No. 14-04-00895-CR
Memorandum Opinion filed January 12, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th Judicial District Court, Harris County, Texas, Trial Court Cause No. 982,718. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON (YATES, J., concurs in result only).
JOHN S. ANDERSON, Justice.
A jury convicted appellant of possession of a controlled substance, namely cocaine, weighing more than four grams but less than 200 grams, including adulterants and dilutants. See TEX. HEALTH SAFETY CODE ANN. § 481.115(d) (Vernon 2003). Appellant pleaded true to two enhancement paragraphs, and the trial court assessed punishment at 25 years' confinement at the Texas Department of Criminal Justice, Institutional Division. Appellant presents three points of error on appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 22, 2003, Officer Santos and Officer Olivarez patrolled an area in Houston known for its drug-related activity. At approximately 2:30 A.M., the officers observed appellant drive a van into a small, mostly vacant, gated apartment complex and leave within five to ten minutes. The officers then observed appellant commit two traffic violations, rolling through a stop sign without coming to a complete stop and failing to signal when turning. The officers stopped appellant for traffic violations. Appellant failed to produce a driver's license or insurance card, and Officer Santos arrested appellant. Officer Santos patted appellant down for weapons and found three rocks of crack cocaine. Officer Santos placed appellant in the police vehicle, while Officer Olivarez questioned the passenger, Kevin Harris. Kevin Harris produced a Texas ID card but had no driver's license, so the officers could not turn the van over to Harris at the scene. Officer Olivarez inventoried the van for towing and found more cocaine. Under the driver's seat, he found a plastic baggie containing several rocks of cocaine and a pill bottle with rocks of cocaine, and in between the front seats, he found a cardboard jewelry box containing one large chunk of cocaine. Officer Santos could not secure charges against Kevin Harris and released him at the scene. The officers transported appellant to jail. On arriving at the police station, appellant fell ill and started passing out. The officers called paramedics, who took appellant to the hospital. At the hospital, appellant tested positive for cocaine and marijuana. Thereafter, appellant returned to the police station for processing and was charged with possession of a controlled substance. At trial, both officers testified and Crime Lab Chemist, James Carpenter, testified. Carpenter tested the substances submitted to him and found cocaine present in all three substances. In total, the cocaine weighed 16.8 grams, sufficient to make approximately 168 individual selling units if cut into the average size selling rock. Based on this evidence, the jury found appellant guilty of possession of a controlled substance. DISCUSSION
I. Legal and Factual Sufficiency of the Evidence In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support appellant's conviction for possession of a controlled substance. A person commits an offense if that person intentionally or knowingly possesses more than four grams but less than 200 grams of cocaine. See TEX. HEALTH SAFETY CODE ANN. § 481.115(d) (Vernon 2003). In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, chooses whether or not to believe all or part of a witness's testimony. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Thus, if there is evidence establishing guilt beyond a reasonable doubt, we are not authorized to reverse the judgment on sufficiency of the evidence grounds. Id. In a factual sufficiency review, we consider all the evidence in a neutral light and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). The evidence may be factually insufficient in two ways. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, when the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable doubt standard could not have been met. Id. at 484-85. Our evaluation of the evidence should not intrude upon the fact-finder's role as the sole judge of the weight and credibility of the evidence. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). When an accused is charged with possession of a controlled substance, the State must prove: (1) the defendant exercised actual care, custody, control, or management over the contraband, and (2) the defendant knew the object he possessed was contraband. See Linton v. State, 15 S.W.3d 615, 618 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). When the accused is not in exclusive possession of the place where the contraband is found, the State must present additional independent facts and circumstances that affirmatively link the accused to the contraband. Cabrales v. State, 932 S.W.2d 653, 656 (Tex.App.-Houston [14th Dist.] 1996, no pet.). The affirmative links doctrine is a shorthand expression of what must be proved to establish a person possessed a drug intentionally or knowingly. Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Brochu v. State, 927 S.W.2d 745, 751 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Circumstantial evidence relevant to establish an "affirmative link" between appellant and the contraband includes: (1) appellant's presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) appellant's proximity to and accessability of the narcotic; (4) whether appellant was under the influence of narcotics when arrested; (5) whether appellant possessed other contraband when arrested; (6) whether appellant made incriminating statements when arrested; (7) whether appellant attempted to flee; (8) whether appellant made furtive gestures; (9) whether there was an odor of the contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the place where the drugs were found was enclosed; and (12) whether appellant owned or had the right to possess the place where the drugs were found. Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). No set formula of facts necessitates finding an affirmative link sufficient to support an inference of knowing possession. Id. Rather, affirmative links are established by a totality of circumstances. See Sosa v. State, 845 S.W.2d 479, 483-84 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (holding evidence sufficient for a jury to conclude appellant was aware of, and exercised control over, contraband in his vehicle when the totality of the facts and circumstances linked appellant to the contraband). Appellant argues the evidence reflects appellant knowingly possessed only the cocaine found in his jacket pocket, rather than the cocaine in the van. Without any admission by the accused, knowledge may be inferred from the circumstances. Linton, 15 S.W.3d at 618. Here, appellant did not testify; therefore, there is no admission of knowingly possessing the cocaine in the van. The factual affirmative links establishing control may also be used to show appellant's knowledge. See Hyett, 58 S.W.3d at 832. In contrast, appellant directs us to the following evidence in the record to establish he did not knowingly possess the cocaine in the van: (1) Kevin Harris was also in the van when pulled over by police; (2) the vehicle belonged to appellant's wife; (3) the cocaine found in the van could have been dropped by Kevin Harris or appellant's wife; (4) no fingerprints linked appellant to the cocaine found in the van; (5) appellant told police the cocaine in the van was not his; and (6) the arresting officers were "rookies." Even though the van was owned by appellant's wife, the determining issue is control over the van at the time the contraband was found, not ownership. See id. at 831. Appellant asks this court to use its discretion and review the credibility of witnesses. After reviewing the evidence, there is nothing in the record to suggest the jury's resolution of the testimony was not reasonable. See Cain, 958 S.W.2d at 410. Our purpose is not to evaluate the weight and credibility of the evidence, but only to ensure the jury reached a rational decision. See Muniz, 851 S.W.2d at 246. Appellant summarily argues a rational trier of fact could not have found, beyond a reasonable doubt, appellant possessed the cocaine. However, viewing all the evidence in the light most favorable to the verdict, we find a rational trier of fact could have found appellant intentionally or knowingly possessed the cocaine found in appellant's jacket pockets and the van. Therefore, the evidence is legally sufficient to find appellant guilty of possession of a controlled substance weighing more than four grams but less than 200 grams. We overrule appellant's first point of error. Viewing the evidence in a neutral light, we conclude the evidence supporting the verdict was not too weak to support the verdict beyond a reasonable doubt and the contrary evidence was not so strong that the beyond-a-reasonable doubt standard could not have been met. Therefore, the evidence is factually sufficient to find appellant guilty. We overrule appellant's second point of error. II. Ineffective Assistance of Counsel In his third point of error, appellant claims ineffective assistance of trial counsel. The United States Supreme Court established a two-prong test to determine whether counsel is ineffective. Strickland v. Washington, 466 U.S. 668, 687-92, 104 S. Ct. 2052, 2064-67 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Appellant must first demonstrate his counsel's performance was deficient and not reasonably effective. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. Thereafter, appellant must demonstrate the deficient performance prejudiced his defense. 466 U.S. at 692, 104 S. Ct. at 2067. Essentially, appellant must identify specific acts or omissions of counsel that are alleged to constitute ineffective assistance and affirmatively prove his counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms. 466 U.S. at 690, 104 S. Ct. at 2066. Appellant must show there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 694, 104 S. Ct. at 2068; Valencia v. State, 946 S.W.2d 81, 83 (Tex.Crim.App. 1997). Judicial scrutiny of counsel's performance must be highly deferential, and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We assume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Id. Moreover, appellant has the burden to rebut this presumption, by a preponderance of the evidence, with evidence illustrating trial counsel's motives. Id. Appellant identifies three specific acts or omissions, which resulted in ineffective assistance of counsel. First, trial counsel failed to move to weigh the controlled substance without the packaging. Second, trial counsel failed to object to opinion testimony from both officers about appellant's guilt. Third, trial counsel failed to request a limiting jury instruction requiring the State prove extraneous offenses beyond a reasonable doubt and telling the jury it could them only for limited purposes. A. Failure to Move to Weigh and Failure to Request Limiting Instruction
