No. 14-02-01304-CR
Opinion filed December 23, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 889098. Affirmed.
Panel consists of Justices YATES, HUDSON, and FOWLER.
LESLIE BROCK YATES, Justice.
Appellant Lynne Lee Weiser was convicted by a jury of possession with intent to deliver a controlled substance, methamphetamine, weighing at least 400 grams. The trial court assessed appellant's punishment at 45 years' imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a $1,000.00 fine, and made an affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense. In three points of error, appellant asserts (1) the evidence is legally and factually insufficient to support a conviction for possession with intent to deliver a controlled substance; (2) the evidence is legally and factually insufficient to support the trial court's affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense; and (3) appellant received ineffective assistance of counsel during trial.
Relevant Factual Background
On September 25, 2001, Officer Robert Clark, a Harris County Sheriff's deputy and methamphetamine specialist, engaged in a "knock and talk" session with appellant after receiving a tip that she was operating a methamphetamine lab in her trailer at 8852 Congo Lake in Harris County. Officer Clark, along with Deputies Peterson and Patburg, approached the front door of appellant's trailer. Deputy Gary Worley went around to the back of the trailer to detain anyone who attempted to flee. From that vantage point, deputy Worley observed someone shove a red cooler through a window of the trailer. A man in a wheelchair answered Officer Clark's knock and called for appellant. A few moments later, appellant came to the door and gave her written consent for the officers to search the trailer. According to Officer Clark, she gave that consent after some initial hesitation and after talking to Officer Clark for several minutes. After removing a fourteen-year old boy from the premises, Officer Clark and the deputies began a cursory search. Appellant does not dispute that she resided at the trailer. The search revealed what appeared to Officer Clark to be a clandestine methamphetamine lab. The following is a summary of the evidence found during a more thorough search conducted with a DEA agent present. I. In the master bathroom, they found a garden sprayer, Pyrex bowl, small exhaust fan sitting on a table in the shower and pointing to a window, 83 grams of red phosphorous in a shaving kit on the floor near the garden sprayer, a pickle jar containing what appeared to be pill binder, and a two-liter Coke bottle with a black plastic cross on it, indicating to Officer Clark that the bottle contained acid. II. In the laundry room, the officers found several mason jars containing what appeared to be pseudoephedrine being processed in a milky liquid, a two-liter bottle containing what appeared to be methamphetamine separating from a liquid, a gallon of muriatic acid, a gallon of sulfuric acid, two jars with milky liquid and white sediment concealed by clothes and of a type commonly encountered when separating ephedrine to make methamphetamine. III. In the trash can and among other trash in the trailer's backyard, the officers found denatured alcohol, three or four cans of Gun Scrubber, seven open and empty 24-count packages of pseudoephedrine pills, a braided hose stained from red phosphorous, coffee filters stained from red phosphorous, three large, empty containers normally used to store iodine, and an empty gallon container of muriatic acid. IV. The red cooler thrown from the trailer appeared to be a portable methamphetamine lab, contained all ingredients necessary to manufacture methamphetamine, except ephedrine or pseudoephedrine, and also included a 20 oz. jar containing what appeared to be liquid methamphetamine. The red cooler had "Andy Griffin" handwritten on its exterior. V. Two Erlenmeyer flasks, which are illegal to possess without a DPS permit, were found in the master bathroom under the vanity. VI. The officers also found six hunting rifles in a locked safe in the master bedroom's closet and a loaded pistol between the mattress and box springs in the master bedroom, near the master bathroom with the various materials identified above. An empty gallon jar with residue was next to the bed in the master bedroom. In addition to the foregoing, Officer Clark testified that red phosphorous has no legal uses, is a volatile and explosive substance necessary to cook methamphetamine, and can be obtained on the black market for about $1,000 per pound. Officer Clark testified the garden sprayer, Pyrex bowl, and exhaust fan in the shower are items commonly used to make methamphetamine and purge the area of toxic fumes. Moreover, Officer Clark testified that all of the other items found in the shower, in the laundry room, and in the trash are precursor ingredients commonly used to manufacture methamphetamine. Deputy Worley testified that after appellant was arrested and transported to jail, she told him that she was holding the methamphetamine for a friend named Andy, and had been doing methamphetamine, but denied the methamphetamine found in her trailer that day was hers. Deputy Worley observed recent injection marks on appellant's left elbow, suggestive of recent methamphetamine consumption. Harris County Medical Examiner's forensic chemist James Jackson testified that he analyzed and identified the following among the items confiscated from the trailer submitted to him for testing: 48 grams of pseudoephedrine, approximately 69 grams of red phosphorous, a two-liter bottle containing 813.8 grams of methamphetamine (including adulterants and dilutants), and a bottle containing 212.4 grams of methamphetamine (including adulterants and dilutants). Jackson totaled 1026.2 grams of controlled substance in the two bottles, and analyzed another 1.42 grams of methamphetamine powder found in appellant's trailer. Standard of Review
