Opinion issued June 5, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00263-CR
HECTOR DELEON MONTES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1104923
MEMORANDUM OPINION
Appellant Hector Deleon Montes was convicted by a jury of possession with intent to deliver a controlled substance, cocaine, in the amount of 200 grams or more, but less than 400 grams. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), .112(a), (e) (Vernon 2003 & Supp. 2007). The jury assessed punishment at imprisonment for 25 years and a $15,000 fine. Appellant brings two issues, challenging the trial court's exclusion of evidence and ineffective assistance of counsel. We affirm.
Appellant does not contest either the legal or factual sufficiency of the evidence, so we do not discuss the facts in detail. The record does reflect that appellant was under surveillance by the police for transporting narcotics, that appellant was pulled over for a traffic violation, and that cocaine was found in the back passenger side of appellant's vehicle. Appellant consented to a search of his house, and the police found no contraband.
In his first issue, appellant challenges the trial court's exclusion of evidence that appellant's son had a previous conviction for possession of cocaine and that the son had driven appellant's vehicle the night before appellant's arrest. Appellant argues this issue on appeal in terms of a constitutional right to present defensive evidence and a violation of Texas Rule of Evidence 403, but at trial the only argument raised was whether this evidence was relevant.
A defendant may not bring in evidence that a third person may have had a motive to commit the crime with which the defendant is charged, unless there is other evidence to link the third person to the crime. See Spence v. State, 795 S.W.2d 743, 754-55 (Tex. Crim. App. 1990); Jensen v. State, 66 S.W.3d 528, 537 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd). The "other evidence" must be testimony that not only demonstrates the third person's opportunity to commit the crime, but also incriminates the third person as the culprit. Jensen, 66 S.W.3d at 537. Here, appellant did nothing more than demonstrate that his son had an opportunity to commit the crime and that his son had a previous conviction for possession of cocaine.
Appellant also argues the trial court unconstitutionally excluded evidence from a police officer that appellant had no time to "tip off" people at his house that the police would be conducting a search. Appellant did not raise a constitutional issue at trial. Instead, the issue was whether the evidence was relevant, something appellant does not address on appeal. Appellant has not preserved his constitutional issue for appeal. See Tex. R. App. P. 33.1(a)(1)(A).
We overrule issue one.
In issue two, appellant claims his trial counsel was ineffective at the punishment stage because (1) she asked a State's witness whether it is a federal crime "to be in the United States illegally" and (2) she asked appellant's daughter the question, "If indeed [appellant] did find the temptation for making some money transporting cocaine . . . do you think he would ever do something like that again?" (1)
To be entitled to a new trial based on ineffective assistance, an appellant must show that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and 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).
Appellant did not file a motion for new trial. Because there is no evidence of trial counsel's strategy in asking these two questions, appellant cannot prevail unless there is no conceivable strategy as a matter of law. We may not speculate on why counsel acted as she did, and we do not conclude as a matter of law that no strategy could exist. See Bone v. State, 77 S.W.3d 828, 835-36 (Tex. Crim. App. 2002).
We overrule issue two.
We affirm the judgment of conviction.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
1. The State objected to this question, and the trial court sustained the objection.