Opinion
No. 05-03-01566-CR
Opinion Filed April 10, 2006. DO NOT PUBLISH. Tex.R.App.P.47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F98-70342-QK. Affirmed as Modified.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Mitchell Ray Rodgers appeals the trial court's judgment convicting him of unlawful possession with the intent to deliver heroin in an amount of four grams or more, but less than two hundred grams. After finding Rodgers guilty, the jury found the enhancement paragraphs true and assessed his punishment at imprisonment for life. Rodgers raises five issues on appeal that generally argue four points: (1) the evidence is legally and factually insufficient to support his conviction; (2) during the hearing on punishment, the trial court erred when it overruled his objection and admitted State's Exhibit No. 24, a penitentiary packet, to prove one of the prior convictions alleged in the indictment because that conviction was void; (3) his trial counsel was ineffective because he failed to present the necessary documents to support his argument that one of the convictions alleged to enhance his punishment was void; and (4) the judgment should be modified because it contains an inaccurate offense date and plea. We conclude the evidence is legally and factually sufficient to support Rodgers's conviction. Also, based on the record before us, although defense counsel's performance was deficient, we cannot conclude that a reasonable probability exists that, but for defense counsel's error, the result would have been different. Further, the judgment is modified to correct the offense date and to reflect that Rodgers pleaded not true to the enhancement paragraphs. The trial court's judgment is affirmed as modified.
The record shows that Rodgers also uses the names Mitchell Ray Rogers and Ray Martin Rogers.
I. FACTUAL AND PROCEDURAL BACKGROUND
Officer Dunn received several complaints that cocaine was being sold from 2932 Eagle Drive, Dallas, Texas. She also received information that Rodgers was a "dope dealer." While investigating, Officer Dunn observed Rodgers at the residence on two separate days. During one of those occasions, Rodgers opened the front door and let a man known as Lewis Ray Harper inside the residence. Officer Dunn also determined that the utility bill records listed Rodgers as living at the Eagle Drive residence. Officer Dunn obtained a warrant to search the residence. When the police executed the search warrant, the premises were empty, but the television was on. Inside the residence, the police observed male, female and a teenager's clothing. In the master bedroom closet, which contained only male clothing, the police found a locked safe. Inside the safe was a large brown duffel bag that contained a "mini lab" to cut and process heroin, along with capsules containing heroin and heroin powder. Also, in the safe, the police found a hospital receipt and an automobile policy bearing Rodgers's name and the Eagle Drive address. Inside the master bedroom, the police found photographs of Rodgers. In one photograph Rodgers was sleeping and, in the other photograph, he was in front of the Eagle Drive residence by a vehicle. A warrant was issued for Rodgers's arrest. He was arrested and indicted for possession of a controlled substance with the intent to deliver. During the trial, Rodgers presented three witnesses who testified he no longer lived at the Eagle Drive address. The jury found Rodgers guilty. Rodgers pleaded not true to the allegations contained in the enhancement paragraphs of the indictment. At the beginning of the hearing on punishment, the trial court held a hearing on the validity of one of the prior convictions alleged to enhance Rodgers's punishment. Defense counsel objected to the use of one prior conviction on the basis that it was void. In support of his objection, he offered, and the trial court admitted, a mandate showing relief had been granted on Rodgers's application for a writ of habeas corpus. The mandate did not state the basis for the court's grant of relief. Defense counsel argued the Texas Court of Criminal Appeals held that the indictment was void, and it was the position of the district clerk's office that the indictment was void and could not be used for any purpose. The trial judge commented that he could not determine from the mandate what relief had been granted by the writ of habeas corpus. In response to the trial court's inquiry, defense counsel admitted he had seen the opinion, but he did not bring it to court because he thought the mandate was sufficient. The trial court overruled defense counsel's objection to the prior conviction alleged to enhance Rodgers's punishment. The jury found the two enhancement paragraphs true and assessed Rodgers's punishment at imprisonment for life. Rodgers's original appellate counsel filed a brief that concluded his appeal was wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). However, this Court concluded there was at least one arguable issue for appeal regarding the effectiveness of counsel. See Rodgers v. State, No. 05-03-01566-CR, 2005 WL 2947709 (Tex.App.-Dallas Nov. 7, 2005) (not designated for publication). New appellate counsel was appointed by the trial court and new briefing was filed raising five issues.II. LEGAL AND FACTUAL SUFFICIENCY
