Opinion
NUMBER 13-17-00270-CR
08-28-2018
JOHN PAUL TOUCHETTE, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of Aransas County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant John Paul Touchette appeals from his conviction for possession of less than one gram of a controlled substance in penalty group 1, a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(b) (West, Westlaw through 2017 1st C.S.). By two issues, appellant argues that: (1) he received ineffective assistance of counsel, and (2) the trial court erred in denying his motion for a directed verdict. We affirm.
I. BACKGROUND
Around 4:00 a.m. on February 14, 2016, Officer Chad Brooks of the Rockport Police Department initiated a traffic stop of appellant's vehicle due to a faulty license plate light. Another individual was in the car in the passenger's seat, and Brooks approached the car from the passenger's side. After Brooks asked appellant for his driver's license and proof of insurance, he noticed small plastic bags inside the middle console of the car as appellant searched for his documents. Brooks then asked appellant to step out of the vehicle and asked him whether there were narcotics in the car, which appellant denied. Brooks got appellant's consent to search the car and radioed for backup.
Officer Amy Meissner of the Rockport Police Department responded to Brooks's call for backup. Once at the scene, Meissner and Brooks conducted a search of appellant's car. From the search of the car, the officers recovered a syringe, a digital scale, plastic bags of different sizes, a small amount of marijuana, a small plastic bag with what appeared to be residue of methamphetamine, and a small amount of methamphetamine wrapped in plastic cellophane. The syringe was found in a hidden compartment in the driver's door, the plastic bag with what appeared like methamphetamine residue was found hidden inside the steering wheel column, and the methamphetamine wrapped in cellophane was found under the driver's seat.
On October 12, 2016, appellant was indicted for possession of a controlled substance in an amount less than one gram. See id. §§ 481.102(6), 481.115(b). He pleaded not guilty and proceeded to trial. At trial, defense counsel waived her opening statement, and the State then presented testimony from: Brooks; Meissner; the property and evidence technician with the Rockport Police Department, Stefanie Garcia; and a forensic scientist with the Texas Department of Public Safety, Roman Gonzalez Jr. The State admitted into evidence exhibits of the digital scale, the syringe, the unused plastic bags, the plastic bag containing what appeared to be methamphetamine residue, and the methamphetamine in the cellophane wrapper.
Brooks and Meissner both testified that appellant's car was filled with trash and messy, to the point that there were cockroaches in the vehicle. They also explained that the compartments of the car looked like they had been taken apart and put back together. Brooks testified that appellant told him that he "didn't know" that the methamphetamine was there; that he had stopped using drugs; that he had cleaned out all the drugs from his car "two weeks ago"; and that he "must have missed" the methamphetamine found when he cleaned his car.
After the close of the State's case in chief, appellant moved for a directed verdict on the grounds that the State had failed to prove all of the elements of the crime and had failed to provide enough affirmative links between appellant and the methamphetamine, but the trial court denied the motion. Appellant did not take the stand, call any witnesses, or offer any evidence in his defense. During her closing argument, defense counsel argued that the State had failed to prove beyond a reasonable doubt that appellant had knowingly or intentionally possessed the methamphetamine because appellant had not been aware that the controlled substance was among the trash in the car. The jury returned a guilty verdict and assessed punishment at one year's imprisonment in the Institutional Division of the Texas Department of Criminal Justice, with the sentence suspended for two years of community supervision. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
By his first issue, appellant argues that he was provided with ineffective assistance of counsel in violation of the United States Constitution and the Texas Constitution. See U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10. Specifically, appellant argues that his defense counsel was ineffective because she: (1) did not file any pre-trial motions, (2) failed to object to references of extraneous offenses, (3) failed to make an opening statement, (4) failed to properly cross-examine Brooks, and (5) failed to move for a mistrial.
A. Applicable Law and Standard of Review
A defendant in a criminal prosecution has a Sixth Amendment right to the effective assistance of counsel. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing U.S. CONST. amend. VI; TEX. CONST. art. I, § 10). We employ the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was inadequate so as to violate a defendant's Sixth Amendment right. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under that test, to prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that: (1) counsel's performance fell below the standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's deficiency, taking into account the totality of the evidence before the judge or jury, the result of the trial would have been different. Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011); see Strickland, 466 U.S. at 687; Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). Failure to show either deficient performance or sufficient prejudice under Strickland defeats a claim for ineffective assistance. Thompson, 9 S.W.3d at 813.
