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Opinion filed January 10, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00294-CR
________
CHARLES HEARN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR30251
O P I N I O N
Charles Hearn appeals his conviction by the court upon his plea of not guilty to the offense of felon in possession of body armor. The court assessed his punishment at twenty-five years in the Texas Department of Corrections, Institutional Division. In his brief, Hearn contends in four issues that the evidence is legally insufficient to support his conviction; that he was denied effective assistance of counsel for his counsel=s failure to file a motion to suppress the legality of the stop and search of his vehicle; that the State failed to prove by clear and convincing evidence that he gave police consent to search his vehicle; and that his Sixth Amendment right to trial by jury was violated when the trial court held a bench trial after he had signed a waiver of trial by jury, pursuant to a plea agreement, but later withdrew his plea. In what he terms a supplement to the issue relating to his Sixth Amendment right to trial by jury, he contends that he was denied the effective assistance of counsel, with respect to his signing of the jury waiver, because his counsel had a conflict of interest in that he represented a potential witness in Hearn=s trial. We affirm.
Hearn contends in issue one that the evidence is legally insufficient to sustain his conviction for the offense of felon in possession of body armor. 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 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.
As noted by Hearn, in order to support his conviction for felon in possession of body armor, the State was required to prove that he was previously convicted of a felony and that he intentionally and knowingly possessed metal or body armor. Tex. Penal Code Ann. ' 46.041 (Vernon 2003); Hargrove v. State, 211 S.W.3d 379, 385 (Tex. App.CSan Antonio 2006, pet. ref=d), cert. den=d, 128 S. Ct. 134 (2007). Hearn contends that the evidence is legally insufficient because it fails to show that he intentionally and knowingly possessed metal or body armor.
Officer Daniel Espinosa, who was with the gang unit of the Midland Police Department, testified that, while he was on patrol with two other officers, he stopped a pickup driven by Hearn when Hearn made an unsafe lane change. He indicated that he observed Officer Mike Hedrick, one of the other officers, seize a U.S. Marshal bulletproof armor vest from the pickup. He indicated that, the vest was found in the extended cab behind the driver=s seat. He stressed that while there were some clothes and trash on it, it was not completely covered up. Officer Espinosa identified the vest as body armor. On cross-examination, Officer Espinosa acknowledged that any of the three passengers in the pickup could have exercised care, custody, and control of the body armor.
Officer Hedrick testified that on the occasion in question he was also assigned to the gang unit of the Midland Police Department. He indicated that while on patrol he saw the driver of an older model blue Ford pickup commit a traffic violation. He said that, after he made a traffic stop, he contacted the driver, Hearn. He stated that Hearn consented to a search of his pickup after indicating there was nothing illegal inside it. He testified that he found blue body armor that had been underneath a milk crate. Hearn denied that the vest was his. On cross-examination, Officer Hedrick acknowledged that the back window was missing from the pickup. He also acknowledged that the inside of the pickup was Apretty trashy.@ He related that the vest could not be seen without disturbing the contents behind the driver=s seat. He said he thought it was located right in the middle of the cab.
Christopher Lloyd Sisson, one of the passengers in the pickup, testified that earlier he had seen the vest in the possession of Cody Hearn, Hearn=s grandson. He also indicated that he heard Hearn say he wanted to get rid of it by taking it to the Salvation Army or Goodwill. While Sisson acknowledged that he had hard feelings against Hearn, he insisted that he was not lying about what Hearn intended to do with the vest just because he did not like him. Sisson acknowledged that Cody told him he had stolen the vest. He said that Hearn told Cody to get rid of the vest because somebody was going to prison over it. He acknowledged that he did not know how the vest got into the pickup, which was usually unlocked, and that he did not see Hearn put the vest in the pickup. Sisson also testified that on the occasion in question he heard Hearn become irate with the officers, telling them, AIt=s my [pickup]. If it=s in my [pickup], it must be mine.@ Sisson testified that Hearn told the officers to search his pickup.
Hearn testified and denied that he had ever seen the vest or allowed anyone to put one in his pickup. He said he had cleaned out the pickup two hours before they left. He denied giving officers permission to search his pickup. He acknowledged that the pickup was his. He insisted that Cody told him he had put the vest in the pickup.
Charlotte McKinney, Hearn=s daughter and the mother of Cody, testified that on September 30, 2004, Cody came in with a bulletproof jacket or vest. She indicated that, although the jacket was in her car when Hearn arrived, she told him that the jacket was gone. She stated that later Sisson told her son, Cody, where the vest was and that Cody went and got it out of the car. She related that either she or Cody gave it to Sisson, who took it away. She said that she never saw it after that.
