Affirmed and Memorandum Opinion filed June 23, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00647-CR
NO. 14-07-00648-CR
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QUINTEN THIBODEAUX, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause Nos. 13961, 13962
M E M O R A N D U M O P I N I O N
Quinten Thibodeaux appeals his convictions for (1) possession, with intent to deliver, cocaine in an amount of four grams or more, but less than 200 grams, and (2) possession of methamphetamine in an amount of less than one gram. In twelve issues, appellant contends (1) the State committed prosecutorial misconduct by introducing evidence of an extraneous offense during the guilt-innocence phase and referencing it during closing argument, (2) the trial court erred by failing to submit a jury instruction regarding consideration of the extraneous offense, (3) the trial court submitted an incorrect jury instruction regarding accomplice-witness testimony, (4) the evidence was legally insufficient to support both convictions, (5) the evidence was factually insufficient to support the convictions, and (6) appellant received ineffective assistance of counsel.[1] Because all dispositive issues are settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
According to the State=s evidence, on the evening of January 13, 2006, appellant was driving a rental car on I-10 through Chambers County, Texas while traveling from New Orleans toward Houston. Thomas McCann was a passenger in the front seat, and Whitney Tieken rode in the back seat. Texas Department of Public Safety Officers Clayton Cohea and E.J. Salinas were also driving on I-10 and stopped appellant=s vehicle.
At trial, the following circumstances of the stop were provided by testimony of the officers and a videotape of the stop. Officer Cohea initially noticed appellant=s vehicle because it lacked license plates. He then observed McCann smoking what appeared to be a marijuana cigarette. McCann saw the officers and seemed Astunned.@ As Officer Cohea activated his lights, McCann threw a marijuana cigarette out the window. When the vehicle stopped, Officer Cohea approached the passenger side and spoke to the occupants. At that point, he smelled burning marijuana emitting from the vehicle. He also saw marijuana residue on McCann and Abundles@ of currency, later determined to be about $2,000, Asticking@ out of his pocket. Outside the vehicle, Officer Cohea searched McCann and found a small baggy containing a gram of cocaine within the roll of money in his pocket. Meanwhile, Officer Salinas searched appellant and noticed marijuana residue on his shirt. While searching the vehicle, the officers found methamphetamine and a small baggy of marijuana on top of the console between the front seats. Additionally, marijuana residue was scattered throughout the car. In the trunk was a microwave box sealed as though it were new, a sealed microwave in the box, a cereal box inside the microwave, and a sealed cereal bag inside the cereal box. When Officer Cohea opened these packages, he found crack cocaine and powder cocaine in the cereal bag. The officers also found other items of contraband in the vehicle. In total, they found three plastic bags containing marijuana, one marijuana cigarette, marijuana residue, two plastic bags with cocaine in a powder form, one plastic bag with crack cocaine, a plastic bag with methamphetamine, and a few large bags containing smaller plastic bags, which the officers associated with breaking down narcotics for sale in smaller quantities. They also found a Norenco .45 caliber handgun in Tieken=s bag in the trunk and determined it had been reported stolen. Additionally, Officer Cohea determined from the rental contract that appellant had rented the vehicle, and McCann also identified appellant as the renter.
The officers arrested all three occupants. McCann and Tieken both pleaded guilty to possession of cocaine and methamphetamine. Pursuant to their plea agreements, they received probation and testified as accomplice witnesses at appellant=s trial as follows.
Thomas McCann
McCann gave more testimony incriminating appellant than Tieken provided. McCann and appellant met approximately two years before their arrest. Shortly before the arrest, appellant knew McCann, who was seventeen years old, was experiencing financial difficulties because his girlfriend was pregnant. Appellant approached McCann about an easy method to make money, which appellant described as Aa bait and shark kind of thing.@ Appellant indicated McCann=s role was to go Aout there@ in New Orleans and obtain phone numbers for appellant. Appellant flew to New Orleans where he rented the vehicle they later drove toward Houston. Appellant arranged for two friends to give McCann a ride to New Orleans. Appellant paid for their stay in a Anice@ hotel. McCann Ahung out@ around Bourbon Street, where he started conversations with persons, obtained their phone numbers, and asked if they wanted to Ahang out@ later. On direct examination, McCann generally testified he was aware a crime was involved because of Ahow it was going on.@ On cross-examination, McCann clarified he obtained the phone numbers for appellant to sell drugs. At the hotel, McCann observed appellant place a bag of drugsCa white powder substanceCin a safe. Additionally, appellant prepared three lines of cocaine, and McCann, appellant, and Athe girl@ each snorted a line. They purchased the microwave and some cereal while they were in New Orleans, but McCann never saw inside the microwave and did not know it contained cocaine. Appellant woke McCann and Tieken, who had spent the night in the hotel room, when it was time to leave for Houston. The microwave was already packaged in the box, and their belongings were ready to be loaded in the car. Tieken and a hotel employee walked their belongings to the car.