The burden is on the defendant to prove ineffective assistance of counsel by a preponderance of the evidence, and we review counsel's effectiveness by the totality of the representation, not by isolated acts or omissions. Id.; Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To show deficient performance, the defendant must overcome the strong presumption that the challenged action "might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S.91, 100-01 (1955)); see State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (en banc) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court should presume that trial counsel's performance was constitutionally adequate"). If there is any basis for concluding that counsel's conduct was strategic, then further inquiry is improper. See Morales, 253 S.W.3d at 696; Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999) ("Judicial scrutiny of counsel's performance must be highly deferential."); Bell v. State, 867 S.W.2d 958, 961 (Tex. App.—Waco 1994, no pet.). "[W]e 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).
Normally, the presumption of a sound trial strategy cannot be overcome absent evidence in the record of the attorney's reasons for his conduct. Thompson, 9 S.W.3d at 813-14; Busby, 990 S.W.2d at 269; see Jackson, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). The Texas Court of Criminal Appeals has said numerous times that "a reviewing court on direct appeal will rarely be able to fairly evaluate the merits of an ineffective-assistance claim, because the record on direct appeal is usually undeveloped and inadequately reflective of the reasons for defense counsel's actions at trial." Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813-14. "The lack of a clear record usually will prevent the appellant from meeting the first part of the Strickland test, as the reasonableness of counsel's choices and motivations during trial can be proven deficient only through facts that do not normally appear in the appellate record." Mata, 226 S.W.3d at 430. Thus, claims of ineffective assistance of counsel are better suited to an application for writ of habeas corpus or motion for new trial where the record can be developed to include defense counsel's insight into his decisions. Jackson, 877 S.W.2d at 772 & n.3; see Mata, 226 S.W.3d at 430.
B. Analysis
1. Pre-Trial Motions
Appellant first contends that his trial counsel was ineffective because she did not file any pre-trial motions. In his appellate brief, appellant notes that "examples" of pre-trial motions not filed by his defense counsel "include but are not limited to requests for 404(b) material, requests for the State to designate its experts, and requests for discovery of Brady and Morton material within the possession of the State." See generally Brady v. Maryland, 373 U.S. 83, 86-87 (1963); TEX. CODE CRIM. PROC. ANN. art. 39.14 (West, Westlaw through 2017 1st C.S.); TEX. R. EVID. 404(b).
Here, appellant brought his ineffective assistance claim on direct appeal, and therefore the record is silent as to why appellant's trial counsel chose to not file pre-trial motions. "[T]he failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy." Saenz v. State, 103 S.W.3d 541, 545 (Tex. App.—San Antonio 2003, pet. ref'd) (quoting Mares v. State, 52 S.W.3d 886, 891 (Tex. App.—San Antonio 2001, pet. ref'd)); Miranda v. State, 993 S.W.2d 323, 327 (Tex. App.—Austin 1999, no pet.); see Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Accordingly, based on this silent record, appellant has failed to rebut the presumption that this was a reasonable decision and part of defense counsel's strategy. See Mata, 226 S.W.3d at 431; Thompson, 9 S.W.3d at 814; Saenz, 103 S.W.3d at 545. "Failure to make the required showing of . . . deficient performance . . . defeats the ineffectiveness claim." Strickland, 466 U.S. at 700. Therefore, we reject appellant's argument that defense counsel was deficient by not filing pre-trial motions.
2. Evidence of Extraneous Offenses
Appellant also argues that his defense counsel was ineffective because she failed to object to the introduction of evidence of other extraneous offenses. Here, Brooks testified that, in addition to the methamphetamine, he also found marijuana, a syringe, a digital scale, and plastic bags of different sizes in appellant's car. Appellant argues that he was not charged with any offense for these other items found during the search, and therefore Brooks's testimony regarding their presence was evidence of extraneous offenses which should have been objected to and excluded.
Again, the record is silent as to defense counsel's reasoning for not objecting to the complained-of testimony from Brooks, and the decision was not so outrageous that no competent attorney would have taken it; therefore, we must presume that the decision was a strategic one. See Andrews, 159 S.W.3d at 101; see also Strickland, 466 U.S. at 689; Morales, 253 S.W.3d at 696. It is possible that defense counsel believed her objections would be overruled or that she did not want to draw more attention to the other illegal items found in appellant's possession. Regardless, appellant has failed to rebut the presumption that defense counsel's decision was in some way reasonable. See Mata, 226 S.W.3d at 431 ("Although the Court of Appeals found there to be no conceivable reason for trial counsel to have failed to object to the State's improper argument, the fact remains that the appellate record is still silent as to why trial counsel failed to so object."). Because appellant has failed to make the required showing of deficient performance, see Strickland, 466 U.S. at 700, we reject appellant's argument that defense counsel was deficient by failing to object.
