TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00436-CR
Carey Allen Hill, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT
NO. 4231, HONORABLE EMIL KARL PROHL, JUDGE PRESIDING
A jury found appellant Carey Allen Hill guilty of one count of possession of a controlled substance (methamphetamine) under twenty-eight grams with intent to deliver. His offense was enhanced with two prior convictions, and the jury assessed punishment at sixty-one years' imprisonment. Hill now appeals his conviction, alleging insufficient evidence and ineffective assistance of counsel. We will affirm the judgment of conviction.
BACKGROUND
Accomplice witness Ronald Eugene Woodcock testified at trial that, on November 28, 1993, he and appellant traveled from Waco to McCulloch County, carrying with them approximately 1 1/2 grams of methamphetamine in bulk form. Upon arriving at appellant's mother's rural home, Woodcock repackaged the controlled substance into smaller packets.
The next morning the two men drove into the town of Brady, with appellant carrying the drugs in his pocket. They eventually pulled up in front of Big John's Kitchen, a barbecue restaurant operated by John Earl Campbell. Campbell testified that a third individual came inside and asked him whether he wanted to buy drugs. Campbell declined but walked outside to speak with appellant and Woodcock. Their ensuing conversation included discussion of where one might be able to deal in drugs. After the two men drove off, Campbell notified the sheriff's office of the incident.
A short time later, police stopped the vehicle Campbell had described. One officer testified that he observed two syringes in plain view and obtained from the driver, Woodcock, a written consent to search the vehicle. Another officer testified that, in the process of checking for weapons on the passenger side of the vehicle, he asked appellant what he had in his pockets. Appellant handed over his wallet, in which the deputy discovered twelve small plastic packages containing a tan-colored powder.
DISCUSSION
Sufficiency of the Evidence
In his first point of error, appellant challenges the sufficiency of the evidence corroborating the testimony of the accomplice witness, Woodcock. Code of Criminal Procedure article 38.14 governs the review of sufficiency of the evidence to corroborate an accomplice witness's testimony. Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979); see Clewis v. State, No. 450-94, slip op. at 10, n.10, 11 (Tex. Crim. App. Jan. 31, 1996). Corroborative evidence must tend to connect the accused with the offense, but "it need not be corroborative of any particular statement made by the accomplice." Holladay v. State, 709 S.W.2d 194, 199-200 (Tex. Crim. App. 1986). We therefore ask whether the record reflects sufficient evidence--apart from Woodcock's testimony--tending to connect appellant to the offense of possession of a controlled substance with intent to deliver.
The Court of Criminal Appeals has articulated several factors for assessing the sufficiency of the corroborating evidence:
All of the facts and circumstances in evidence may be looked to as furnishing the corroboration necessary. The corroborative evidence may be circumstantial or direct. The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses which tends to connect the accused to the offense supplies the test. It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt.
Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).
The record contains ample evidence tending to connect appellant to the offense with which he was charged. John Earl Campbell testified that a third person had indicated that appellant and Woodcock were offering drugs for sale, and that subsequently he and appellant had discussed where drugs might be sold. Later police found twelve individually wrapped packages containing methamphetamine in appellant's wallet. This independent evidence at a minimum tends to connect appellant to the offense of possession with intent to deliver and thus sufficiently corroborates Woodcock's testimony. We therefore overrule appellant's first point of error.
Ineffective Assistance of Counsel
In his next five points of error, appellant contends that he was denied effective assistance of counsel because his trial counsel (1) failed to file any pretrial motions, in particular a motion to suppress the evidence; (2) failed to raise proper and timely objections to hearsay testimony; (3) failed to object to leading and repetitive questioning of the accomplice witness; (4) elicited testimony from the accomplice witness that defendant had sold him drugs; and (5) elicited testimony from the defendant himself regarding prior criminal convictions.
The proper standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Jackson v. State, 877 S.W.2d 768, 770-771 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (adopting the Strickland standard). First, the defendant must show that counsel's performance was deficient to the extent that counsel failed to function as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687; Jackson, 877 S.W.2d at 771. Second, the defendant must show that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Jackson, 877 S.W.2d at 771. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771; Wilkerson v. State, 726 S.W.2d 542, 550-51 (Tex. Crim App. 1986), cert. denied, 480 U.S. 940 (1987).
