Nos. 05-02-01343-CR, 05-02-01344-CR, 05-02-01345-CR.
Opinion Filed August 28, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 366-81265-01, 366-81266-01, 366-81267-01. Affirmed.
Before Justices WHITTINGTON, RICHTER, and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted Ho Sic Jang of delivery of one gram or more but less than four grams of 3,4 methylenedioxymethamphetamine (hereinafter referred to as ecstasy), possession of one gram or more but less than four grams ecstasy, and possession of four ounces or more but less than five pounds of marihuana. The trial court assessed a three-year sentence for delivery and possession of ecstasy and twelve-month sentence in a state jail facility for possession of marihuana. In three points of error, appellant contends (1) the trial court erred in failing to appoint appellate counsel within thirty days after imposing sentence, (2) he received ineffective assistance of counsel, and (3) legally insufficient evidence existed to show that he was not entrapped. We affirm the trial court's judgment.
Appellant is also known as Ho Sik Jang.
We are aware that the appellate rules no longer refer to "points of error," but because appellant uses this term, we do also.
Background
A police informant arranged a meeting with appellant to buy ecstasy and marihuana so that she could sell the drugs herself. They met at the Burger Zone to complete the sale. During the exchange, police arrested appellant and searched his car where they found the drugs. APPOINTMENT OF APPELLATE COUNSEL
In his first point of error, appellant contends the trial court's untimely appointment of appellate counsel deprived him of the opportunity to move for new trial and develop record evidence showing trial counsel's ineffective assistance. Appellant argues he was without counsel from the date the trial court sentenced him, July 19, 2002, until the trial court appointed appellate counsel on September 5, 2002. 1. Applicable Law
Trial counsel's representation does not end upon sentencing. Ex parte Axel, 757 S.W.2d 369, 373 (Tex.Crim.App. 1988). Unless counsel has moved to withdraw, we presume trial counsel continues to effectively represent the convicted defendant. Oldham v. State, 977 S.W.2d 354, 363 (Tex.Crim.App. 1998) (op. on reh'g). Trial counsel's post-conviction duties include counseling appellant regarding his right to appeal and the process of appeal. Axel, 757 S.W.2d at 374. If the defendant does not file a motion for new trial, we presume, in the absence of evidence to the contrary, that appellant rejected filing the motion after consultation with counsel. Oldham, 977 S.W.2d at 363. When a defendant complains on appeal that he received ineffective assistance of counsel, we "assume, absent a showing in the record to the contrary," he was "counseled on his right to file a motion for new trial." See Smith v. State, 17 S.W.3d 660, 662-63 (Tex.Crim.App. 2000). 2. Application of Law to Facts
Appellant filed a pro se "notice of appeal and affidavit of indigency on appeal" and requested that the court reporter provide a free record of his trial proceedings. His filing these documents is some evidence that appellant received some counsel on some of his appellate rights. Nowhere in the record do we find trial counsel's motion to withdraw. The filing of a pro se notice of appeal, not accompanied by a motion to withdraw, puts the trial court on notice that it must resolve the indigency issue and, if appropriate, appoint appellate counsel. Jones v. State, 98 S.W.3d 700, 703 (Tex.Crim.App. 2003). Nothing in this record rebuts the presumption that trial counsel continued to effectively counsel appellant regarding his right to file a motion for new trial. See Smith, 17 S.W.3d at 663; Kane v. State, 80 S.W.3d 693, 695 (Tex.App.-Fort Worth 2002, pet. ref'd). We overrule appellant's first point of error. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second point of error, appellant contends he received ineffective assistance of counsel from his retained counsel. Appellant argues that trial counsel's statements during voir dire and final argument-that the defense is difficult to grasp and she could not explain it very well-shows trial counsel did not understand his entrapment defense. So much so that a prospective juror had to ask the prosecutor to explain entrapment. Consequently, counsel lost the jury's trust and caused them to disregard any relevant evidence of entrapment. Appellant further contends counsel may have been purposely setting up an ineffective assistance claim as the State suggested in its pretrial motion requesting the trial court to appoint counsel for appellant. Additionally, appellant contends counsel's failing to secure a pretrial hearing deprived appellant of knowing how the trial court would rule on the entrapment issue. In turn, that lack of knowledge influenced his decision on whether to pursue deferred adjudication from the trial court or to try the entrapment defense before a jury. Finally, appellant contends counsel's representation, when viewed in its entirety, was ineffective and incompetent. Appellant specifically criticizes counsel's not requesting a pretrial hearing until a few minutes before jury selection, last-minute requesting of discovery materials, not listening to all of the State's audiotape evidence, not reviewing the prosecutor's file, changing