3. Lack of Opening Statement
Next, appellant argues that defense counsel was ineffective because she did not make an opening statement at trial. However, because an opening statement provides the State with a preview of counsel's defense strategy, the decision of whether to make an opening statement may be a tactical one and is entirely discretionary. See Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.—El Paso 1997, no pet.); Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997, pet. ref'd); see also TEX. CODE CRIM. PROC. ANN. art. 36.01(b) (West, Westlaw through 2017 1st C.S.) ("The defendant's counsel may make the opening statement for the defendant immediately after the attorney representing the State makes the opening statement for the State.") (emphasis added).
Here, there is nothing in the record which indicates that the decision by defense counsel to not make an opening statement was not tactical. Accordingly, appellant has failed to rebut the presumption that this was a reasonable decision and part of defense counsel's strategy. See Mata, 226 S.W.3d at 431; Jackson, 877 S.W.2d at 771; Miranda, 993 S.W.2d at 327. Because appellant has failed to make the required showing of deficient performance, see Strickland, 466 U.S. at 700, we reject appellant's argument that defense counsel was deficient for not making an opening statement at trial.
4. Failure to Properly Cross-Examine Witness
Appellant argues that defense counsel elicited improper testimony from Brooks. Appellant points to testimony elicited by his defense counsel in regard to the presence of marijuana in the car and the possession of marijuana by appellant during the traffic stop. Appellant also points to testimony elicited from Brooks regarding appellant's previous use of methamphetamine.
Like the decision to not give an opening statement, counsel's decision to elicit testimony through cross-examination is presumed to be a strategic decision. Humphrey v. State, 501 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). Again, the record here is silent as to why defense counsel asked Brooks the questions she did. See Thompson, 9 S.W.3d at 814. Appellant has failed to prove that counsel's cross-examination of Brooks was not strategic, see Mata, 226 S.W.3d at 431; Jackson, 877 S.W.2d at 771, and we reject this argument.
5. Failure to Request a Mistrial
Finally, appellant argues that defense counsel was ineffective for failing to request a mistrial. "The failure of appellant's [defense] counsel to request a mistrial could only be termed an act of ineffective assistance of counsel if a mistrial should have been granted." Thomas v. State, 445 S.W.3d 201, 210 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (quoting Weinn v. State, 281 S.W.3d 633, 641 (Tex. App.—Amarillo 2009), aff'd on other grounds, 326 S.W.3d 189 (Tex. Crim. App. 2010)). "A mistrial is an appropriate remedy in 'extreme circumstances' for a narrow class of highly prejudicial and incurable errors." Ocon v. State, 284 S.W.3d 880, 886 (Tex. Crim. App. 2009). It "halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful or futile, and it should be granted only when less drastic alternatives fail to cure the prejudice." Id. at 884-85.
Here, appellant argues that the trial court granted his motion in limine regarding any prior contacts appellant had with the police, and he points to Brooks's testimony that, based on his previous experiences with appellant, he was aware that appellant had a history of methamphetamine use. At trial, after Brooks made the complained-of statement, defense counsel asked for and received a hearing outside the presence of the jury where the motion in limine and Brooks's statement were discussed. After this brief hearing, the trial court brought the jury back in and gave them an instruction to disregard, and we generally presume that the jury followed the trial court's instructions to disregard evidence. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005); see Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (en banc). Nothing in the record demonstrates the comment had any harmful effect or that the jury was unable to follow the trial court's instruction to disregard, and appellant has failed to show how this instruction did not cure the error. Berkley v. State, 298 S.W.3d 713, 714 (Tex. App.—San Antonio 2005, pet. ref'd); see also Zamora v. State, No. 04-12-00275-CR, 2013 WL 979190, at *3-4 (Tex. App.—San Antonio 2013, no pet.) (mem. op., not designated for publication). Under these circumstances, a mistrial would not have been warranted. The record is also silent as to defense counsel's reason for not moving for a mistrial. See Thompson, 9 S.W.3d at 814. Accordingly, we reject appellant's argument that defense counsel was deficient for failing to move for a mistrial.
There is no motion in limine in the record on appeal, nor is there a reporter's record from a hearing on any such motion. There is, however, evidence in the reporter's record from trial which supports appellant's contention that the trial court granted a motion in limine, but its contours are unclear.
