No. 05-01-01158-CR.
Opinion Filed January 24, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-32474-WI. AFFIRM.
Before Justices WHITTINGTON, BRIDGES, and RICHTER.
Opinion By Justice RICHTER
Jose Ysidro Pena appeals his jury conviction for possession with intent to deliver four hundred grams or more of cocaine and court-imposed forty-year sentence. In nine points of error, appellant contends the evidence is legally and factually insufficient to support the conviction and his counsel was ineffective. We affirm the trial court's judgment.
Background
Appellant was arrested after a consensual search of the car he was driving revealed nearly nine kilograms of cocaine packaged in "bricks." At trial, Irving police officer Edward Patterson testified he initially stopped appellant for failing to signal a lane change. Two of appellant's friends, Reynaldo Rocha and Oscar Betancourt, were also in the car. During a routine check of the car's license plate, Patterson discovered the license plate was registered to another car. Patterson questioned appellant about the license plate, but appellant, who maintained the car was not his, responded he was unaware the license plate had been switched. Patterson then asked appellant if he could search the car, and appellant consented. Concerned there could be drugs in the car, Patterson called for a K-9 unit to assist with the search. After the dog "alerted on" the trunk, Patterson and the K-9 officer searched the trunk's contents and found the cocaine in a brown "hanging bag." Appellant, Rocha, and Betancourt were arrested and the car was inventoried and impounded. During the inventory, the officers found in the hanging bag bus tickets with Rocha's and appellant's names. The officers also found a spiral notebook and loose sheets of paper which contained phone numbers and what appeared to be a "drug ledger." Similar notes were found in appellant's wallet. Subsequently, the officers dusted the cocaine packages for fingerprints, but they were unable to compare the prints they found to appellant's. The defense called only one witness, Rocha, who was tried with appellant. Rocha denied the hanging bag belonged to either him or appellant and maintained his bus ticket was in a separate bag altogether. Rocha also asserted neither he nor appellant had any knowledge of the cocaine and maintained it was Betancourt who placed the bags in the trunk. Sufficiency of the Evidence
In his first two points of error, appellant maintains the evidence is legally and factually insufficient to support the conviction. Specifically, appellant contends the State failed to affirmatively link him to the cocaine. We disagree. In reviewing a legal sufficiency challenge, we view the evidence, whether properly or improperly admitted, in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim. App. 1999). In conducting a factual sufficiency challenge, we determine whether a neutral review of all the evidence viewed by the fact finder establishes the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). In both sufficiency reviews, the trier of fact may draw reasonable inferences from the evidence before it and is the exclusive judge of the witnesses' credibility and of the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). Likewise, resolution of conflicts in the evidence is within the fact finder's exclusive province. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim. App. 1997); Jones, 944 S.W.2d at 647. To obtain a conviction in this case, the State needed to prove appellant (a) exercised actual care, custody, control, or management over the contraband; and (b) knew the matter was contraband. See Tex. Health Safety Code Ann. §§ 481.102(3)(D), 481.112(f) (Vernon Supp. Pamph. 2003); Nunn v. State, 640 S.W.2d 304, 305 (Tex.Crim.App. 1982). Because there were other passengers in the car where the cocaine was found and the car was not in appellant's exclusive control or possession, the State had to present independent facts and circumstances affirmatively linking appellant to the contraband to establish he knew of the cocaine and exercised control over it. Brown v. State, 911 S.W.2d 744, 747-48 (Tex.Crim.App. 1995); Porter v. State, 873 S.W.2d 729, 734 (Tex.App.-Dallas 1994, pet. ref'd). In determining whether the State presented sufficient evidence affirmatively linking appellant to the contraband, we consider such circumstantial factors as the contraband's location in relationship to appellant's personal belongings, whether the contraband was in plain view, appellant's relationship to others with access to the car, whether appellant owned or drove the car, any incriminating statements, and appellant's proximity to the cocaine. See Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. [Panel Op.] 1981); Dixon v. State, 918 S.W.2d 678, 680 (Tex.App.-Beaumont 1996, no pet.); Villegas v. State, 871 S.W.2d 894, 896 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd); Earvin v. State, 632 S.W.2d 920, 924 (Tex.App.