Steven Gomez testified that he knew Cody and Sisson. He said that, in the last few days of September 2004, Cody and Sisson approached him to see if he wanted to purchase a bulletproof vest. He related that Hearn was not present and that he never saw the vest again.
An audio recorder recorded the voices of Hearn and his son, Johnny Hearn, after they were placed in a squad car. At one point, Hearn is heard saying, AIt=s my [pickup]. It=s got to be mine.@ However, he also is heard blaming one of the Akids@ in his family who drove the pickup every day. He indicated that no one wanted to do with the vest what he wanted to do. He acknowledged that a crate next to where the vest was found was his. We also note that, throughout the audio, Hearn was belligerent and abusive toward both police and an animal control officer who was trying to round up Hearn=s dog. The dog had been with Hearn in the pickup.
An affirmative link can be established when the contraband is in plain view or when it is hidden in a place tied to the accused. Poindexter, 153 S.W.3d at 409 n.24. As we have noted, Hearn was the owner and driver of the pickup. The contraband was accessible to and in close proximity to him. It was either in plain view or hidden with items admittedly belonging to Hearn. Hearn said that he told someone to put the vest in the pickup. The State, therefore, met its burden of establishing an affirmative link between Hearn and the vest. Because a rational trier of fact could have found beyond a reasonable doubt that Hearn exercised care, custody, control, and management over the contraband, the evidence is sufficient to support Hearn=s conviction.
In urging that the evidence is insufficient, Hearn relies on several cases, including United States v. Mills, 29 F.3d 545 (10th Cir. 1994); Kyte v. State, 944 S.W.2d 29 (Tex. App.CTexarkana 1997, no pet.); Collins v. State, 901 S.W.2d 503, 504 (Tex. App.CWaco 1994, pet. ref=d); Garcia v. State, 790 S.W.2d 22 (Tex. App.CSan Antonio 1990, pet. granted), permanently abated, 840 S.W.2d 957 (Tex. Crim. App. 1992); Guiton v. State, 679 S.W.2d 66 (Tex. App.CDallas 1984), aff=d, 742 S.W.2d 5 (Tex. Crim. App. 1987); and Baltazar v. State, 638 S.W.2d 130 (Tex. App.CCorpus Christi 1982, no pet.).
We question the authority of two of those cases, Guiton and Baltazar, because they were each decided using the analytical construct that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except the guilt of the accused. Guiton, 742 S.W.2d at 10; Baltazar, 638 S.W.2d at 132. The Texas Court of Criminal Appeals abandoned the use of that analytical construct in its opinion in Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991). In Garcia, the Texas Court of Criminal Appeals reversed the judgment of the Fourth Court of Appeals, relied upon by Hearn, before vacating both the court of appeals opinion and its own opinion due to the death of Garcia. Garcia, 840 S.W.2d at 958.
We find the remaining cases to be distinguishable. In Collins, cocaine, heroin, and drug paraphernalia were found in a bedroom where the defendant=s brother, John Alvin Collins, was in bed. Collins, 901 S.W.2d at 504. Evidence showed that the home was owned by a sister of the two Collins brothers. Id. at 505. Although the defendant in that case, Leonard Collins, was present at the house when a search warrant was executed, there was no showing that he had been in the bedroom where the drugs were found. John testified that Leonard lived at the residence Aoff and on.@ Id. at 505. John also testified that he had been a drug addict for thirty years and that all the drugs were his. Id. In the case at bar, the evidence showed that the pickup where the vest was found was Hearn=s pickup and that he owned the crate found in the pickup next to the vest. Further, there was no testimony from anyone else asserting that he or she had placed the vest in the pickup. Although Hearn testified that Cody told him that he had put the vest in the pickup, the jury was not required to accept his testimony as true.
In Kyte, the defendant had borrowed the car where contraband from her ex-husband was found. Kyte, 944 S.W.2d at 32. The contraband was found hidden under the carpet, and there was no visible lump in the carpet where the contraband was found. Id. As previously noted, in the case at bar, Hearn owned the pickup where the vest was found, and it was located near other property belonging to Hearn.
In Mills, the defendant=s wife testified that she placed contraband in a compartment in the dining room table at their residence without his knowledge and contrary to his instructions. Mills, 29 F.3d at 550. Again, as noted previously, in the case at bar, the jury was not required to accept Hearn=s testimony that Cody told him he had put the vest in the pickup. No one else testified that he or she had placed the vest in Hearn=s pickup without his knowledge, and there is additional evidence linking Hearn to the vest. We overrule issue one.