6. Summary
Because appellant brought his ineffective assistance claim in a direct appeal, the record is silent as to defense counsel's reasoning for not filing pre-trial motions, not making an opening statement, not objecting to Brooks's testimony, eliciting the testimony from Brooks regarding the marijuana in the vehicle and appellant's previous methamphetamine use, and not requesting a mistrial. Furthermore, as to defense counsel's decision to not move for a mistrial, the record shows that the motion was not warranted. Accordingly, appellant has failed to satisfy Strickland as to any of his claims of ineffective assistance, and we overrule appellant's first issue.
III. MOTION FOR DIRECTED VERDICT
By his second issue appellant argues that the trial court erred when it denied his motion for a directed verdict because the evidence was legally insufficient to show that he committed the crime involved. Specifically, he argues that "the State has failed to prove all of the elements of the crime involved and has failed to provide enough affirmative links to" appellant.
1. Applicable Law and Standard of Review
"A 'directed verdict' is commonly defined as the action taken by a trial judge in a jury trial to decide the issues in the case without allowing them to be submitted to the jury because, as a matter of law, the party with the burden of proof has failed to make a prima facie case for jury consideration." State v. Lewallen, 927 S.W.2d 737, 739 n.2 (Tex. App.—Fort Worth 1996, no pet.). A challenge to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Garza v. State, 398 S.W.3d 738, 743 (Tex. App.—Corpus Christi 2010, pet. ref'd). When examining the legal sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence in the light most favorable to the conviction to determine whether, based on the evidence the evidence and reasonable inferences therefrom, any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015). In doing so, we give deference to the responsibility of the jury as factfinder to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). Direct evidence and circumstantial evidence are equally capable of supporting a conviction. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ("[T]he lack of direct evidence is not dispositive on the issue of the defendant's guilt. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor.").
Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Garza, 398 S.W.3d at 744. Under a hypothetically correct jury charge, a person commits the offense of possession of a controlled substance in group 1 if the person knowingly or intentionally possesses methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(b). To prove the requisite intent to possess, the State had to show that appellant (1) exercised control, management, or care over the substance in question and (2) that he knew that the substance was contraband. Tate, 500 S.W.3d at 413; see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006) (listing non-exclusive factors that may indicate an "affirmative link" connecting the defendant to the knowing possession of contraband). Mere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control of those drugs. Evans, 202 S.W.3d at 162. "However, presence or proximity, when combined with other evidence, either direct or circumstantial (e.g., 'links'), may well be sufficient to establish that element beyond a reasonable doubt." Id.
2. Analysis
Appellant argues that that the record is "absent of affirmative links" between him and the methamphetamine. Specifically, he argues that Brooks "did not testify as to any evidence that [appellant] was in possession, custody, or control of the [controlled substance], nor did any other witness." We find appellant's argument unpersuasive. It is not required that the State present direct evidence that independently points toward an individual's guilt; it is enough if the combined and cumulative force of all the evidence could lead a rational trier of fact to reasonably conclude that a defendant is guilty. See id.; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
Here, officers found methamphetamine wrapped in plastic cellophane under the driver's seat in the car owned and driven by appellant—an area within his reach and access. Brooks testified that it is common for drug users to use the cellophane that serves as the wrapper of cigarette packs as a container for drugs, and appellant had a pack of cigarettes in his possession at the time of the traffic stop. Inside the car, the officers also found a syringe consistent with the intravenous use of methamphetamine, a second small plastic bag with what appeared to be methamphetamine residue, other plastic bags of different sizes consistent with drug use and distribution of drugs, a digital scale, and other contraband. All of this evidence was found in the driver's side of the car or in an area within the driver's reach. In the aggregate, this evidence establishes that appellant's connection with the drug was more than fortuitous, and it is sufficient to establish an "affirmative link" and indicate knowledge and intent. See Evans, 202 S.W.3d at 161-62 & n. 12. Contrary to appellant's argument, it is not the number of direct links that is dispositive, but rather the logical conclusion of the totality of the circumstances provided by the evidence, direct and circumstantial. Id. Viewing the totality of the evidence in the light most favorable to the verdict, we find it logical and reasonable to conclude that the presence of all these items indicated that appellant knowingly or intentionally possessed the controlled substance. Therefore, we conclude there were legally sufficient affirmative links to establish actual care, custody, or control of the methamphetamine by appellant, and the trial court did not err when it denied appellant's motion for a directed verdict. See id.; Menchaca v. State, 901 S.W.2d 640, 652 (Tex. App.—El Paso 1995, pet. ref'd).
We overrule appellant's second issue.
IV. CONCLUSION
The judgment of the trial court is affirmed.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 28th day of August, 2018.