In his first and second issues, Rodgers argues the evidence is legally and factually insufficient to support his conviction. Specifically, Rodgers argues the State failed to affirmatively link the heroin to him because multiple persons lived at the Eagle Drive residence and he was no longer living there when the heroin was seized. The State responds that there are additional independent facts and circumstances that link Rodgers to the controlled substance.A. Standards of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Also, it is beyond dispute, that determining the legal and factual sufficiency of the evidence requires the implementation of separate and distinct standards of review. Id.1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).2. Factual Sufficiency
There is only one question to be answered by the reviewing court in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King, 29 S.W.3d at 565; Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.B. Applicable Law
Section 481.112 of the Texas Controlled Substances Act provides that a person commits an offense if the person knowingly or intentionally possesses with the intent to deliver a controlled substance listed in Penalty Group 1. See Tex. Health Safety Code Ann. § 481.112(a) (Vernon 2003). Heroin is classified as a Penalty Group 1 substance for the purpose of establishing criminal penalties for violations of the Texas Controlled Substances Act. See Tex. Health Safety Code Ann. § 481.102(2) (Vernon Supp. 2005). Possession with the intent to deliver is punishable as a first-degree felony if the amount of the controlled substance is four grams or more, but less than two hundred grams. Tex. Health Safety Code Ann. § 481.112(d). The term "possession" means actual care, custody, control or management. Tex. Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2005). Control over a controlled substance need not be exclusive, but can be jointly exercised by more than one person. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex.Crim.App. 1985); Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). If the defendant was not in exclusive possession of the controlled substance, the State is required to present evidence affirmatively linking him to it. Taylor, 106 S.W.3d at 830-31. No set formula of facts exists that would dictate a finding of affirmative links sufficient to support an inference of knowing possession of a controlled substance. Taylor, 106 S.W.3d at 830; 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 defendant to the controlled substance. Taylor, 106 S.W.3d at 830. Possible affirmative links include: (1) whether the defendant was present when the controlled substance was found; (2) whether the controlled substance was in plain view; (3) whether the controlled substance was found in proximity to and accessible to the defendant; (4) whether the defendant was under the influence of a controlled substance 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 controlled substance was found; (11) whether the place the controlled substance was found was enclosed; (12) the amount of a controlled substance found; (13) whether the defendant possessed weapons; and (14) whether the defendant possessed a large amount of cash. See Taylor, 106 S.W.3d at 830; Porter, 873 S.W.2d at 732. An "affirmative link" can be established when the controlled substance is hidden in a place tied to the defendant. See Poindexter v. State, 153 S.W.3d 402, 409 n. 24 (Tex.Crim.App. 2005).C. Application of the Law to the Facts
Viewing the evidence in the light most favorable to the verdict, there was evidence that Rodgers possessed heroin with an intent to deliver. Rodgers was observed at the Eagle Drive address and his name was listed on the utility records. Inside the master bedroom, there were photographs of Rodgers and inside the closet with male clothing was the locked safe. The locked safe not only contained the "mini lab" and heroin, but contained a hospital receipt and an automobile policy bearing Rodgers's name and the Eagle Drive address. Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Rodgers was guilty of possession of a controlled substance with intent to deliver. It is clear that Rodgers's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that Rodgers's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Rodgers's conviction of possession of a controlled substance with the intent to deliver. Rodgers's first and second issues on appeal are decided against him.III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth issue on appeal, Rodgers argues he received ineffective assistance of counsel. Specifically, Rodgers contends defense counsel failed to present the proper documentation to support his objection to the use of a void conviction to enhance Rodgers's punishment. He claims defense counsel admitted he saw the opinion that substantiated the objection, but failed to bring a copy. The State appears to concede that defense counsel's performance fell below an objective standard of reasonableness because it only responds that Rodgers cannot show he suffered prejudice or harm. Specifically, the State argues it presented evidence of ten other prior convictions and the jury assessed the maximum punishment.A. Standard of Review
