Ricky Lynn Tymel v. State

Tymel v. State

AFFIRMED

SEPTEMBER 20, 1990

NO. 10-90-050-CR

Trial Court

# 15,121

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

RICKY LYNN TYMEL,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

* * * * * * * * * * * * *

From County Court

Freestone County, Texas

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

A jury convicted Appellant of the possession of less than two ounces of marihuana. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (Vernon 1990). The court assessed his punishment at six months in jail, probated for one year, with the condition that he serve twelve days in jail. The only complaint on appeal is that the evidence was insufficient to affirmatively link Appellant to the marihuana. The judgment will be affirmed.

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 he knew that the matter possessed was contraband. Dickey v. State, 693 S.W.2d 386, 389 (Tex. Crim. App. 1984). Furthermore, the state must show an affirmative link between the defendant and the contraband when the defendant is not in sole possession of the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. [Panel Op.] 1981). This may be done by demonstrating facts and circumstances from which one may reasonably infer that the defendant knew the contraband existed and exercised care, custody, control, and management over it. Dickey, 693 S.W.2d at 389.

When reviewing a complaint that circumstantial evidence was insufficient to support the verdict, an appellate court must determine that the evidence excludes every other reasonable hypothesis except the defendant's guilt. Humason v. State, 728 S.W.2d 363, 366 (Tex. Crim. App. 1987). Evidence which amounts to a strong suspicion or a mere probability of guilt is insufficient. Id.

Officer Price stopped a Ford Bronco because neither the driver nor the passenger were wearing safety belts. As he approached the driver's side of the vehicle and asked the driver, Ronald Brandt, to get out of the car, he smelled what he thought was "burnt marijuana." He smelled the same odor when he went to the passenger door and asked Appellant, the passenger, to also step out of the vehicle. Price then informed Brandt and Appellant that he detected the odor of burned marihuana emanating from the car, and asked them if either one had smoked any marihuana. Both men denied smoking marihuana, and Brandt claimed that he did not smoke anything.

Although he admitted that neither man appeared to be intoxicated, Price searched the car on his probable-cause belief that he would discover marihuana. On the left-front portion of the passenger's "bucket" seat, where Appellant had been sitting, he found a half-full package of Marlboro cigarettes which also contained four hand-rolled marihuana cigarettes. The cigarette package was lying as if it had been hidden under Appellant's leg. Appellant testified that he buys Winston cigarettes, never Marlboros, but that he did smoke Marlboros when they belonged to someone else. Price stated that Appellant was cooperative throughout the entire search.

Various facts and circumstances, although perhaps insufficient alone, can help to establish an affirmative link between the defendant and the contraband. One circumstance is the odor of marihuana permeating the area where the contraband is found. Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972). Other circumstances include the contraband being found in the car seat where the defendant was sitting and in an area conveniently accessible to him. Deshong, 625 S.W.2d at 329.

Here, the evidence was sufficient to affirmatively link Appellant to the marihuana cigarettes found in the vehicle because they were found in Appellant's bucket seat, in an area conveniently accessible to him, and Officer Price smelled an odor of marihuana in the car. See id. Additionally, Appellant admitted to smoking Marlboro cigarettes on occasion. Based on these affirmative links and the record as a whole, any rational trier of fact could have found Appellant guilty of knowingly and intentionally possessing marihuana beyond a reasonable doubt. Point one is overruled and the judgment is affirmed.

 

                    

BOB L. THOMAS

DO NOT PUBLISHChief Justice

d that he was “inept and ineffective.”

            Ineffective assistance claims are reviewed through the two-part prism set forth by the Supreme Court in Strickland v. Washington.  Appellant must show both 1) that his attorney’s performance was deficient and 2) that he was harmed by the deficiency.  466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).  The reviewing court must begin its review with a strong presumption that trial counsel’s actions fell within a wide range of reasonable conduct.  Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  The review must focus on the “totality of representation,” not isolated acts or omissions of counsel.  Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).  Normally, the record on direct appeal is insufficient to establish that the representation was so lacking as to overcome the strong presumption that counsel’s conduct was reasonable.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

            Appellant’s primary contention concerns his attorney’s failure to object during the following exchange which occurred when appellant was on the stand.

                        Prosecutor:    And really what you’re saying and the reason we want

                                                sex offenders registered – and don’t let me put words in

                                                your mouth, but it’s based on the research by Kercher

                                                and Long that the average sex offender has a hundred

                                                fifty [victims] in their lifetime?

 

                        Hurt:               Some type of sex offenders.

 

                        Prosecutor:    …We are not saying that you’re the average sex offender.

                                                And just to be fair you haven’t molested a hundred fifty

                                                children, right?

 

                        Hurt:               That’s correct.

 

                        Prosecutor:    You only admitted to twenty?

 

                        Hurt:               I don’t know that I have admitted to twenty.

 

                        Prosecutor:    Okay.  Well, do you remember telling your therapist

                                                that in your –

                       

                        Hurt:               I may have.  I may have said that, yes.

 

The evidence that appellant had told his therapist that he had molested 20 children was inadmissible.  It was a significant error for his attorney not to contemporaneously object.  Even considering the attorney’s representation of appellant as a whole, it is the type of failure to object that, without more, could render his entire performance deficient under Strickland.   There is, however, considerably more in the record.

