NO. 12-04-00078-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KELVIN DELROY BARNES, § APPEAL FROM THE 123RD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SHELBY COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Kelvin Delroy Barnes appeals his conviction for delivery of a controlled substance, for which he was sentenced to two years of confinement in a state jail facility. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
Background
Appellant was charged by indictment with delivery of a controlled substance, cocaine, in an amount of less than one gram, by aggregate weight, including any adulterants or dilutants, a state jail felony. More specifically, the indictment alleged that on April 6, 2001, Appellant knowingly delivered, by constructive transfer, to Investigator Kimberly Courtney, a controlled substance, namely, cocaine. Appellant pleaded “not guilty.” At trial, Courtney, an investigator with the Deep East Texas Regional Narcotics Trafficking Task Force, testified that, before the confidential informant, Bruce Benjamin, made a purchase of illegal drugs, he and his vehicle were searched and a video camera and audio recording equipment were placed in his vehicle. Courtney observed Benjamin drive to an area in Center, Shelby County, Texas, known for drug activity. Then, she observed him leave the area, met him at a predetermined location, recovered the evidence, one off-white rock-like object, and secured the videotape. Courtney stated that the evidence field tested positive for crack cocaine, approximately .12 grams.
Dana Vanya, an investigator for the Task Force, testified similarly. Additionally, she stated that, when Benjamin drove to the known drug area, she and Courtney maintained a loose surveillance. After Detective Walter Shofner identified Appellant, Vanya showed Benjamin a county jail photograph of Appellant. According to Vanya, Benjamin positively identified Appellant as being the same person who sold him narcotics. Both Courtney and Vanya admitted that they did not recognize the person shown delivering drugs on the videotape nor had they seen Appellant in person before trial. Ronrio Mendiola, a lieutenant with the Task Force in April 2001, testified that he showed the videotape described above to Shofner.
Shofner, a detective with the Center Police Department, testified that he knew Appellant prior to April 2001. At trial, Shofner identified Appellant as the person delivering drugs on the videotape. Benjamin testified that he was a confidential informant and drove the vehicle in the videotape. Benjamin stated that, on April 6, 2001, he “made a buy,” and identified Appellant as the person who sold him drugs. Appellant denied that, on April 6, 2001, he delivered rock cocaine to Benjamin. In fact, Appellant denied ever seeing Benjamin before trial. Appellant admitted knowing Shofner, that he had been jailed or imprisoned for other offenses, and that he was currently on probation. At the conclusion of the trial, the jury found Appellant guilty of delivery of a controlled substance as charged in the indictment and assessed punishment at two years of confinement and a $10,000 fine. This appeal followed.
Analysis pursuant to Anders v. California
Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. Appellant did not file a pro
se brief. From our review of Appellant’s brief, it is apparent that his counsel is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel’s brief presents a chronological summation of the procedural history of the case and further states that counsel is unable to raise any meritorious issues for appeal.
In his brief, Appellant’s counsel identified two possible appellate issues. First, Appellant’s counsel contended that Appellant may be able to assert that he was entrapped by a confidential informant. “Entrapment” is a defense to a prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause a person to commit the offense. Tex. Pen. Code Ann. § 8.06(a) (Vernon 2003). However, the defense of entrapment is not available to a defendant who denies that he committed the charged offense. Russell v. State, 904 S.W.2d 191, 193 (Tex. App.–Amarillo 1995, pet. ref’d). The defense is not available in such instances because entrapment necessarily assumes the act charged was committed. Id. Here, Appellant testified at trial and denied committing the charged offense or even seeing Benjamin before trial. See id. at 193-94 (stating that a defendant who pleads not guilty and does not take the stand or offer testimony inconsistent with his commission of the crime is still entitled to an entrapment defense). Therefore, Appellant is not entitled to offer a defense of entrapment. See id. at 193.
The second possible issue identified by Appellant’s counsel is ineffective assistance of counsel. In determining a claim of ineffective assistance of counsel, we follow the United States Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Under the first prong of the Strickland test, an appellant must show that counsel’s performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must “show that counsel’s representation fell below an objective standard of reasonableness.” Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The appropriate standard for judging prejudice requires an appellant to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. We indulge in a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is Appellant’s burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id., 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant must prove both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 712.
In this case, Appellant’s trial counsel presented and cross-examined witnesses and attempted to cast doubt on the quality of the videotape, the use and reliability of the confidential informant, and the identification of Appellant in the videotape. We see nothing in the record showing ineffectiveness or deficient performance and conclude that Appellant has failed to meet the first prong of the Strickland test. See Thompson, 9 S.W.3d at 813. However, even if Appellant had met the first prong of the Strickland test, he has failed to show that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. Therefore, we cannot conclude that Appellant’s former trial counsel was ineffective.
Conclusion
We have reviewed the record for reversible error and have found none. As required by Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant’s counsel has moved for leave to withdraw. We carried the motion for consideration with the merits of the appeal. Having done so and finding no reversible error, Appellant’s counsel’s motion for leave to withdraw is hereby granted and the trial court’s judgment is affirmed.
Opinion delivered October 31, 2005.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)