In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00178-CR ______________________________
RUBEN JAMES CARTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd Judicial District Court Harris County, Texas Trial Court No. 903440
Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross
O P I N I O N
Ruben James Carter was convicted in a jury trial for possession of a controlled substance, namely, cocaine, with intent to deliver. He pled true to an enhancement paragraph alleging a prior felony conviction for possession of a controlled substance. The trial court assessed his punishment at twenty years' imprisonment. Carter appeals, contending: (1) the evidence is legally and factually insufficient to establish identity; (2) the evidence is legally and factually insufficient to establish possession; and (3) he was denied effective assistance of counsel.
Background Facts
On February 21, 2002, around 10:00 a.m., Mergim Meraia, an officer with the Houston Police Department (HPD), observed a red Toyota Corolla being driven by a person whom he suspected of being a fugitive from justice. Meraia followed the Corolla and activated his police lights. The suspect ran a stop sign and eventually pulled into a driveway located at 13213 Chiswick. Meraia and the suspect exited their respective vehicles. The suspect approached Meraia and, when the suspect was approximately eight feet away from him, Meraia pulled his weapon and told him to stop. The suspect then held up his hands and backed away from Meraia. The suspect asked Meraia, "[M]an, what's up, man, what's up?" After three or four seconds, the suspect fled the scene. Meraia pursued, but failed to apprehend him. Meraia testified the suspect was wearing a black "do-rag" on his head, a red shirt, and blue jean shorts.
The homeowner in whose driveway the Corolla was left and unidentified witnesses at the scene identified the driver of the Corolla as a person called "Little J." An inventory of the Corolla yielded an insurance document issued to a person named "Lenit Chambers" and a bill of sale which identified the Corolla's owner as "Latahia Gulley." Vernon English, an HPD officer who was assisting Meraia, discovered a two-liter Mountain Dew Code Red bottle on the passenger seat. English testified codeine syrup is commonly mixed with Mountain Dew Code Red because the red color of the soda blends with the color of the codeine syrup. English testified he identified the smell of codeine syrup mixed with soda in the bottle. English also discovered a small plastic bag containing what appeared to be crack cocaine on the driver's side floorboard, near the gas pedal. No attempt to lift fingerprints from the automobile or narcotics containers was made. Connie Dieringer, a chemist with the HPD, testified that the small plastic bag contained approximately twenty-four grams of cocaine and that the bottle contained approximately 491.1 grams of codeine, including adulterants and dilutants, in the concentration of 11.1 milligrams of codeine per 100 milliliters.
Chambers testified at trial that, at the time of the incident, she owned the Corolla and carried insurance on the vehicle. Meraia testified Chambers had originally told him February 21 the car had been stolen. Meraia testified Chambers changed her story during a telephone conversation February 26. Meraia testified that Chambers told him Carter had been driving the car and that he admitted to her he had run from the police. Chambers testified at trial, however, that the car had been stolen. Chambers also denied ever telling Meraia that Carter had been driving the car or admitted to fleeing.
Meraia testified that, on February 22, the day after the incident, he and other officers returned to the area where the Corolla had been abandoned, where they encountered a person of similar build and description as the suspect. When this person saw the officers, he fled along the same route taken by the suspect on the previous day. Meraia apprehended and arrested this person. Meraia testified he did not remember this person's name and did not ask if his nickname was "Little J." Meraia further testified this person did not resemble Carter and was not the individual for whom they were looking.
Michael Edwards, the owner of the house where the Corolla had been abandoned, testified he did not see who drove the automobile. Edwards testified that "Little J" is a seventeen-year-old boy who lives on the same street as he. Edwards testified that he knows Carter and that he has never seen Carter drive the Corolla. Edwards further testified that Carter has never gone by the nickname "Little J" and that Carter's nickname is "Black." Edwards testified that, two days after the incident, he took Meraia to Little J's home.
Lawrence Campbell, Carter's uncle, testified Carter had borrowed his car, a maroon 1988 Pontiac Grand Am, February 21 around 9:15-9:30 a.m. Campbell's home is approximately twenty to twenty-five minutes from where the Corolla was abandoned. Campbell also testified Carter was wearing a black shirt, blue jean pants, and black tennis shoes that morning and was still wearing them when he returned the car that evening.