            While appellant was still on the stand, his attorney asked for and received a bench conference outside the presence of the jury.  The attorney brought up the exchange concerning the 20 victims.  He acknowledged his failure to timely object and stated:

            I had to make a calculated decision as to whether I should object

            at that point and emphasize that business of him sexually abusing

            twenty children.  I decided as a tactical matter just to let that go at

            this point.  But now I think I need to raise the issue.

 

The prosecutor then attempted to justify his questions claiming that appellant had “opened the door,” an argument that neither the trial court nor the record supports.[1]

            Appellant’s attorney then raised the issue that the jury be instructed to disregard.  After the trial court agreed to do so, the subject of a mistrial was raised by the defense attorney:

                        We don’t want a mistrial, but I’m going to ask for one because it’s

                        so prejudicial, Your Honor, that - - can I consult with my client just

                        a minute?

 

                        THE COURT:                        Yes.

 

                                                            (short pause)

 

                        DEFENSE ATTORNEY:      Your Honor, my client and I agreed.  We

                        are not going to make a motion for mistrial.  I don’t know whether you

                        will grant  it, but he wants to conclude with this trial.

 

The jury then returned to the courtroom, the judge instructed them to disregard the testimony of “twenty other offenses,” and the examination of appellant continued.

            Appellant has presented this as a simple failure to object to extraneous offenses.  The record, however, shows a more complex situation.  The defense attorney failed to make a contemporaneous objection.  He explained that failure as not wanting to emphasize the testimony further.  However, while his client was still on the stand, he discussed the issue with the court outside of the jury’s presence.  He obtained an instruction to disregard.  He then began to ask for a mistrial.  As he was doing so, he conferred with his client.  There then appears an affirmative decision not to request a mistrial—a decision that was evidently joined in by the appellant.

            A trial attorney is required to make quick decisions as to whether to object at trial.  Here trial counsel failed to make a contemporaneous objection to inadmissible testimony.  He explained it as not wanting to emphasize the testimony further before the jury.  While his client was still on the stand, he changed his mind.  He successfully requested an instruction to disregard the testimony.  He then proceeded to ask for a mistrial but then both he and appellant decided to go forward with the jury they had.  Attorneys—both winning and losing, prosecutors and defenders—make such mistakes.  They also make tactical decisions.  Given the entire context of the evidence and in light of the instruction to disregard and the tactical decision not to seek a mistrial, we conclude that this is not conduct which satisfies the first prong of the Strickland test.

            Appellant also complains of “numerous [other] errors and antics of defense counsel” which established that he was “inept and ineffective.”  This complaint lists numerous supposed errors, but they basically fall within three broad categories: 1) constant interruptions with specious objections; 2) “speaking” objections that caused the trial court to admonish him; and 3) not objecting as “cumulative and inflammatory” to three separate questions involving the appellant’s prior convictions.

            None of these “errors and antics” even remotely approaches deficient performance by trial counsel.  During direct examination of the state’s sole witness, defense counsel objected to 11 questions and two exhibits.  All of the objections involved how far the police officer witness could go in testifying about the law and how much he could rely on business records.  Two of the objections—one for hearsay, one for offering an improper expert opinion—were sustained.  All of the objections were within the realm of what a reasonable defense attorney would object to.  Similarly, while some of the objections were wordy, they were on point and well within what typically transpires in a trial.  Finally, appellant’s prior convictions were in the indictment and an integral part of the state’s proof.  The three questions asked appellant on cross-examination vaguely alluded to his prior convictions in connection with questioning him about his failure to report.  They were necessary to the point being made on cross-examination and, therefore, were not “cumulative.”

            Appellant has invited this court to examine the entire transcript to see “the incredible nature of this trial.”  That examination has occurred.  Trial counsel was presented with an overwhelming case of guilt against his client.  He further had a client who chose to plead not guilty and to testify.  During his testimony, he admitted to the elements of the offense on four separate occasions.  There is little any attorney could do given these facts.  Trial counsel made an acceptable voir dire, exercised his peremptory strikes, and made a cogent opening statement and final argument.  His theme of “substantial compliance,” while not a legal defense, fit the facts of the case and gave him something to argue.  In short, he was in a hopeless situation but nonetheless made a reasonable effort at presenting a defense.  That is what was required of him and that was what he did.

            Trial counsel’s sole mistake was his failure to timely object to the “twenty victim” testimony.  His delayed objection did result in an instruction to disregard and ultimately a decision, joined by his client, not to seek further relief.  Perhaps counsel was deficient in other ways, but they are not shown in this record.  Such deficiencies will need to be developed at a writ of habeas corpus hearing.  Based on the record before us, we cannot say that counsel’s representation fell below the level constitutionally required.

CONCLUSION

            Having overruled appellant’s sole ground of error, the judgment of the trial court is affirmed.

 

                                                                                                KEN ANDERSON

                                                                                                District Judge

 

 

Before Justice Vance,

            Justice Reyna,

            and Judge Anderson[2]

Affirmed

Opinion delivered and filed September 24, 2008

Do not publish

[CR25]

 

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[1]   The state has inexplicably failed to file a brief in this case.  After their brief’s due date passed, this court informed them of that fact by a letter to which no response was received.

[2]   Hon. Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code.