An appellate court's review of trial counsel's performance is highly deferential, and there is a strong presumption that counsel provided reasonable assistance. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). An appellate court determines the reasonableness of trial counsel's challenged conduct in context and views it as of the time of trial counsel's conduct. Andrews, 159 S.W.3d at 101. An appellate court should not try to second-guess trial counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999). An appellate court does not inquire into trial strategy, unless there exists no possible basis, in strategy or tactics, for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). An appellate court should be hesitant to declare trial counsel ineffective based on a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind trial counsel's actions-whether those actions were of strategic design or the result of negligent conduct. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999).B. Applicable Law
The effectiveness of counsel is evaluated under the standard enunciated in Strickland. Strickland v. Washington, 466 U.S. 668 (1984); accord Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). To prevail on a claim of ineffective assistance of counsel, an appellant must show the following: (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694; Andrews, 159 S.W.3d at 101. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews, 159 S.W.3d at 101; Thompson, 9 S.W.3d at 813. Trial counsel's performance is deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. See Andrews, 159 S.W.3d at 101. Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient and lacking in tactical or strategic decision to defeat the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. Ordinarily, trial counsel should be afforded an opportunity to explain his actions before being denounced as ineffective. Rylander, 101 S.W.3d at 111. However, when no reasonable trial strategy can justify trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects trial counsel's subjective reasons for acting as he did. See Andrews, 159 S.W.3d at 101; see also Robertson v. State, No. PD-325-05, 2006 WL 709305, at *7-9 (Tex.Crim.App. Mar. 22, 2006). A defendant is denied the effective assistance of counsel during the punishment phase if his trial counsel fails to adequately investigate his prior conviction and fails to know the law to be applied to that prior conviction. See Ex parte Felton, 815 S.W.2d 733, 736 (Tex.Crim.App. 1991); see also Ex parte Patterson, 969 S.W.2d 16, 20 (Tex.Crim.App. 1998). An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. Ineffective assistance of counsel claims must be firmly rooted in the record. Bone, 77 S.W.3d at 835. See also Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Thompson, 9 S.W.3d at 813. An appellant cannot meet his burden if the record does not specifically focus on the reasons for the conduct of trial counsel. Perez v. State, 56 S.W.3d 727, 731 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Ordinarily, this type of record is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial. Id. (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex.Crim.App. 1998) (per curiam)).C. Application of the Law to the Facts
The indictment alleges two prior convictions for purposes of enhancing Rodgers's punishment: (1) burglary of a building, trial court cause no. F86-92695-HN, 195th Judicial District Court, Dallas County, Texas; and (2) burglary of a habitation, trial court cause no. F74-08174-IH, Criminal District Court of Dallas County, Texas. Rodgers pleaded not true to the enhancement paragraphs. At the beginning of the hearing on punishment, defense counsel objected to the second enhancement paragraph, which alleged Rodgers was previously convicted of burglary of a building, because the judgment in that case had been set aside in a writ of habeas corpus. The trial court held a hearing outside the presence of the jury. During the hearing, the following occurred:DEFENSE COUNSEL: Yes, Your Honor. Judge, I submit to the Court Defendant's Exhibit No. 17, a mandate from the Court of Criminal Appeals which again, certified the first case, first paragraph. Held that the indictment was void.
COURT: Can I see when [sic] it is we're talking about?
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COURT: Well let's see. I can't tell anything by this. For all I know, this is a-was a habeas corpus to reduce bond or something.
DEFENSE COUNSEL: Well, I don't have the other document from the file, but —
COURT: Have you got the pen packet?
DEFENSE COUNSEL: But I think the original file down in the district clerk's office for this case has another document from the Court of Appeals or gives their opinion. They're saying that it is a void indictment and couldn't be used for any purposes.
COURT: Why would you not bring that to court?
DEFENSE COUNSEL: Just found out yesterday and was in a hurry to get it. I thought that was sufficient.
COURT: In other words, you saw-you've seen the one you're talking about.
DEFENSE COUNSEL: What?
COURT: Have you seen the one you're talking about? Have you seen the document that says —
DEFENSE COUNSEL: Yes. Yes.