The defendant bears the burden of proof on both prongs of the Strickland test. Jackson, 877 S.W.2d at 771. Furthermore, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, "the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 771. In other words, the record presented to the reviewing court must rebut the presumption of reasonable professional assistance. Jackson, 877 S.W.2d at 771.
In the instant case, the record is silent as to why appellant's trial counsel may have performed in the manner alleged. A trial record alone is generally insufficient to address claims of ineffective assistance of counsel because of the strong presumption that trial counsel acted competently. Jackson, 877 S.W.2d at 772 (Baird, J., concurring). Here, appellant did not file a motion for new trial; therefore, the record contains nothing on the issue of counsel's effectiveness. In a direct-appeal challenge to counsel's effectiveness, a hearing on a motion for new trial is the primary method for making a record of counsel's deficiencies. (1)
On this undeveloped record, appellant asks us to speculate as to why counsel did not seek to have evidence suppressed or file other pretrial motions. There is no indication in the record of irregularity or lack of probable cause in the stop and search by police of the vehicle in which appellant was riding. Nor is there indication that counsel was ever surprised by evidence presented at trial and could thus have benefitted from a pretrial motion for discovery. A determination not to expend time and resources on presumably useless measures would appear to have been reasonable. But counsel's true reasoning--or even possible failure to reason--can only be guessed at, and mere conjecture does not overcome a strong presumption of reasonable professional assistance.
Similarly, counsel's actions--or lack thereof--at trial are not explained in the record. Again we are asked to speculate as to why counsel failed to raise proper and timely objections, specifically in response to Campbell's hearsay testimony regarding his conversation with an unidentified third party and to leading questions posed to accomplice witness Woodcock. Appellant would also have us guess why counsel elicited certain, possibly harmful, testimony from the defendant and the accomplice witness. We are again bound by Strickland not to engage in such speculation. We must presume that trial counsel, better positioned than an appellate court to judge the pragmatism of a particular case, "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690; Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). (2) Again, the record in this case does not provide a sufficient basis to overcome this presumption.
Because we conclude that appellant has failed to meet his burden of proving that counsel's performance was ineffective, we overrule his points of error two through six.
CONCLUSION
Having overruled all of appellant's points of error, we affirm the judgment of conviction.
Bea Ann Smith, Justice
Before Justices Powers, Jones and B. A. Smith
Affirmed
Filed: July 3, 1996
Do Not Publish
1. 1 In his concurring opinion in Jackson, Judge Baird noted that, because of time constraints in obtaining evidence, "[a]s a general rule, one should not raise an issue of ineffective assistance of counsel on direct appeal." Jackson, 877 S.W.2d at 772 (Baird, J., concurring).
2. 2 Such pragmatism might, for example, suggest not drawing attention to garbled testimony with an objection; defusing the "bombshell" of prior convictions by having defendant admit to them first; allowing or asking repetitive questions in an effort to trip up a witness; or attempting to elicit one answer at the risk of receiving another that is unexpected.
M>Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771; Wilkerson v. State, 726 S.W.2d 542, 550-51 (Tex. Crim App. 1986), cert. denied, 480 U.S. 940 (1987).
The defendant bears the burden of proof on both prongs of the Strickland test. Jackson, 877 S.W.2d at 771. Furthermore, a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, "the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 771. In other words, the record presented to the reviewing court must rebut the presumption of reasonable professional assistance. Jackson, 877 S.W.2d at 771.
In the instant case, the record is silent as to why appellant's trial counsel may have performed in the manner alleged. A trial record alone is generally insufficient to address claims of ineffective assistance of counsel because of the strong presumption that trial counsel acted competently. Jackson, 877 S.W.2d at 772 (Baird, J., concurring). Here, appellant did not file a motion for new trial; therefore, the record contains nothing on the issue of counsel's effectiveness. In a direct-appeal challenge to counsel's effectiveness, a hearing on a motion for new trial is the primary method for making a record of counsel's deficiencies. (1)
On this undeveloped record, appellant asks us to speculate as to why counsel did not seek to have evidence suppressed or file other pretrial motions. There is no indication in the record of irregularity or lack of probable cause in the stop and search by police of the vehicle in which appellant was riding. Nor is there indication that counsel was ever surprised by evidence presented at trial and could thus have benefitted from a pretrial motion for discovery. A determination not to expend time and resources on presumably useless m