TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00717-CR
v.
The State of Texas, Appellee
NO. CR96-010, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING
In his second point of error, appellant declares that the evidence is insufficient to support the verdict. Appellant contests the legal but not the factual sufficiency of the evidence. In reviewing the legal sufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994); Geesa v. State, 820 S.W.2d 154,156 (Tex. Crim. App. 1991); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). To establish unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt that the defendant exercised care, custody, control, and management over the contraband and that the defendant knew that the substance being possessed was contraband. See Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988); Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.--Houston [1st Dist.] 1998, no pet.); Hackleman v. State, 919 S.W.2d 440, 444 (Tex. App.--Austin 1996, pet. ref'd untimely filed).
In the apartment that the officers searched, they found all of the apparatus, chemicals, and precursor substances necessary for, and those customarily used in, the manufacturing of methamphetamine. More than four grams of methamphetamine were found in the apartment. Although appellant did not lease the apartment, it was shown that he had for six months or more lived in the apartment with other persons. Appellant slept in a "cubbyhole" under a stairway on the first floor. In the cubbyhole officers found a personal letter addressed to appellant, a chemistry book, plastic bags, and a scale that measured in grams. In the same cubbyhole, the officers found 200 ephedrine pills wrapped in paper towels and 55.2 grams of partially crushed pseudoephedrine pills. There was evidence that ephedrine and pseudoephedrine pills are precursor substances used for making methamphetamine. There was testimony that on several occasions appellant had delivered methamphetamine to a customer. In accord with the evidence, the court's jury charge allowed the jury to consider whether appellant was guilty either as a principal or a party to the charged offense. This evidence is ample for a rational trier of fact to conclude beyond a reasonable doubt that all of the essential elements of the charged offense were proved. We hold that the evidence is legally sufficient to support the jury's verdict that appellant either acting as a principal or as a party was guilty of possessing with the intent to deliver more than four grams of methamphetamine. Appellant's second point of error is overruled.
In his first point of error, appellant contends that his trial counsel was ineffective because counsel failed to have appellant's motion to suppress evidence heard by the trial court. To show ineffective assistance of counsel, appellant must show that: (1) counsel's performance was deficient, in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 115, 118 (Tex. App.--Austin 1994, pet. ref'd); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd).
Appellant's trial counsel filed a motion to suppress the evidence that had been obtained by officers armed with a search warrant. The record shows that: (1) defense counsel was provided copies of the search warrant and the supporting affidavit prior to trial; (2) the trial court ruled and refused to grant the motion to suppress evidence; and (3) copies of the affidavit and warrant were admitted in evidence at trial as defendant's exhibits 3 and 4. Appellant does not say how a more formal hearing with testimony of witnesses would have helped his defense. Even on appeal, appellant has not argued that the affidavit was in any way deficient. Furthermore, appellant has not argued that any unlawfully obtained evidence was admitted. On the record before us, appellant has failed to overcome the presumption that trial counsel was acting effectively at all times. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); Gravis v. State, 982 S.W.2d 933, 937 (Tex. App.--Austin 1998, pet. ref'd). Moreover, "in most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Ex parte Duffy, 607 S.W.2d 507, 512-13 (Tex. Crim. App. 1980). "Hence, in most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts to adequately evaluate such claims." Ex parte Torres, 943 S.W.2d at 475. Appellant's first point of error is overruled.
In his third point of error, appellant urges that: "the trial court erred in refusing to allow a proper hearing on extraneous offenses," and argues that "a whispered conference at the bench is not a satisfactory substitute" for conducting a hearing. Appellant's challenge on appeal is concerned with only the procedure used. The procedure used fails to show the trial court committed error. However, we will more fully discuss the matter shown by the record. Prior to trial, the State, in response to appellant's discovery motions, furnished defense counsel with more than 50 pages from its file. This included detailed arrest and offense reports of some 40 pages, the affidavit for the search warrant, the search warrant, laboratory reports, and photographs. This gave appellant a complete review of the State's case and eliminated any surprises.
