Opinion
No. 01-02-01154-CR
Opinion issued July 10, 2003 Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 907034
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
A jury found appellant, John Davis Teamer, guilty of possession of a controlled substance, codeine, weighing more than 28 grams and less than 200 grams. Appellant pleaded true to four enhancements, and the jury sentenced him to 12 years in prison and a $6,000 fine. In five points of error, appellant argues that (1) the evidence was legally and factually insufficient to support his conviction, (2) he received ineffective assistance of counsel, and (3) there was prosecutorial misconduct. We affirm.Background
While on patrol at approximately 10:40 p.m. on August 28, 2002, University of Houston Police Officers Thomas Trout and Aaron O'Donley stopped a car for a traffic violation. When they activated the emergency lights and siren of their patrol car, the officers noticed appellant, who was sitting in the back seat of the car, bending toward the floorboard and making furtive gestures. After stopping the car and while talking to the driver, Officer Trout shone his flashlight into the back seat. Trout saw a clear plastic baggie containing marihuana on the floor in front of appellant. He also noticed a paper sack at appellant's feet. Trout took appellant into custody and seized the marihuana. He looked inside the paper sack and found a babyfood jar filled with a red liquid, which later field-tested positive as codeine. Appellant was subsequently indicted for state felony possession of a controlled substance, namely, codeine.Chain of Custody
In point of error one, appellant contends that the evidence was legally insufficient to support his conviction for possession of a controlled substance because the State failed to establish a chain of custody linking the codeine to appellant. In reviewing the evidence on legal sufficiency grounds, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Appellant argues that the State failed to establish a chain of custody because Officer Trout did not testify that he tagged the evidence or that the markings or evidence log were his. Furthermore, appellant argues that Officer Trout did not bring the brown sack found at appellant's feet to trial and, most importantly, the chain of custody did not "lead into the laboratory." Appellant concedes that he did not object to the State's failure to establish a chain of custody. Chain of custody is conclusively proven if an officer is able to establish that he or she seized the item of physical evidence, put an identification mark on it, placed it in the property room, and then retrieved the item being offered on the day of trial. Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App. 1989). Furthermore, when evaluating the sufficiency of the evidence, an appellate court must look at all of the evidence, whether properly or improperly admitted. Bobo v. State, 843 S.W.2d 572, 575-76 (Tex.Crim.App. 1992). Therefore, even if the evidence was improperly admitted, we would still consider it in our evaluation of the sufficiency of the evidence. Appellant contends that the record is "silent as to how the evidence got to the laboratory." Here, however, the record supports a reasonable inference that the codeine that was confiscated, field tested, and marked by Officer Trout at the scene was the same codeine that was tested by the chemist and admitted at trial. Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support appellant's conviction. We overrule point of error one.Affirmative Links
In point of error two, appellant contends that the evidence was factually insufficient to support his conviction for possession of a controlled substance, where a rational trier of fact could not have concluded beyond a reasonable doubt that appellant intentionally and knowingly possessed a controlled substance as alleged in the indictment. The factual sufficiency of the evidence is reviewed by examining all of the evidence neutrally and asking whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). To establish the unlawful possession of a controlled substance, the State must show that a defendant (1) exercised care, custody, control, or management over the controlled substance and (2) knew he possessed a controlled substance. Tex. Health Safety Code §§ 481.002(38), 481.115 (Vernon Supp. 2003); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). The State need not show that a defendant exercised exclusive control over the controlled substance, but when a defendant does not have exclusive control, the State must show additional affirmative links between the defendant and the contraband. Cedano v. State, 24 S.W.3d 406, 411 (Tex.App.-Houston [1st Dist.] 2000, no pet.). The affirmative links must raise a reasonable inference that the accused knew of and controlled the contraband. Dickerson v. State, 866 S.W.2d 696, 700 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Mere presence is insufficient to show that a person possessed contraband. Cedano, 24 S.W.3d at 411. Factors that have been considered as establishing affirmative links between a defendant and contraband include: (1) presence when the search was executed; (2) contraband in plain view; (3) proximity to and accessibility of the contraband; (4) accused under the influence of contraband when arrested; (5) accused's possession of other contraband when arrested; (6) accused's incriminating statements when arrested; (7) accused's attempted flight; (8) accused's furtive gestures; (9) odor of the contraband; (10) presence of other contraband; (11) accused's right to possession of the place where contraband was found; and (12) narcotics found in an enclosed place. State v. Derrow, 981 S.W.2d 776, 779 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). Other factors we have considered include: (1) whether there were other persons present at the time of the search; (2) whether the contraband was found in a closet that contained men's clothing if the defendant was male; and (3) whether the amount of contraband was large enough to indicate the defendant knew of its existence. Classe v. State, 840 S.W.2d 10, 12 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). Despite this list of factors, there is no set formula necessitating a finding of an affirmative link, but rather, affirmative links are established by the totality of the circumstances. Sosa v. State, 845 S.W.2d 479, 483 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd). Appellant argues that the record demonstrates a "strong possibility" that he did not knowingly possess the codeine found in the car because: (1) the codeine was found in a car that was not registered to him; (2) the codeine was in a Gerber baby food jar in a brown paper bag on the floorboard; (3) two other people were in the car, (4) the jar was not tested for fingerprints; (5) no fingerprints linked appellant to the drugs; (6) no large amount of money was found on appellant; (7) no incriminating statements were made by appellant linking him to the contraband; (8) appellant made no attempt to fight or flee; (9) no strong residual odor of the contraband was present; (10) appellant possessed no other contraband