No. 05-03-01036-CR
Opinion Issued April 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-50925-KW. Affirmed.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.
MORRIS, Justice.
At trial, Mohammed Osman Himat was convicted of possession of cocaine. He now complains on appeal that the trial court abused its discretion in overruling his relevancy objections and that he received ineffective assistance of counsel. Concluding that appellant's complaints are meritless on this record, we affirm the trial court's judgment.
Factual Background
In the early morning hours of May 14, 2002, following a 911 call reporting a disturbance, two Dallas police officers arrived at 7502 Fair Oaks, apartment 2177. At the apartment complex, they saw the neighbor, Ron Sampson, who had made the 911 call. Sampson told the officers that there were men fighting in an upstairs apartment and that it sounded "pretty bad." When the officers got to apartment 2177, appellant answered the door. He had a black eye, and there was blood on his head. Behind appellant, the officers could see blood all over the wall and a big hole in the Sheetrock. Appellant tried to shut the door, but an officer stuck out his flashlight and forced the door open. One of the officers stayed with appellant while the other officer looked through the apartment to see if anyone else was injured. The apartment smelled strongly of formaldehyde, which is commonly associated with the street drug PCP. In the kitchen, an officer saw several brown and black vials of PCP in plain view on the kitchen counter. Next to the vials on the kitchen counter, there was a plastic baggie that contained several individual baggies of crack cocaine. The total amount of cocaine seized was 10.53 grams, enough for over one hundred uses. The street worth of this amount of cocaine was approximately one thousand dollars. Once the officer found the drugs, appellant was arrested. After appellant was handcuffed, one of the officers noticed what appeared to be a flight manual written in Arabic on the floor of the apartment. Next to it, the officers saw a duffel bag. Inside the duffel bag, there were flight manuals in Arabic and English, handwritten notes in English and Arabic, and an Arlington flight school identification tag that had appellant's name on it. Some of the manuals were for 747 commercial airliners. In nearly every room of the apartment, the officers found Western Union receipts showing appellant had been sending money to or receiving money from Saudi Arabia. Men's clothing was found hanging in closets of the apartment and lying on couches there. There was enough men's clothing in the apartment that it appeared to the officers that appellant must have lived there. The officers searched appellant and found a single key that fit the lock on the door. The State did not introduce the key, the Western Union receipts, the flight manuals and notes, or the flight school identification into evidence because the police officers had turned those materials over to the FBI based on police policy following the September 11, 2001 terrorist attacks. Before he was arrested, appellant told a police officer that he had lived in apartment 2177 for three days. After his arrest, appellant was eventually taken to Parkland Hospital, where his injuries were treated. For his jail booking sheet, appellant gave apartment 2177 as his residence. Ron Sampson, who had made the 911 call, testified for the State. He lived in the apartment just below the apartment where appellant was arrested. Sampson had become acquainted with appellant the evening before his arrest, but Sampson had seen appellant around the apartment complex for approximately nine days before then. On the evening of May 13, appellant introduced himself to Sampson as his new upstairs neighbor. The two went out to buy some beer and food together. They also visited one of appellant's friends from Saudi Arabia so appellant could drop off some money there. When they got back to appellant's apartment, Sampson was disturbed by the number of people who were going in and out of the apartment's kitchen, so he took the beer appellant had paid for and went back downstairs to his apartment. As Sampson was going downstairs to his apartment, he saw two "known drug dealers" go into appellant's apartment. Once he was downstairs in his apartment, Sampson could hear through the vent system appellant arguing with the drug dealers. The drug dealers were upset with appellant because he was taking away their clients without giving them a portion of his proceeds. Appellant told the dealers that he was in business for himself only. Sampson began to hear punches and blows being exchanged. That is when he called 911. After he called 911, he heard the drug dealers leaving, so he went upstairs to see if appellant was alright. Appellant told him nothing had happened. At that point, Sampson saw the vials on the kitchen counter. Sampson testified that while he was checking on appellant, the police arrived at the apartment. Appellant testified in his defense. He stated that his family lives in Saudi Arabia, but he has been in the United States for twelve years. In 2000, appellant finished schooling at the International Aviation Academy in Arlington, Texas as an aircraft technician. In January of 2002, due to financial hardship, appellant had to move in with a co-worker from his job as a taxi driver. This apartment was in the same complex where he was later arrested. Appellant was no longer able to get work in the aviation business because it had slowed after the September 11 terrorist attacks. Appellant claimed he was living with his co-worker until the day before his arrest. He further claimed that he had decided to move out of that apartment the day before his arrest because he and the other man had "roommate issues." He had decided to move to Oklahoma to finish his aviation schooling there. He spoke to the woman who lived in apartment 2177 on May 13, and she agreed to let him stay at her apartment. He claimed he was going to stay at the apartment until he received his tax check and then move to Oklahoma. The woman gave appellant a key to her apartment that evening. Appellant admitted to speaking