); see Tate, 500 S.W.3d at 413. "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (West 2011). According to the Texas Controlled Substances Act ("TCSA"):
"Deliver" means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there
is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.TEX. HEALTH & SAFETY CODE ANN. § 481.002(8). The TCSA classifies methamphetamine as a Penalty Group 1 controlled substance. See id. § 481.102(6) (West Supp. 2017).
In this case, the State was required to prove Hawkins exercised control, management, or care over the methamphetamine recovered from Apartment 607, that he knew the substance in the safe and elsewhere was methamphetamine, and that he had the conscious objective or desire to transfer the methamphetamine to another person. The State was entitled to rely upon circumstantial evidence because it "is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone may be sufficient to establish guilt." Carrizales, 414 S.W.3d at 742.
Whether the evidence is direct or circumstantial, it must establish that a defendant's connection to contraband was more than fortuitous. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex. Crim. App. 2005), abrogated on other grounds by Robinson v. State, 466 S.W.3d 166, 173 n.32 (Tex. Crim. App. 2015). When contraband is not in the exclusive possession of the defendant, the factfinder may nonetheless infer that the defendant intentionally or knowingly possessed the contraband if there are sufficient independent facts and circumstances affirmatively linking the defendant to the contraband. Id. at 406. In Evans v. State, the Texas Court of Criminal Appeals summarized a non-exclusive list of fourteen factors recognized by Texas courts as sufficient, either singularly or in combination, to establish a defendant's possession of contraband:
(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 narcotic; (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 drugs were found; (12) whether the place where the drugs were found was enclosed; (3) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt.Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). Although these factors can help guide our analysis, ultimately our inquiry remains that set forth in Jackson: Based on the combined and cumulative force of the evidence and any reasonable inferences therefrom, was a rational jury justified in finding guilt beyond a reasonable doubt? Jackson, 443 U.S. at 319.
Discussion
During trial, Detective Parkinson testified that upon receiving an anonymous tip, he began surveillance on Hawkins, which lasted for approximately a month. Detective Parkinson testified that between March 16, 2016 and April 14, 2016, he observed Hawkins engage in several hand-to-hand transactions at the apartment complex, which according to the detective, were indicative of the exchange of narcotics. Detective Parkinson further testified that a confidential informant made a drug purchase from Hawkins in Apartment 607 the day before officers executed the search warrant.
When officers conducted the search of Apartment 607, there was one occupant in the apartment, Natalie Garcia. Detective Parkinson testified officers located a safe in the apartment. Because Garcia did not have the safe's combination, officers broke open the safe and found individually packaged baggies of what officers believed was methamphetamine, along with a signed Social Security card, Texas Identification card, and court papers all in Hawkins's name. Officers also found individually packaged bags of what officers believed to be marijuana and other drug paraphernalia. According to Detective Schneider, officers additionally found ammunition and digital scales, as well as a receipt dated February 8, 2016 for "Mr. Hawkins #607." Officers also found both men's and women's clothing, a poster from Hawkins's music label, and photographs of Hawkins in the apartment.
Detective James Schneider testified officers recovered 57 individually packaged baggies, totaling 27.57 grams of what later tested positive as methamphetamine. Detective Schneider testified officers also recovered an additional electronic scale and a BB gun that looked like a black revolver. According to Detectives Parkinson and Schneider, the amount of methamphetamine recovered from the apartment was not consistent with personal use. Additionally, Detective Schneider testified the BB gun's similarity to an actual revolver was consistent with the distribution of narcotics.
Hawkins argues he presented evidence showing he did not live in Apartment 607 and had not lived in the apartment complex for several months prior to the time of the offense. Specifically, Hawkins points to his ex-wife Kimberly's testimony, as well as his own testimony and that of a former neighbor, to support his contentions.
