Opinion issued March 4, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01173-CR
JOSHUA REDALE JEFFERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 906087
MEMORANDUM OPINION
Appellant, Joshua Redale Jefferson, was found guilty by a jury of the felony offense of delivery of a controlled substance, cocaine, following his plea of not guilty. The jury found true that appellant had two prior felony convictions as enhancing factors. The jury assessed his punishment at confinement for 33 years. Appellant, in five points of error, asserts that the evidence is legally and factually insufficient to support his conviction, that he received ineffective assistance of counsel at the guilt/innocence and punishment stages of trial, and that the prosecutor committed fundamental error at the punishment stage by improperly applying parole law to appellant. We affirm.
BACKGROUND
On March 19, 2002, Officer Kimberly King of the Houston Police Department was working in an undercover capacity to purchase narcotics from Darlene Cannedy. King phoned Cannedy and requested $100 worth of crack cocaine. Cannedy stated that she did not have it and asked King to call her back. When King called her back, Cannedy stated that she still did not have the drugs, but could take King to get some. As a result of this call, King went to Cannedy’s apartment, picked her up, and started driving to find Cannedy’s friend, to whom Cannedy referred as “J.” Initially, Cannedy instructed King to go to a motel off of Highway 59. “J” was not present at the motel, so they went to a “Stop N Go” at the corner of Gessner and Westpark. King took this opportunity to call her surveillance team and tell them that she was all right. After waiting at the “Stop N Go” for a while, Cannedy made a phone call and told King that they should go to Score’s, a nearby cabaret. Cannedy then made another phone call and afterwards instructed King to drive around to the other side of the store, where “her boy” was going to come.
After parking on the other side of the store, Cannedy and King waited for a few minutes. King observed a male walking toward them, whom Cannedy indicated was the person she was expecting. King identified appellant as the person she saw walking toward the car. Cannedy left the vehicle and had a conversation with appellant, but King could not hear what was said. Both appellant and Cannedy then entered the car, Cannedy in the front passenger seat and appellant in the backseat. King positioned herself so she could see both Cannedy and appellant. While sitting in the backseat, appellant gave Cannedy a paper towel, which she took and opened up. King testified that she saw what appeared to be crack cocaine inside the towel and that appellant told Cannedy that the crack cocaine was still “wet” and had just been “cooked.” Cannedy gave appellant some money and then both appellant and Cannedy exited the vehicle. They spoke for a few minutes, and then appellant walked away to the south and Cannedy got back into the car. King drove a short distance before she was pulled over by a Precinct 5 officer. When Cannedy saw the police, she hid the crack cocaine in a Lay’s potato chip bag. Both King and Cannedy were arrested, and King told the officers where to find the crack cocaine.
Officer Cory Riggs was providing surveillance for King. After appellant left King’s car, Riggs was able to keep sight of him as he walked away. Riggs testified that he was able to provide patrol officers with a brief description of the man before he followed King’s vehicle. The patrol officers were pulling into the parking lot as Riggs left, but Riggs did not see appellant arrested. Appellant was arrested by an Officer Whang. King was later driven over to where appellant was arrested and identified him as the person who had gotten into her car.
Riggs went to the site where Cannedy and King were arrested and searched King’s car. He found a substance that he believed to be crack cocaine wrapped in a tissue inside of a potato chip bag. A field test that he performed showed a positive result for cocaine. He testified that he placed the substance in a bag, initialed the bag, and placed it and a submission slip into the laboratory lockbox.
Cannedy testified for the defense. She stated that she did get in the car with King, but that she never received a phone call about a drug purchase. She claimed to be walking to the “Stop N Go” when King called her by her nickname and asked her where she was going. Cannedy stated that she thought King was flirting with someone. Cannedy testified that she did not know King, but King mentioned Cannedy’s cousin’s name so Cannedy entered the car and asked King to take her to the “Stop N Go.” Cannedy asserted that she made some purchases at the store, and that the police stopped them on the way back from the store for speeding. Cannedy testified that she did not know appellant, never discussed drugs or purchasing drugs with him, had not been handed a paper towel with crack cocaine in it, and had not placed the paper towel into a potato chip bag. Cannedy claims she was asked to get out of the car because the officer claimed there was a warrant out on her for a traffic ticket. She stated that there was not a warrant on her because she had just gotten out of state jail. Cannedy testified that she had pled guilty to possession of a controlled substance in connection with this episode because she was afraid that she would get more time if she did not. She also testified that she believed the drugs were probably planted by the officers.