McCann never saw any drugs inside the passenger portion of the car, except one marijuana joint, which he believed appellant lit and then attempted to snuff out in the ashtray when they saw the officers. The ashes flew onto McCann because someone rolled down the windows upon observing the officers. Appellant instructed McCann not to say anything when stopped by the officers. The money in McCann=s pocket was given to him to hold by appellant. At trial, McCann first denied any cocaine was in the money, claiming the substance was methamphetamine, but, at the time of his arrest, he did not know it was there. Later, he agreed he was possibly confused and it was cocaine. McCann knew generally other drugs were in the vehicle but did not know their location. He also saw the gun while they were in the hotel room but did not know its source or place it in the vehicle. He was to be paid for his role but did not know the amount and had not been paid when he was arrested.
Whitney Tieken
Tieken testified she lived and worked in New Orleans at the time of her arrest. She had never met appellant or McCann but needed a ride to Houston so a friend suggested she contact them. Tieken claimed limited involvement with the two men the night before they left for Houston. She went to their hotel room briefly to inquire when they would leave but spent most of the evening on Bourbon Street. While in the hotel room, she never used, saw, or heard any discussion about, drugs. The next morning, she met the men at the hotel but did not see appellant, McCann, or anyone else load items into the trunk.
At one point during the ride toward Houston, Tieken called her friend, but appellant told her to hang up and not reveal their location or destination. Tieken first testified appellant seemed to be in charge as between the two men but then testified she did not know if appellant was in charge. Tieken claimed she slept during most of the trip. Except for marijuana which she smelled burning, she was unaware there were any other drugs, including cocaine and methamphetamine, in the vehicle. Further, she never saw anyone handle a gun either at the hotel or in the vehicle.
After a consolidated trial on both charges against appellant, a jury found him guilty of the offenses. The jury assessed punishment of 180 days= confinement for the methamphetamine conviction and seventeen years= confinement for the cocaine conviction.
II. Allegation of Prosecutorial Misconduct
In his first and second issues, appellant contends the State committed prosecutorial misconduct by introducing evidence of an extraneous offense during the guilt-innocence phase and referencing it during closing argument. Specifically, appellant complains the State elicited testimony from two witnesses and made a comment during closing argument that the gun found in the trunk of the vehicle had been stolen from a residence.
First, Officer Cohea testified as follows:
Q. . . . Did you locate anything else in your search?
A. Yes, ma=am. Also there was a weapon located in the trunk of the vehicle.
Q. What type of weapon was that?
A. It was a Norenco handgun.
Q. Do you know what caliber?
A. .45 caliber. It came back stolen.
Q. What does that mean, AIt came back stolen@?
A. I ran the serial number on there. Communications dispatch advised it had been stolen from somebody=s residence.
Subsequently, the State presented the following testimony from Kenneth Stafford, owner of the gun:
Q. . . . I am going to show you what has been marked as State=s Exhibit 15. I will ask you to take a look at it and tell me if you recognize that item.
A. Yes. It appears to be my pistol.
[APPELLANT=S COUNSEL]: Objection as to relevance as to this witness= [sic] testimony at this point.
THE COURT: How is this relevant?
[THE STATE]: Your Honor, this is a stolen weapon which ties into the crime and the connection between the defendant and the crime with the drugs.
THE COURT: Objection overruled.
Stafford then testified the gun Acame up missing@ from his home over a year before trial and he reported the theft to the police.
Finally, in closing argument, the State asserted:
I also brought to you that the gun was a stolen gun and the fact that the gun was stolen is an indication that this was all a part of criminal activity.
Appellant argues the State committed prosecutorial misconduct by eliciting testimony suggesting appellant stole the gun and raising the same implication during closing argument because no Rule 404(b) exception allowed admission of this extraneous offense, it was offered solely to show character conformity, and the State could not prove appellant committed the theft. See Tex. R. Evid. 404(b) (stating evidence of other crimes, wrongs, or bad acts committed by the accused are not admissible to show he acted in conformity therewith and therefore committed the crime charged, although the evidence may be relevant for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident).