Hearn urges in issue two that he was denied the effective assistance of counsel because his counsel failed to file a motion to suppress the legality of the stop of his vehicle and the subsequent search. In order to prevail on this claim, Hearn must first establish that his counsel=s performance was deficient by showing that his counsel=s representation fell below the objective standard of professional norms. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Second, he must show that this deficient performance prejudiced his defense by showing that the error was so serious as to deprive him of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687. This means that Hearn must show a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Bone, 77 S.W.3d at 833. A reasonable probability is one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 687.
Appellate review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Bone, 77 S.W.3d at 833. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel=s conduct was reasonable and professional. Id. In the case at bar, there is no evidence as to counsel=s strategy with respect to not filing a motion to suppress or objecting to evidence regarding the legality of Hearn=s traffic stop. Consequently, we conclude that the record in this appeal is inadequate to support Hearn=s contention. We are unwilling to assume, as we are urged to do by Hearn, that there could have been no reasonable trial strategy. We overrule issue two.
Hearn asserts in issue three that the trial court erred by admitting evidence of the vest found in the search because the evidence did not show by clear and convincing evidence that Hearn gave police consent to search his vehicle. Hearn had a running objection at trial to the fruits of the search of his vehicle on the basis that he did not consent to the search. As previously noted, Officer Hedrick and Sisson both testified that Hearn consented to the search of his pickup, while Hearn denied giving his consent. The audio tape made while Hearn was sitting in the squad car includes a statement that could reasonably be interpreted as a statement by Hearn that he would not have consented to the search had he known the vest was there. As noted by Hearn, this court, with respect to search and seizure issues, is to give almost total deference to a trial court=s rulings on questions of historical fact and application of law to fact questions that turn on an evaluation of credibility and demeanor. See Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App. 2002). In this case, the trial court=s admission of evidence that the vest was found in the search turned on the trial court=s evaluation of credibility and demeanor. Giving deference to the trial court=s evaluation, we determine that the trial court did not abuse its discretion by admitting evidence that officers found the vest during the search of Hearn=s vehicle because there is clear and convincing evidence that Hearn consented to the search of his vehicle.
Hearn=s objection at trial was that there was no consent, not that the search was conducted without a warrant or that consent was given involuntarily. We hold that the trial court, from the evidence presented, could reasonably have determined that Hearn consented to the search and that his consent was voluntary. One of the cases upon which Hearn relies is In re R.J., No. 12-03-00380-CV, 2004 WL 2422954 (Tex. App.CTyler, October 29, 2004, no pet.) (memo. op.). In that case, the court held that the trial court abused its discretion in denying R.J.=s motion to suppress evidence of his possession of marihuana where the defendant was sixteen, had no prior experience with law enforcement, and was unfamiliar with his Fourth Amendment Rights. Id. Other bases for the court=s opinion that R.J.=s consent to search was involuntary included the fact that the officer seeking to search R.J.=s vehicle, after R.J. had refused to give consent to search, implicitly represented to the defendant that a canine sweep was inevitable, that the defendant could not refuse to permit the sweep, and that the defendant was not free to leave prior to the completion of such a sweep. Id. The court held that the fact that the officer did not have the reasonable suspicion necessary to detain the defendant to conduct a canine sweep but conveyed the opposite message and that the fact that the defendant consented to the search, despite his prior refusal, immediately after this message was conveyed were factors indicating that the defendant=s consent to the search was involuntary. Id.
In the case at bar, Hearn was a much older adult with a great deal of experience in dealing with law enforcement. He was a convicted felon who was on parole at the time of the search. Hearn, rather than acknowledging he gave consent and that it was involuntary, denied having consented at all. His statement that he would not have consented to the search had he known the vest was in his pickup is indicative of the fact that he was aware of his right to refuse his consent to search. There is no indication that the officer conducting the search made any representation to Hearn falsely suggesting to him that a search was inevitable should Hearn refuse. Finally, the only evidence that Hearn refused his consent is his own testimony at trial, to which the trial court was not required to give credence.
Hearn also relies upon the case of Grimaldo v. State, 223 S.W.3d 429 (Tex. App.CAmarillo 2006, no pet.). In that case, the court held that the trial court abused its discretion in denying the defendant=s motion to suppress where the defendant=s consent to search was obtained after officers had already entered the premises illegally, run through the house with guns drawn, and seized those present, including the defendant, without illegal justification, where there was no sufficient attenuation between the unlawful seizure and the consent given by the defendant. Id. at 435. The court said that, under those circumstances, it did not matter whether the defendant=s consent was voluntary. Id. Apparently, the basis for the defendant=s motion to suppress in Grimaldo was that the officers conducted the search without a warrant or exigent circumstances and that the consent to search was either involuntary or not sufficiently attenuated from the unlawful entry. In the case at bar, Hearn made none of the objections presented by Grimaldo and only objected on the basis that he had not given his consent.
