Opinion
No. 06-03-00221-CR
Submitted: June 30, 2004.
Decided: July 1, 2004. DO NOT PUBLISH.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court No. F03-34709-UW.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
After a Dallas County jury found that Billy Ray Henderson was guilty of delivery of cocaine to an undercover Dallas police officer and that Henderson had consecutively and finally been convicted of two prior felony offenses, the trial court sentenced Henderson to life imprisonment. After reviewing the entire record on appeal, we affirm Henderson's conviction and sentence because we find that no reversible error occurred. At trial and on appeal, Henderson was represented by retained counsel, Kenneth Berry. Berry submitted a letter to this Court stating he had fully reviewed the reporter's record in this case and concluded that the appeal was frivolous. He also filed a motion for leave to withdraw as counsel of record. We ultimately gave Henderson almost four extra months to submit a pro se responsive brief. Henderson wrote this Court on June 7, 2004, and outlined several errors he asserts require reversal of his case. We treat Henderson's letter as his brief. We begin by addressing a potential issue raised during our independent review of the record, that is, whether a variance between the indictment and the proof at trial was material. We then address Henderson's points: prosecutorial misconduct, prosecutorial bolstering of witnesses, the State's manufacturing of evidence, the State's use of perjured testimony identifying Henderson, the lack of an alleged culpable mental state in the indictment, the lack of an affirmative link between Henderson and any contraband, and ineffective assistance of counsel. Indictment's Enhancement Paragraph Variance Not Material One enhancement paragraph of the indictment alleged Henderson had been convicted of robbery on December 1, 1989. The proof at trial showed Henderson was actually convicted of robbery in that case on September 22, 1988. We conclude, however, that the variance between the allegation and the proof at trial is immaterial. First, the cause number, the county, and the court of conviction all remain the same. Someone looking for evidence of the conviction could have easily found it using those remaining characteristics. Second, and most importantly, there was evidence produced at trial that showed Henderson was not surprised by evidence of the prior robbery conviction. Henderson's brother testified at trial that he was in the courtroom when Henderson received a forty-year sentence in 1988 for that robbery conviction. Accordingly, because the variance between the proof and the indictment was immaterial, no reversible error exists. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App. 2001) (citing United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). No Evidence of Bad Acts by Prosecution In his letter brief to this Court, Henderson contends his conviction was the result of the same type of misconduct involved in the recent fake drug scandal that has been connected to the Dallas Police Department. See, e.g., Matt Stiles, Informants Sentenced in Fake Drug Scandal, Dallas Morning News, Jan. 22, 2004. But the record does not support Henderson's claim of misconduct by either the Dallas Police Department crime laboratory or the prosecutor. The evidence at trial showed that analysts with the Southwestern Institute of Forensic Sciences (SWIFS) analyzed the drugs sold by Henderson to the undercover officer. SWIFS is a private laboratory not affiliated with the Dallas Police Department. SWIFS performed three separate tests of the narcotics in this case and concluded the narcotics sold by Henderson were of a cocaine base and weighed 1.48 grams. Given the independent nature of the laboratory analysis, as well as the absence of any other evidence in the record to link Henderson's case to the alleged misconduct involved in the Dallas Police Department's recent fake drug scandal, we cannot say the record supports Henderson's claim to the contrary. We have thoroughly reviewed the record and find no evidence therein of prosecutorial misconduct, witness bolstering, manufacturing of evidence, or of the use of perjured testimony. Culpable Mental State Properly in Indictment Henderson contends the indictment is defective for failing to allege a culpable mental state. "[A] person commits an offense if the person knowingly . . . delivers or possesses with intent to deliver a controlled substance listed in Penalty Group 1." Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2003). Cocaine is a Penalty Group 1 drug. Tex. Health Safety Code Ann § 481.102(3)(D) (Vernon Supp. 2004). The indictment in Henderson's case alleged he did unlawfully and knowingly deliver, to-wit: actually transfer, constructively transfer and offer to sell a controlled substance, to-wit: COCAINE, in an amount by aggregate weight, including any adulterants or dilutants, of 1 gram or more but less than 4 grams to D. CAWTHON . . . against the peace and dignity of the State.The indictment alleged the requisite culpable mental state of "knowingly." See Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003) (defining the culpable mental state of "knowingly"). Henderson Clearly Linked with Contraband Henderson asserts there was no evidentiary link between him and the cocaine. That is directly contrary to the evidence clearly showing his exchanging drugs for money with the undercover officer. Trial Counsel Not Ineffective Henderson asserts that Berry, at trial, had "no idea what so ever [sic] on how to fight a drug case." We evaluate claims of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Counsel's assistance will be held ineffective if an appellant shows that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's alleged errors, the result would have been different. Strickland, 466 U.S. at 687-88. An appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). Henderson points to no specific deficiencies or errors Berry allegedly made. In our review of the record, we find none that we can call ineffective assistance of counsel. In fact, the record reveals defense counsel Berry was consistently engaged and actively attempting to defend Henderson. For the reasons stated, we affirm the trial court's judgment.
"An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland v. Washington, 466 U.S. 668, 685 (1984). Criminal defendants are entitled to effective assistance of counsel at trial regardless of whether counsel is retained or appointed. Evitts v. Lucey, 469 U.S. 387, 395 — 96 (1985).