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Steele v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 19, 2007
No. 05-06-00594-CR (Tex. App. Jul. 19, 2007)

Opinion

No. 05-06-00594-CR

Opinion issued July 19, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 265th Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-57908-KR.

Before Justices MORRIS, WRIGHT, and FITZGERALD


OPINION


At trial, a jury convicted Kevin Steele of possession of cocaine, with intent to deliver, in an amount of four grams or more but less than 200 grams. He now complains the evidence against him was factually insufficient and he received ineffective assistance of trial counsel. We affirm the trial court's judgment.

Factual Background

As police officers in a marked squad car approached a parked car in an area known for drug activity, they saw appellant standing outside the car on the passenger side. The only other person outside the parked car ran from the scene, went into a house, and turned out the lights of the house. The officers then parked behind the car with their squad car's overhead lights flashing. As the officers walked toward the parked car, appellant moved from the passenger side of the car, where the windows were rolled down, to the driver's side of the car where the windows were up. Appellant appeared to be clutching something in his hand. From approximately twenty feet away, an officer saw appellant act as though he was cleaning the driver's side window with something in his fist. At that distance, the officers could smell marijuana burning in the car. There were three people inside the car, including its driver. As the officers moved closer, appellant turned his body nonchalantly, as if to disguise his motions, and then moved as if he were throwing something from the hand that had previously appeared to be washing the window. The officer described the gesture as a "cool breeze," a "motion of someone who's been on the streets and knows how to . . . make it to where it's not overtly noticeable." The officer found a baggie containing fifty-four grams of crack cocaine on the ground where he had seen appellant make a throwing motion. When appellant was arrested, the officers discovered several small rocks of crack cocaine in his pants pockets, in addition to a small baggie of marijuana. The other officer at the scene had seen a man in the back of the parked car rolling marijuana cigarettes. The driver of the car had several thousand dollars in cash on his person. In addition, officers found a gun in the locked glove box of the car. The officers did not see hoses, rags, water, soap, or anything else in the vicinity of the car that might be used to wash the car. The officers also testified they did not see anyone on the driver's side of the car roll down a window or throw something out of the car. A police expert on drug transactions testified that the amount of cocaine found near appellant would indicate an intent to deliver the cocaine because an addict would not have the discipline to keep that amount of crack without using it all. The street value of the crack found in the baggie was approximately $5,400. The officer explained that high-end dealers often use lower level dealers to sell on the street and in drug houses. In the officer's opinion, the driver of the parked car was a high level drug dealer who was using appellant to bring him money in exchange for the baggie of cocaine to be sold by a lower level dealer. Appellant's girlfriend testified in his defense. She testified that appellant is a crack addict with mental health issues. She manages his medical and financial affairs and receives his check for mental health benefits. According to the girlfriend, before the officers arrived, the drug dealer driving the car had given appellant and her small pieces of crack cocaine to smoke so he could be sure the product was acceptable. She claimed she had seen the large baggie containing crack cocaine on the driver's lap when he gave her and appellant their samples. She and appellant had smoked the crack cocaine in the backyard of a nearby drug house owned by the dealer's aunt. The girlfriend explained that the driver of the car was in business with his aunt. He delivers the drugs to the aunt, and she sells them from the drug house. The girlfriend testified that after she and appellant smoked the small rocks of cocaine together, they reported to the driver that it was acceptable. Then, according to her version of events, appellant cleaned the dealer's car with a water hose, towels, and newspaper before the officers' arrival. She claimed appellant had already finished cleaning the car and had put away the supplies when the police arrived on the scene. She stated that two minutes before the police got there, appellant told her it was "just men outside" and it was time for her to go in the house. At that point, she went inside the drug house to watch television. She admitted she did not know what took place during the two minute interval before police arrived.

Discussion

In his first two issues, appellant challenges the factual sufficiency of the evidence showing that he possessed the cocaine in question and that he intended to deliver it. Under the standard of review for challenging the factual sufficiency of the evidence, we determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt by viewing the evidence in a neutral light. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we are permitted to substitute our judgment for the jury's on the question of witness credibility and weight of evidence determinations, "albeit to a very limited degree." See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), pet. for cert. filed, ___U.S.L.W.___ (U.S. March 13, 2007) (No. 06-11318). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. Here, the State provided testimony showing that it appeared appellant had thrown something in an area where the large amount of cocaine was found. Other testimony established that the large amount of cocaine indicated it was intended for sale, rather than for personal use. Although appellant's girlfriend claimed she and appellant had simply tested some cocaine for the car's driver, she could not account for appellant's actions after she went inside the drug house. She admitted that he had no job and that they both were associated with the driver's aunt, who operated the drug house. This testimony was consistent with police testimony establishing that low level operatives are often employed by drug dealers to facilitate the exchange of money for drugs to be sold. The jury in the case was instructed it could convict appellant of the offense if it found he had acted only as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a) (Vernon 2003). After viewing all the evidence under the appropriate standard, we conclude it is factually sufficient to support appellant's conviction for possession of cocaine with intent to deliver. We resolve appellant's first two issues against him. In his third issue, appellant complains he received ineffective assistance of counsel at trial. He specifically argues counsel was ineffective when he conceded during closing argument that appellant was guilty of the lesser included offense of possessing the crack cocaine found in his pocket, a state jail felony. 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)). At appellant's trial, no evidence contradicted the State's proof that a few small rocks of crack cocaine were found in appellant's pocket. Appellant's own witness testified that he was a crack addict with no source of income other than the government check he receives and any money he receives washing cars or "anything else." He had just smoked a small rock of crack before his arrest. We cannot determine from this record why appellant's attorney chose to direct the jury to convict him only of the lesser included offense. It is certainly conceivable counsel chose to emphasize the lesser offense to deflect the jury from the greater one, believing the jury might choose to convict appellant only of the offense for which there was the strongest evidence. See Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Crim.App. 1992). Under this record, appellant has failed to show he received ineffective assistance of counsel. We resolve his third issue against him. We affirm the trial court's judgment.


Summaries of

Steele v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 19, 2007
No. 05-06-00594-CR (Tex. App. Jul. 19, 2007)
Case details for

Steele v. State

Case Details

Full title:KEVIN STEELE, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 19, 2007

Citations

No. 05-06-00594-CR (Tex. App. Jul. 19, 2007)