appellant's plea, not objecting to the audiotapes, and objectionable questioning of the defense's expert witness. The State responds with passages from the record illustrating that appellant's trial counsel fully understood both the statutory requirements and the case law of entrapment. The State provides numerous record citations showing trial counsel introduced evidence designed to prove the necessary factors for an entrapment defense. The State characterizes trial counsel's comments about her inadequate explanations as self-deprecating statements furthering a strategy of false modesty. The State further contends appellant suffered no harm because the trial judge explained the entrapment defense to the jury and appellant was not entrapped into committing the offenses. The State points out that the record does not reveal why counsel did not file a written pretrial motion and questions whether a hearing would have been granted in light of the trial judge's stated unwillingness to hear an entrapment defense pretrial when overruling appellant's oral request for a pretrial hearing. Finally, the State responds to appellant's complaints of the totality of the representation by observing the record neither supports appellant's complaints, shows counsel's performance harmed appellant, nor reveals the reasons for counsel's actions. 1. Applicable Law
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 claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See 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 do not inquire into trial strategy unless no possible basis exists in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981); Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Bone, 77 S.W.3d at 836. When the record is silent regarding the motive behind 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). And, the record on direct appeal is usually insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). 2. Application of Law to Facts
After reviewing the record, we agree with the State. The record does not show why the prospective juror wanted the prosecutor to explain entrapment or trial counsel's explanation for her comments and actions. But, the record does show trial counsel explained the entrapment defense and questioned witnesses to elicit facts favorable to the defense. The multiple objections to the expert witness's testimony arose from defense counsel's effort to elicit evidence during the guilt/innocence phase of appellant's susceptibility to inducement that the trial court concluded was irrelevant. Without trial counsel's explanation, we cannot conclude trial counsel was not pursuing a sound trial strategy. See Thompson, 9 S.W.3d at 813-14. Thus, appellant has not shown trial counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. Moreover, the record does not show the outcome would have been different had counsel performed as appellant desired. Appellant's claim that the jury disregarded evidence because it did not have confidence in counsel is sheer speculation. Likewise, appellant speculates that the trial court would have granted a written motion for a pretrial hearing despite stating its reluctance to conduct a pretrial hearing on entrapment unless the penal code required it. Appellant does not show a valid objection existed that would have kept the State's audiotapes out of evidence. Counsel is not required to object if an objection would be futile. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). Once admitted, the audiotapes show appellant actively pursued the drug transactions, and, in a postarrest interview, discussed the offenses with police, admitted he had purchased and delivered small quantities of drugs for his friends, and discussed the possibility that he could work off his own cases if he was released from jail. Therefore, we conclude appellant has not shown that but for counsel's allegedly deficient performance, the result in this case would have been different. See Strickland, 466 U.S. at 694. Because appellant has not satisfied either prong of Strickland, we overrule appellant's second point of error. SUFFICIENCY OF THE EVIDENCE
In his third point of error, appellant contends the evidence was legally insufficient to prove beyond a reasonable doubt that he was not entrapped into committing the offenses by Catherine Rotundo, a friend working as a police confidential informant. Appellant contends Rotundo persuaded and induced him to commit the offenses by repeatedly telephoning him to ask if he could acquire some drugs for her to sell because she was in desperate financial trouble. The State concedes Rotundo was operating as a law enforcement agent, but it disputes appellant's characterizing of the evidence and contends an otherwise unwilling person would not be induced to sell drugs under the circumstances presented. The State contends appellant committed the offenses because he is a drug dealer who had sold drugs to Rotundo in the past. 1. Applicable Law