Appellant's first and third arguments fail because the first prong of Strickland is not met because of the undeveloped record. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). When the record is silent about the motivations of counsel, we cannot conclude counsel's performance was deficient. Jackson, 877 S.W.2d at 771. In such circumstances, appellant fails to rebut the presumption trial counsel's decisions were reasonable. Thompson, 9 S.W.3d at 814. An appellate court is not required to speculate on trial counsel's actions when confronted with a silent record. Jackson, 877 S.W.2d at 771; McCoy v. State, 996 S.W.2d 896, 900 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). However, if a silent record clearly indicates no reasonable attorney could have made such trial decisions, to hold such counsel ineffective is not speculation. See Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App. 1992). First, appellant contends trial counsel's failure to move to weigh the controlled substance without the packaging results in ineffective assistance of counsel. In support of this argument, appellant directs us to Diaz v. State, 905 S.W.2d 302 (Tex.App.-Corpus Christi 1995, no pet.). In Diaz, trial counsel did not move to weigh the controlled substance, but that was not the only deficiency in his client's representation. See id. at 306. Other deficiencies included advising appellant to enter a plea of guilty without a plea bargain, telling appellant he would get probation, and signing a certificate indicating trial counsel had personally read and explained to appellant the waiver of rights when he had not. Id. This combination of circumstances revealed appellant's trial counsel fell below an objective standard of reasonable representation. Id. at 308. Unlike the present case, trial counsel in Diaz testified at the motion for new trial hearing and made a record as to his motivations. Id. at 306. Appellant also contends the failure to make this particular motion suggests inadequate trial preparation. However, it may also suggest other motivations, including, as the State suggests, the trial counsel discovered the cocaine was weighed without the packaging before the trial began and such a motion was simply not necessary. Without any more information in the record before us, we would be speculating about why trial counsel did not move to weigh the controlled substance. See Chambers v. State, 903 S.W.2d 21, 33-34 (Tex.Crim.App. 1995) (refusing to speculate why trial counsel did not challenge a veniremember for cause); Morrison v. State, 132 S.W.3d 37, 47-48 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (refusing to speculate about trial counsel's motivations without proper evidentiary record). Likewise, we refuse to engage in speculation regarding trial counsel's motivations. In appellant's third argument, he contends trial counsel was ineffective when she failed to request a limiting jury instruction requiring the State to prove extraneous offenses beyond a reasonable doubt and permitting the jury's consideration of these offenses only for limited purposes. In Ex parte Varelas, the Court of Criminal Appeals, in a habeas case, granted appellant's relief and remanded the case for a new trial after reviewing an appellant's claim for ineffective assistance of counsel when trial counsel did not object to the omission of an extraneous offense instruction in the court's charge. 45 S.W.3d 627, 629 (Tex.Crim.App. 2001). Varelas's habeas petition contained an affidavit from his trial counsel, which revealed trial counsel's failure to request a limiting instruction was not trial strategy, but an oversight. Id. at 632. On direct appeal, however, the court had overruled the ineffective assistance of counsel claim because, although it could not understand why trial counsel would not have requested the burden of proof limiting instruction, the "bare record" did not reveal the nuances of trial strategy. Id. (citing Varelas v. State, No. 72,178, slip op. at 8 (Tex.Crim.App. March 4, 1997)). Here, the record reveals an exchange between trial counsel and the trial judge about "a charge regarding extraneous offenses." The trial judge told defense counsel he removed that charge, and trial counsel responded, "Okay." The record does not reveal the contents of the charge or trial counsel's motives in agreeing to its removal. In the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland because the reasonableness of counsel's choices often involve facts not appearing in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). The record in this case is undeveloped and does not adequately reflect the motives behind trial counsel's actions. Appellant's pro se motion for new trial does not address or develop an ineffective assistance of counsel claim and does not supplement the record or provide any additional evidence for this court to consider. We must presume trial counsel had plausible reasons for her actions. See Roberson v. State, 852 S.W.2d 508, 511 (Tex.Crim.App. 1993); Safari v. State, 961 S.W.2d 437, 445 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). Based on this analysis, the first prong of Strickland is not met, and we are, therefore, unable to conclude trial counsel's performance was deficient. A reviewing court need not examine the second Strickland prong if the first cannot be met. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; McCoy, 996 S.W.2d at 900. B. Failure to Object
