Affirmed and Memorandum Opinion filed July 7, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00338-CR
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DEMETRI L. MELTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 972,981
M E M O R A N D U M O P I N I O N
A jury found appellant guilty of possession of a controlled substance, cocaine, weighing less than one gram, including any adulterants and dilutants. Finding the allegations in two enhancement paragraphs to be Atrue,@ the jury assessed punishment at confinement for 16 years in the Texas Department of Criminal Justice, Institutional Division. In two points of error, appellant argues counsel was ineffective and the evidence is legally insufficient. We affirm.
Ineffective Assistance
In his first point of error, appellant argues counsel was ineffective in failing to exclude inadmissible testimony identifying the alleged substance in appellant=s possession as cocaine. Specifically, appellant argues counsel was ineffective in failing to (1) timely object to alleged hearsay testimony regarding lab results showing the substance in appellant=s possession tested positive for cocaine; and (2) object to testimony concerning a field test identifying the substance in appellant=s possession as cocaine. Appellant asserts he was prejudiced because the only evidence at trial establishing the identity of the substance in his possession as cocaine came from this alleged inadmissible testimony.
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (citing Strickland). Under Strickland, appellant must prove (1) trial counsel=s performance was deficient, and (2) the deficient performance was so serious that it prejudiced his defense. 466 U.S. at 687; Bone, 77 S.W.3d at 833. To establish both of these prongs, appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Bone, 77 S.W.3d at 833. Appellant must identify specific acts or omissions of counsel that constitute the alleged ineffective assistance and affirmatively prove that counsel=s acts or omissions fell below the professional norm for reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). The alleged ineffectiveness must be firmly founded in the record. Bone, 77 S.W.3d at 835. If appellant fails to satisfy either prong of the Strickland test, we do not need to consider the remaining prong. Strickland, 466 U.S. at 697.
Judicial scrutiny of counsel=s performance must be highly deferential, and we indulge a strong presumption that counsel was effective. Id. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions were reasonably professional and motivated by sound trial strategy. Strickland, 466 U.S. at 689 (AA fair assessment of attorney performance requires every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel=s challenged conduct, and to evaluate the conduct from counsel=s perspective at the time.@). Appellant must overcome this presumption by illustrating why trial counsel did what he did. Belcher v. State, 93 S.W.3d 593, 595 (Tex. App.CHouston [14th Dist.] 2002, pet. dism=d). When evaluating an allegation of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
A reviewing court should not second guess trial counsel=s strategy in hindsight; thus, an affidavit supporting a motion for new trial can be critical to the success of a claim for ineffective assistance. See Strickland, 466 U.S. at 689; Storr v. State, 126 S.W.3d 647, 651 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). In the absence of a record explaining trial counsel=s actions, a reviewing court most likely cannot conclude trial counsel=s performance fell below an objective standard of reasonableness unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). When confronted with a silent record, an appellate court is not required to speculate on the reasons behind trial counsel=s actions. Jackson, 877 S.W.2d at 771.
Here, appellant did not file a motion for new trial raising ineffective assistance that would have allowed counsel to explain any trial strategy upon which his decisions may have been based. Thus, there is no record to show trial counsel=s reasons for acting or failing to act in the manner challenged by appellant. On the record before this court, we must assume trial counsel had a plausible reason for his actions. See Safari v. State, 961 S.W.2d 437, 445 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). To find trial counsel was ineffective based on any of the asserted grounds would call for speculation, which we will not do. See id. Under these circumstances, we cannot conclude counsel=s performance was deficient. See Jackson, 877 S.W.2d at 771B72; see also Thompson, 9 S.W.3d at 814 (holding when record provides no explanation as to the motivation behind trial counsel=s actions, an appellate court should be hesitant to declare ineffective assistance of counsel). Moreover, considering the totality of the representation, we find appellant=s counsel=s representation was not deficient and did not fall below an objective standard of reasonableness, and appellant has failed to meet his burden to prove that any deficient performance prejudiced his defense.
We overrule appellant=s first point of error.
Legal Sufficiency
In his second point of error, appellant claims the evidence presented was legally insufficient because the State failed to establish the element of Aincluding any adulterants and dilutants@ as alleged in the indictment. The indictment in this case alleged that Aon or about January 4, 2004,@ appellant Adid then and there unlawfully, intentionally, and knowingly possess a controlled substance, namely, COCAINE, weighing less than 1 gram by aggregate weight, including any adulterants and dilutants.@ See Tex. Health & Safety Code Ann. ' 481.115 (a), (b) (Vernon 2003).[1] The jury found appellant guilty of this offense. Appellant concedes there was testimony that the cocaine appellant possessed weighed less than one gram, but he complains there was no specific testimony about the weight of the cocaine, including adulterants and dilutants. Appellant argues the State=s accusation remains unproven without proof that the weight of the cocaine including any adulterants and dilutants was less than one gram.
In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). To obtain a conviction for possession of a controlled substance, the State must prove that a controlled substance, plus adulterants and dilutants[2] proved to exist within it, weighs at least as much as the minimum weight alleged in the indictment. Hines v. State, 976 S.W.2d 912, 912 (Tex. App.CBeaumont 1998, no pet.). The State has to prove only that part of a substance is a controlled substance and that the aggregate weight of the controlled substance, including adulterants and dilutants, equals the alleged minimum weight. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003).
At trial, State=s Exhibit No. 1, a baggie containing white residue that was recovered from appellant=s jacket, was admitted into evidence. Carolyn Gamble, a supervisor and drug analyst at the Houston Police Department Crime Lab, testified the residue tested positive for cocaine and that the amount was less than one gram. Gamble also explained to the jury what adulterants and dilutants are. Gamble testified as follows:
Q. Could you tell the jury what [the crime lab technician=s] analysis of the substance contained in State=s Exhibit No. 1 was?
A. Positive cocaine.
Q. Is cocaine a controlled substance, Ms. Gamble?
A. Yes, it is.
Q. And was the amount contained in State=s Exhibit No. 1 less than 1 gram?
A. Yes, it is.
Q. Generally we talk about things like adulterants and dilutants, those kinds of things when we talk about cocaine. Are you familiar with those terms?
A. Yes.
Q. What are adulterants and dilutants?
A. Adulterants are a compound that is added to the controlled substance to enhance the effect. And a dilutant is a compound that is added to the controlled substance for bulk, quantity.
Gamble=s testimony that the amount of cocaine was less than one gram is legally sufficient to support the jury=s finding that appellant possessed the minimum statutory amount of cocaine alleged in this case. The jury was able to view the baggie of cocaine admitted into evidence and could infer from Gamble=s testimony that the aggregate weight of the cocaine in the bag recovered from appellant, including adulterants and dilutants, if any, weighed less than one gram. Appellant=s assertion that the evidence is legally insufficient due to the absence of testimony specifically stating the weight of the cocaine was less than one gram including adulterants and dilutants is without merit. When viewing all of the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
We overrule appellant=s second point of error.
Conclusion
The judgment of the trial court is affirmed.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed July 7, 2005.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Section 481.115 provides:
(a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance . . . .
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram.
Tex. Health & Safety Code Ann. ' 481.115 (a),(b) (emphasis added).
[2] An adulterant or dilutant is defined by the Texas Health and Safety Code as Aany material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance.@ Tex. Health & Safety Code Ann. ' 481.002(49) (Vernon Supp. 2005).