DISCUSSION
Legal and Factual Sufficiency
Appellant, in his first and second points of error, asserts that the evidence was legally and factually insufficient to support his conviction. Specifically, appellant argues that the evidence was legally insufficient because the State failed to establish a chain of custody linking appellant to the cocaine and that the evidence was factually insufficient because a reasonable trier of fact could not have concluded beyond a reasonable doubt that appellant intentionally and knowingly delivered a controlled substance, as alleged in the indictment.
The State contends that appellant waived his legal and factual sufficiency challenges because he failed to move for a directed verdict and also failed to present legal and factual sufficiency challenges in his motion for new trial, thus failing to preserve these points for appellate review under rule 33.1(d) of the Rules of Appellate Procedure. It is well settled that the legal sufficiency challenges need not be preserved. See Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001). Furthermore, this court has held that a claim regarding factual sufficiency of the evidence need not be preserved in the trial court in a criminal case. See Washington v. State, No. 01-02-00926-CR, slip op at 11-12, 2003 WL 22456200, at *5 (Tex. App. —Houston [1st Dist.] Oct. 30, 2003, pet. filed)
Standard of Review
The standard for reviewing the legal sufficiency of the evidence is whether, after reviewing 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).
When reviewing for factual sufficiency, we review all the evidence, both favorable and unfavorable, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). Under the factual sufficiency standard, 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.” Id. (quoting from Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We will reverse the fact finder’s determination only if “a manifest injustice has occurred.” King, 29 S.W.3d at 563 (quoting from Johnson, 23 S.W.3d at 12).
Legal Sufficiency
In his first point of error, appellant asserts that the State failed to prove a chain of custody that would link him to the crack cocaine. Specifically, appellant argues that the State failed to identify the cocaine seized by Riggs as the cocaine delivered by appellant. Appellant asserts that the chain of custody for the cocaine did not lead into the laboratory and that Riggs did not testify that he retrieved the item for trial, so the evidence is legally insufficient to establish that appellant was delivering a controlled substance.
The chain of custody is conclusively established if an officer testifies that he seized the item of physical evidence, tagged it, placed an identifying mark on it, placed it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). When evidence is sent to a laboratory for analysis, the proponent must introduce testimony showing that the laboratory handled the evidence in the same way to conclusively establish the chain of custody. See Medellin v. State, 617 S.W.2d 229, 232 (Tex. Crim. App. [Panel Op.] 1981). When the State completes the chain of custody from the initial collection of the evidence to inside the laboratory, most questions concerning care and custody, including gaps and minor theoretical breaches, go to the weight of the evidence, not its admissibility. See Medellin, 617 S.W.2d at 232; Silva v. State, 989 S.W.2d 64, 68 (Tex. App.—San Antonio 1998, pet. ref’d).
Riggs testified that he recognized the substance he recovered out of the potato chip bag as State’s exhibit one and noted that it still had a little bit of tissue mixed inside of the base chunk. He identified the cocaine based on its appearance and his initials and handwriting on the bag in which the cocaine was submitted to the lab. Riggs further testified that it did not appear that the bag had been tampered with and the crack cocaine was in the same or similar condition as when he saw it last. Riggs stated that after he bagged the crack cocaine, it went to the narcotics lockbox and from there to the narcotics laboratory. Once the evidence reached the lockbox, it was taken to the centralized evidence receiving department and given a unique laboratory number. Dr. Shrey Reach, the forensic chemist who tested the sample after it was assigned to her, testified that she recognized the crack cocaine from the unique laboratory number and from her initials. She also testified that after a chemist receives the evidence, she seals it in her cabinet until the day that she has to analyze it. King testified that she transported the crack cocaine from the laboratory to the courtroom in which appellant was tried. Appellant offered no evidence to indicate any tampering with the evidence.