In his second argument, appellant contends ineffective assistance of counsel occurred when trial counsel failed to object to opinion testimony from both officers about appellant's guilt. Appellant argues this failure to object is a failure to preserve error, and failure to preserve error has been held to be ineffective assistance of counsel. For appellant to succeed on this particular claim, he must demonstrate that if trial counsel had objected, the trial court would have erred in overruling the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996); Oliva v. State, 942 S.W.2d 727, 732 (Tex.App.-Houston [14th Dist.] 1997), pet. dism'd, 991 S.W.2d 803 (Tex.Crim.App. 1998). Appellant argues the officers' opinion testimony is inadmissible because it invades the province of the jury. Both Officer Santos and Officer Olivarez were asked by the prosecutor whether they believed appellant "intentionally and knowingly" possessed crack cocaine. Both officers answered affirmatively. These officers were asked to testify about their opinion of appellant's culpable mental state. Testimony of a defendant's culpable mental state is a fact question for the jury's determination. Taylor v. State, 774 S.W.2d 31, 34 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). For lay opinion testimony of culpable mental state to be admissible, the trial court must determine (1) whether the opinion is rationally based on perceptions of the witness and (2) whether it is helpful to a clear understanding of the witness's testimony or to determination of a fact issue. Tex. R. Evid. 701; Ex parte Nailor, 149 S.W.3d 125, 134 (Tex.Crim.App. 2004); Fairow v. State, 943 S.W.2d 895, 898 (Tex.Crim.App. 1997). Generally, if the court determines lay witness opinion testimony is an attempt to communicate the subjective mental state of the actor, the trial court should exclude the testimony because it could never be based on personal knowledge. Fairow, 943 S.W.2d at 899. However, such an opinion will satisfy the personal knowledge requirement for lay witnesses if the testimony is an interpretation of the witness's objective perception of events. Id. Here, both officers testified they observed appellant drive into a known crack house and leave a few minutes later. They also found a large amount of crack cocaine in appellant's wife's van, which appellant was driving. These officers could not possess personal knowledge of appellant's mental state, but they did possess personal knowledge of facts from which an opinion regarding mental state was drawn. See id. Officer Santos testified he believed, based on his experience patrolling that area, appellant went to the apartments that night to pick up drugs and move them somewhere else. Officer Olivarez testified he believed the location of the drugs in appellant's pocket and under the driver's seat indicated appellant knew the drugs were there. The opinion must also be helpful to the trier of fact either to understand the witness's testimony or to determine a fact issue. Id. at 900. The trial court considers factors to make this determination, including whether the testimony is overly confusing or complicated, and the degree to which the witness is able to convey the events from which the opinion is drawn. Id. at 900. The helpfulness of an opinion will be determined by the facts of the case. Id. The facts in the present case were simple; nothing before the jury was confusing or complicated. The officers relayed their interpretation of events in a concise manner. These officers' opinions were not needed to help the trier of fact understand any testimony or determine any fact issue before it. Whenever the jury is in possession of the same information as the witness and can fully understand the matter and draw the proper inferences and conclusions, the witness's opinion testimony is unnecessary and inadmissible. Steve v. State, 614 S.W.2d 137, 139 (Tex.Crim.App. 1981) (pre-Rules opinion holding the witness's opinion testimony was unnecessary and inadmissible); Roberts v. State, 743 S.W.2d 708, 711 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd); see also Ramirez v. State, No. 14-04-00952-CR, 2005 WL 1690634, at *7 (Tex.App.-Houston [14th Dist.] July 21, 2005, no pet.) (not designated for publication) (holding an officer's lay opinion about culpable mental state of the defendant of slight or no usefulness when the jury had the information before it and was capable of interpreting the evidence). In this case, the jury possessed the same information as the testifying officers and was in a position to draw its own inferences and conclusions. Additionally, neither officer was given a legal definition of "intentionally" or "knowingly." See Fairow, 943 S.W.2d at 901 (holding witness's lay opinion of culpable mental state confusing or misleading when witness was never given the legal definition of "intentional"). We believe that under these circumstances, the officers' lay opinions regarding whether appellant "intentionally and knowingly" possessed cocaine were inadmissible. For these reasons, the trial court would have erred in overruling an objection had trial counsel objected at trial. Appellant must still, however, overcome the strong presumption the challenged action might be considered trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The State contends one possible trial strategy was to de-emphasize the testimony by not objecting to it. We agree that is possible. We will not question the reasonableness of trial counsel's strategy in not objecting. Appellant failed to prove his defense counsel's performance was deficient and not reasonably effective. Moreover, the second prong of Strickland requires appellant to show that, but for the error by counsel, the result of the proceeding would have been different. Id. at 694. Appellant has not made this showing. Appellant contends the evidence before the jury was insufficient to find appellant guilty, and without the officers' opinion testimony, the jury would not have found appellant guilty. However, as discussed previously, the evidence is both legally and factually sufficient to support the jury's verdict without the officers' opinion testimony. Based on the forgoing analysis, we overrule appellant's third point of error. CONCLUSION
Having considered and overruled each of appellant's three points of error on appeal, we affirm the judgment of the trial court.