Opinion
Nos. 05-03-01499-CR, 05-03-01500-CR, 05-03-01501-CR
Opinion Filed April 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 5, Dallas County, Texas, Trial Court Cause Nos. F02-22486, F02-29913, and F03-23429. Affirmed.
Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.
OPINION
In 2002, Michael Paul Mayo pleaded guilty to the offenses of theft and robbery. The trial court found him guilty and placed him on probation for five years. Subsequently, the State moved to revoke his probation. At that time, Mayo was also charged with possession of amphetamine; he pleaded not guilty to that charge. Following a hearing, the trial court revoked the probation and sentenced Mayo to five years' confinement for the robbery charge and two years' confinement for the theft charge. The trial court also found Mayo guilty on the possession charge and sentenced him to two years' confinement and a $1,000 fine for that offense. In this appeal, Mayo challenges the trial court's jurisdiction to revoke his probation in the theft and robbery cases (together, the "revocation cases") and challenges the judgment in the possession case. For the reasons discussed below, we affirm.
Jurisdiction in Revocation Cases
Mayo raises the same jurisdictional issue in both revocation cases. His indictment in the theft case was returned to the 283rd Judicial District Court, and his indictment in the robbery case was returned to the 292nd Judicial District Court. The cases were later assigned to Criminal District Court No. 5, which conducted the revocation hearing and entered judgment in both cases. The record does not contain an order transferring the cases between these trial courts. Mayo charges that without such an order, Criminal District Court No. 5 lacked jurisdiction and its judgments are void. As Mayo acknowledges, a number of cases have addressed this same issue and determined that the absence of a transfer order is merely a procedural error. The absence does not render the actions of the transferee court void, but merely makes them subject to a timely plea to the court's jurisdiction. See, e.g., Lemasurier v. State, 91 S.W.3d 897, 899-900 (Tex.App.-Fort Worth 2002, pet. ref'd); Sharkey v. State, 994 S.W.2d 417, 419 (Tex.App.-Texarkana 1999, no pet.); Garcia v. State, 901 S.W.2d 731, 732 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd). These cases uniformly conclude that by failing to pursue a plea to the jurisdiction, a defendant waives error on the lack of transfer order. See Lemasurier, 91 S.W.3d at 900. We decline Mayo's invitation to adopt a different rule on this issue. Our record contains no plea to the jurisdiction in either of the revocation cases. Accordingly, Mayo has waived any complaint in this regard. See id. His issues in the revocation cases are without merit.Factual Sufficiency of Finding on Possession
Mayo's first issue in the appeal of his methamphetamine-possession conviction challenges the factual sufficiency of the evidence supporting the trial court's judgment. Mayo states that "[i]n context, the evidence is too unbelievable on the element of possession to support the judgment." In determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we will not reverse unless the evidence of the appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In conducting this review, we may not substitute our determination for that of the factfinder. Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Resolution of conflicts in the evidence and credibility of witnesses lies within the factfinder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). Certain facts are not in dispute. Mayo attended what he knew would be a drug party in a hotel room rented by one of his friends, Corey Strange. All witnesses at the party agreed that Mayo left the party with other friends shortly after he arrived. He returned a number of hours later. Shortly after his return, police arrived at the hotel room and searched it with Strange's permission. The officers found a bag of methamphetamine in the air conditioning vent in the hotel room. Mayo was laying on the floor next to the air conditioner when the police arrived. A number of witnesses offered evidence at trial that supports the possession finding. Strange testified that he saw evidence of Mayo's smoking methamphetamine in the bathroom before Mayo left the party. He also testified that when Mayo returned to the party, he told the others the police were outside and then began "rummaging" around with the door of the air conditioning unit. Another party attendee, Chase Herd, testified he saw Mayo smoke methamphetamine before Mayo left the party. Herd further testified that Mayo returned to the hotel room with the bag of methamphetamine in his hand and walked with it over to the air conditioner. Both Strange and Herd testified that, while officers were conducting individual interviews, Mayo told them not to tell