Purves v. State

Full title: JOSEPH PURVES, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 11, 2010

No. 05-08-01459-CR (Tex. App. Jan. 11, 2010)

Opinion

No. 05-08-01459-CR

Opinion issued January 11, 2010. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F08-57171-H.

Before Justices MOSELEY, BRIDGES, and MURPHY.

MEMORANDUM OPINION

Opinion By Justice BRIDGES.

Appellant Joseph Purves appeals his conviction and accompanying sentence for the offense of possession of a controlled substance. We affirm.

Background

Dallas Police Officer Easton testified that on June 24, 2008, while conducting routine undercover surveillance, she saw a Chevrolet Suburban parked in front of a known drug house. Easton used the police radio to request a check of the license plate information and received information that the driver of that vehicle was a "possible wanted person." She also received a physical description of the person. As Officer Easton waited at the scene, she saw appellant and a female leave the house and get into the Suburban. Upon Officer Easton's request, uniformed officers stopped the vehicle as appellant drove away from the drug house. After the stop was made, Easton approached the officers on the scene and provided a photograph, which matched appellant. Dallas Police Officer Campopiano testified that, upon Easton's request, he stopped a Chevrolet Suburban driven by appellant. At the time of the stop, appellant gave the officer a false name and false date of birth. Officer Easton came on the scene and offered Campopiano a photograph, which matched appellant. After appellant saw the photograph, he admitted that he had lied about his identity. Appellant and appellant's passenger were then arrested, and the Suburban was moved from the location of the stop to a nearby business parking lot. Campopiano searched the vehicle and no weapons were found. Officer Clayton testified that he assisted in the stop of the vehicle. Clayton approached the female passenger when the stop was made. The passenger told Clayton there were drugs hidden behind a speaker cover inside the vehicle. When Clayton opened the speaker cover, he found a medicine bottle containing a substance, which tested positive for cocaine and weighed 4.5 grams. Officer Francikowski, who also assisted in the stop, testified that the female passenger told him that the drugs found inside the vehicle belonged to appellant. Clayton discovered that appellant had been associated with this vehicle through a prior arrest. Both appellant and his passenger told Officer Clayton that appellant owned the vehicle. An eyewitness at the scene, who claimed to have known appellant, also confirmed his ownership of the vehicle. However, his name did not appear on the vehicle's registration. Stephanie Vasquez testified that she was the eyewitness at the scene of the stop. She told the jury that both she and appellant's passenger were prostitutes. She claimed appellant did not have any money on the afternoon of June 24, 2008 to buy drugs. She further testified that appellant was driving a vehicle which was not his, but belonged to a car dealership where he worked. She stated appellant does not use cocaine, and she does not trade sex for drugs from appellant.