Appellant challenges the sufficiency of the evidence to support the jury's guilty verdict and to support the trial court's affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense. In conducting a legal sufficiency review, a reviewing court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Rather, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Id.; Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App. 2000). The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim. App. 1998). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Id. A jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The reviewing court will examine the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, the appellate court may not reverse the fact finder's verdict on grounds of legal insufficiency. See Jackson, 443 U.S. at 307. In reviewing factual sufficiency, we do not view the evidence "in the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Instead, we ask "whether a neutral review of all 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). We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim. App. 2000). Sufficiency of Evidence to Support Conviction
We first address appellant's claim that the evidence is legally and factually insufficient to support her conviction for possession of methamphetamine with intent to deliver. A person commits an offense if she intentionally or knowingly possesses, with the intent to deliver, methamphetamine in an amount weighing at least 400 grams by aggregate weight, including any adulterants or dilutants. TEX. HEALTH SAFETY CODE ANN. §§ 481.102(6), 481.112(a), 481.112(f) (Vernon 2003). To establish the unlawful possession of a controlled substance, the State must prove that the accused (1) exercised actual care, control, or custody over the substance, and (2) was conscious of her connection with it and knew what it was. Id. §§ 481.115(a), 481.115(f); Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). Evidence which affirmatively links the accused to the contraband suffices for proof that she possessed it knowingly. Id. This evidence can be either direct or circumstantial. Id. In either case, the evidence must establish that the accused's connection with the drugs was more than just fortuitous. Id. However, the evidence need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant's guilt. Id. at 748. When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband Guiton v. State, 742 S.W.2d 5, 8 (Tex.Crim.App. 1987). Mere presence at a place where contraband is being used or possessed does not justify a finding of joint possession. Nunn v. State, 640 S.W.2d 304, 305 (Tex.Crim.App. 1982). Among such additional facts that can establish the affirmative link are (1) appellant's presence when the contraband was discovered; (2) whether the contraband was in plain view; (3) appellant's proximity to and accessibility 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 from 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). Notwithstanding the foregoing laundry list, there is no set formula of facts that necessitate a finding of affirmative links sufficient to support an inference of knowing possession. Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). Affirmative links are established by a totality of the circumstances. See Sosa v. State, 845 S.W.2d 479, 48384 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd) (finding totality of circumstances was of such a character that the jury reasonably could conclude the defendant was aware of the contraband and exercised control over it). The number of factors is not as important as the logical force the factors have in establishing the elements of the offense. See Jones v. State, 963 S.W.2d 826, 830 (Tex. App.-Texarkana 1998, pet. ref'd). Additionally, some cases consider the quantity of the contraband as an affirmative link. See, e.g., Carvajal v. State, 529 S.W.2d 517, 520 (Tex.Crim.App. 1975), cert. denied, 424 U.S. 926 (1976); Washington v. State, 902 S.W.2d 649, 652 (Tex. App.-Houston [14th Dist.] 1995, pet. ref'd). The record in this case reflects that appellant owned and resided at the trailer where Officer Clark and other deputies found not only methamphetamine in an amount in excess of 1000 grams (including adulterants and dilutants) but also all of the paraphernalia and equipment necessary to manufacture methamphetamine. Many of the items were found in plain view. Appellant was present in the trailer at the time the items were found. Test results concluded that some of the substances found by Officer Clark were in fact methamphetamine. Appellant's voluntary statements to Deputy Worley after her arrest further support her connection to the methamphetamine. Although appellant testified that another gentleman was staying with her and her husband in the trailer, she did not claim that he was the source of the methamphetamine or paraphernalia found there. She instead testified that the methamphetamine and its source materials belonged to Andy Griffin, a neighbor, and she asserts that her cooperation with police supports her legal and factual insufficiency claims. Any conflict in the testimony, however, is a conflict for the jury to resolve. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000). As the trier of fact, the jury was the sole judge of the credibility of witnesses and was free to accept or reject all or part of the witnesses' testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). After viewing the evidence in the light most favorable to the prosecution, we believe that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Appellant also claims the evidence is factually insufficient to support her conviction. In conducting a factual sufficiency review, "[a]ppellate courts should only exercise their fact jurisdiction to prevent a manifestly unjust result; . . . courts 'are not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable.'" Clewis, 922 S.W.2d at 135. We do not find evidence in the record that greatly outweighs the evidence supporting the trial court's judgment. For the reasons discussed above, the jury's decision was not so contrary to the weight of the evidence as to be clearly wrong and manifestly unjust. We conclude the State presented legally and factually sufficient evidence to the jury to show that appellant was in possession of methamphetamine with intent to deliver. We overrule appellant's second point of error. Deadly Weapon Finding
In her first point of error, appellant contends that the evidence is legally and factually insufficient to support the trial court's affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense for which she was convicted. An affirmative finding of the use of a deadly weapon may be made when the State establishes that a deadly weapon was used or exhibited during the commission of a felony offense or the flight therefrom and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (Vernon Supp. 2002). Furthermore, as the trier of fact at the punishment stage, a trial court has the authority to make an affirmative finding as to the use or exhibition of a deadly weapon even if a jury has not answered a special issue. Ross v. State, 59 S.W.3d 754, 756 (Tex. App.-Austin 2001, pet. ref'd); Adams v. State, 40 S.W.3d 142, 146 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). In addressing this point of error, we employ the same standards of review discussed above. In Patterson v. State, the Court of Criminal Appeals explained the difference between "use" and "exhibit." 769 S.W.2d 938, 941 (Tex.Crim.App. 1989). "'[U]sed . . . during the commission of a felony offense' refers certainly to the wielding of a firearm with effect, but it extends as well to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony." Id. (emphasis added). In Patterson, the defendant was convicted of illegally possessing methamphetamine and using or exhibiting a deadly weapon during the commission of the offense. 769 S.W.2d at 939. When the police kicked in the door, Patterson was sitting on a sofa, and a bag containing methamphetamine, a wallet with $905 in cash, and a "gun boot" were on an end table located next to Patterson. Id. Patterson raised his hands when the police entered and told them that he had a gun between his leg and the end of the sofa. Id. Despite Patterson's argument that the gun's purpose was to protect his money, not the methamphetamine, the Court of Criminal Appeals held that a rational trier of fact could have found that the defendant used the firearm during the commission of the felony offense of possessing the controlled substance, "in a sense that the firearm protected and facilitated" the defendant's "care, custody, and management" of the controlled substance. Id. at 942. In this case, the guns were found in close proximity to the methamphetamine and paraphernalia for its manufacture. The loaded pistol was tucked under the mattress in the master bedroom next to the night table with a jar of residue identified by Officer Clark as methamphetamine or a by-product from the process of manufacturing it. By virtue of being in the master bedroom, both the loaded pistol and gun safe were near the master bathroom in which the officers found materials used to manufacture methamphetamine. Appellant does not dispute that the pistol and the guns belonged to her or her husband who resided with her. Officer Clark testified that it is common for drug dealers to keep weapons and use them to protect themselves, their drugs, and their money. Although appellant's husband testified that he collects guns and hunts and that the pistol was kept under the mattress for protection purposes, as we noted above, the jury was the judge of the credibility of his testimony and was free to reject or accept his testimony. See Jones, 944 S.W.2d at 647. Viewing the evidence in a light most favorable to the verdict, we conclude that a reasonable trier of fact could have found that appellant used or exhibited a firearm during the underlying felony beyond a reasonable doubt. We follow the reasoning of Patterson, and conclude that the evidence is legally sufficient to justify an affirmative finding that appellant used or exhibited a deadly weapon during the commission of the offense. See generally, e.g., Coleman v. State, 113 S.W.3d 496, 502-03 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding that evidence of guns found in same room as safe containing controlled substance and money was sufficient to support deadly weapon affirmative finding); Dimas v. State, 987 S.W.2d 152, 154 (Tex. App.-Fort Worth 1999, pet. ref'd) (holding that presence of assault rifles in same room in garage apartment as drugs and presence of pistol in defendant's bedroom, away from drugs, coupled with testimony of narcotics officer that it is customary for drug dealers to have firearms and use them to protect themselves, their drugs and money, was legally sufficient evidence to support deadly weapon affirmative finding). For the same reasons, we conclude the evidence is factually sufficient to support the trial court's affirmative finding of a deadly weapon. We overrule appellant's first point of error. Ineffective Assistance of Counsel