the officers the drugs were his or he would physically harm them. Jesse Boleman, a police officer for the City of Duncanville, testified that when the officers searched the room, they found narcotics, money, and drug paraphernalia inside the door to the controls of the air conditioning unit. The officers interviewed the occupants of the hotel room one by one. Officer Boleman testified that all the stories were consistent except Mayo's. On cross-examination, the officer testified that Mayo told him he had gone to Arlington to buy drugs for Herd. He further testified that Strange and Herd told him Mayo had threatened them and they appeared to be in fear. Finally, after having his memory refreshed with his report on redirect, Officer Boleman testified that Mayo admitted that he purchased and smoked the methamphetamine. There was some conflicting evidence at trial. Mayo testified in his own defense and denied purchasing or using any contraband substance at the party. Mayo stressed that he had left the party after a short time, was gone a number of hours with other friends, and returned to the hotel only to sleep. He did know the others were using drugs in the hotel room, but he believed the drugs would be gone by the time he returned. Herd and Strange offered conflicting testimony concerning who made a trip to Arlington to purchase methamphetamine earlier that evening; Mayo offered a third account of that trip. And there was also evidence that could have discredited Herd's and Strange's testimony: both admitted they were under the influence of drugs that evening. Finally, Mayo emphasizes the fact that he was not arrested on the night of the party. He infers from that fact that the police knew they lacked a strong case against him for possession. The law of possession does not require that contraband be found on a defendant's person, but only that it be within his "actual care, custody, control, or management." Tex. Pen. Code Ann. § 1.07(a)(39) (Vernon Supp. 2004-05). Our review of the record indicates there was ample evidence that the methamphetamine found in the air conditioning unit was under Mayo's actual custody and control. The evidence of Mayo's guilt, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt; nor is the evidence contrary to the verdict so strong that the beyond-a-reasonable-doubt standard could not have been met in this case. See Zuniga, 144 S.W.3d at 484-85. As to the conflicting evidence, the factfinder — here, the trial judge — must resolve such issues after observing the witnesses and their demeanor. See Obigbo, 6 S.W.3d at 305. We will not substitute our judgment for his. See Scott, 934 S.W.2d at 399. We conclude the evidence is factually sufficient to support the possession finding in this case. We decide Mayo's first issue against him.Ineffective Assistance
Finally, Mayo argues he received ineffective assistance of counsel in the trial of his possession charge. The standards for reviewing ineffective assistance of counsel claims are well-established. The appellant has the burden to show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 668 (1984)). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance — that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex.Crim.App. 1994). To defeat this presumption, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Mayo's complaint centers on the following exchange during the cross examination of Officer Boleman by defense counsel:Q. So Michael Mayo said that those were not his drugs. Matter of fact, he told you that they were Corey's drugs. Corey and Chase's drugs.
A. I'd have to look at my report. I don't remember.
Q. Okay
A. I don't know if we took a statement from Mr. Mayo. I thought we had. But he stated he had went and got the drugs.
Q. Who stated what now?
A. Mr. Mayo stated he had went and purchased the drugs for Mr. Herd.
Q. To whom did he say that?
A. To me.On redirect, the State elicited testimony that Mayo had also told the officer that he had smoked the methamphetamine. Mayo charges that counsel's allowing this evidence to be admitted was objectively deficient and prejudiced his case. Mayo filed a motion for new trial in this case, but he did not raise a claim of ineffective assistance of counsel. Consequently, there is no record to explain the motivation behind counsel's actions and whether they resulted from strategic design or negligent conduct. As a rule, a silent record which provides 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). Counsel should ordinarily be accorded an opportunity to explain his actions before being condemned as unprofessional and incompetent. Id. at 111. Mayo has failed to establish that his trial counsel's performance fell below an objective standard of reasonableness. Accordingly, he has not met the first Strickland requirement, and his claim of ineffective assistance fails. We resolve Mayo's second issue against him.