Analysis

Appellant raises seven issues in his appeal. In his first and second issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. In his third issue, appellant argues he was denied effective assistance of counsel. Next, he challenges the trial court's decision to exclude the affidavit of his mother during his motion for new trial hearing. In his fifth issue, appellant contends the trial court abused its discretion in denying his motion for new trial. Appellant also argues the trial court erred in failing to ask appellant for his plea at his arraignment. Finally, appellant contends the trial court erred in admitting extraneous offenses at the punishment phase of trial. We consider appellant's first and second issues together. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 552 U.S. 920 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 552 U.S. 842 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The indictment in this case states that on June 24, 2008, appellant "did unlawfully, intentionally and knowingly possess a controlled substance, to-wit: COCAINE, in an amount by aggregate weight, including any adulterants or dilutants, of 4 grams or more but less than 200 grams." Possession means "actual care, custody, control, or management." Tex. Penal Code Ann. § 1.07(39) (Vernon Supp. 2009). The State, therefore, was required to prove that appellant exercised actual care, custody, control, or management over the cocaine and that he knew the substance was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Whether the evidence is direct or circumstantial, "it must establish, to the requisite level of confidence, that the accused's connection with the drug was more than just fortuitous." Id. at 406 (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). Possession of a controlled substance need not be exclusive and evidence which shows that an accused jointly possessed the substance with another is sufficient. Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.-Austin 1991, pet. ref'd). When the contraband is not found on the accused's person or it is not in the exclusive possession of the accused, additional independent facts and circumstances must link the accused to the knowing possession of the contraband. Willis v. State, 192 S.W.3d 585, 593 (Tex. App.-Tyler 2006, pet. ref'd); Lassaint v. State, 79 S.W.3d 736, 740 (Tex. App.-Corpus Christi 2002, no pet.). See also Evans v. State, 202 S.W.3d 158, 162 fn.9 (Tex. Crim. App. 2006) (word "affirmative" in "affirmative links" rule adds nothing to plain meaning of "link"; henceforth court will use "link" only, in order to make clear evidence of possession is judged by same standard as all other evidence). No set formula of facts exists that would dictate a finding of links sufficient to support an inference of knowing possession of contraband. See Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.); Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). The number of links is less important than the "logical force" or degree to which the links, alone or in combination, tend to affirmatively link the accused to the contraband. Wallace v. State, 932 S.W.2d 519, 524 (Tex. App.-Tyler 1995, pet. ref'd). Possible links include: (1) whether the defendant was present when the drugs were found; (2) whether the drugs were in plain view; (3) whether the drugs were found in proximity to and accessible to the defendant; (4) whether the defendant was under the influence of drugs when arrested; (5) whether the defendant possessed other contraband or drug paraphernalia; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of drugs; (10) whether the defendant owned or had the right to possess the place where the drugs were found; (11) whether the place the drugs were found was enclosed; (12) the amount of drugs found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. See Porter, 873 S.W.2d at 732; see also Pettigrew v. State, 908 S.W.2d 563, 571 (Tex. App.-Fort Worth 1995, pet. ref'd); Washington v. State, 902 S.W.2d 649, 652 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd); Green v. State, 892 S.W.2d 220, 222 (Tex. App.-Texarkana 1995, pet. ref'd); Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd). The evidence adduced at trial shows appellant was present during the search of the Suburban in which the cocaine was found in an enclosed area. Further, appellant was driving the vehicle and records showed appellant had been associated with the same vehicle in a prior arrest. When he was stopped, appellant gave the officer a false name and date of birth. His photograph was furnished when an officer asked for a description of the vehicle's owner. After the officer produced the photo, appellant admitted he lied about his name. Although the evidence did not demonstrate appellant was the title holder to the Suburban, he told one of the arresting officers that he owned the vehicle, which was supported by his passenger and an eyewitness. Cocaine, in the amount of 4.5 grams, was found in a pill bottle, placed behind a speaker cover. Appellant's passenger told an arresting officer that the cocaine found inside the vehicle belonged to appellant. Furthermore, prior to the stop, appellant was seen exiting a known drug house. In light of the evidence, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant possessed the cocaine. See Vadochodsky, 158 S.W.3d at 509. We further conclude that the jury's verdict of guilt was rationally justified. See Roberts, 220 S.W.3d at 524. Having applied the appropriate standards, we conclude the evidence is both legally and factually sufficient to support the conviction. Accordingly, we overrule appellant's first and second issues. In his third issue, appellant contends he was denied effective assistance of counsel because he failed to advise appellant of a deadline on a plea bargain offer made by the State. To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668 (1984). When reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance, and appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). An ineffectiveness claim cannot be demonstrated by isolating one portion of counsel's representation. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1993), cert. denied, 508 U.S. 963 (1993). Counsel's performance must be judged on the totality of the representation. Strickland, 466 U.S. at 670. An accused is entitled to effective assistance during the plea bargaining process. Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993). Failure to inform an accused of a plea offer made by the State is an omission that falls below an objective standard of professional reasonableness. Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000). In the case before us, the trial court received testimony from defense counsel that he had informed appellant about the plea bargain offer and the applicable deadline. He also stated he talked to appellant's mother "numerous times" about the offer, but could not remember if he conveyed the deadline to her. Defense counsel further testified that he told appellant the offer would be "off the table" on the day of trial. Appellant testified that his counsel informed him of the State's offer, but failed to tell him about the deadline. Appellant further admitted he had been to jail more than five times and to the penitentiary once. Because the record before us contains some evidence that defense counsel informed appellant about the State's offer and applicable deadline, appellant has failed to demonstrate counsel was deficient. Therefore, appellant has failed to satisfy the first prong of the Strickland test. 466 U.S. 668. We overrule appellant's third issue. In his fourth issue, appellant argues the trial court erred in excluding the affidavit of appellant's mother at his motion for new trial hearing. At the hearing on the motion, appellant offered the affidavit of his mother. His mother was not present to testify at the hearing and the State objected based on hearsay and the lack of opportunity to cross-examine her. The trial court sustained the objection and admitted the document for record purposes only. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court's ruling unless it falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). In addition, we must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We agree with appellant that rule 21.7 permits the trial court to receive evidence by affidavit at a motion for new trial hearing. Tex. R. App. P. 21.7. However, we have reviewed the affidavit of appellant's mother, which centers on her inability to advise her son about the plea offer by the State and her lack of awareness of the deadline on the offer. Defense counsel's duty is not to the accused's mother, but to the accused who has the right to be informed of any plea bargain offer. See Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). Having already found appellant's counsel provided effective assistance in that regard, we conclude the trial court's decision to exclude the affidavit was not outside the zone of reasonable disagreement. Burden, 55 S.W.3d at 615. We overrule appellant's fourth issue on appeal. In his fifth issue, appellant contends the trial court abused its discretion in denying appellant's motion for new trial in light of the overwhelming evidence presented to support a new trial. In considering a motion for new trial, the trial court has broad discretion in assessing the credibility of the witnesses and in weighing the evidence. Weaver v. State, 999 S.W.2d 913, 916 (Tex. App.-Waco 1999, no pet.). The trial court is not required to accept as true the testimony of the accused or any witnesses even it if is uncontradicted. Reissig v. State, 929 S.W.2d 109, 113 (Tex. App.-Houston [14^th Dist.] 1996, pet. ref'd). Therefore, we review a trial court's denial of a motion for new trial under the abuse of discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). In this case, appellant argues he was entitled to a new trial because he was unaware of the deadline on the plea bargain offer from the State and that his testimony to that effect was sufficient to warrant a new trial. However, the trial court was free to believe the testimony of defense counsel as true; i.e. he communicated the offer and deadline to appellant. See Reissig, 929 S.W.2d at 113. Therefore, we do not believe the trial court abused its discretion in denying the motion. Charles, 146 S.W.3d at 208. We overrule appellant's fifth issue. In his sixth issue, appellant argues the trial court erred in failing to ask him his plea at his arraignment. The record reflects that, prior to trial, appellant waived the reading of the indictment. After the trial court explained the punishment range, the court asked appellant if he understood the range and the following transpired:

THE DEFENDANT:

I think so.

THE COURT:

Pardon me?

THE DEFENDANT: Yes, sir.

THE COURT:

And you're entering a plea of not guilty at this time; is that correct, [defense counsel]?

DEFENSE COUNSEL: Yes, sir.

THE COURT:

All right. You understand that, [defendant]?

THE DEFENDANT:

Yes, sir.

THE COURT:

All right. That's what you want to do, right?

THE DEFENDANT:

I believe so, sir.

THE COURT:

No, you just need to tell me, [defendant], if you don't want to do it.

THE DEFENDANT:

I-

THE COURT:

We're going to trial on this, and you're entering a plea of not guilty, correct? You're gonna say before the jury you're not guilty.

THE DEFENDANT:

I've never been in a jury trial before in my life.

THE COURT:

Never before been in a jury?

THE DEFENDANT:

Never in my life.

THE COURT:

Well, I hadn't either. So you'll-but my understanding is you want to plead guilty [ sic] and have the jury determine your-whether you're guilty or not guilty in this case.

THE DEFENDANT:

Whew, lord have mercy. Lord have mercy. Can I talk to my attorney one second?

THE COURT:

Of course.

(Counsel confers with defendant.)

Then, outside the presence of the jury, the trial court notified appellant of his right to remain silent and confirmed he was a U.S. citizen. Then, the trial court said, "The defendant's been arraigned." The purpose of the arraignment is to fix the identity of the defendant and to hear his plea. Tex. Code Crim. Proc. Ann. art. 26.02 (Vernon 2009). Appellant contends the record does not affirmatively show that appellant entered his plea at arraignment; however, appellant makes this objection for the first time on appeal. His failure to object waives the error he now complains of on appeal. Tex. R. App. P. 33.1(a); see also Richardson v. State, 508 S.W.2d 380, 381-82 (Tex. Crim. App. 1974) (stating that once the defendant's identity has been established and he has been afforded an opportunity to enter his plea, the purpose of the arraignment has been fulfilled). We, therefore, overrule appellant's sixth issue on appeal. In his final issue, appellant argues the trial court erred in admitting extraneous offenses at punishment because the State failed to provide timely written notice of the extraneous offenses to appellant. In order to trigger the State's obligation to provide such notice, a defendant must either (1) serve the State with a request for notice or (2) file a discovery motion requesting the court to order such notice and secure a ruling thereon. Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998). On August 19, 2008, appellant filed his omnibus pretrial motion, which included a request that the State provide notice of extraneous offenses prior to trial. The motion was presented to the court in a pretrial hearing on October 14, 2008, at which time the trial court granted appellant's request for notice. The record reflects that on the following morning, the State provided notice of extraneous offenses. The trial began the same day, and the punishment phase commenced on October 16, 2008. Specifically, appellant complains of the use of extraneous offense evidence during the punishment phase of trial. The court of criminal appeals has held that when a document seeks trial court action, it cannot also serve as a request for notice triggering the State's duty under article 37.07 of the code of criminal procedure until it is ruled on by the trial court. See Simpson v. State, 991 S.W.2d 798, 801 (Tex. Crim. App. 1998); Mitchell, 982 S.W.2d at 472. Here, the appellant's omnibus motion was not presented to the trial court until October 14, 2008, at which time the trial court ruled. Thus, the State had no duty to provide any notice until the trial court ruled. See id.; see also Johnson v. State, 2001 WL 1609403, *2 (Tex. App.-Dallas December 18, 2001, no pet.) (court concluded that when motion was presented on day of trial and the State provided notice after motion was granted, notice on the day of trial was timely and reasonable under the circumstances). The record reflects that the State filed its notice on October 15, 2008 at 8:50 a.m., the day prior to the beginning of the punishment phase of trial on October 16, 2008. Under these circumstances, we conclude the notice was timely and reasonable. See id. Therefore, we overrule appellant's final issue. Having overruled all of appellant's issues on appeal, we affirm the judgment of the trial court.