Hawkins and Kimberly both testified they never lived in Apartment 607. Kimberly testified she and Hawkins lived in Apartment 208. Kimberly also testified she moved out in August 2014 when the couple separated. Hawkins's former neighbor Adrian Alvarado testified Hawkins and Kimberly moved out of the apartment in 2015. However, Alvarado could not verify Hawkins did not live at the apartment complex during the surveillance period because Alvarado moved out of the apartment complex himself at the beginning of 2016.
According to Kimberly, she was named on the apartment lease - not Hawkins. Hawkins confirmed he was not named on the lease, but that the utilities for Apartment 208 were in his name. Kimberly additionally testified that the receipt found by police did not appear to be the type of receipt given by the apartment complex. Kimberly stated she believed that the management of the apartment complex had not changed and did not include the person who signed the receipt found by the police. Hawkins also testified he had never seen a receipt like the one found by police.
Kimberly testified Hawkins is a well-known rap musician known as "Young Skinny Pimp," which she contended explained why Hawkins's memorabilia, including the poster from Hawkins music label and his photograph, were found in the apartment. Hawkins acknowledged the photograph found by police was his, but according to Kimberly, the photograph was one she had thrown out. Kimberly testified that during a period of marital discord, she threw out some of Hawkins's belongings. Kimberly further testified that before she moved out of the apartment complex, she gathered all of Hawkins's remaining belongings and placed them in the public laundry room.
Hawkins and Kimberly both testified that Hawkins's wallet was either lost or stolen in early 2015. Hawkins testified he did not know Garcia and had never stepped foot in Apartment 607. Additionally, Hawkins asserted that he was not in San Antonio on the dates the police conducted surveillance. Hawkins testified he was in Dallas in late March 2016, in Austin until mid-April 2016, and on South Padre Island until early May 2016.
In this case, the jury charge authorized the jury to find Hawkins possessed methamphetamine with the intent to deliver it if it found Hawkins exercised control, management, or care over the methamphetamine, that he knew the substance was methamphetamine, and that he had the conscious objective or desire to transfer the methamphetamine to another person. The methamphetamine, which was an amount greater than that characterized as "for personal use," was found in an apartment at which Hawkins was observed during the surveillance period. The detective observed Hawkins conducting hand-to-hand transactions and arranged a drug purchase by a confidential informant from Hawkins, which occurred at the apartment. A Texas Identification card and Social Security card in Hawkins's name were also found in the safe where officers found methamphetamine. Further, a BB gun that appeared to be an actual revolver and digital scales, which are indicative of narcotics trafficking, were recovered from the apartment. This evidence supports a reasonable juror's belief beyond a reasonable doubt that Hawkins possessed methamphetamine with the intent to deliver it.
Viewing the evidence in the light most favorable to the verdict, we conclude a rational factfinder could have found Hawkins possessed methamphetamine and knew the substance he possessed was methamphetamine. We further conclude a rational jury could also have determined Hawkins possessed the methamphetamine with the intent to deliver it. Consequently, we conclude the evidence in this case is sufficient to sustain the jury's finding that Hawkins committed the offense of possession of methamphetamine with intent to deliver. Issue one is overruled.
Admission of Evidence
In his second issue, Hawkins contends the trial court erred by admitting inadmissible hearsay evidence during Detective Parkinson's testimony.
Standard of Review
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial court abuses its discretion if its decision falls outside the zone of reasonable disagreement. Id. If the trial court's evidentiary ruling is correct under any applicable theory of law, we will not disturb that ruling. Id.
Discussion
Under long-standing Texas evidentiary law, out-of-court statements by another witness presented to explain how a defendant became a suspect are admissible because they are not admitted to prove the truth of the matter asserted, but rather to explain how a defendant became a suspect. See Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1992) abrogated on other grounds, Maxwell v. State, 48 S.W.3d 196, 198 (Tex. Crim. App. 2001); see also Davis v. State, 169 S.W.3d 673, 675-76 (Tex. App.—Fort Worth 2005 no pet.) (concluding an officer may testify about anonymous or confidential tips received for the purpose of showing why the investigation focused on a particular defendant). The record shows Detective Parkinson testified about the information he received for the purpose of showing how Hawkins came to be a focus of the investigation.
