Opinion
NO. 01-11-00068-CR
02-16-2012
JOEL MILLS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1272675
MEMORANDUM OPINION
A jury found appellant Joel Mills guilty of possession of cocaine and the court assessed his punishment at four years' confinement and a $5,000 fine. Mills's single point of error contends that his court-appointed attorney's failure to object to or otherwise limit testimony that he was a drug dealer deprived him of his Sixth Amendment right to effective assistance of counsel. We affirm.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2010) (possession of less than one gram of Penalty Group 1 substance is state jail felony).
Background
Mills was transported by ambulance to Ben Taub Hospital pursuant to a "person down" call. Houston Police Department Officer Mark Knockaert, who responded to the call and accompanied Mills to the hospital, did not search Mills, aside from a cursory pat down that yielded no results. Once Mills was admitted, Officer Knockaert left the hospital. Mills was still unresponsive at that time.
In the course of caring for Mills, Nurse Trisha Small observed that Mills "appeared to be under the influence of something." Mills confided to her that he had "dope" in his pants but Small could not find any. Mills himself then retrieved a small plastic bag from his waistband, handed it to Small, and asked her to hold it for him. The bag held several white nuggets, later determined to be 0.3 grams of crack cocaine. Small asked Mills if he had used the substance and he responded, "No. I don't do crack. I sell it." Small turned the bag over to Nurse Jo Robertson, her supervisor, and the two of them counted the nuggets and placed them in a bio-hazard bag. Officer Knockaert was summoned back to the hospital; after he tagged the bag, he delivered it to the HPD evidence room.
Mills was subsequently arrested and indicted for possession of less than one gram of cocaine. The court appointed Hattie Sewell Shannon to serve as his defense counsel.
Mills plead not guilty and requested a jury trial for the guilt-innocence phase. During trial, when asked by the State if Mills said anything to her after he pulled the cocaine from his waistband, Nurse Small replied, "Well, I asked him if that is what he had done; and he said, 'No. I don't do crack. I sell it.'" Mills's counsel objected to Small's answer as nonresponsive and the court sustained the objection. Nurse Small was asked about this again later, and Small again responded, "Well, I asked him if he had done [the cocaine], he told me, no, that he sells it." This time Mills's trial counsel did not object. In its closing argument the State twice referred to Nurse Small's testimony, but the defendant's trial counsel objected only when the State argued that Mills intended to sell the cocaine.
Standard of Review
The Constitutions of the State of Texas and the United States, as well as a Texas statute, guarantee an accused the right to reasonably effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (West Supp. 2011); see Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). Proof of ineffective assistance of counsel requires a defendant to show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. See Strickland, 466 U.S. at 687-95, 104 S. Ct. 2064-69; Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test to review claim of ineffective assistance of counsel under Texas statutes and constitutional provisions.).
"Reasonable probability" means a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). This requires showing "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt," not merely "that the errors had some conceivable effect on the outcome of the proceeding." Ex Parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Our determination as to whether counsel's actions "so compromised the proper functioning of the adversarial process that the trial court cannot be said to have produced a reliable result" is made by our review of the overall record. See id. (citing Strickland, 466 U.S. at 686, 104 S. Ct. at 2064).
Discussion
Mills's sole point of error is that he was deprived of effective assistance of counsel at trial. He contends that Nurse Small's testimony regarding his "I sell it" statement was inadmissible evidence of an extraneous offense. Mills argues that since intent to sell was not an element of the possession offense for which he was charged, evidence of him selling drugs was neither relevant nor admissible and Ms. Shannon's failure to object, to request a limiting instruction, or to move for a mistrial, fell below even the objective standard of reasonableness as understood by the prevailing professional norms of the criminal courts of Harris County. Mills further argues that Ms. Shannon's failure exposed the jury to prejudicial character evidence affecting the outcome of the trial. Mills seeks a new trial.
The State responds that the testimony was admissible because it tended to prove an element of the charged offense: that Mills knowingly possessed a controlled substance. Further, the testimony of Nurse Small served to rebut Mills's counsel's implication in her closing argument that Mills did not possess the controlled substance. As Ms. Shannon was not required to object to admissible evidence, the State notes that her failures to object do not fall below the professional norm. Moreover, since the record is silent as to Mills's counsel's motive, it may be inferred that her failure to object was a strategic move to draw the jury's attention away from the adverse testimony. The State further argues that the jury was provided ample evidence to sufficiently prove the elements of the offense and the admission of the "I sell it" testimony did not prejudice Mills.
Failure to meet either prong of the Strickland test will defeat a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). As we are not required to analyze the two prongs in any particular order, Martinez, 330 S.W.3d at 901, we note the second prong requires a reasonable probability that the outcome of the trial would have been different but for trial counsel's actions. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Here, the State proved the elements of the offense without the disputed evidence, and Mills has failed to show with reasonable probability that the trial's outcome would have been different had his counsel objected and the testimony been excluded.
A guilty verdict required the jury to conclude that "(1) the accused exercised control, management, or care over the substance; and (2) he knew what he possessed was contraband." Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); accord Perkins v. State, No. 14-09-00771-CR, 2011 WL 1260071, at *2 (Tex. App.—Houston [14th Dist.] Apr. 5, 2011, no pet.) (mem. op., not designated for publication). Regardless of "[w]hether the evidence is direct or circumstantial, it must establish that the defendant's connection with the drug was more than fortuitous." Id.
The jury heard testimony that Mills was unconscious, "appeared to be under the influence of something," confided in Nurse Small that he had "dope" in his pants, then retrieved it from his waistband and asked Nurse Small to hold it for him. Such evidence is more than sufficient for the jury to conclude that he both possessed drugs and knew it to be contraband. His own "I sell it" statement would only serve to bolster this conclusion of the jury.
Consequently, it is not reasonably probable that the exclusion of Mills's statement would have created a reasonable doubt. See Martinez, 330 S.W.3d at 904 (finding no reasonable probability that outcome of trial would have been different when elements of offense were sufficiently proven despite admission of evidence that defendant was gang member); Ex parte Napper, 322 S.W.3d 202, 249-51 (Tex. Crim. App. 2010) (no reasonable probability that admission of potentially flawed DNA evidence affected outcome of trial); Ledezma v. State, No. 14-09-00483-CR, 2010 WL 4514386, at *5 (Tex. App.—Houston [14th Dist.] Nov. 9, 2010, pet. ref'd) (mem. op., no designated for publication) (no reasonable probability that failure to object to admission of extraneous offense evidence affected outcome of trial when offense was sufficiently proven by other evidence). Without determining whether Mills's counsel's performance was deficient, we hold that his claim of ineffective assistance of counsel fails because he has not shown that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's alleged deficient performance. See Batiste v. State, 217 S.W.3d 74, 84 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Conclusion
The State offered evidence which sufficiently proved the elements of possession of a controlled substance. Mills has not shown within reasonable probability that the outcome of the trial would have been any different but for his counsel's inaction. Accordingly, Mills has failed to demonstrate ineffective assistance of counsel. We affirm the judgment of the trial court.
Jim Sharp
Justice
Panel consists of Justices Jennings, Sharp, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).