Standards of Review for Sufficiency of the Evidence
In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).
In contrast to legal sufficiency, a factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Johnson, 23 S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong, or so weak as to be clearly wrong or manifestly unjust. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129. "However, a factual sufficiency review must be appropriately deferential so as to avoid the appellate court's substituting its own judgment for that of the fact finder." Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996); see Clewis, 922 S.W.2d at 133. "The court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony." Jones, 944 S.W.2d at 648.
Sufficiency of the Evidence for Identity
Carter contends there is insufficient evidence to support a finding he was the person who committed the crime. Carter contends the inadequate police investigation, coupled with the fact he was not arrested at the scene, and no narcotics were found on him when arrested, indicates reasonable doubt he was the driver of the automobile. He argues Meraia could not have reliably identified him in the brief time available. Further, Carter contends fingerprints on the narcotics containers was the only direct evidence that could have possibly linked him to the crime. Carter argues that the unknown witnesses at the scene identified the driver as "Little J." Because Edwards testified Carter is not "Little J," Carter contends the evidence is insufficient to support the finding he was the driver of the Corolla. Carter also contends that, because Campbell's description of the clothing Carter was wearing the morning before the incident, and was still wearing that evening, was different from the description given by Meraia, it establishes Carter was not the driver of the Corolla.
The State was required to prove Carter was the perpetrator of the crime. Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998). While it may have been desirable to fingerprint the evidence, the State can prove identity through other means. Meraia unequivocally identified Carter at trial as the driver of the Corolla. The testimony of a single eyewitness can be sufficient to support a conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971); Pitte v. State, 102 S.W.3d 786, 794 (Tex. App.-Texarkana 2003, no pet.). The witnesses who identified the driver as "Little J" did not testify at trial, and we cannot say the great weight and preponderance of the evidence indicates the driver was actually "Little J." Further, the credibility of the witnesses is within the province of the jury. Jones, 944 S.W.2d at 648. The jury was entitled to disbelieve Campbell and Edwards if it chose to do so. Taken in the light most favorable to the jury, legally sufficient evidence exists to support the verdict. Viewing the evidence neutrally, we cannot say the evidence indicates Carter was not the driver by the great weight and preponderance of the evidence or that the evidence is so weak as to be clearly wrong or manifestly unjust.
Sufficiency of the Evidence for Possession with Intent to Deliver
Carter contends insufficient evidence exists to support a finding he possessed the contraband. Carter submits the evidence does not show that he was the driver or that he possessed the contraband. The State was required to prove that Carter exercised care, custody, control, or management over the contraband and that he knew the matter he possessed was contraband. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).
When the contraband is not found on the accused's person or it is not in the accused's exclusive possession, additional facts must affirmatively link the accused to the contraband. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.-Texarkana 1998, pet. ref'd). To show possession, the State can use direct or circumstantial evidence. Id. This Court has held that the following factors should be considered when evaluating whether an affirmative link exists:
1) the defendant's presence when the search was executed; 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 a controlled substance 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 the contraband; 10) whether other contraband or drug paraphernalia was present; 11) whether defendant owned or had the right to possess the place where the drugs were found; and 12) whether the place the drugs were found was enclosed.
Id.; see Chavez v. State, 769 S.W.2d 284, 288-89 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd).
There is sufficient evidence that affirmatively links the driver to possession of the substances. The driver was the sole occupant of the car. The cocaine and codeine were in plain view of the driver and easily accessible to him. Further, the driver fled from the police. English and Sutton both testified the amount of the cocaine exceeded any amount a person would have for personal use. Legally and factually sufficient evidence exists to support a finding the driver possessed the controlled substances. Since, as discussed above, sufficient evidence exists to support the jury's finding that Carter was the driver, sufficient evidence exists to support the jury's finding that Carter possessed the substances.
