Nos. 01-09-00257-CR, 01-09-00258CR
Opinion issued July 29, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2 (b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Case Nos. 1139688 1139689.
Panel consists of Justices JENNINGS, ALCALA, and MASSENGALE.
MICHAEL MASSENGALE, Justice.
Appellant Gerald Eugene Williams was convicted by a jury of the offenses of (1) possession with intent to deliver 3, 4-methylenedioxy methamphetamine (ecstasy) weighing more than four grams but less than 400 grams (trial court case number 1139688, appellate case number 01-09-00257-CR) and (2) possession of marijuana in a usable quantity of less than five pounds but more than four ounces (trial court case number 1139689, appellate case number 01-09-00258-CR). See Texas Controlled Substances Act, TEX. HEALTH SAFETY CODE ANN. §§ 481.103(a) (1), 481.113(a), (d), 481.121(a), (b)(3) (Vernon 2010). Williams pleaded true in each offense to prior felony convictions for possession of a controlled substance and aggravated perjury. The jury assessed punishment for the ecstasy offense at thirty years in prison and for the marijuana offense at five years in prison and a $2,500 fine, both sentences to run concurrently. See TEX. PENAL CODE ANN. §§ 12.33, 12.42(a) (2), (d) (Vernon Supp. 2009). Williams brings three issues, claiming legal and factual insufficiency of the evidence and ineffective assistance of counsel. We affirm.
Background
Houston Police Officer D. Garza testified at trial that he was assigned to the narcotics division in October 2007 when a confidential informant assisted him in getting a narcotics search warrant on 6327 Hanley Street. Garza executed the search warrant twelve hours later, on October 31, 2007. When Garza arrived at the scene, he saw a Chevy Tahoe backing out of the driveway and asked uniformed police officers accompanying the search team to stop the vehicle and detain the people in it. The search team consisted of Officers Byrd, Walker, Corrales, and Morales, and Sergeant Lewis. The house had burglar bars on both the front and back doors, and the team broke the lock to gain entry. No one was in the house at the time of the search. The mailbox for 6327 Hanley had the word "Williams" written on it. Garza saw a gold Cadillac parked in front of the house. A later vehicle registration search indicated the car was owned by Williams, with 6327 Hanley as the registration address. Garza went outside and spoke with Williams, giving him Miranda warnings and presenting him with a copy of the search warrant. Garza also asked Williams if there were any illegal narcotics, weapons, or money inside the house, and Williams told him there was "some marijuana." The team then began its search of the house. Corrales was the canine officer, who participated with his narcotics dog. In the living room, Garza saw a shoebox on the sofa containing marijuana in individually wrapped, clear sandwich bags. In the garage, Garza saw three large bags of marijuana and two large bags of ecstasy, one with 990 yellow tabs and the other with 400 blue-green tabs. Garza testified that the yellow ecstasy tabs were in plain view and that the marijuana was packaged in larger amounts and was not at that time ready for street sales. He estimated the street value of the yellow tabs at $19,800 and the blue-green tabs at $8,000. Garza also saw a wooden table with scratch marks, which he testified were from razor-blade use while breaking up narcotics. In the master bedroom, Garza saw a plate which he testified was used to prepare and cut up larger amounts of narcotics for personal use or individual sales. All of the clothes in the closet were men's clothing. He also found a credit union statement and a credit card approval notice, both of which were addressed to Williams at 6327 Hanley. In the dining room, Garza saw a photograph of Williams standing next to the gold Cadillac parked in front of the house. In the photo, Williams was wearing a black hat and suit, which Garza testified were items of clothing he saw in the master bedroom closet. Garza saw multiple firearms in the house. First, he found a loaded shotgun in plain view in the living room, propped up on the same sofa where he found marijuana in a shoebox. Second, he found a loaded Kel-Tec 9 mm semi-automatic pistol and a Browning .22 caliber semi-automatic pistol on the dresser and in the closet of the master bedroom, respectively. The dresser was the place where Garza also found the credit union statement and the credit card approval notice. In the living room, Garza saw clear sandwich bags. He testified that these bags were similar to the bags containing marijuana found in the shoebox and that the bags were used to make individual packets for sale. On cross examination, Garza stated that the mailbox had "Williams" on it, but no first name or initial. The search team did not find any mail in the house addressed