The State established the chain of custody from the initial seizure to the laboratory lockbox and from the inside of the laboratory to the courtroom. Appellant presents no evidence suggesting that the crack cocaine was tampered with and primarily argues that the record is unclear as to who gained possession of the evidence from the evidence lockbox, labeled it, and took it to Reach. A rational trier of fact could have considered this a minor breach, if any, in the chain of custody and could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellant’s first point of error.
Factual Sufficiency
In his second point of error, appellant argues that the evidence was factually insufficient to support his conviction for delivery of a controlled substance. He asserts that the evidence shows a strong possibility that he was arrested by mistake. Specifically, appellant points to testimony from King that she did not recall some aspects of the appearance of the person delivering drugs, namely, that she did not remember the length of his hair or whether he had a beard, was missing some teeth, was wearing glasses, or was wearing a cap. Appellant also suggests that, since neither Riggs nor King actually saw the arrest and the only description given to the patrol officers was that the suspect was a black male wearing a white shirt, the patrol officers arrested appellant by mistake because the suspect could have entered the store or could have otherwise evaded the view of the patrol officers between the time of Riggs’s description and appellant’s arrest. Further, appellant points to the testimony of Cannedy that she had met appellant, but did not know him or have dealings with him and that she had never delivered a controlled substance to appellant. Appellant also argues that, because the arresting officer was not called to testify, there was a possibility of misidentification, because there could have been more than one black male wearing a white shirt near the “Stop N Go.”
King testified that appellant was the person who delivered the crack cocaine to Cannedy. King identified appellant both at trial and a short period after her arrest. Riggs also identified appellant at trial. Riggs testified that he was leaving the parking lot of the “Stop N Go” as the patrol officers were entering, suggesting that any break in surveillance was not an extended one. The jury is free to believe or disbelieve all or part of a witness’s testimony. Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997). Given all the evidence as a whole, we do not find that this verdict is so weak as to be clearly wrong or manifestly unjust, nor do we find that the jury’s finding is against the great weight and preponderance of the evidence. We overrule appellant’s second point of error.
Ineffective Assistance of Counsel
Appellant, in his third point of error, asserts that he received ineffective assistance of counsel during the guilt/innocence phase when counsel did not do the following: (1) properly object to the chain of custody, (2) file a motion to suppress an illegal arrest, (3) file a motion for independent expert analysis of the controlled substance, (4) file a motion for independent quantitative analysis of the controlled substance, and (5) file a motion for continuance to secure the presence of the arresting officer and appellant’s witness, George Hawkins, at trial. Appellant, in his fourth point of error, asserts that he received ineffective assistance of counsel at the punishment phase when his trial counsel did not to object to the prosecutor’s improper application of parole law.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must show that (1) counsel’s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) but for counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812; Gamble, 916 S.W.2d at 93.
It is the defendant’s burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93.
In the present case, the record is silent as to why appellant’s trial counsel did not object to the chain of custody or file the various motions appellant asserts should have been filed in the guilt/innocence phase. The record is also silent as to why appellant’s trial counsel did not object to what he asserts was the prosecutor’s misapplication of parole law in the punishment phase. Appellant has failed to rebut the presumption that these actions were part of appellant’s trial counsel’s sound trial strategy. To find that trial counsel was ineffective based on the asserted grounds would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble, 916 S.W.2d at 93. We overrule appellant’s third and fourth points of error.
Prosecutorial Statements
Appellant, in his fifth point of error, asserts that the prosecutor committed fundamental error by improperly applying parole law to appellant at punishment. Appellant points generally to the prosecutor’s reading of appellant’s criminal record along with remarks made by the prosecutor pertaining to how appellant committed crimes shortly after leaving incarceration as being an attempt to invite the jury to consider appellant’s eligibility for parole before sentencing him.
Permissible jury argument falls within one of four categories: summation of the evidence, reasonable deductions from the evidence, answer to argument of opposing counsel, and pleas for law enforcement. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992).
Despite appellant’s assertions, the prosecutor’s remarks do not appear to be an attempt to invite the jury to consider appellant’s eligibility for parole in sentencing. The prosecutor appears to be making a summation of the evidence concerning appellant’s criminal record. While the prosecutor did comment on how quickly appellant was back on the streets committing crimes after his sentences, this is linked to appellant’s criminal offenses and an argument that appellant will repeat this pattern. This is not prosecutorial misconduct. We overrule appellant’s fifth point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).