Effective Assistance of Counsel
Carter contends he was denied effective assistance of counsel. He argues that evidence exists that could have exonerated him. Carter's attorney at trial allegedly failed to investigate whether another man the police had in custody committed the crime. Further, Carter asserts that failure to object to hearsay, combined with other errors, resulted in ineffective assistance of counsel.
Both the Sixth Amendment and the Texas Constitution confer a right to effective representation by counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10. If counsel's performance is ineffective, the conviction cannot stand. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his counsel's performance at trial was deficient and that counsel's deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
To satisfy the deficiency prong of the test, Carter must prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. There is a strong presumption that counsel's performance was adequate. Id. An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Carter alleges in his affidavit supporting his motion for new trial that counsel failed to investigate whether another man the police had in custody committed the crime. Ineffective assistance of counsel claims "must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Affidavits attached to a motion for new trial are not evidence unless introduced as evidence at the hearing. Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973); Martins v. State, 52 S.W.3d 459, 468 (Tex. App.-Corpus Christi 2001, no pet.). The record does not indicate Carter requested a hearing on his motion, and Carter does not argue that failure to grant a hearing was reversible error. "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) (counsel's failure to object to state's challenges for cause not ineffective assistance). Because the record does not contain evidence that establishes counsel failed to investigate, (1) Carter does not overcome the presumption that counsel's actions were adequate.
Carter also argues that trial counsel's failure to object to hearsay, combined with other errors, resulted in ineffective assistance of counsel. The constitutional right to counsel does not mean errorless counsel. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. "[T]he defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. Failing to object to every instance of improper evidence does not necessarily constitute ineffective assistance of counsel. Hutchinson v. State, 663 S.W.2d 610, 612 (Tex. App.-Houston [1st Dist.] 1983, pet. ref'd). Plausible professional reasons exist for not objecting to hearsay. Further, ineffective assistance of counsel claims must be based on the totality of the circumstances. Welborn, 785 S.W.2d at 393. Based on the totality of the circumstances, Carter has not overcome the presumption that counsel's actions were adequate.
Summary and Conclusion
The evidence was legally and factually sufficient to establish Carter's identity as the perpetrator of the crime and to prove he had possession of the controlled substance. Further, the record fails to show Carter was denied effective assistance of counsel.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: May 14, 2003
Date Decided: September 29, 2003
Do Not Publish
1. Direct appeal is a poor vehicle to bring an ineffective assistance of counsel claim. Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. One way to get evidence of counsel's trial strategy or other matters in the direct appeal record is through a hearing on a motion for new trial. Another way to develop a proper record is through a hearing in a habeas corpus collateral attack. See generally Tex. Code Crim. Proc. Ann. art. 11.01, et seq. (Vernon 1977 & Supp. 2003).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00158-CR
______________________________
IN RE: PRINCE BROWN, JR.
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
As best as we can understand from his rather convoluted petition for relief, Prince Brown, Jr., an inmate incarcerated in the Texas Department of Criminal Justice, proceeding pro se, petitions this Court, requesting that we order the named respondent, Joe Black, the Criminal District Attorney of Harrison County, to produce and provide him with copies of the arrest offense reports from several of Browns arrests.[1]
In order to be entitled to mandamus relief in an action such as this, the relator must establish two essential requirements: (1) that the act sought to be compelled is purely ministerial, as opposed to discretionary or judicial in nature, and (2) no other adequate remedy at law is available. Stearnes v. Clinton, 780 S.W.2d 216, 219 (Tex. Crim. App. 1989). Brown has not provided us with a record that shows that he has made any request of the trial court to perform a nondiscretionary act. See Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.Houston [1st Dist.] 1992, orig. proceeding).
Browns petition requests relief which this Court lacks jurisdiction to grant. The petition requests relief against Black. This Court lacks jurisdiction to issue a writ of mandamus against a county attorney or a district attorney. See Tex. Govt Code Ann. § 22.221 (Vernon 2004). Therefore, we deny the petition for writ of mandamus.
Bailey C. Moseley
Justice
Date Submitted: September 1, 2010
Date Decided: September 2, 2010
Do Not Publish
[1]Brown does not seek the arrest offense reports relating to any appeal pending before this Court.