to anyone other than Williams. During the inventory search of Williams, the officers found a set of keys in his possession, and Williams asked the officers to give them to a friend so she could secure the house while he was in jail. Garza did not ascertain if Williams' keys fit the locks on the house. When asked how he knew that Williams lived in the house, Garza replied, "He said so." Garza testified that he had seen the Cadillac parked in front of the house when he first started his investigation, before the date of the search. He did not know if the car was operable, and he did not check to see if any of the keys found on Williams fit the car. Garza was also asked about the credit union statement, which was dated December 31, 2005. He did not know how long the credit card approval notice had been in the house. Garza was not aware that any fingerprints were taken off of any of the firearms. He testified that the police did not charge Williams for the marijuana found in the Chevy Tahoe, but instead charged the other person who was with him in that vehicle. He also testified that the confidential informant identified Williams only by his first name. Garza conceded that he did not put the clothes found in the closet next to Williams to see if they would fit, and he did not check to see if any of the hats fit Williams' head. He testified that the grass under the Cadillac was longer than the surrounding grass. Garza testified the electricity was turned on at the house. He conceded that his police report did not reflect that he asked Williams if he lived at 6327 Hanley within a month of the search, whether Williams had keys to the house, whether Garza asked the other passenger in the Chevy Tahoe if she lived at 6327 Hanley, or whether Garza asked people in the neighborhood if they had seen Williams at the house or how long the Cadillac had been in the yard. On redirect examination, Garza testified that the search warrant was based on a narcotics purchase from inside the house. Garza observed the house about five times in the week before getting the search warrant. During that time, Garza saw Williams three times — once coming out of the house and twice standing in the front yard. Garza stated that he saw incidents consistent with drug dealing and that the Cadillac was parked in the front yard the whole week. Garza testified that when Williams was arrested on the day of the search, he had $1,050 in his possession, consisting of 23 $20 bills, 49 $10 bills, 13 $5 bills, and 35 $1 bills. Garza testified that this distribution of bills was consistent with the kind of bills a narcotics trafficker would have. Williams also had an unexpired Texas identification card issued by the Department of Public Safety, which listed his address as 6327 Hanley. On re-cross examination, Garza testified that he called Williams' employer to verify that Williams had a job. Garza also conceded that he neither had proof of a specific person to whom Williams sold drugs, nor whether there was someone else in the house on the three occasions that Garza saw Williams at the house. Houston Police Officer J. Bryant testified at trial that he and his partner Officer A. Olivares participated in the October 31, 2007 search of 6327 Hanley. It was their job to detain anyone outside of the house on the property. Bryant and Olivares first stopped the Chevy Tahoe that was backing out of the driveway. The driver of the vehicle was Williams, and the passenger was Odelia Roy. Bryant saw a bag of marijuana on the vehicle's center console. On cross examination, Bryant testified that the police determined that the marijuana on the car console belonged to Williams because the vehicle belonged to him. He also found marijuana in Roy's purse, and the police filed charges against Roy for possession of that marijuana. Bryant did not know if Williams was read his Miranda rights. Bryant testified that he never heard Williams admit that the marijuana in the house was his. Bryant was not aware if anyone asked the neighbors who lived at 6327 Hanley. Officer R. Corrales testified at trial that he is a narcotics canine officer. The narcotics dog is trained to "alert" on the presence of cocaine, marijuana, heroin, ecstasy, and methamphetamine. On the day of the 6327 Hanley search, the dog "alerted" on the shoebox located on the living room sofa, a bag in the garage, the master bedroom, and a sofa in the second bedroom. After the house was searched, the officers hid some of the money they found in Williams' possession on the front porch, an area the dog had previously examined and found clear. The dog "alerted" on the place where the money was hidden, and Corrales testified that this indicated the odor of narcotics on the money. On cross examination, Corrales testified about a photograph taken inside the house that shows a chest of drawers with a bottle of nail polish and bracelets