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Opinion filed February 14, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00127-CR
__________
BOBBY JOE JACKSON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 15,371-B
O P I N I O N
Bobby Joe Jackson appeals his conviction by a jury of the offense of possession of cocaine in an amount of less than one gram. Following Jackson=s plea of true to enhancement allegations, the trial court found those allegations to be true and assessed Jackson=s punishment at fifteen years confinement in the Texas Department of Criminal Justice, Institutional Division. Jackson contends in five issues that the trial court abused its discretion by denying his motion to suppress evidence, that the trial court abused its discretion by denying his motion to dismiss for failure to provide a speedy trial, that the evidence was legally and factually insufficient to support the conviction, and that the trial court abused its discretion by denying his motion for new trial due to ineffective assistance of trial counsel. We affirm.
Jackson contends in issues three and four that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
To prove the unlawful possession of contraband, the State must prove that the accused exercised control, management, or care over the contraband and knew that the matter possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). When the accused is not in exclusive possession of the place where the contraband is found, it cannot be concluded that the accused had knowledge of and control over it unless there are additional facts and circumstances that affirmatively link the accused to the contraband. Id. at 406.
Ryan Molsbee testified that he is a patrolman with the Abilene Police Department. Officer Molsbee indicated that on September 23, 2004, he observed Jackson riding a bicycle at night without a headlight. He indicated that about two months earlier he had issued Jackson a citation for the same offense with the same bicycle. He stated that a red bag on the seat of the bicycle contained an off-white substance. He related that at one point Jackson told someone else to take his bike. He acknowledged that just a couple of seconds later Jackson was denying ownership of the bicycle.
William Chandley identified himself as an employee of the Texas Department of Public Safety who works in the drug section of the Abilene crime lab. He testified that the substance found by Officer Molsbee contained cocaine and that it weighed less than one gram.
John Robert Turner Jr. testified that he was talking to Jackson at the time officers arrived. He indicated that he did not know whether the bicycle in question belonged to Jackson. He acknowledged that he had received four convictions for possession of cocaine.
Officer Anthony Joeris testified that he is a patrol officer with the Abilene Police Department. He indicated that he had contact with Jackson on July 19, 2004. He related that at that time Jackson was traveling on an older model blue ten-speed bicycle with a red soft cooler underneath the seat.
We hold that the evidence is legally and factually sufficient to support the conviction. Jackson suggests that the evidence is insufficient because it does not sufficiently link him to the cocaine. The evidence shows that on the occasion in question Jackson was in sole possession of the bicycle B a bicycle that he had been observed riding previously and which he had referred to as his own, prior to denying ownership B and was, at the time of his arrest, talking to someone who had at least four prior convictions for possession of cocaine. We hold that the evidence affirmatively links Jackson to the cocaine found in the bag. As noted by Jackson in his brief, the doctrine of affirmative links applies when it is shown that the defendant is not in exclusive possession or control of the premises where the contraband is found. In this case, a rational jury could determine from the evidence that Jackson was the owner or sole person in control of the bicycle and in exclusive possession of the bag where the cocaine was found. Jackson notes that there were others in the vicinity of the bag at the time of his arrest, but there is no evidence that any of them had any connection to the bicycle or bag or exercised any control over either of them. We overrule issues three and four.
Jackson urges in issue one that the trial court abused its discretion by denying his motion to suppress evidence of the cocaine. He contends that, although the search conducted by the officer did not violate his rights under the Fourth Amendment to the United States Constiution, it did violate his rights under Tex. Const. art. I, ' 9 because, unlike the Fourth Amendment, this provision limits searches of vehicles incident to an arrest only to those areas where the defendant might reach in order to grab a weapon or evidentiary item. This court has previously held, subsequent to the filing of Jackson=s brief, that Article I, section 9, with reference to searches of vehicles incident to a lawful custodial arrest, does not afford more protection than that afforded by the Fourth Amendment as set forth by the Supreme Court of the United States in New York v. Belton, 453 U.S. 454 (1981). State v. Oages, 227 S.W.3d 397, 400-01 (Tex. App.CEastland 2007, pet. ref=d). In Oages, we answered the contention that Texas courts may find that defendants have greater rights under the Texas Constitution than under the Supreme Court=s interpretation of the United States Constitution by noting that, although we can hold that defendants have greater rights under the Texas Constitution than under the United States Constitution, this does not mean that we should do so. Id. at 400. Because the search was lawful under both the United States and Texas Constitutions, the trial court did not abuse its discretion in denying Jackson=s motion to suppress. We overrule issue one.
Jackson asserts in issue two that the trial court abused its discretion and erred by denying his motion to dismiss for failure to provide a speedy trial. The appropriate test for evaluating speedy trial claims is set forth in the case of Barker v. Wingo, 407 U.S. 514, 530 (1972). Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). The Barker court adopted a balancing test in which the conduct of both the prosecution and the defendant is weighed. Barker, 407 U.S. at 530. In determining whether a particular defendant has been deprived of his right, we are to consider four factors: the length of delay, the reason for the delay, the defendant=s assertion of the right, and prejudice to the defendant. Id. We review legal issues de novo but give deference to a trial court=s resolution of factual issues. Kelly, 163 S.W.3d at 726.
