Opinion
No. 05-03-01105-CR
Opinion issued March 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81127-02. Affirmed.
OPINION ON REMAND
The jury convicted Ronald Clyde Seals of possession of a controlled substance, namely methamphetamine, in an amount more than one gram but less than four grams. The trial court sentenced appellant to twenty-five years' confinement. In his original brief on appeal, appellant raised two issues. He complained the evidence was legally insufficient because the State failed to prove the weight of the seized substance was at least one gram and he received ineffective assistance of counsel. On original submission, we sustained appellant's first issue and reversed and remanded for a new punishment hearing. The State appealed our decision to the Texas Court of Criminal Appeals. The court reversed and remanded the case to this Court for consideration of appellant's remaining issue. Following remand, we gave the parties the opportunity to file supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex.Crim.App. 1990). Both sides filed briefs on remand, and we now consider the remaining issue from appellant's brief on original submission. We overrule appellant's remaining issue and affirm the trial court's judgment. Plano police officers Michelle Sanders and David Waddell were investigating an anonymous tip that methamphetamine was being manufactured at appellant's apartment. The officers went to appellant's apartment to perform a "knock-and-talk." They found no evidence of manufacturing, but while there, Sanders found a tin containing needles, syringes, and a vial of a "bloody, dark liquid." One of the syringes contained a brownish-colored liquid, and Sanders squirted its contents into another container. According to Chris Youngkin, a criminalist with the Texas Department of Public Safety Crime Laboratory, the contents from the syringe had a net weight of 0.05 grams and contained methamphetamine. The contents of the vial had a net weight of 1.50 grams; it also contained methamphetamine. Youngkin stated nicotinamide-vitamin B-was detected in the sample from the vial; he said it was a common adulterant or dilutant. Youngkin testified it looked like blood was in the vial, as well. However, Youngkin did not determine how much of the sample from the vial was methamphetamine, nicotinamide, blood, or any other substance. Appellant admitted to possessing less than one gram of methamphetamine. He said he possessed the syringe, the vial, and their contents, but he stated the vial contained waste. According to appellant, when he used methamphetamine, he would inject two-tenths of one gram, using scales he possessed to assure he used the desired amount. He said when he would try to inject himself but was unsuccessful, he would inject "a little bit" in his arm then blood would enter the syringe. When that would occur, he would squirt what could not be used into the vial. Appellant said the vial contained "mostly" blood and only a trace of methamphetamine. He stated the contents of the vial "would be more blood than anything" because of what happened when he tried to inject it. The liquid included methaphetamine, nicotinamide-vitamin B, and what looked like blood. No lab tests were performed to determine how much of the liquid was methamphetamine, nicotinamide, blood, or any other substance. Prior to trial, neither appellant's counsel nor the prosecutor had seen the vial. After viewing the vial at trial, appellant's counsel requested a continuance so he could have the liquid tested to determine how much of it was blood. The trial court denied appellant's motion for continuance accepting the State's argument that the existence of blood was irrelevant because blood is an adulterant or dilutant properly included in the total weight of the liquid. Appellant's counsel then made a "bill" in which he declared himself ineffective for failing to have the vial tested prior to trial. The court's charge to the jury allowed the jury to convict appellant of either possession of methamphetamine in an amount of one gram or more but less than four grams or the lesser offense of possession of less than one gram. The jury convicted appellant of possession of a controlled substance in an amount greater than one gram but less than four grams. The jury found two enhancement paragraphs true. Appellant was assessed punishment of confinement for twenty-five years, the minimum punishment for a third-degree felony with two enhancements. See Tex. Pen. Code Ann. § 12.42(d) (Vernon Supp. 2005). In his second issue raised in his original brief and in his supplemental brief, appellant contends that trial counsel was ineffective by failing to conduct pre-trial discovery to determine the contents of the vial and to seek further testing to determine what portion of the substance was blood waste as opposed to adulterants and dilutants. We evaluate claims of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, appellant must show (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. Strickland, 466 U.S. at 687-88, 694. Appellate review of counsel's performance is highly deferential, and there is a presumption that counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding the reasons for counsel's conduct, a reviewing court defers to counsel's decisions if there is at least the possibility that the conduct could have been a legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Appellant has the burden to show ineffective assistance of counsel by a preponderance of the evidence. See Bone, 77 S.W.3d at 833. In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Appellant asserts that trial counsel was ineffective for failing to conduct pre-trial discovery to determine the contents of the vial and to seek further testing to determine what portion of the substance was blood waste as opposed to adulterants and diulutants. Appellant asserts the evidence was available six months prior to trial but trial counsel failed to review the evidence. Appellant further asserts that trial counsel admitted to being ineffective, violating appellant's right to a fair trial. The record reflects that appellant's trial counsel did not view the vial or seek to have the liquid in the vial analyzed to determine its blood content. However, the record is silent regarding counsel's reasons for not testing the substances. Moreover, determining the blood content of the vial would have been unnecessary and irrelevant to the outcome of the case. The only purpose of determining the amount of blood in the vial would have been to exclude that amount from the aggregate weight of the methamphetamine and its adulterants and dilutants to place appellant in a lesser punishment range. The trial court ruled that it would not exclude the amount of blood from the aggregate weight since it believed blood to be an adulterant or dilutant. The amount of blood in the vial is irrelevant to appellant's appeal because blood was properly considered in the aggregate weight as an adulterant or dilutant. See Seals v. State, No. 0678-04, 2005 WL 3058041 (Tex.Crim.App. Nov. 16, 2005). Appellant's trial counsel should not be held to be deficient for failing to take actions that would have had no effect on his trial. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). The record does not support appellant's complaints. Accordingly, appellant has not met his burden to show his trial counsel was ineffective. There is no arguable issue regarding the ineffective assistance of appellant's trial counsel. We decide appellant's second issue against him. We affirm the trial court's judgment.
In his supplemental brief on remand, appellant also asserts trial counsel was ineffective for not challenging the constitutionality of Texas Health Safety Code § 481.002(17)(F) as it was applied to him. When a case is remanded by the Texas Court of Criminal Appeals, the only new issues that should be briefed are those issues raised as a result of the opinion by the court of criminal appeals, its application on remand, and any subsequent authorities on issues that had been previously presented. Lopez v. State, 57 S.W.3d 625, 629 (Tex.App.-Corpus Christi 2001, pet. ref'd). In his supplemental brief on remand, appellant asserts his trial counsel was ineffective for failing to challenge the constitutionality of Section 481.002(17)(F). Since this is a new ground not raised in his original brief or by the Texas Court of Criminal Appeals, we cannot consider this claim.
Appellant's first issue on appeal questioned whether blood could be an adulterant or dilutant.