-Dallas 1982, pet. ref'd) (en banc). Additionally, we consider the amount of contraband found. Pollan, 612 S.W.2d at 596; Villegas, 871 S.W.2d at 896-97; Earvin, 632 S.W.2d at 924. Although the amount is not determinative by itself, the larger the amount, the more effective the presence of the drugs becomes at establishing an affirmative link. See Villegas, 871 S.W.2d at 896-97 (concluding ninety pounds of cocaine and 165 pounds of marijuana found throughout house sufficient to indicate appellant knew of and exercised control over the contraband); Sosa v. State, 845 S.W.2d 479, 483 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (concluding, inter alia, appellant, who was driving an eighteen-wheel truck carrying 600 kilograms of cocaine valued at over $60 million, was aware of nature of cargo). In arguing the State failed to affirmatively link him to the cocaine, appellant notes (a) there was no evidence Patterson smelled any drugs when he stopped appellant nor any evidence of who placed the bus tickets in the hanging bag where the cocaine was found; (b) appellant did not have any drugs or weapons on his person and none were found in the passenger compartment of the car; (c) the car was not registered to appellant; (d) appellant cooperated with Patterson; and (e) the officers were unable to match appellant's fingerprints with prints removed from the packaged cocaine. Additionally, appellant relies on Rocha's testimony that Betancourt, not appellant, placed the luggage in the car and that Rocha had placed the bus tickets in a separate bag. Appellant also relies on Rocha's testimony that neither he nor appellant knew the cocaine was in the trunk. However, in making his argument, appellant ignores the legal sufficiency standard which requires a review of the evidence in the light most favorable to the verdict, and the requirement, under both the legal and factual sufficiency standards, of deference to the fact-finder's determination of the weight to be given a witness's testimony. Viewing the evidence under the appropriate standard, we conclude it was legally and factually sufficient to support the conviction. As stated, the record reflects appellant was the driver, he was friends with the passengers, the officers found a substantial amount of cocaine — 8.82 kilograms — in a bag which contained appellant's bus ticket, and appellant had notes with phone numbers and what appeared to be a "drug ledger" in his wallet. From this evidence, a rational jury could have found beyond a reasonable doubt appellant knowingly possessed with the intent to deliver four hundred grams or more of cocaine. See Villegas, 817 S.W.2d at 896-97; Sosa, 845 S.W.2d at 483. Although such facts as failure to cooperate, positive fingerprint match, and ownership of the car would have also linked appellant to the cocaine, the lack of this evidence does not weaken the verdict so as to undermine confidence in the fact finder's determination. Moreover, although Rocha denied either he or appellant knew of the cocaine and denied the bus tickets were in the hanging bag, the jury was free to disregard this testimony. We overrule appellant's points of error one and two. Ineffective Assistance of Counsel
In points three through eight, appellant complains his counsel was ineffective in failing to (a) object to the admission of certain evidence and object to improper jury argument; (b) challenge the legality of the traffic stop and request a corresponding jury instruction; and (c) produce any favorable witnesses and mitigating evidence at the punishment phase. In a ninth point of error, appellant complains his counsel's failure to conduct any voir dire, cross-examine any witnesses, and present any evidence or argument at trial amounted to constructive denial of counsel. In response, the State argues, inter alia, that appellant has failed to provide a sufficient record to support his claim. We agree with the State. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). We look to the totality of the representation to determine whether counsel provided effective assistance. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985); Melton v. State, 987 S.W.2d 72, 76 (Tex.App.-Dallas 1998, no pet.). We strongly presume counsel's competence and do not judge counsel's trial decisions in hindsight. Melton, 987 S.W.2d at 76; Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Weeks, 894 S.W.2d at 391. Appellant bears the burden of proving ineffective assistance by a preponderance of the evidence, see Moore, 694 S.W.2d at 531, and an allegation of ineffectiveness must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). Without the required showing of deficient performance or sufficient prejudice, the presumption of reasonable counsel will not be overcome. Id. In this case, the record is silent as to counsel's strategy. Although appellant filed a motion for new trial asserting counsel was ineffective, there is no record of a hearing. Moreover, although the record does reflect counsel's verbal participation at trial was limited, the record also reflects Rocha and appellant shared the same defense theory advanced by Rocha's counsel. As the State points out, the two defense attorneys may have divided the tasks between them, with Rocha's counsel handling the visible trial functions and appellant's counsel handling the "behind-the-scenes" pre-trial duties. This would have been a reasonable decision. Given this possible basis for counsel's actions, counsel's explanation of his strategy is necessary. See Weeks, 894 S.W.2d at 391. Because appellant has failed to provide us a record of that, we cannot conclude he has overcome the strong presumption of reasonable counsel and met his burden of proving deficient performance. Thompson, 9 S.W.3d at 814; see also Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We overrule appellant's third through ninth points of error. We affirm the trial court's judgment.