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NUMBER 13-04-306-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
JOSEPH MENDIOLA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 24th District Court
of Jackson County, Texas.
___________________________________________________ _______________
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Memorandum Opinion by Justice Rodriguez
Appellant, Joseph Mendiola, was indicted for manufacturing and possessing with intent to deliver methamphetamine in the amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code Ann. ' 481.112(a),(d) (Vernon 2003) (providing that an offense of intentionally and knowingly manufacturing, delivering or possessing with intent to deliver methamphetamine, a controlled substance, in the amount of four grams or more but less than 200 grams is a first degree felony). Tried by the court, appellant was found guilty and sentenced to sixty years in the Texas Department of Criminal Justice, Institutional Division (TDCJ). See Tex. Pen. Code Ann. ' 12.32 (Vernon 2003) (specifying that a person adjudged guilty of a first degree felony shall be punished by imprisonment for life or any term of not more than ninety-nine years or less than five years and not more than a $10,000 fine).
Concluding the appeal is frivolous and without merit, appellant's counsel filed a brief in which he presented two arguable grounds of error. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). We affirm.
Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it. See id. at 47.4.
I. Compliance with Anders v. California
Appellant's court-appointed counsel filed a brief in which he has concluded that there is no reversible error reflected by the record. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's counsel's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all points which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel certified the following to this Court: (1) he has diligently searched the reporter's record and clerk's record and has researched the law applicable to the facts and points of error presented; (2) in his opinion, no reversible error is reflected by the record; (3) he set forth all points which might arguably support an appeal; (4) he forwarded a copy of the brief to appellant with a letter informing him of the filing of the brief and his request to withdraw as counsel; and (5) he informed appellant of his right to review the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813. After counsel forwarded the appellate record to appellant, we received appellant's pro se brief asserting three issues for our review.
II. Ineffective Assistance of Counsel
As directed by Anders, counsel raises ineffective assistance of counsel as a possible ground for our review. Appellant contends counsel was ineffective when he failed to object to the admission of exhibits that were subject to appellant's motion to suppress.
The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant=s Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); De Pena v. State, 148 S.W.3d 461, 468-69 (Tex. App.BCorpus Christi 2004, no pet.). To establish ineffective assistance of counsel, appellant must show the following: (1) his attorney=s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney=s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.BCorpus Christi 2000, pet. ref=d).
Following the test for determining ineffective assistance of counsel as set forth in Strickland, we conclude, from a review of the totality of representation, appellant has not shown how his attorney=s representation fell below an objective standard of reasonableness and has failed to show that there is a reasonable probability that, but for his attorney=s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Moreover, in the absence of evidence of counsel=s reasons for the challenged conduct, we assume there was a strategic motivation for not objecting to the admission of exhibits that were subject to appellant's motion to suppress.[1] Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Finally, to satisfy Strickland when the basis for the claim of ineffectiveness is the admission of allegedly inadmissible evidence, appellant is required to make a preliminary showing that the objection or motion to suppress the evidence would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (providing that, in order to be entitled to relief, a defendant is obligated to show that his suppression motion would have been granted). In this case, the evidence reveals the following: (1) Nick Gerjes worked for the owner of the property; (2) Gerjes observed activities in the barn that looked wrong to him and made him suspicious, including appellant "boiling something on a propane burner" and covering up a box when Gerjes arrived; (3) Gerjes called Bobby Doelitsch, a deputy sheriff with the Jackson County Sheriff's Department, to tell him what he had seen and observed; (4) Gerjes worked in the barn waiting for the deputy to arrive and noticed that appellant and Greg Forbes "were kind of nervous about [him] being out there"; (5) when Deputy Doelitsch and a second deputy, Joe Garcia, arrived they observed activities that made them suspicious; (6) in the course of his employment, Gerjes stopped at the garage and picked up trash bags; (7) Gerjes found a propane burner, a Coleman fuel can, some coffee filters, and a gallon jug containing a red-orange substance in the trash bags; (8) Gerjes later delivered the trash bags to the sheriff's office; and (9) based on the contents of the trash bags and observations by Deputy Garcia, a search warrant was obtained and executed. Appellant has not shown that an objection or the motion to suppress the items seized in connection with the arrest[2] would have been granted. See id.
Based on our review of the record, we agree with counsel that this ground presented for our review is without merit.