with Sampson the night before his arrest. He claimed that Sampson accompanied him when he took food to a sick cousin of the woman with whom he was staying. Afterward, appellant and Sampson returned to apartment 2177. Appellant said that he, too, was bothered when they found "a bunch of people" in the apartment. He claimed he told the people to leave, and they did so. Next, appellant claimed, he went to Sampson's apartment and then went back to his former apartment to wait for the woman to come home so he could return her key. Appellant claimed, "It wasn't right for me to be there and all of these people coming in and out so I wasn't feeling good at all about being there." At 12:50 a.m., according to appellant, he went to the woman's apartment, and that is when he was assaulted by two men who forced themselves into the apartment. Appellant claimed the men beat him horribly and tried to strangle him, though he did not know who they were. He claimed the men stopped strangling him only when they heard police approaching the apartment. The police arrived approximately twenty minutes later. According to appellant, the police did not even look at his injuries or ask him what had happened. Appellant testified that the police became cruel to him when they saw his flight school belongings. He further alleged that once the officers heard his accent, they did not look at his injuries or ask him how he had been hurt. He claimed he told the officers that he did not live in the apartment and was not familiar with what was going on in the kitchen. He told them "[a]ll the area I know is the living room area." He acknowledged, nevertheless, that his belongings were "all scattered around that apartment." Appellant denied arguing with the men who beat him about his involvement in drug trafficking. When questioned about whether he ever received medical attention, appellant answered, "Yes, I received medical attention, but it wasn't pleasant one [sic]. I was feeling like I was a terrorist. For a minute they were trying to say I was a terrorist. . . . I said, . . . [j]ust because I work aviation, you saw my school diploma, that's why you want to put it on me like this." Appellant claimed he never realized there were drugs in apartment 2177. He saw the PCP on the kitchen counter but did not know what it was. He claimed he never noticed a strong odor in the apartment. He explained his possession of the flight manuals the following way: "That's where I work, that's what I do for a living, anything have to do with a plane, I like to do with plane, I like to read about, whether about fixing, flying, that's what I do for a living . . . that's my life." Appellant was not on the lease for apartment 2177. Discussion
In appellant's first four issues, he complains the trial court erred by admitting over his relevance objections testimony about the flight manuals, the notes on 747 airplanes, and the fact that the police officers notified the FBI about what they had found in the apartment. He further contends the trial court erred by overruling his relevancy objection to "this total line of questioning." We review rulings on the admissibility of evidence under an abuse of discretion standard. Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd). If a trial court's evidentiary ruling is reasonably supported by the record and is correct under any applicable theory of law, we must uphold it. Id. When the first police officer testified in appellant's case, defense counsel objected on relevancy grounds after the officer stated that in response to a question about whether he had seen anything "of importance" other than the drugs in the apartment that he had seen a book on the floor. After the objection was overruled, the officer noted that the book was a flight manual in Arabic. Defense counsel did not object when the officer then testified that he saw a duffel bag next to the flight manual that "had a bunch of different literature on flight and some in Arabic, some in literature [sic], some handwritten notes, some in English and some in Arabic, and an I.D. to an Arlington flight school with [appellant's] name on it." The officer went on to testify that he saw Western Union slips in nearly every room of the apartment and that appellant had a key to the apartment on his person. When the prosecutor then asked if the officer felt, based on what he had seen, that it was necessary to inform his superiors about what he had found, defense counsel objected to "this total line of questioning" as irrelevant. After the trial court overruled the objection, the officer stated that they "are required to notify the FBI on any suspicious activity such as this and notify our field supervisor so they can notify our Criminal Intelligence Division." The officer explained that the seized items were now in the possession of the FBI. Even if we assume appellant preserved error on his first four issues, the trial court did not abuse its discretion in admitting this evidence over any relevancy objections. The State was required to affirmatively link appellant to the drugs found in an apartment he did not lease. The flight manuals and journals, when viewed in the context of appellant's flight school identification, helped show appellant was established enough at the apartment to have moved the paraphernalia of his former livelihood and hobby there. Furthermore, admitting testimony on the officers having to cede possession of the seized items from the apartment to the FBI allowed the State a fair chance to explain why the jury could not see the evidence the officers claimed they found. Given the facts of this case, we conclude the trial court did not abuse its discretion in admitting the complained-of testimony over appellant's relevancy objections. We resolve appellant's first four issues against him. In issues five through eleven, appellant complains he received ineffective assistance of counsel at trial. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claims, an 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. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We must look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When the record is silent about the motivation of counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). We commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, Nos. PD-0993-03, PD-0994-03, PD-0995-03, PD-0996-03, 2005 WL 658979 at *2 (Tex.Crim.App. Mar. 23, 2005). Here, appellant complains his trial counsel fell below the standard of a reasonable practitioner when he failed to timely object to the relevance of the flight manuals, the flight notes, their contents, and their seizure and when he introduced evidence of the flight manuals and FBI seizure of the "Saudi Arabian potential terrorist" evidence. Appellant further complains counsel was ineffective by "failing to use any of the many legal tools and objections available to him" to challenge admission of the "Saudi Arabian potential terrorist evidence." He particularly contends that trial counsel was ineffective for failing to object to prosecutor misconduct during jury selection; failing to object to the fact that the State "spent nearly as much time describing the 'Saudi Arabian potential terrorist evidence' . . . as [it spent on] the location of the cocaine;" failing to object based on hearsay and the Confrontation Clause to admission of the flight school identification, the Western Union receipts, and the flight manuals and notes; failing to object that the State did not admit originals of the flight school identification, the flight manuals and notes, and the Western Union receipts; failing to preserve error by consistently objecting to or proffering a sufficient running objection to the "Saudi Arabian potential terrorist evidence;" failing to object that the "Saudi Arabian potential terrorist evidence" was more prejudicial than probative; and failing to object that the punishment charge did not include a reasonable doubt instruction for extraneous offenses. The State in this case, without question, made more than a passing reference to appellant's nationality and possession of flight materials. It elicited evidence showing that the FBI had become involved in the case. It confirmed before the jury that appellant had flight materials for commercial airliners. At jury selection, the prosecutor informed the panel that appellant was from Saudi Arabia and told the panel that "other factors" would come out at trial. The prosecutor even went so far as to comment to the potential jurors, "After September 11, 2001, our senses might have become a little more attuned to what was happening, what is happening in our country related to certain people from certain countries who were doing certain things." Despite the prosecutor's insistence to the potential jurors that it did not "want any consideration as to the defendant being guilty . . . to rest on his nationality" and the prosecutor's comment at jury argument that "[w]e are not asking you at this point in the trial . . . to take into any consideration the defendant's ethnic background or the flight school or the manual," the State appeared to take every opportunity it was given to portray appellant as a Saudi Arabian foreigner who possessed flight manuals for commercial passenger aircraft and regularly wired money to and from Saudi Arabia following the September 11 terrorist attacks. The prosecutor concluded his remarks to the jury by stating, "If you for whatever reason feel sorry for him, well, okay, we are going to give you one free felony in the United States, fine, then let him go." We do not condone this crass attempt to prejudice the jury in a possession of controlled substance case. Nevertheless, it appears trial counsel and appellant may have actually pursued a strategy of developing the "terrorist" evidence in an attempt to persuade the jury that the State was persecuting appellant simply because he was from Saudi Arabia and had attended flight school. As early as opening arguments before the jury, defense counsel stated that "the evidence will . . . show that [appellant] had been in this country for 12 years, was going to flight school as any U.S. citizen could have went." Counsel only periodically objected to what appellant now refers to as "potential Saudi Arabian terrorist evidence," perhaps in an effort to subtly reinforce for the jury the defense theory that the State decided to go after appellant simply because he was Saudi and possessed flight manuals. When he testified, appellant made clear that it was his belief the police changed their attitude toward him once they decided he might be some sort of terrorist. Counsel also cross-examined the arresting officers about whether their approach toward appellant changed once they found the flight manuals. At closing argument, defense counsel pleaded, "I am going to ask you not to be inflamed by the innuendo of him having some terrorist affiliation or the innuendo of his ethnic background." Appellant now complains that counsel did not ask the trial court to instruct the jury it "could not consider the numerous possible extraneous offenses and bad acts unless it found beyond a reasonable doubt that appellant committed the offense and bad acts." Appellant, however, does not state what possible extraneous offense and bad acts could have warranted such an instruction. Counsel may have decided against requesting such an instruction because it would have worked against a defense theory that appellant's nationality and knowledge of aircraft were not offenses or bad acts. With the benefit of hindsight, a strategy of demonstrating the defendant arguably possessed the hallmarks of an international terrorist does not appear to be the most enlightened defense ever crafted. Nevertheless, we do not know why counsel chose to handle the case as he did. From appellant's testimony at trial, we could guess that appellant himself wanted the jury to know about the "potential Saudi Arabian terrorist evidence" because he believed it showed the State pursued him simply because some evidence suggested he might be an international terrorist. Based on the record before us, we conclude appellant has failed to overcome the presumption that trial counsel performed reasonably. Because appellant has failed to meet the first prong of the Strickland standard, we resolve issues five through eleven against him. We affirm the trial court's judgment.