We first consider the length of the delay. The length of delay is a triggering mechanism for analysis of the other Barker factors. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). Jackson was arrested on September 23, 2004, and indicted on January 13, 2005. Trial commenced on January 9, 2006, nearly sixteen months from the date of Jackson=s arrest and almost one year from the date of the indictment. The State makes no contention that the delay is insufficient to trigger consideration of the other factors; it urges that the delay just barely triggers our consideration of the other factors.
Next, we consider the reasons for the delay. No evidence was presented as to the reason for the time gap between the date of Jackson=s arrest and the date of his indictment. We may reasonably presume that a significant portion of that time was involved with preparing the case for grand jury presentation and trial, as well as dealing with other cases on the docket. Shortly after indictment, on January 26, 2005, the case was set for trial on April 18, 2005. On April 18, 2005, the case was reset for a plea, with the plea to be entered on June 1, 2005. On June 1, 2005, the case was continued by agreement and reset for a July 2005 hearing on Jackson=s motion to suppress. At the time of the suppression hearing in July, the case was set for trial on August 15, 2005. Prior to the August 15 setting, the case was reset for trial on October 3, 2005. On September 13, 2005, the trial court granted Jackson=s motion for independent examination of the evidence so that the controlled substance could be tested. On October 3, 2005, the case was reset for trial on January 9, 2006, the date the trial began. As can be seen, the record reflects that a substantial amount of any delay in trying this case was either the result of agreement between Jackson and the State or occasioned by the time necessary to deal with pretrial motions filed by Jackson. Jackson=s counsel argued to the court at the hearing on his motion to dismiss that the case had been reset twice because two State=s witnesses had been on vacation or otherwise unavailable, while acknowledging that on one occasion the trial court had reset the case so as to grant Jackson=s motion to have the drugs independently tested.
The record does not reflect any deliberate attempt to delay the trial, nor is there any indication that any significant part of the delay was caused by negligence or overcrowded courts. Any delay attributable in whole or in part to the defendant may constitute a waiver of the speedy trial claim. Munoz, 991 S.W.2d at 822.
Considering Jackson=s assertion of the right, we note that he never sought a speedy trial. On December 6, 2005, more than one year after his arrest, nearly a year after his indictment, and approximately one month before the trial setting date upon which he was ultimately tried, he filed a motion to set aside the indictment on the basis that he had not been afforded a speedy trial.
We finally consider the factor of prejudice to Jackson. We are to assess this factor in light of the interests that the speedy trial right are designed to protect. Munoz, 991 S.W.2d at 826. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. At the time of the December 15, 2005 hearing on Jackson=s motion to dismiss, he had been incarcerated for slightly more than one year from the date of his arrest and less than one year from the date of his indictment. There is no evidence of anxiety and concern on the part of Jackson, other than the anxiety and concern that would normally accompany such pretrial incarceration. There is no specific indication that Jackson=s defense was in any way impaired by the delay. While Jackson abstractly discusses a possibility of a lapse of memory, he is required to show that lapses of memory are in some way significant to the outcome of the case. Id. at 829. Jackson has made no such showing. Under these facts, Jackson=s showing of prejudice was minimal. See id.
In summary, there was no excessive delay, there were valid reasons for the delay, part of the delay was attributable to Jackson, and any prejudice was minimal. We hold that the trial court did not err by denying Jackson=s motion to dismiss. We overrule issue two.
Jackson insists in issue five that the trial court abused its discretion in denying his motion for new trial due to ineffective assistance of counsel. In order to prevail upon his claim of ineffective assistance of counsel, a defendant must show that his counsel=s performance was deficient and that there is a reasonable probability, one sufficient to undermine confidence in the result, that the outcome would have been different but for his counsel=s deficient performance. Ex parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). In order to establish deficient performance, one must show that one=s counsel was not acting as a reasonably competent attorney and that his or her advice was not within the wide range of reasonable professional assistance and then must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id.
At the hearing on the motion, Jackson testified that his trial counsel should have introduced a videotape taken by Officer Molsbee, the arresting officer, which showed him sitting on the bicycle but did not show him riding the bicycle on the street. Jackson acknowledged that, when the arresting officer asked him if he had seen him ride the bike, Jackson told him, A[Y]es, I rode it across the street, just across the street.@ However, Jackson insisted, A[T]hat was way before he ever came around the corner.@ In the videotape itself, Jackson is heard to say something that could be understood as indicating that he had just ridden the bicycle across the street.
Britt Houston Lindsey, Jackson=s trial counsel, stated that, when Officer Molsbee testified at the hearing on the motion to suppress, he admitted that the videotape did not show Jackson riding the bicycle. He indicated that he felt that it was better not to introduce the tape because of Jackson=s apparent admission on the tape that he had just been riding the bicycle in the street. Lindsey also noted that at trial the videotape was admitted into evidence and that the jury was instructed not to consider any evidence illegally obtained.
We hold that the trial court could reasonably have found that Jackson failed to show that his counsel=s performance was deficient because Jackson did not overcome the presumption that the action he challenged might be reasonable trial strategy. We also hold that, in any event, Jackson failed to show that the result of the proceeding would have been different in view of the fact that the arresting officer had testified at the hearing that the videotape did not show Jackson riding the bicycle. We disagree with Jackson=s argument that there could have been no impelling tactical advantage in failing to introduce the videotape into evidence at the hearing on the motion to suppress. Consequently, we hold that the trial court did not abuse its discretion in overruling Jackson=s motion for new trial. We overrule issue five.
The judgment is affirmed.
PER CURIAM
February 14, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Strange, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.