On appeal, appellant makes a general reference to the testimony of Chastity Lopez, and a conclusory statement that "the jury was allowed to hear testimony of many extraneous bad acts and/or offenses." Appellant does not point out one specific instance when inadmissible evidence of an extraneous offense was admitted. During the testimony of Lopez, the State informed the court that it did not want to violate the court's order on the motion in limine, but felt that Lopez's testimony that appellant had delivered methamphetamine to her apartment would be admissible. Out of the hearing of the jury, defense counsel and the prosecutor discussed and argued before the court whether Lopez's expected testimony was relevant and whether its probative value outweighed its possible prejudicial effect. After counsel's argument before the court, the court told defense counsel that he could have a "standing objection," thus implicitly overruling appellant's objection. Lopez then testified that on several occasions appellant had delivered methamphetamine to her at her apartment. Lopez's testimony was relevant to prove the element of the charged offense that appellant's possession of methamphetamine was with the intent and for the purpose of delivery. See Tex. R. Evid. 401, 402. This evidence was admissible as an exception provided by the rules of evidence to show appellant's knowledge and his intent in possessing the methamphetamine. See Tex. R. Evid. 404(b). It was well within the trial court's discretion to find that the probative value of the evidence outweighed its potentially prejudicial effect. See Tex. R. Evid. 403. We conclude that the trial court, in the circumstances shown by the record, did not err in not conducting a more formal hearing. Appellant's third point of error is overruled.
The judgment of the trial court is affirmed.
Carl E. F. Dally, Justice
Before Justices Jones, Yeakel and Dally*
Affirmed
Filed: July 29, 1999
Do Not Publish
* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
would have helped his defense. Even on appeal, appellant has not argued that the affidavit was in any way deficient. Furthermore, appellant has not argued that any unlawfully obtained evidence was admitted. On the record before us, appellant has failed to overcome the presumption that trial counsel was acting effectively at all times. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998); Gravis v. State, 982 S.W.2d 933, 937 (Tex. App.--Austin 1998, pet. ref'd). Moreover, "in most instances, the record on direct appeal is inadequate to develop an ineffective assistance claim." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Ex parte Duffy, 607 S.W.2d 507, 512-13 (Tex. Crim. App. 1980). "Hence, in most ineffective assistance claims, a writ of habeas corpus is essential to gathering the facts to adequately evaluate such claims." Ex parte Torres, 943 S.W.2d at 475. Appellant's first point of error is overruled.
In his third point of error, appellant urges that: "the trial court erred in refusing to allow a proper hearing on extraneous offenses," and argues that "a whispered conference at the bench is not a satisfactory substitute" for conducting a hearing. Appellant's challenge on appeal is concerned with only the procedure used. The procedure used fails to show the trial court committed error. However, we will more fully discuss the matter shown by the record. Prior to trial, the State, in response to appellant's discovery motions, furnished defense counsel with more than 50 pages from its file. This included detailed arrest and offense reports of some 40 pages, the affidavit for the search warrant, the search warrant, laboratory reports, and photographs. This gave appellant a complete review of the State's case and eliminated any surprises.
On appeal, appellant makes a general reference to the testimony of Chastity Lopez, and a conclusory statement that "the jury was allowed to hear testimony of many extraneous bad acts and/or offenses." Appellant does not point out one specific instance when inadmissible evidence of an extraneous offense was admitted. During the testimony of Lopez, the State informed the court that it did not want to violate the court's order on the motion in limine, but felt that Lopez's testimony that appellant had delivered methamphetamine to her apartment would be admissible. Out of the hearing of the jury, defense counsel and the prosecutor discussed and argued before the court whether Lopez's expected testimony was relevant and whether its probative value outweighed its possible prejudicial effect. After counsel's argument before the court, the court told defense counsel that he could have a "standing objection," thus implicitly overruling appellant's objection. Lopez then testified that on several occasions appellant had delivered methamphetamine to her at her apartment. Lopez's testimony was relevant to prove the element of the charged offense that appellant's possession of methamphetamine was with the intent and for the purpose of delivery. See Tex. R. Evid. 401, 402. This evidence was admissible as an exception provided by the rules of evidence to show appellant's knowledge and his intent in possessing the methamphetamine. See Tex. R. Evid. 404(b). It was well within the trial court's discretion to find that the probative value of the evidence outweighed its potentially prejudicial effect. See Tex. R. Evid. 403. We conclude that the trial court, in the circumstances shown by the record, did not err in not conducti