In her third point of error, appellant asserts she was denied effective assistance of counsel because her trial counsel failed to object to an inadmissible, oral statement taken in violation of appellant's Fifth Amendment Rights, was late the first day of trial, failed to make any evidentiary objections during trial, failed to object to the State's request for a deadly weapon finding, and failed to mount a consistent defense during trial, arguing that some of the items found in her residence were legitimate cleaning items while also arguing that appellant was unaware the items were in her residence. As a preliminary matter, we note that with the exception of her complaint that trial counsel did not object to a statement given by appellant while in custody, appellant did not further develop her arguments in her brief as to why her trial counsel was ineffective on the other asserted grounds. Appellant has a duty to cite specific legal authority and to provide legal argument based upon that authority. Tex.R.App.P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex.Crim.App. 1996). Appellant cited no legal authority to support her contention that her trial counsel was ineffective because he was late for the first day of trial, failed to make evidentiary objections, failed to object to the State's request for a deadly weapon finding, or presented an inconsistent defense. Thus, appellant has not preserved anything for review on these points of error. See TEX. R. APP. P. 38.1(h); Smith v. State, 683 S.W.2d 393, 410 (Tex.Crim.App. 1984) (holding that nothing was preserved for appellate review when defendant cited no authority and presented no argument on issue); Thompson v. State, 915 S.W.3d 897, 906 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (holding failure to identify cites to record where trial counsel allegedly did not object resulted in lack of preservation of claim of ineffective assistance of counsel). Appellant's claim that her trial counsel was ineffective because he failed to object to the introduction of an oral, custodial statement made by appellant after her arrest also fails. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST. Amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 1977). This right includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App. 1997). To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92; see also, e.g., Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). An appellant has the burden of proving her claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). We apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id. An appellant usually cannot meet this burden if the record does not specifically focus on the reasons for trial counsel's conduct. Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). In this case, appellant did not file a motion for new trial, and as a consequence, there was no hearing conducted to develop counsel's trial strategy. In the absence of a proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). When there is no hearing on a motion for new trial or if trial counsel does not appear at such a hearing, an affidavit from trial counsel becomes almost vital to the success of a claim of ineffective assistance of counsel. Howard v. State, 894 S.W.2d 104, 107 (Tex. App.-Beaumont 1995, pet. ref'd). Here, there is no such affidavit in the appellate record. To the contrary, the record is silent as to the reasoning and strategy behind trial counsel's action or inaction in not objecting to the admission of evidence of appellant's oral, custodial statement. Appellant has not rebutted the presumption that her trial counsel made all significant decisions in the exercise of reasonable professional judgment, and appellant has not demonstrated in the record that trial counsel rendered ineffective assistance. See Thompson, 9 S.W.3d at 814. We will not speculate about counsel's strategic decisions, and thus, we cannot find appellant's trial counsel ineffective based on the asserted grounds. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.) ("Due to lack of evidence in the record concerning trial counsel's reasons for conducting voir dire as he did and for not objecting to certain testimony and argument, we are unable to conclude that trial counsel's performance was deficient."). Moreover, even if the state of the record permitted us to address appellant's specific complaint regarding counsel's performance in failing to object to the oral statement, we would hold that appellant has failed to show that her trial counsel erred. Our review of the record reflects that the statement about which appellant complains was a voluntary statement. There is no evidence in the record that it is the product of interrogation. Thus, Miranda and its progeny do not apply. See, e.g., Oregon v. Mathiason, 429 U.S. 492, 495 (1977); Wicker v. State, 740 S.W.2d 779, 786 (Tex.Crim.App. 1987), cert. denied, 485 U.S. 938 (1988); Granviel v. State, 723 S.W.2d 141, 146 (Tex.Crim.App. 1986), cert. denied, 484 U.S. 872 (1987). We overrule appellant's third point of error. Having overruled all of appellant's points of error, we affirm the trial court's judgment.