COURT: So you saw the document and this document and only brought one.
DEFENSE COUNSEL: Yes, sir.
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COURT: I'm sorry. All right. You're objecting to paragraph 2[?] Is that correct?
DEFENSE COUNSEL: Yes, sir.
COURT: All right. In furtherance of that, you're offering into evidence Defendant's Exhibit 17?
DEFENSE COUNSEL: Yes, sir.
COURT: Okay. That's admitted. You have no objection, I assume.
STATE: The only objection is relevance.
COURT: I overrule [the State's] objection.
STATE: To challenge that.
COURT: Seventeen is admitted. I overrule [the defendant's] objection.Defendant's Exhibit No. 17 is a mandate issued by the Texas Court of Criminal Appeals that references trial court cause no. W86-92695-N and the 195th Judicial District Court. The record does not show defense counsel requested additional time to obtain a copy of the Texas Court of Criminal Appeals's opinion granting the writ of habeas corpus. First, we address whether Rodgers has shown that defense counsel's performance fell below an objective standard of reasonableness. The State does not appear to contest Rodgers's claim that defense counsel's performance was deficient. Ordinarily, in a direct appeal, defense counsel has not had an opportunity to explain his actions. However, the circumstances in this case are extremely unusual because the record reflects defense counsel's reasons for failing to present the necessary documents to support his argument to the trial court-he "[j]ust found out," he "was in a hurry to get it," and he "thought [the mandate] was sufficient." Defense counsel admitted he had seen the opinion and did not bring it. Instead, he only brought the mandate. Defense counsel had a duty to investigate Rodgers's prior convictions and present any evidence that the judgment for a prior conviction was void. This duty derives from defense counsel's function "to make the adversarial testing process work in the particular case." See Andrews, 159 S.W.3d at 102 (quoting Strickland, 466 U.S. at 690); see also Robertson, 2006 WL 709305 at *7. Defense counsel's performance was deficient because there can be no reasonable trial strategy in failing to present evidence that might prove the indictment relies on a void prior conviction to enhance Rodgers's punishment. Second, we address Rodgers's request that the Court take judicial notice of the Texas Court of Criminal Appeals's opinion that corresponds to the mandate admitted during the punishment hearing. He claims the Texas Court of Criminal Appeals's opinion substantiates the trial objection that the underlying judgment used to enhance his punishment was void. We are urged to take judicial notice of that opinion and reverse. However, we are reluctant to take judicial notice of facts that go to the merits of the dispute. See Gaston v. State, 63 S.W.3d 893, 900 (Tex.App.-Dallas 2001, no pet.). Accordingly, we decline to take judicial notice of the opinion. Third, we address whether Rodgers has shown that a reasonable probability exists that, but for defense counsel's errors, the result would have been different. We recognize that defense counsel's failure to present the trial court with the necessary documents to support his assertions regarding the validity of the prior conviction prevented the trial judge from being able to fully address the matter. However, the record before us does not reflect that the prior conviction was, in fact, held to be invalid by the Texas Court of Criminal Appeals. Further, the punishment range for the offense, had there been only one enhancement paragraph, would have been fifteen to ninety-nine years or life imprisonment and a possible fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon Supp. 2005). Instead, with two enhancement paragraphs, the punishment range for the offense was twenty-five to ninety-nine years or life imprisonment. See Tex. Pen. Code Ann. § 12.42(d). Because life imprisonment would have been an available punishment even had there been only one enhancement paragraph and there was evidence before the jury of ten prior convictions of Rodgers, we cannot conclude that, but for defense counsel's deficient conduct due to his failure to produce complete documentation as to the Texas Court of Criminal Appeals's action, the punishment would have been different. On the record before us, although the assistance of counsel during the punishment phase of the trial was deficient, we cannot conclude that a reasonable probability exists that, but for counsel's error, the result would have been different. Rodgers's fourth issue on appeal is decided against him. Based on our resolution of Rodgers's fourth issue, we need not address his third issue that argues the trial court erred when it overruled his objection and admitted State's Exhibit No. 24, a penitentiary packet, to enhance his punishment because that conviction is void.