III. Uncorroborated Accomplice Testimony
Appellate counsel also raises, as a possible ground for our review, the argument that the evidence is insufficient to sustain appellant's conviction because the testimony of Forbes, an accomplice witness, was uncorroborated. The test for determination of whether or not an accomplice witness's testimony is corroborated is to eliminate the accomplice testimony from consideration and determine whether there is any other incriminating evidence which tends to connect appellant with the commission of the offense. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (en banc); Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988) (en banc); see Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005) (providing that a conviction cannot be had upon accomplice testimony unless corroborated by other evidence tending to connect the defendant with the offense committed, and corroboration is not sufficient if it merely shows commission of the offense).
The non-accomplice testimony in this case reveals that on January 4, 2004, Deputy Garcia observed appellant in the barn near a small propane burner and a glass pot that had a clear liquid boiling inside it. Forbes was with appellant. As Deputy Garcia walked up to the barn, he noticed both men walking quickly to the front of the barn. Deputy Garcia asked appellant and Forbes what they were cooking. Forbes said that they were making a plaster mask for his mother's birthday.[3] However, her birthday was several months away. The deputy also noticed a five-gallon bucket, a plastic jug on the table, a funnel on top of the jug, and a Rubbermaid box. Appellant and Forbes were very nervous, looking at each other before they answered any question, and were sweating even though it was a cold day. Deputy Doelitsch testified similarly regarding what occurred at the barn.
Based upon his training and experience, Deputy Garcia felt that appellant and Forbes were possibly in possession of components that were used in the manufacturing of methamphetamine, including plastic jugs, a funnel on the jug, boiling water, and a propane burner. He knew from past training and experience that these items were components used in the manufacture of methamphetamine. When Deputy Garcia asked appellant if the hardener for the mask was inside the Rubbermaid box, Forbes quickly told him no, and appellant grabbed the box and began to walk out of the barn with it. Forbes said the box belonged to him, and he refused to give the deputy his consent to search it. Appellant placed the box in a car and then drove to the carport of the residence.
Sergeant Gary Shaw, a narcotics investigator with the Texas Department of Public Service, examined the contents of a trash bag recovered from the premises. He found numerous items in the bag including, among other things, empty bottles of tincture of iodine. Sergeant Shaw testified that all of the items found in the bag are commonly or customarily used in the manufacturing and cooking of methamphetamine through the red phosphorus procedure. Deputy Doelitsch, however, testified that he did not know who put the items in the trash bags or when it was done. He did not observe appellant in control of the trash bags.
Lloyd Boston, who worked at Circle S Feed Store, testified that early in January 2004, appellant purchased iodine tincture from his store. David Steffek, the owner of Jackson County Feed Store, also testified that in early January 2004, appellant bought iodine tincture from him.
Eliminating the accomplice testimony from consideration, we conclude that there is other incriminating evidence which tends to connect appellant to the manufacture of the methamphetamine. See McDuff, 939 S.W.2d at 613; Reed, 744 S.W.2d at 126. The testimony of the accomplice witness was corroborated, and the evidence is sufficient to sustain appellant's conviction. Thus, we agree with counsel that this ground presented for our review is without merit.
IV. Pro Se Brief
Appellant filed a pro se brief and, by three issues, complains of legal and factual insufficiency to support his conviction and of the trial court's alleged failure to elicit appellant's response to the court's allocution.
A. Sufficiency of the Evidence
By his first and second issues, appellant contends that the evidence was legally and factually insufficient to establish elements of the charged offense.
1. Standard of Review
In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard is applied to both direct and circumstantial cases. See Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984) (en banc); Rosillo v. State, 953 S.W.2d 808, 814 (Tex. App.BCorpus Christi 1997, pet. ref=d). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc). On appeal, we measure the legal sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if Aproof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.@ Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (en banc) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc)). We are not bound to view the evidence in the light most favorable to the verdict, and may consider the testimony of all the witnesses. Johnson, 23 S.W.3d at 10-12. In our factual sufficiency review, we again are required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7; Mosley, 983 S.W.2d at 254. We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).
2. Aggregate Weight of Controlled Substance
Appellant first complains that the evidence is insufficient to support a finding that the aggregate weight of the controlled substance was four grams or more but less than 200 grams, as charged in the indictment.[4] See Tex. Health & Safety Code Ann. ' 481.112(d) (Vernon 2003). It is undisputed that the evidence established that the controlled substance was well in excess of two hundred grams, including adulterants and dilutants. This evidence would have supported a finding that appellant manufactured a controlled substance with an aggregate weight of 200 grams or more but less than 400 grams. See Tex. Health & Safety Code Ann. ' 481.112(e) (Vernon 2003). However, the State chose to pursue a conviction for the lesser amount, and the evidence was sufficient to support appellant's conviction for manufacturing and possessing the lesser amount of the controlled substance.[5]
3. Affirmative Link
Appellant also asserts that the evidence does not establish an affirmative link between himself and the drug paraphernalia found in the trash. See generally Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981) ("when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband")). Appellant alleges he was simply an overnight guest at the residence where the trash was found, and because two of the three residents of the house had prior drug convictions, they should be affirmatively linked to the drugs, not appellant.
