Opinion
No. 09-04-165 CR
Submitted on January 26, 2005.
Opinion Delivered February 2, 2005. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Court Cause No. 90589. Affirmed.
Before McKEITHEN, C.J., GAULTNEY, and KREGER, JJ.
MEMORANDUM OPINION
Jerome Joseph Reeves was convicted of possession of a controlled substance in a drug-free zone. He was sentenced as a habitual felony offender to imprisonment for life in the Texas Department of Criminal Justice Correctional Institutions Division. See Tex. Health Safety Code Ann. §§ 481.114 (Vernon 2003), 481.134(c) (Vernon Supp. 2005). In this appeal, Reeves argues the evidence was legally insufficient to sustain his conviction, the trial court erred in failing to instruct the jury pursuant to article 38.23 of the Texas Code of Criminal Procedure, and he received ineffective assistance of counsel. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2005). Sergeant Ky Brown testified that on August 14, 2003, he was in a vehicle within one thousand feet of Dunbar Elementary School, a drug-free zone. Brown stated he saw an unidentified individual walking northbound in the lane of traffic and attempted to approach him. According to Brown, when he and Officer Breiner approached the individual from behind, he stepped away from the roadway, turned, and looked directly at them. Brown said he recognized the individual from previous encounters. The individual then turned away and began heading in the opposite direction at a quicker pace. He moved directly to a parked Cadillac. Brown testified he pulled behind the Cadillac, and he and Breiner stepped out. The individual attempted to enter the Cadillac through the back passenger door. The individual the officers had been following put a small, white object into his mouth. Brown noticed movement in the vehicle, and he realized two individuals were in the front seat. Brown observed the driver, Reeves, reaching under the right side area of the floorboard. Brown and Breiner removed Reeves and the passenger from the vehicle and searched for weapons. Brown returned to the driver's door and performed a wingspan search of the area where Reeves had been reaching. Brown testified he observed a black washcloth lying on the floorboard, partially underneath the front seat. Brown testified he picked up the washcloth to see whether a weapon was concealed beneath it, and he found a plastic bag containing a substance he believed to be a large quantity of crack cocaine. He stopped and told Breiner what he had found. After securing the individuals, Brown continued to search the front seat area, believing he might find a weapon or additional contraband. Brown found a small plastic container partially shoved between the driver's seat and the middle of the front seat. Brown discovered rocks of crack cocaine inside the container. He testified that when he looked at Reeves, he saw Reeves spit a white chalky substance from his mouth. Breiner put on gloves and recovered a portion of the substance Reeves had spit. Reeves and the passenger were arrested and charged with possession of a controlled substance. Brown and Breiner gathered three pieces of evidence for testing, including the material Reeves spit, the substance from the plastic container, and the substance from the plastic bag. The three exhibits were placed in separate plastic bags and then placed within one large plastic evidence bag. Detective Breiner testified that he was on duty with Sergeant Brown and that he recognized an individual walking in the roadway. According to Breiner, after the individual recognized their vehicle, the individual immediately walked to a parked car and began trying to enter the car. Brown stopped, and Breiner got out and walked toward the individual. Breiner testified the individual began throwing "rocks" in his mouth. Breiner stated he tried unsuccessfully to prevent him from swallowing the material. Breiner stated he saw what appeared to be chewed chalk. Breiner testified Reeves became visibly nervous when Brown searched the area where Reeves was sitting. Melissa Taylor, a forensic analyst for the Jefferson County Regional Crime Laboratory, testified regarding the procedures used in testing a substance for the presence of crack cocaine. Taylor testified she received one evidence bag containing three separate ziplock bags, and she analyzed the contents of each bag and assigned a result to each. Taylor stated each of the three bags testified positive for cocaine. Taylor stated the contents of the first bag weighed 0.17 grams, the second weighed 3.90 grams, and the third weighed 17.93 grams, making a combined weight of over four grams. Taylor's tests indicated each bag in State's Exhibit 1 contained cocaine, a controlled substance listed in Penalty Group 1 of the Texas Controlled Substances Act. A legal sufficiency review requires the appellate court to view the evidence 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 charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). "To prove unlawful possession of a controlled substance, the State must first prove appellant exercised actual care, control and management over the contraband and second, that appellant had knowledge the substance in his possession was contraband." Nixon v. State, 928 S.W.2d 212, 215 (Tex.App.-Beaumont 1996, no pet.) (citing King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995)). Reeves argues that he did not have exclusive possession of the place where the contraband was found, and that no additional facts connected him to the contraband. Although an accused is not in exclusive possession of the location where contraband is found, additional independent facts and circumstances may affirmatively link the accused to the contraband. See Nixon, 928 S.W.2d at 215. Factors which tend to establish affirmative links include:
(1) the contraband was in plain view;
(2) the accused was the owner of the premises in which the contraband was found;
(3) the contraband was conveniently accessible to the accused;
(4) the contraband was found in close proximity to the accused;
(5) a strong residual odor of the contraband was present;
(6) paraphernalia to use the contraband was in view or found near the accused;
(7) the physical condition of the accused indicated recent consumption of the contraband in question;
(8) conduct by the accused indicated a consciousness of guilt;
(9) the accused had a special connection to the contraband;
(10) the place where the contraband was found was enclosed;
(11) the occupants of the premises gave conflicting statements about relevant matters; and
(12) affirmative statements connect the accused to the contraband.Id. Reeves was in the driver's seat. The investigating officers noticed movement in the vehicle, and Sergeant Brown observed Reeves reaching under the right side area of the floorboard. The contraband was in close proximity and conveniently accessible to Reeves. Reeves was visibly nervous during the search, and Brown saw Reeves spit a white chalky substance from his mouth. The evidence was legally sufficient to support Reeves' conviction. Issue one is overruled. In his second issue, Reeves argues the trial court erred in failing to instruct the jury pursuant to article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2005). At trial, Reeves' counsel moved to suppress the evidence obtained from the search, and he objected to the omission from the charge of an instruction regarding exclusion of illegally obtained evidence. He tendered three proposed instructions. The trial court denied the requested instructions, stating "all three of your requests are denied. It's an issue of law not fact." A defendant is entitled to a jury instruction under article 38.23 of the Texas Code of Criminal Procedure if there is a fact issue as to how the evidence was obtained. See Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App. 1986); Washington v. State, 663 S.W.2d 506, 508 (Tex.App.-Houston [1st Dist.] 1983, pet. ref'd). If the question is one of law only, there is no issue for the jury. See Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App. 2000); Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996). Reeves asserts his counsel's cross-examination of the State's witnesses raised a fact issue requiring an instruction under article 38.23. However, the evidence given by the State's witnesses was clear and consistent, and no contradictory evidence was elicited during cross-examination. The essential facts were not in conflict. On this record, the trial court did not err in denying Reeves' requested jury instruction. Issue two is overruled. In his third issue, Reeves argues he received ineffective assistance of counsel during the guilt/innocence phase of the trial. Specifically, Reeves complains his trial counsel's performance was deficient during cross-examination of Sergeant Brown. Reeves contends his counsel's cross-examination of Sergeant Brown elicited a legal justification for stopping the first individual (his violation of a city ordinance) which he says had not otherwise been proved. Reeves argues his counsel "filed a proposed jury charge compliant with article 38.23 prior to trial, argued that it was mandatory after the trial, and then destroyed any reason to include it during the trial." To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy a two-pronged test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Texas courts have interpreted Strickland to require appellant to show a reasonable probability that, but for his counsel's errors, the outcome would have been different. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Id. (citation omitted). Furthermore, "[a]ny 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, 813 (Tex.Crim.App. 1999) (citation omitted). The bare record on direct appeal is usually insufficient to demonstrate "counsel's representation was so deficient . . . as to overcome the presumption that counsel's conduct was reasonable and professional." See Bone, 77 S.W.3d at 833 (citation omitted). The testimony of which Reeves complains in this issue relates to the reasonableness of stopping an individual other than Reeves. Officer Brown had already testified on direct examination that the officers were attempting to approach an individual who was walking "in the lane of traffic that we were proceeding in." The testimony elicited on cross-examination concerned essentially those facts already in evidence through direct examination. The assertion of a city ordinance violation was made on cross-examination. However, the record does not demonstrate counsel's cross-examination constituted ineffective assistance or resulted in an unfair trial requiring reversal under Strickland. Reeves' third issue is overruled. The judgment of the trial court is affirmed.
Taylor referred to the three bags individually as Exhibits 1, 2, and 3, while the State referred to all three bags as State's Exhibit 1. Reeves contends all of the evidence was tested together as one sample. We see nothing in the record that supports this assertion.
Reeves does not appeal the denial of the motion to suppress.