We conclude the complained-of testimony offered by Detective Parkinson is not classified as inadmissible hearsay. Accordingly, the trial court did not abuse its discretion by admitting Detective Parkinson's testimony regarding how Hawkins became the focus of his investigation. Issue two is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Hawkins contends he was denied the right to effective assistance of counsel because trial counsel "repeatedly" failed to object to hearsay evidence during the State's case-in-chief.
Standard of Review
To prevail on an ineffective-assistance-of-counsel claim, an appellant must prove, by a preponderance of the evidence that (1) counsel's performance was deficient, i.e., counsel's assistance fell below an objective standard of reasonableness, and (2) he was prejudiced by counsel's deficient performance, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013).
When evaluating counsel's effectiveness, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689. Accordingly, we indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. Therefore, Hawkins "'must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (quoting Strickland, 466 U.S. at 689).
"A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal." Thompson, 9 S.W.3d at 813. "[A]llegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. In this case, Hawkins did not file a motion for new trial. Therefore, we are faced with a silent record.
In the absence of a developed record, we will not speculate as to the reasons trial counsel acted as he did. Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, no pet.). Rather, we presume the actions were taken as part of a strategic plan for representing the client. Id. Moreover, "an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
The prejudice prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Strickland, 466 U.S. at 687. In other words, an appellant must show there is a reasonable probability that, without the deficient performance, the result of the proceeding would have been different. Id. at 694; Nava, 415 S.W.3d at 308. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at 308. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 697. Failure to make the required showing of either deficient performance or prejudice defeats an appellant's ineffectiveness claim. Thompson, 9 S.W.3d at 813.
Discussion
In support of his contention that trial counsel's performance was deficient, Hawkins points to several instances of hearsay to which he alleges trial counsel failed to object. When claiming ineffective assistance of counsel for failing to object, an appellant must demonstrate that if trial counsel had objected, the trial court would have committed error by overruling the objection. Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011).
Hawkins first argues trial counsel failed to object to Detective Parkinson's testimony that he began the investigation of Hawkins based on an anonymous tip. Trial counsel objected to this testimony on the basis of hearsay, but Hawkins argues trial counsel should have also objected on the basis of the Confrontation Clause. Hawkins next argues trial counsel failed to object on hearsay grounds to Detective Parkinson's testimony that his team made a purchase from Hawkins with the assistance of a confidential informant. Hawkins additionally argues trial counsel should have objected, on both hearsay and Confrontation Clause grounds, to Detective Parkinson's testimony that people who, unaware the police were inside conducting a search, approached Apartment 607 attempting to "score drugs." Hawkins asserts trial counsel should have objected on the same grounds to Detective James Medrano's testimony that while officers were conducting their search, a neighbor was outside the apartment, on the phone, informing someone their apartment had been broken into. Finally, Hawkins argues counsel should have objected, on Confrontation Clause grounds, to Detective Parkinson's testimony that "[Garcia] didn't know the combination" for the safe and the detective's affirmative response to the question, "And is this consistent with what [Garcia] told you her status of living there was?" when referring to a bin with some women's clothing found in the apartment.
Detective Madrano is referred to in the reporter's record as both "Medrano" and "Madrano."
Hawkins offers no arguments regarding whether the trial court would have erred by overruling the objection had trial counsel objected at the time this testimony was given. See id. Furthermore, Hawkins cannot direct us to any portion of the record addressing trial counsel's reasoning or the basis for his trial strategy because the record is silent. As trial counsel's reasons for his conduct and tactical decisions do not appear in the record before us, there is at least the possibility counsel's reasoning and conduct could have been legitimate trial strategy. Accordingly, we defer to trial counsel's decisions. See Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011). Accordingly, issue three is overruled.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Irene Rios, Justice DO NOT PUBLISH