No. 05-06-00124-CR
Opinion issued March 5, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-54775-LR.
Before Justices, MORRIS, LANG, AND LANG-MIERS.
Opinion By Justice MORRIS.
In this case, Anthony Dewayne Richard appeals his conviction for possession of cocaine with intent to deliver. In four issues, appellant complains the evidence against him is legally and factually insufficient, the trial court erred by denying his motion to suppress, and he received ineffective assistance of counsel at trial. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
A uniformed police special task force was investigating drug sales in a high-crime apartment complex when the apartment manager approached the officers. She asked them to check out a particular apartment where there had been extensive activity consistent with drug sales. One of the officers knocked on the door of the apartment. Appellant answered the door of the apartment with a semi-automatic pistol in his hand. The officer immediately immobilized appellant and secured his firearm. In the meantime, a second man in the apartment walked out of the back bedroom and pointed a revolver at another officer's head. He then retreated back into the bedroom and threw the gun to the ground. From the doorway, the officers could see cocaine and digital scales in plain view on the kitchen counter. Also on the counter, near the cocaine and the scales, the officers found over sixteen hundred dollars cash, primarily in twenty-dollar-bill denominations. A search of appellant's pockets revealed keys to the apartment. The lease for the apartment was not in appellant's name. A police officer testified that drug dealers often sell from apartments leased by a different person, so the drug-selling location cannot be linked to them. The second man in the apartment was not charged with cocaine possession but was charged with deadly conduct and possession of the marijuana found on his person. Discussion
In appellant's first two issues, he complains the evidence against him is legally and factually insufficient to prove he possessed the cocaine. He specifically complains the evidence fails to sufficiently link him with the cocaine found in plain view in the apartment and that the evidence fails to show he had intent to deliver the cocaine. When reviewing challenges to the legal sufficiency of the evidence, we apply well-established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, although we are permitted to substitute our judgment for the jury's when considering credibility and weight determinations, we may do so only "to a very limited degree." Marshall v. State, 2006 WL 3733198, *5 (Tex.Crim.App. Dec. 20, 2006) (citing Watson, 204 S.W.3d at 417). In this case, several significant facts link appellant to the cocaine and demonstrate his intent to sell it. First, he and one other man were alone in the apartment with a large amount of cocaine. Both men were armed. The cocaine was in plain view, and it was near digital scales and more than sixteen hundred dollars cash, consisting mainly of twenty-dollar bills. When a uniformed police officer knocked at the apartment door, appellant answered. And he answered the door while holding a pistol in his hand. Moreover, appellant had keys to the apartment on his person. Viewing these facts under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. We resolve appellant's first two issues against him. Appellant next contends in his third issue that the trial court erred by denying his motion to suppress. He complains the police officers should not have seized the cocaine because they did not have probable cause to enter the apartment, nor did they have a warrant. The State responds, in part, that appellant did not have standing to contest the officers' warrantless entry into the apartment. We agree with the State. It is the defendant's burden to show he that he personally had a reasonable expectation of privacy in the premises that were searched. See Handy v. State, 189 S.W.3d 296, 298 (Tex.Crim.App. 2006). Here, appellant made no such showing. Although he possessed keys to the apartment, the lease was not in his name and he presented no additional evidence showing he had a reasonable expectation of privacy in the apartment. Because appellant failed to establish his standing to challenge the warrantless search and seizure, the trial court did not err in denying his motion to suppress. We resolve appellant's third issue against him. In his final issue, appellant complains he received ineffective assistance of counsel at trial. He points to three separate examples of ineffective assistance: counsel's failure to object when the trial court decided to defer ruling on the motion to suppress until after the close of the State's evidence; counsel's failure to object to hearsay testimony about the keys purportedly found on appellant's person; and counsel's eliciting hearsay testimony about the existence of the keys. We evaluate claims of ineffective assistance of counsel under the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both deficient performance and prejudice. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate the claim's merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). For this reason, direct appeal is usually an inadequate vehicle for raising ineffective assistance. See id. Trial counsel should ordinarily be afforded an opportunity to explain his actions before an appellate court may deem counsel ineffective. Id. Absent such an opportunity, we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. (quoting Garcia v. State, 57 S.W.3d 436 (Tex.Crim.App. 2001)). We first evaluate appellant's complaint that counsel failed to object to the trial court's decision to defer ruling on the motion to suppress. In addressing appellant's third issue, we determined that the motion to suppress was meritless because appellant had no standing to challenge the search of the apartment. Accordingly, because the motion had no merit, counsel could not have been ineffective in failing to urge the trial court to address it before trial. Appellant next argues that his trial counsel was ineffective for eliciting hearsay evidence about the keys found on appellant's person and for failing to object to other hearsay evidence about the keys. On this record, we cannot determine why defense counsel chose not to object to the hearsay testimony about the keys. One of the police officers who executed the search specifically testified that he had found the keys in appellant's pants pocket, so appellant would not have benefitted from any hearsay objection to testimony by the other officers about that fact. As for the additional fact that the keys fit inside the apartment locks, the record does not explain why defense counsel failed to object to the evidence. It appears that defense counsel's strategy was to argue that only small differences separated appellant from the other man at the scene who was not been charged with a cocaine offense. Appellant's possession of the keys was one of those differences. Appellant's attorney argued that appellant could have been an overnight guest of the true owner of the drugs. The attorney additionally argued that the State's case could not succeed because the prosecutor had failed to offer the keys into evidence. Based on the record before us, we cannot conclude appellant received ineffective assistance of trial counsel. We resolve appellant's fourth issue against him. We affirm the trial court's judgment.