No. 05-06-00973-CR
Opinion Filed February 6, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 401st District Court Collin County, Texas, Trial Court Cause No. 401-82462-04.
Before Justices O'NEILL, RICHTER, and LANG. Opinion By Justice RICHTER.
MARTIN RICHTER, Justice.
A jury convicted Jason Edward Small of possession of a controlled substance less than one gram. The trial court assessed punishment at one year imprisonment, probated for three years. In three issues, Small challenges the legal and factual sufficiency of the evidence to support his conviction and asserts he was denied effective assistance of counsel. We affirm the trial court's judgment.
Background
Plano police officer Christopher McEntire was filling out paperwork in his patrol car while monitoring an area with frequent drug deals and burglaries. At about five o'clock in the morning, he noticed appellant in his pick-up truck. Appellant circled the lot and eventually pulled into the parking lot of a closed business across the street from an apartment complex. Officer McEntire thought it was suspicious that appellant just sat there in the truck, so he approached him. Appellant told the officer he had just moved into the apartment complex. He was waiting for an open parking space because he did not want to park in the rear of the complex. Officer McEntire noticed some items in the back of the truck and a partially-opened black nylon bag on the passenger seat. When the officer asked appellant if he would mind if he looked inside the truck, appellant replied "yeah." Appellant assisted the officer with opening the back doors of the truck. While waiting for back-up to arrive, the officer noticed a clear plastic box inside the black bag. The officer could see Ziplock baggies inside the box. Upon closer inspection, the officer found the baggies contained white residue the officer believed to be methamphetamine. The black bag also contained a lighter, a scale, and a small amount of marijuana. When officer McEntire confronted appellant about his finding, appellant asked him if he could just throw the baggies away and let him go. The officer declined, and advised appellant of his rights. After a field test confirmed the residue was an illegal substance, appellant was arrested. Laboratory tests subsequently confirmed that two of the baggies contained a total of .68 grams of methamphetamine. At trial, officer McEntire testified appellant told him that he had been doing methamphetamine for about six months and planned to give the drugs as a gift to a friend who helped him move. Appellant testified he knew the nylon bag was in the car, but it belonged to a friend, and he did not know there were drugs inside. Appellant admitted he had previously tried methamphetamine, but did not recall telling the officer the drugs were procured as a gift for a friend. Appellant also testified that when he responded affirmatively to the officer's inquiry about searching the truck, he did not mean he had consented to a search. Discussion
Sufficiency of the Evidence In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and 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). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). 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, 128 S.Ct. 282 (2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). 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. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). The state was required to prove beyond a reasonable doubt that appellant knowingly or intentionally possessed methamphetamine in an amount of less than one gram. See Tex. Health Safety Code Ann. § 481.115(a), (b) (Vernon 2003). Possession is established by evidence that the defendant exercised actual care, custody, control, or management of the controlled substance. See Tex Health Safety Code Ann. § 481.002 (38) (Vernon 2002); King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Proof that a defendant had exclusive possession is not necessary if evidence affirmatively linking the defendant with the contraband is established. See Brown v. State, 911 S.W.2d 744, 748 (Tex.Crim.App. 1995); Taylor v. State, 106 S.W.3d 827, 831 (Tex.App.-Dallas 2003, no pet.). These affirmative links may be established by direct or circumstantial evidence. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex.Crim.App. 2005). No set formula of facts exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession. See Taylor, 106 S.W.3d at 830. Instead, it is the logical force of the evidence, and not the number of links, that supports a fact-finder's verdict. See Evans v. State, 202 S.W.3d 158, 166 (Tex.Crim.App. 2006). Appellant contends the evidence did not permit the jury to conclude he knew the bag in his car contained drugs. The state responds that the evidence is legally and factually sufficient to support appellant's conviction. Even without officer McEntire's testimony about appellant's statements, numerous factors support an inference of knowing possession. Appellant was present when the drugs were found in plain view in the enclosed space of his vehicle. The drugs were in proximity and accessible to appellant. Appellant had care and possession of the vehicle in which the drugs and other drug paraphernalia were found. Despite these undisputed facts, appellant insists the evidence does not link the drugs to him because he had no knowledge of the contents of the bag his friend left in his vehicle. The jury was free to accept or reject appellant's testimony. See Westerbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The jury is in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant exercised actual care, custody, and control of less than one gram of methamphetamine, and is legally and factually sufficient to support the conviction. See Watson, 204 S.W.3d at 415; Evans, 202 S.W.3d at 166. Appellant's first two issues are overruled. Ineffective Assistance of Counsel Appellant argues trial counsel's performance as a whole compels a finding of ineffective assistance of counsel. In support of his argument, appellant points to the fact that counsel did not file any pre-trial motions, make an opening statement, or make any objections at trial. Appellant also argues that a statement counsel made during closing argument bolstered the State's case and counsel should have requested an instruction under Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). The State maintains the record is not sufficient to determine counsel was ineffective. We agree with the State. Effectiveness of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986) (en banc). Review of an ineffective assistance claim is highly deferential, and begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). To prevail on an ineffective assistance claim, an appellant must establish both prongs of a two prong test, showing: (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. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). "Any allegation of ineffectiveness must be firmly rooted 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). When the record is silent regarding counsel's reasons for his conduct, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. See Mallet v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001); see also Garza v. State, 213 S.W.3d 338, 347 (Tex.Crim.App. 2007). We commonly assume a strategic motive if any can be imagined, and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005); McGill v. State, 200 S.W.3d 325, 332 (Tex.App.-Dallas 2006, no pet.). Here, the record does not provide us with an explanation of counsel's tactical decisions. Although appellant insists counsel's actions cannot be characterized as strategic, there is nothing to affirmatively demonstrate otherwise. Based on the record before us, we can imagine a possible strategic motive for every action appellant criticizes. Viewing counsel's actions collectively does not alter the presumption that counsel may have been pursuing a reasonable trial strategy. Accordingly, we cannot conclude counsel's performance was deficient or that but for the performance, there was a reasonable probability the outcome would have been different. Appellant's third issue is overruled. Having resolved all of appellant's issues against him, we affirm the trial court's judgment.