To prove the offense of unlawful manufacture of a controlled substance, the State must prove that the person knowingly manufactures, delivers, or possesses a controlled substance with intent to deliver. See Tex. Health & Safety Code Ann. ' 481.112(a) (Vernon 2003). The indictment charged appellant with intentionally and knowingly manufacturing and possessing methamphetamine with intent to deliver. We construe appellant's argument as one challenging proof that he knowingly manufactured and possessed the methamphetamine.[6]
Reviewing the evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319, we conclude that the jury, acting as a rational trier of facts, could have found beyond a reasonable doubt that there was an affirmative link between appellant and the drug paraphernalia, thereby establishing appellant knowingly manufactured and possessed methamphetamine. Poindexter, 153 S.W.3d at 406. Thus, the evidence is legally sufficient to support appellant=s conviction. Moreover, after reviewing all the evidence, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury=s determination nor is the proof of guilt greatly outweighed by contrary evidence. See Swearingen, 101 S.W.3d at 97. We conclude the evidence is also factually sufficient to support appellant=s conviction. Accordingly, appellant=s first and second issues are overruled.
B. Right of Allocution
By appellant's third issue, appellant complains that he was denied his right of allocution. See Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2004-05) (establishing a defendant's right to allocution). Appellant asserts that when the trial court asked, "Do you know of any legal reason why sentence should not be pronounced at this time?" it did not allow appellant time to respond.
First, we note that an objection to the denial of allocution is a prerequisite to an appellate complaint. See Tenon v. State, 563 S.W.2d 622, 623 (Tex. Crim. App. [Panel Op.] 1978). Appellant did not object, and, thus, has waived any error. See id. Moreover, even assuming appellant did not waive error, he has not shown any harm arising from the alleged denial of his right to allocution. Appellant does not contend that any of the statutory reasons set out in article 42.07 to prevent the pronouncement of sentence existed in his case. See Tex. Code Crim. Proc. Ann. art. 42.07 (Vernon Supp. 2004-05) (setting out pardon, incompetency, and/or mistaken identity as reasons to prevent pronouncement of sentence). Appellant urges only that he "would have stated that he was not connected to the drugs in any way, no drugs were found on his person, nor was he ever in control or possession of any drugs." We therefore overrule appellant's third issue.
V. Independent Review of Record
The Supreme Court advised appellate courts that upon receiving a Afrivolous appeal@ brief, they must conduct Aa full examination of all the proceeding[s] to decide whether the case is wholly frivolous.@ Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and conclude the appeal is without merit.
VI. Conclusion
The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 27th day of October, 2005.
[1]We note that although appellant=s attempt at a direct appeal has been unsuccessful, he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel may be raised in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).
[2]Appellant's motion to suppress, filed in different cause numbers and ordered carried over to this underlying cause, does not appear in the record. However, when appellant's motion to suppress was heard, appellant's trial counsel urged that "the items seized in connection with the arrest at least as to [appellant] should be suppressed."
[3]Gerjes testified that appellant said they were making a mask of Forbes's face for Forbes to wear on his mother's birthday.
[4]After the charge was read into the record, the trial court advised appellant that he was charged with a first degree felony carrying a range of punishment of imprisonment in the TDCJ for life or for any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000. See Tex. Pen. Code Ann. ' 12.32 (Vernon 2003). Appellant then pleaded guilty.
[5]To the extent appellant is complaining that the indictment is fatally defective because it alleged a different offense than the one for which he was convicted, appellant did not object to the indictment before the trial began.
If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity, and he may not raise the objection on appeal or in any other postconviction proceeding.
Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003) (citing Studer v. State, 799 S.W.2d 263, 266 (Tex. Crim. App. 1990)). Therefore, appellant has waived this argument, if any, on appeal.
[6]Appellant also asserts that the evidence is insufficient to support his conviction because the accomplice's testimony was not corroborated. We have already concluded that this argument is without merit. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).