when arrested; (11) no paraphernalia to use the contraband was in view, or found on appellant; and (12) the State did not establish a chain of custody that linked the exhibits to appellant. However, the codeine was found at appellant's feet in the floorboard of the car. When Officer Trout activated the emergency lights and siren of his patrol car, he saw appellant making furtive gestures towards the floorboard, and he was the only one in the back seat of the car with the paper sack, containing the jar of codeine, at his feet. Neither of the people in the front seat had contraband or admitted to knowing about the codeine or marihuana found in the back seat. Appellant's possession of other contraband, the marihuana also found at his feet, is also an affirmative link. Finally, Officer Trout testified appellant appeared to be under the influence of narcotics when he was arrested. The evidence cited by appellant does not demonstrate that he did not exercise control over the codeine, while the testimony of Officer Trout shows that he did. To the extent that there was any contradictory evidence, we note that the jury, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The evidence, both for and against the jury's verdict, does not demonstrate that the proof of guilt was so weak as to undermine confidence in the jury's determination or was greatly outweighed by contrary proof. Thus, we hold that the evidence was factually sufficient to support appellant's conviction. We overrule point of error two.Ineffective Assistance of Counsel
In points of error three and four, appellant contends that he received ineffective assistance of counsel (1) at the guilt stage of trial because his trial counsel failed to object to "the State's failure to establish a chain of custody," failed to object to Officer Trout's testimony that the substance in the Gerber jar tested positive for codeine because Officer Trout was not an expert, and failed to request an instructed verdict where the evidence was insufficient to support a conviction, and (2) at the punishment phase of trial because his counsel failed to object to the State's improper application of parole law to appellant.Standard of Review
We apply the usual Strickland standard of review, requiring that appellant show both deficient performance by counsel and prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2065 (1984); Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). We examine the totality of the counsel's representation to determine whether appellant received effective assistance. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel's conduct was reasonable. Strickland, 466 U.S. at 689, 104 S.Ct. at 2064. When, as here, the record is silent as to counsel's trial strategy, we may not speculate about why counsel acted as he did. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Safari v. State, 961 S.W.2d 437, 445 (Tex.App.-Houston [1st Dist.] 1997, no pet.). Without testimony from trial counsel, we must presume that counsel had a plausible reason for his actions. Safari, 961 S.W.2d at 445.Guilt Phase
At the guilt phase of trial, the State asked Officer Trout if he recognized the evidence bag containing the codeine. He testified that he did recognize the envelope because "this is an evidence envelope that we use at our station and we put the defendant's name and what it was and what's inside there." Tagging an item of physical evidence at the time of its seizure and identifying the item at trial based upon the tag is sufficient for admission barring any showing by the defendant of tampering or alteration. Stoker, 788 S.W.2d at 10. Here, appellant does not allege that the evidence was altered or tampered with in any way. Thus, we cannot conclude that appellant's trial counsel was ineffective for not objecting to the admission of the codeine based on "chain of custody." Officer Trout testified that the red liquid field tested positive as codeine. He has found codeine three or four times in the past, and he was able to identify the liquid when he saw it. Trout could also identify the liquid by its distinctive odor. Thus, we cannot conclude that appellant's trial counsel was ineffective in not objecting to Trout's testimony identifying the codeine. Furthermore, appellant failed to establish how he was harmed by his trial counsel's alleged ineffectiveness. Finally, although appellant complains that his counsel was ineffective in not requesting an instructed verdict, we have already held that the evidence was sufficient to support the conviction. Therefore, we cannot conclude that appellant's trial counsel was ineffective in not requesting an instructed verdict. We overrule point of error three.Punishment
In regard to the punishment phase, appellant argues that the following State's argument was improper:Mr. Teamer, on the other hand, started his criminal career 22 years ago when he committed forgery and was sentenced to eight years in the penitentiary. When he got out of the penitentiary, then in 1989 was convicted of another felony crime for which he could go to the penitentiary. And he did go to the penitentiary for a 12-years [sic] sentence. 12 years would have put — if he had served the entire time, would have put that at 1991. I'm sorry. 2001, but in 1995, you see another felony offense for which Mr. Teamer was convicted. In '97, another felony offense, 25 years.
What does it take to get somebody's attention? Eight years didn't do it. Twelve years didn't do it. The break he got in 1995 didn't do it. 1997, 25 years in the penitentiary.
. . . .
Mr. Teamer still has, at the time he [com]mitted this offense, 20 years left on [his] last sentence.Appellant contends that the argument was an "attempt to invite the jury to consider the appellant's eligibility for parole in sentencing him," and that, in all likelihood, he would have received a lesser sentence if the improper comments had not been made. Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) response to opposing counsel. Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App. 1992). It seems apparent that the State was arguing that appellant's previous punishments for felony offense did not deter him from committing the instant offense. Considering the argument in context, the prosecutor's closing argument can be characterized as summation of the evidence and plea for law enforcement. Furthermore, the remark does not appear to have been intended to persuade the jury to consider the State's parole laws in assessing punishment. Stephen v. State, 677 S.W.2d 42, 45 (Tex.Crim.App. 1984). As such, we cannot conclude that appellant's trial counsel was ineffective in not objecting to this argument. Accordingly, we overrule point of error four. In point of error five, appellant contends the State committed fundamental error, where it improperly applied the parole law to appellant and an instruction to disregard would not have cured the harm, requiring reversal for a new trial. As we have noted above, the State's argument could be characterized as a summation of the evidence or a plea for law enforcement, and therefore, did not constitute fundamental error requiring reversal for a new trial. We overrule point of error five.