on it. Corrales testified that nail polish is something normally used by women and that this suggested that a woman was staying in the house. Corrales did not notice any women's clothing in the house. Houston Police Officer R. Walker testified at trial that he is a plain clothes narcotics officer and was part of the search team for 6327 Hanley. Walker was responsible for collecting the evidence from the search and maintaining the chain of custody. Walker identified the marijuana from the shoebox found in the living room. He also found eight tabs in the shoebox, which he thought looked to be ecstasy. Walker then identified marijuana and ecstasy that he found in the garage. Walker also found 30 tabs of Alprazolam (Xanax) in the garage. On cross examination, Walker testified that he did not know if any mail was found at 6327 Hanley that was addressed to someone other than Williams. Walker said that the credit union statement was found in a dresser drawer in the master bedroom, but he did not remember seeing a credit card application. Walker was not aware that any of the items from the house were submitted to be searched for latent fingerprints. A. Barker, a toxicologist with the Houston Police Department crime laboratory, testified at trial that evidence seized from 6327 Hanley was 3, 4-methylenedioxy methamphetamine (ecstasy) and marijuana. Analysis
I. Legal sufficiency of the evidence In his first issue, Williams contends the evidence is legally insufficient to establish that he possessed ecstasy with intent to deliver or possessed marijuana in a usable quantity. Williams specifically challenges whether the State has proved "possession" of the ecstasy and marijuana, which the Texas Controlled Substances Act defines as "actual care, custody, control, or management." TEX. HEALTH SAFETY CODE ANN. § 481.002(38) (Vernon 2010). The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight of their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). To prove unlawful possession of a controlled substance, the State must prove that the defendant exercised control, management, or care over the substance and that he knew the matter possessed was contraband. See Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). Regardless of whether the evidence is direct or circumstantial, it must establish that a defendant's connection to the contraband was more than fortuitous. Id. at 405-06. However, presence or proximity, when combined with other evidence, either direct or circumstantial, e.g., "links," may well be sufficient to establish the element of possession beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). Though not an exhaustive list, the Court of Criminal Appeals has recognized the following factors as links to establish possession: (1) the defendant's presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant's proximity to and the accessibility of the contraband; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned or had the right to possess the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Id. at 162 n. 12. When looking at the evidence in a light most favorable to the verdicts, the State presented evidence for 9 out of these 14 factors. However, it is not the number of links that is dispositive, but rather, the logical force of all of the evidence, both direct and circumstantial. Id. at 162; Sambath Nhem v. State, 129 S.W.3d 696, 699-700 (Tex. App.-Houston [1st] 2004, no pet.) (holding links consisting of defendant's personal belongings found in same room as controlled substance and controlled substance found on defendant's person were sufficient to affirm where defendant was arrested outside of house and defendant was not in exclusive possession of house). A. Links Establishing Possession of EcstasyFactors 1 and 3: Williams's presence when the search was conducted, and Williams's proximity to and the accessibility of the contraband. Officers Garza and Bryant testified that when they arrived, Williams was backing out of the driveway of 6327 Hanley where the ecstasy was found. Additionally, Williams asked the officers to give his keys to a friend so she could secure and watch the house, implying that he had access to the home and its contents. Factor 2: Whether the contraband was in plain view. There was testimony and photos concerning ecstasy in plain view on a sofa in the garage. Factor 5: Whether Williams possessed other contraband when arrested. Bryant testified that the marijuana found in plain view in the Chevy Tahoe belonged to Williams. Factor 6: Whether Williams made incriminating statements when arrested. Garza testified that Williams said there was "some marijuana" in the house. Factor 10: Whether other contraband or drug paraphernalia were present. The officers found marijuana and Xanax in the house. Garza also saw a wooden table having scratch marks, which he testified were from razor-blade