A defendant is entrapped into engaging in a crime if the defendant "engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Tex. Pen. Code Ann. § 8.06(a) (Vernon 2003). To raise an entrapment defense, the defendant must show that (1) he was in fact induced to commit the offense and (2) the law enforcement agent's conduct would induce a person of ordinary law-abiding nature to commit the offense. England v. State, 887 S.W.2d 902, 913 (Tex.Crim.App. 1994). Once the defendant produces sufficient evidence to raise an entrapment defense, the State must disprove entrapment beyond a reasonable doubt. Taylor v. State, 886 S.W.2d 262, 265 (Tex.Crim.App. 1994). Inducements sufficient to constitute entrapment include, but are not limited to "extreme pleas of desperate illness in drug cases, appeals based primarily on sympathy, pity, or close personal friendship, offers of inordinate sums of money, and other methods of persuasion which are likely to cause the otherwise unwilling person . . . to commit an offense." Flores v. State, 84 S.W.3d 675, 682 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). In reviewing the legal sufficiency of the entrapment evidence, we determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found against the defendant on the defensive issue of entrapment beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The jury determines whether the defendant was entrapped unless the defendant has established entrapment as a matter of law. See Hubbard v. State, 770 S.W.2d 31, 37 (Tex.App.-Dallas 1989, pet. ref'd). The jury resolves conflicts in the evidence. Id. 2. Application of Law to Facts
Viewed in the light most favorable to the verdict, the evidence shows Rotundo agreed to "work off" a charge of possession of marijuana by serving as a confidential informant for the Allen Police Department. Appellant's case was the second of two cases on which Rotundo assisted. Rotundo chose appellant as a target because he had sold her marijuana and ecstasy in the past and she knew he was a drug dealer. Rotundo had known appellant for five or six years and sometimes socialized with him, but he was a friend of her older brother. Although appellant characterized Rotundo as a close personal friend, Rotundo denied appellant, who is ten years older, was a friend. Rotundo admitted she thought appellant was protective of her and he would help her. Rotundo telephoned appellant and arranged to pay him $800 for a pound of marijuana and ten ecstasy tablets. She told appellant she planned to sell the drugs because she was strapped for cash, her cellular telephone had been disconnected, and her truck had engine trouble. Although appellant testified Rotundo told him she had lost her job, Rotundo denied making that claim. In setting up the transaction, Rotundo estimated she called appellant between five and fifteen times while appellant estimated Rotundo made between twenty and forty calls. Rotundo admitted she might have made more than fifteen calls, but denied it could be as many as twenty-five calls. Rotundo taped several of the calls at the direction of police officers. Nothing on the audiotapes shows Rotundo's calls were unwelcome to appellant. To the contrary, several times appellant invites Rotundo to call him back. The audiotapes do not indicate any reluctance on appellant's part to sell Rotundo drugs. In these telephone calls, appellant's principal concern is having to drive all the way from Dallas to Allen. At one point, appellant did threaten to back out of the transaction because Rotundo would not meet him halfway. Rotundo and appellant agreed to meet in a restaurant parking lot to exchange the money and drugs. After appellant arrived and met with Rotundo, he was arrested by Allen police. Police officers searching appellant's car recovered one pound of marijuana, a marijuana pipe, a marijuana joint, rolling papers, and two plastic bags containing ecstasy tablets. One of the bags contained ten tablets, the other held fourteen tablets. Appellant testified Rotundo had initially asked for twenty-four ecstasy tablets. He only delivered small quantities of drugs to friends and never made a profit on a drug transaction. He did not profit from this transaction and did it out of regard for Rotundo so she could make some money. Nicholas Kreger was a mutual friend of appellant and Rotundo. He testified appellant was not a drug dealer. However, in a taped interview after his arrest, appellant admitted to police that he planned to sell the extra fourteen ecstasy tablets to others. At trial, appellant recanted his statement in the interview and told the jury that he had lied to police to protect Rotundo. Appellant admitted he had sold drugs to his friends in the past. When arrested, appellant was carrying more packaged drugs than Rotundo had arranged to buy which he admitted to the police he intended to sell. The taped telephone conversations between appellant and Rotundo show he actively participated in the transaction with his principal concern being the length of the trip to Allen. The evidence shows appellant, a person predisposed to commit narcotics offenses, was merely afforded the opportunity to commit the offense and took advantage of that opportunity. After reviewing the evidence in the light most favorable to the verdict, we conclude that any rational factfinder could have found beyond a reasonable doubt that an ordinary citizen of average resistance, presented with a few telephone calls from a casual friend who complained of financial difficulties, would not have been induced to engage in a nonprofit, narcotics transaction. See England, 887 S.W.2d at 913; Saxton, 804 S.W.2d at 914. We overrule appellant's third point of error. We affirm the trial court's judgment.