Finally, Hearn relies upon the case of State v. Hunter, 102 S.W.3d 306 (Tex. App.CFort Worth 2003, no pet.). In Hunter, the defendant presented a motion to suppress with respect to items found in a search of his vehicle after he had given his consent, challenging the warrantless search of his vehicle under various amendments to the United States and Texas Constitutions. Id. at 311. The court inferred, without indicating directly, that the defendant was young and immature. Id. at 312. When the police officer stopped the defendant, the officer blocked the defendant=s car so that the defendant was not free to leave. Id. The officer did not give the defendant any constitutional advice and did not tell him that he was free to leave or that he was free to decline to consent to the search. Id. There was no evidence of repetitive or lengthy questioning or the use of physical punishment to force consent. Id. The court held that the trial court did not abuse its discretion by granting the defendant=s motion to suppress, apparently holding that the State failed to establish the voluntariness of the defendant=s consent by clear and convincing evidence. Id. As we have noted, the only objection offered in the case at bar is that of lack of consent. Hearn contends on appeal that his consent was obtained as the fruit of an illegal stop. He presented no such objection at trial. Consequently, with respect to that contention, nothing is presented for review. Tex. R. App. P. 33.1(a). We overrule issue three.
Hearn asserts in issue four that the trial court erred when it tried him without a jury. In view of a plea bargain that he later rejected, Hearn signed a waiver of his right to trial by jury. He thereafter determined not to enter a guilty plea in accordance with the plea bargain. At a subsequent trial before the court upon his plea of not guilty, Hearn presented no objection to being tried without a jury. Consequently, nothing is presented for review. Rule 33.1(a).
Hearn relies upon the case of Wilson v. State, 698 S.W.2d 145 (Tex. Crim. App. 1985). In that case, the defendant waived his right to trial by a jury so that he could plead nolo contendere before a criminal court magistrate. Id. at 145. When he appeared before the criminal district court for the assessment of punishment, the trial judge, noting that the presentence report showed that the defendant denied committing the offense, refused to accept the defendant=s plea, saying that the alternative was Ato put twelve people in the jury box and they get to decide.@ Id. at 146. Later, the trial was held before the court over the objection of the defendant. Id. The court held that, under those facts, the defendant=s jury waiver was revoked, noting that it was very clear that the court had intended to return the defendant to the same status as that prior to his plea. Id. at 147. Consequently, the trial court erred in denying the defendant his right to a jury trial. Id. at 146-47. The court noted that the court of appeals, which had previously issued an opinion in the case, was wrong in presuming that a change of a plea to not guilty revokes a prior jury waiver. Id. at 146.
In the case at bar, Hearn, unlike Wilson, made no pretrial objection to being tried before the court without a jury. As noted in Wilson, Hearn=s withdrawal of his plea of guilty did not have the effect of revoking his waiver of trial by jury. Also, there is nothing in the record here showing the trial court=s intent to put Hearn back where he was before he signed the waiver. We find that the opinion in Wilson is consistent with and supports our opinion.
In an instrument entitled ASupplement to Appellant=s Point of Error Number Four,@ Hearn contends that he was denied the effective assistance of counsel because the counsel representing him at the time he signed the waiver of jury trial had a conflict of interest. Hearn signed the waiver of jury trial on November 10, 2005. On February 2, 2006, Robert R. Sykes, Hearn=s attorney, filed a motion to withdraw as Hearn=s attorney, noting that there was a possible conflict of interest should Hearn call another of his clients as a witness, because it might expose that client to additional prosecution. The trial court granted the motion, noting that it was doing so to avoid any conflict between the attorney and Hearn. Hearn asserts that these filings make it apparent that an actual conflict existed. The record only shows the potential of a conflict of interest in the event that Hearn sought to call another client of the attorney as a witness. Hearn does not direct us to any portion of the record reflecting that his attorney was representing the potential witness at the time he signed the waiver of his right to trial by jury.
The mere possibility of a conflict of interest is insufficient to impugn a criminal conviction. Pina v. State, 29 S.W.3d 315, 317 (Tex. App.CEl Paso 2000, pet. ref=d). Hearn also relies on Pina. We find Pina to be distinguishable because in Pina the record reflected that there was an actual conflict that existed during the defendant=s trial that affected his conduct of the defense. Hearn has made no such showing in this case. We overrule issue four, including the issue presented in Hearn=s Supplement to Appellant=s Point of Error No. 4.
The judgment is affirmed.
PER CURIAM
January 10, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.