However, appellant failed to preserve error on his contention. To preserve error for prosecutorial misconduct, a defendant must (1) make a timely and specific objection, (2) request an instruction to disregard the matter improperly placed before the jury, and (3) move for mistrial. See Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); see also Tex. R. App. P. 33.1. Further, an objection at trial must comport with the complaint on appeal. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
Appellant did not object to Officer Cohea=s above-cited testimony or the State=s closing argument at issue. Appellant objected only at the beginning of Stafford=s testimony but did not object to the remainder. The one objection appellant did lodge during trial does not comport with the complaint on appeal. Appellant objected to admission of the testimony on relevancy grounds, but did not assert below that introduction of the allegedly irrelevant testimony constituted prosecutorial misconduct warranting a mistrial.[2]
We recognize appellant=s prosecutorial-misconduct contention relative to Stafford=s testimony seems more like a challenge to admission of evidence. Therefore, at most, appellant preserved error only with respect to the first part of Stafford=s testimony because he did not obtain a running objection, or object outside the jury=s presence, to all of Stafford=s testimony. See Tex. R. Evid. 103(a)(1); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).
Nonetheless, any error in admitting some or all of Stafford=s testimony was harmless. Improper admission of evidence is not reversible error if the same evidence is admitted without objection at another point in the trial. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). The fact the gun was stolen was also admitted through Officer Cohea=s testimony. Stafford=s testimony merely established the identity of the gun=s owner. Appellant=s complaint focuses on admission of the fact the gun had been stolenCnot the particular person from whom it was stolen. Thus, any error in admitting Stafford=s testimony was rendered harmless by admission, without objection, of Officer Cohea=s testimony. Accordingly, we overrule appellant=s first and second issues.
III. Jury Instruction Regarding Extraneous Offense
In his third and fourth issues, appellant complains that the trial court erred during the guilt-innocence phase by failing to submit in the jury charge an instruction regarding consideration of an extraneous offense. In particular, appellant references the evidence purportedly indicating he had stolen the gun found in the vehicle. Appellant contends the trial court was required to instruct the jury that it must limit consideration of evidence of the extraneous offense to the purpose for which it was admitted and may not consider this evidence unless it believed beyond a reasonable doubt that appellant committed the extraneous offense. Although appellant acknowledges he failed to request, or object to the absence of, these instructions in the charge, he suggests the trial court was required to sua sponte submit them.
The day after appellant filed his brief, the court of criminal appeals clarified the law relative to submitting limiting and reasonable-doubt instructions in the jury charge during the guilt-innocence phase of trial:
[A] limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt‑stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted. When the defendant has properly requested a limiting instruction in the jury charge, the trial court must also include an instruction on the State=s burden of proof at that time.
Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007); see Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001) (recognizing that once evidence is admitted without limiting instruction, it may be used for all purposes and trial court is not required to include limiting instruction in jury charge). Later in its opinion, the court reiterated that a trial court generally is not required to instruct the jury sua sponte on the burden of proof to be used when considering evidence of an extraneous offense during the guilt-innocence phase. Delgado, 235 S.W.3d at 254. The court reasoned that evidentiary issues in the guilt-innocence phase are not Athe law applicable to the case,@ which the trial court must sua sponte include in the charge, because determining whether to request instructions on these matters frequently depends on trial strategy. Id. at 249B52; see Tex. Code Crim. Proc. art. 36.14 (Vernon 2007) (requiring court to submit in guilt-innocence phase jury charge Adistinctly setting forth the law applicable to the case.@).[3]
In this case, appellant failed to request a limiting instruction when evidence that the gun had been stolen was admitted. Accordingly, appellant was not entitled to a limiting instruction in the jury charge and the trial court was not required to include a reasonable-doubt instruction sua sponte. We overrule appellant=s third and fourth issues.
IV. Sufficiency of the Evidence
We will next address, out of order, appellant=s seventh through tenth issues challenging legal and factual sufficiency of the evidence to support both convictions because our analysis of these issues is also relevant to some of his other contentions. Initially, we note that appellant does not expressly assert the evidence is insufficient to corroborate the accomplice‑witness testimony, to which a different standard applies than a general sufficiency challenge. See Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007); Hardy v. State, 246 S.W.3d 290, 297 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). However, in the body of his argument, appellant briefly suggests the evidence is insufficient to corroborate the accomplice‑witness testimony. Accordingly, we will first address his general-sufficiency contention followed by any challenge to sufficiency of the evidence to corroborate the accomplice-witness testimony.