use while breaking up narcotics. In the living room, Garza saw clear sandwich bags and testified that the bags were used to make individual packets for sale. In the master bedroom, Garza saw a plate which he testified was used to prepare and cut up larger amounts of narcotics for personal use or individual sales. Factor 11: Whether Williams owned or had the right to possess the place where the contraband were found. Garza and Bryant testified that Williams' Texas identification card listed 6327 Hanley as his address. The mailbox for 6327 Hanley had the word "Williams" written on it. Garza found a federal credit union statement and a credit card approval notice, both of which were addressed to Williams at 6327 Hanley. The gold Cadillac that Garza saw outside the house was owned by Williams and registered using 6327 Hanley as the registration address. In the dining room, Garza saw a photograph of Williams standing next to the gold Cadillac parked in front of the house. In the photo, Williams was wearing a black hat and suit, which Garza testified were items of clothing he saw in the master bedroom closet. Finally, Williams asked the officers to give his keys to a friend so she could secure and watch the house. Factor 12: Whether the place where the contraband was found was enclosed. The ecstasy was found in the garage. Factor 13: Whether Williams was found with a large amount of cash. Officers Garza and Bryant testified that Williams had $1,050 in his possession, consisting of 23 $20 bills, 49 $10 bills, 13 $5 bills, and 35 $1 bills. Garza testified that this distribution of bills was consistent with the kind of bills a narcotics trafficker would have. Weapon. Although not on the Evans list of factors, we note that Garza found three firearms in the house: a loaded shotgun in plain view in the living room and a loaded Kel-Tec 9 mm semi-automatic pistol and a Browning .22 caliber semi-automatic pistol on the dresser and closet of the master bedroom, respectively. B. Links Establishing Possession of Marijuana Factors 1, 3, 5, 6, 10, 11, and 13 are the same as those for ecstasy. The weapons factor is also the same. Factor 12, whether the place where the contraband was found was enclosed is similar, as the marijuana was found in the house's living room and garage. * * *
Viewing the evidence in the light most favorable to the verdicts, we hold that a rational trier of fact could have found the essential elements of both offenses, including the element of possession, beyond a reasonable doubt. Accordingly, we overrule the first issue. II. Factual sufficiency of the evidence In his second issue, Williams contends the evidence is factually insufficient to establish that he possessed ecstasy with intent to deliver or possessed marijuana in a usable quantity. As with his legal sufficiency issue, Williams specifically challenges whether the State has proved "possession" of the ecstasy and marijuana. When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that the evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). The fact finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the judge of the credibility of the witnesses, the fact finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson, 204 S.W.3d at 415. On appeal, Williams does not substantively brief this issue by providing references to the record that shows evidence that favors him. At trial, Williams argued that: (1) the mailbox did not have Williams' first name or initial on it; (2) the mail found in the house was either from 2005 (the credit union statement) or undated (the credit card approval notice); (3) Officer Garza did not check to see if Williams' keys fit the locks on the house; (4) Garza neither took the clothes he found in the closet and put them next to Williams to see if they would fit, nor did he take any of the hats and check to see if they fit Williams' head; (5) Officer Bryant was not aware if anyone asked the neighbors who lived at 6327 Hanley; (6) Officer Walker was not aware that any of the items from the house were submitted to be searched for latent fingerprints; and (7) Officer Corrales testified that he saw a bottle of nail polish and bracelets on it, which suggested that a woman was staying in the house. Considering all of the evidence in a neutral light, the jury could have found the essential elements of the both offenses, including the element of possession, beyond a reasonable doubt. Accordingly, we cannot say that the jury's verdicts are against the great weight and preponderance of the evidence. We overrule Williams' second issue. III. Ineffective assistance of counsel In his third issue, Williams claims his trial counsel was ineffective. To be entitled to a new trial based on ineffective assistance of counsel, a defendant must show that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). The defendant bears the burden to prove ineffective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Allegations of ineffective assistance of counsel must be firmly founded in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The review of trial counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent on the motivations underlying trial counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that trial counsel's conduct was reasonable. See id. In most cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Because the reasonableness of trial counsel's choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his actions before a court reviews that record and concludes trial counsel was ineffective. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Without proof in the record that there is no plausible professional reason for trial counsel's act or omission, the reviewing court may not speculate on why counsel acted as he did. See Bone, 77 S.W.3d at 835-36. On appeal, Williams argues that his trial counsel failed the first prong of Strickland — i.e., counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment — because counsel did not (1) file a motion to suppress evidence because the affidavit for probable cause to issue the search warrant "may" have been insufficient, (2) make an opening statement, (3) request an article 38.23 charge, and (4) poll the jury. We address each of these alleged deficiencies. Motion to suppress evidence. Williams claims his trial counsel was ineffective because trial counsel did not file a motion to suppress the evidence from the search of the house. Williams claims that the affidavit for probable cause to issue the search warrant "may" have been insufficient. Williams, however, does not present an argument on appeal to demonstrate that the affidavit was insufficient. To establish ineffective assistance of counsel for failure to file a motion with the court, a defendant must demonstrate that he would have succeeded on the motion. Keller v. State, 125 S.W.3d 600, 608 (Tex. App.-Houston [1st Dist.] 2003, pet. dism'd) (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). Opening statement. Williams next claims his trial counsel was ineffective because trial counsel did not make an opening statement. The Court of Criminal Appeals has held that although waiving an opening statement is one of the reasons reasonable people can question the wisdom and rationale for trial counsel's preparation and strategy, that alone is not sufficient to show ineffective assistance without allowing trial counsel to first respond. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Article 38.23 charge. Williams claims his trial counsel was ineffective because trial counsel did not request an article 38.23 charge concerning probable cause for the search warrant. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon 2005). A defendant must meet the following three requirements before he is entitled to the submission of a jury instruction under article 38.23(a): (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). On appeal, Williams does not identify the material contested factual issue that would give rise to an article 38.23 charge. We also note that the affidavit that formed the basis for the issuance of the search warrant was not introduced into evidence and is therefore not in the appellate record. Polling the jury. Williams claims his trial counsel was ineffective because trial counsel did not poll the jury. While the Code of Criminal Procedure allows the jury to be polled, there is no requirement that trial counsel do so. TEX. CODE CRIM. PROC. ANN. art. 37.05 (Vernon 2006). There is nothing in the appellate record to indicate any reason why trial counsel should have polled the jury. See Belton v. State, 900 S.W.2d 886, 900 (Tex. App.-El Paso 1995, pet. ref'd) (rejecting ineffective-assistance-of-counsel claim for alleged failure to poll jury when claim is not supported by appellate record). It is the defendant's burden to prove there is no plausible professional reason for trial counsel's acts or omissions. See Bone, 77 S.W.3d at 836-37 n. 29. Without an evidentiary motion for new trial, we are not persuaded, based on the existing appellate record and argument, that trial counsel could not have had any plausible professional reasons for his actions. See id. (stating that counsel should ordinarily be accorded opportunity to explain his actions before being condemned as unprofessional and incompetent). We therefore hold that Williams has not met his burden under the first prong of Strickland to prove that his trial counsel was deficient. Because failure to make the required showing of deficient performance will defeat an ineffectiveness claim, we do not reach Williams' argument on the second prong of Strickland. See Thompson, 9 S.W.3d at 813. We overrule Williams' third issue. Conclusion
We affirm the trial court's judgments.