Opinion
No. 05-07-00943-CR
Opinion issued December 9, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F05-55062-I.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
OPINION
A jury convicted Barry Wayne Jones of possession of cocaine with intent to deliver. On appeal, he complains he received ineffective assistance of counsel and the evidence against him is factually insufficient. We modify the trial court's judgment to reflect the assessment of a $1,000 fine against appellant at sentencing. We affirm the judgment as modified.
Factual Background
When police responded to a domestic disturbance call involving drugs and a gun at a house, they saw appellant through a screen door. He was alone, sitting in a bedroom on the floor next to the bed, using a razor blade to cut a cookie of crack cocaine into rocks. The officers announced themselves and then entered the house. When appellant saw the officers, he swept the cocaine and other materials under the bed and threw a gun onto the bed. The officers testified that appellant was alone in the room. He was notable for his size, approximately 400 pounds. Aside from the gun found near appellant, three other guns were found in the room. The room also contained a digital scale, small baggies, a photograph of appellant "throwing up a gang sign" and waving a stack of money, and two letters addressed to appellant at the house. One of the letters was from a former girlfriend; the other was from a collection agency. The total weight of the cocaine found in the room was 16.5 grams, the street value of which was approximately $1,650. An officer testified that the quantity of cocaine plus the guns, razor blades, baggies, and digital scale all found in the room indicated that appellant possessed the cocaine with the intent to deliver it. The officers testified that appellant was extremely cooperative during his arrest. While giving his book-in information, he gave the address for the house where he had just been arrested as his home address. On the way to the jail, he commented, "This ain't nothing. I've caught a case before." Appellant testified in his own defense. He claimed the house belonged to his sister and he had been in her bedroom to avoid the crack smoking that was going on in the dining room. Appellant further claimed a man known only as "Brother-in-law" had been in the room with him — cutting up a cookie of crack cocaine in the room while appellant lay on the bed — but Brother-in-law had run from the scene when he saw police. By appellant's account, one of the officers then chased Brother-in-law through the house. Appellant described Brother-in-law as being over six feet tall and weighing approximately 140 pounds. Appellant testified that seventeen years before trial, he had been convicted of possession of a controlled substance with intent to deliver. Appellant testified that the drug conviction affected him. He stated, "I know that wasn't the life I wanted to live because I had just had a baby, and I wanted to be an example instead of a bad influence because I have a lot of nieces and nephews." He admitted he had also had been arrested for a variety of different offenses. Appellant denied seeing any guns in the room. According to appellant, at his former weight, he could sit on the floor but could not get up from the floor without help. One of the officers testified that he and the other officer had to help appellant from the floor when they arrested him. Other people present during the arrest also testified for the defense. Appellant's sister and a female friend who had been living in the house both testified that Brother-in-law had possessed cocaine at the house that evening and had fled when police arrived. Appellant's sister testified that appellant had been convicted of a drug offense over ten years before his arrest for this offense and had "changed his life around" following the conviction. Both witnesses admitted they occasionally used crack cocaine, and the friend testified her memory was unclear because of her use of crack that day, in addition to other medications she takes for an illness. They testified that they would smoke crack away from appellant, who no longer used the drug. Appellant's sister admitted to a variety of criminal convictions, including delivery of a controlled substance. The friend admitted to a previous conviction for tampering with a government record. A neighbor, who testified he was "high as usual" on the evening of the offense, recalled seeing Brother-in-law run from the house. The neighbor admitted he had a "pretty extensive felony record," which included burglary of a habitation, delivery of a controlled substance, and possession of a controlled substance. Another neighbor also saw a man jump over the fence of appellant's sister's house and run from the house on the evening of the offense. Appellant's former girlfriend, who now lives in Georgia, testified that she had written one of the letters to appellant that had been found in the room with the cocaine. She stated that she had written to him at that location, despite her knowledge that he had his own home, because she did not know his exact address and knew he spent a great deal of time at his sister's house. She further admitted she was not on "great speaking terms" with appellant at the time she wrote the letter. Appellant admitted during his testimony that he and the former girlfriend had been convicted in 2003 for a theft they had committed together. None of the witnesses who testified for the defense was able to give the true identity of the man known as Brother-in-law.Discussion
In his first point of error, appellant complains his trial counsel was ineffective for eliciting testimony from him about his previous controlled substance conviction and for opening the door to testimony by appellant about his numerous previous arrests. We examine ineffective assistance of counsel claims under well-known standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). It is appellant's burden to show by a preponderance of the evidence trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. The court of criminal appeals has made clear that in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111. Here, it appears from the record that appellant's counsel was pursuing a strategy of candor before the jury. The introduction of appellant's previous conviction, in particular, was offered to show how it had turned appellant from drugs and how it had given police a justification for appellant's arrest. In opening argument, appellant's attorney stated,We're going to show you through testimony that these officers found a stash of dope. The guy that got away they couldn't get, so they're going to use the man they've got. We'll show you through the evidence that they knew before they took this man downtown, they ran a check on him and knew that he had previously been convicted of this type of offense and that they put this case on him.The record contains no discussion of counsel's strategic decisions, nor of appellant's choices pertaining to his testimony and his possible willingness to own up to his previous criminal record. Although a motion for new trial was filed in the case, it did not complain of ineffective assistance of counsel, and no hearing was held on the motion before it was denied. Based on the record before us, we conclude appellant has failed to meet his burden of proving ineffective assistance of counsel. We overrule his first point of error. In his second point of error, appellant complains the evidence against him is factually insufficient. He argues in particular that the police officer's testimony "simply does not refute the existence of Brother-in-law." In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. In this case, the mere existence of "Brother-in-law" or his flight from the scene would not have disproved appellant's guilt for the charged offense. Moreover, the jury was entitled to believe the officers' testimony over the testimony of appellant's friends and neighbors. After reviewing the entire record in a neutral light, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error. In a cross-point, the State requests that we modify the judgment to reflect the fine imposed by the trial court at sentencing. The court reporter's record reflects that the trial court orally assessed a $1,000 fine, but the judgment in the clerk's record does not reflect the fine. The oral pronouncement of sentence controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex.Crim.App. 2004). We have the power to correct and modify the judgment to make the record speak the truth, when we have the necessary data and information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). We therefore sustain the State's cross-point and modify the judgment to reflect the assessment of a $1,000 fine. We affirm the trial court's judgment as modified.