A. General-Sufficiency Challenge
1. Standard of Review and Applicable Law
In considering a legal-sufficiency challenge, we review all evidence in the light most favorable to the finding to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). We ensure only that the jury reached a rational decision and do not reevaluate the weight and credibility of the evidence. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
In examining a factual-sufficiency challenge, we view all evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak that the verdict seems clearly wrong or manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). While we are permitted to substitute our judgment for the jury=s when considering credibility and weight determinations, we may do so only to a very limited degree and must still afford due deference to the jury=s determinations. Marshall, 210 S.W.3d at 625.
A person commits a first-degree felony if he knowingly possesses with intent to deliver cocaine in the amount of four grams or more but less than 200 grams. Tex. Health & Safety Code Ann. '' 481.102(3)(D) (Vernon Supp. 2008); 481.112(a), (d) (Vernon 2003). A person commits a state-jail felony if he knowingly or intentionally possesses methamphetamine in the amount of less than one gram. Id. '' 481.102(6); 481.115(a), (b).
Appellant essentially contends the evidence is insufficient to prove his possession of the cocaine and methamphetamine. With respect to each alleged offense, the court=s charge authorized the jury to convict appellant either as a principal or as a party. To prove possession of a controlled substance as a principal actor, the State must prove the defendant (1) exercised actual care, control, and management over the controlled substance and (2) was conscious of his connection with the controlled substance and knew what it was. See Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The evidence used to prove these elements can be direct or circumstantial. Id. A defendant may be convicted under the law of parties for an offense committed by the conduct of another if the defendant, acting with intent to promote or assist commission of the offense, solicited, encouraged, directed, aided, or attempted to aid the other person in commission of the offense. Tex. Penal Code Ann. ' 7.02(a)(2) (Vernon 2003). Because the jury returned general verdicts finding appellant guilty of each offense, we may uphold each verdict if the evidence is sufficient to prove appellant committed the offense either as a principal or as a party. See Brooks v. State, 990 S.W.2d 278, 283 (Tex. Crim. App. 1999); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991).
If the contraband is not found in the exclusive possession of the defendant, the evidence, whether direct or circumstantial, must Aaffirmatively link@ the defendant to the contraband in a manner that is Amore than just fortuitous.@ Poindexter v. State, 153 S.W.3d 402, 405B06 (Tex. Crim. App. 2005). The following non-exclusive factors may affirmatively link a defendant and contraband: (1) the defendant=s presence when the search was conducted; (2) whether the contraband was in plain view; (3) the defendant=s proximity to, and accessibility of, the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed narcotics or other contraband when arrested; (6) whether the defendant made incriminating statements; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of narcotics; (10) whether other contraband or drug paraphernalia was present; (11) whether the defendant owned, or had the right to possess, the place where the contraband was found; (12) whether the place where the contraband was found was enclosed; (13) whether the defendant was found with a large amount of cash; (14) whether the conduct of the defendant indicated a consciousness of guilt; and (15) whether a large quantity of contraband was present. Olivarez v. State, 171 S.W.3d 283, 291B92 (Tex. App.CHouston [14th Dist.] 2005, no pet.); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). The number of linking factors present is not as important as the Alogical force@ they create to prove the crime was committed. Olivarez, 171 S.W.3d at 291.
2. Analysis
In this case, the cocaine and methamphetamine were not found on appellant=s person or in an area under his exclusive control because the vehicle was occupied by three persons. Nonetheless, testimony from both accomplice witnesses and other evidence linked appellant to the cocaine and methamphetamine as a principal actor, as follows:
! McCann=s testimony directly showed appellant conducted a narcotics-selling business in New Orleans, solicited McCann=s help to further the operation, possessed cocaine while in New Orleans, and had McCann hold a substantial sum of money which also contained cocaine;
! McCann and Tieken both denied specific knowledge of the cocaine and methamphetamine found in the vehicle, creating a rational inference that appellant, the only other occupant, placed it there;
! appellant=s ordering Tieken to refrain from using her phone and instructing McCann to remain silent when stopped by the officers indicated appellant=s consciousness of guilt and predominant role with respect to possessing and transporting the narcotics;
! the jury was free to believe Tieken=s initial testimony that appellant seemed to be in charge even if she subsequently changed this testimony; the jury could have rationally inferred she retracted this statement upon realizing that referring to a person as Ain charge@ implied illegal activity occurred; see Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (recognizing jury is free to believe or disbelieve some or all of a witness=s testimony);
! McCann and Tieken both effectively denied placing the gun in the vehicle, creating a rational inference that appellant placed it there; Sergeant Brian Nichols of the Texas Department of Public Safety narcotics department, who did not participate in the arrest but testified as a drug interdiction expert, explained that placing a gun near a large quantity of drugs indicates a person is attempting to protect himself and his Aload@;
! appellant was the renter and driver of the vehicle; Officers Cohea and Nichols explained it is common for traffickers to use rental vehicles to transport narcotics so they do not lose their own vehicles to seizure if drugs are found by law enforcement officers;
! Officer Nichols also testified that being custodian and driver of a vehicle is significant because that person has care, custody, and control of the contents; and discovering Awho does the car belong to@ plays a major role, and would be his first inquiry, when determining which person, of multiple occupants, possessed the drugs;
! the cocaine was well-hidden in the trunk of the vehicle rented and driven by appellant;
! a variety of narcotics were recovered throughout the vehicle, including the methamphetamine and a small baggy of marijuana on the console between the front seats; Officers Cohea and Nichols explained that sometimes a drug trafficker leaves a small amount of drugs in plain view either for personal use or so he will be arrested for only a lesser offense when there is actually a larger amount well-concealed elsewhere in the vehicle; and
! Appellant had marijuana residue Aall over his front shirt pocket,@ marijuana residue was spread throughout the car, and it smelled of burning marijuana; Officer Nichols testified the presence of marijuana residue on the renter and driver of a vehicle indicates the person has at least a proclivity to possess controlled substances.
Appellant emphasizes McCann and Tieken allegedly lacked credibility for numerous reasons: McCann denied smoking marijuana and throwing the joint out the window although Officer Cohea observed both actions; McCann testified appellant gave him the money found in his pocket when the vehicle was stopped, but McCann told the officers he received it from the government; at trial, McCann initially denied possessing the cocaine found in his pocket, contrary to the officers= testimony; McCann believed Tieken accompanied the men when they purchased the microwave, but she denied doing so; McCann testified Tieken helped load the car, but she testified she did not do so; McCann denied awareness of the cocaine in the microwave, but he was the one who wanted to take the cereal when they left New Orleans and took the microwave home after his release from jail; both witnesses denied knowledge of the narcotics, yet pleaded guilty to the offenses; Tieken was briefly alone in the vehicle while the officers searched appellant and McCann and could have placed the methamphetamine and marijuana on the console at that time; Tieken disavowed knowledge of the gun, but it was found in her bag; and both witnesses were completely untruthful because they merely testified to comply with their plea agreements. At trial, part of appellant=s defense was to show that McCann was responsible for the narcotics and appellant was merely an unwitting occupant of the vehicle.
As appellant highlights, obviously there were inconsistencies between the accomplice-witnesses and between McCann and the officers. However, the jury may have believed one or both accomplice-witnesses were untruthful regarding their activities while in New Orleans and their use, possession, or knowledge of the various narcotics and gun found in the car to minimize their involvement while also concluding appellant was responsible for placing the cocaine and methamphetamine in the car. The jury also was free to consider the plea bargains entered into by these witnesses when deciding the weight to be given their testimony. We find no reason to intrude on the jury=s role as judge of these witnesses= credibility and the weight to be given their testimony.
Appellant also attacks the significance of the other evidence, besides the accomplice-witness testimony, linking appellant to the cocaine and methamphetamine. Appellant suggests the only such evidence possibly linking him to the narcotics was his rental of the vehicle, which was alone insufficient to prove guilt. Appellant asserts the methamphetamine and marijuana found on the console were not in Aplain view@ because the officers did not immediately notice them. Appellant also suggests marijuana residue was on his shirt only because it blew there when McCann rolled down the window while smoking a joint.
However, Officer Cohea indicated he did not immediately notice the methamphetamine and marijuana on the interior console because his initial concern when approaching the vehicle was to look for weapons. Officer Salinas also explained that it took awhile to find these narcotics during his subsequent search because the car was full of trash. Therefore, these narcotics were in plain view in terms of being out in the openCnot concealedCand accessible to appellant. Moreover, some marijuana was clearly in plain view because residue was spread throughout the car and at least one occupant, even if not appellant, was smoking marijuana.
Appellant also emphasizes the officers= testimony that McCann, not appellant, possessed a large sum of money and cocaine on his person when stopped by the officers and exhibited furtive behavior. However, Officer Nichols explained that it is a common tactic for a narcotics dealer to ensure his Amule@ handles the money and drugs so the dealer is distanced from these items if stopped by law enforcement. Officer Nichols also testified some drug traffickers do not act nervous when confronted by law enforcement because they are Apretty cool characters@ or use substances to calm their nerves. Consequently, the jury reasonably could have concluded that appellant possessed the cocaine and methamphetamine despite the fact that no money or narcotics, other than marijuana residue, was found on his person and he exhibited no furtive behavior.
Finally, appellant cites two cases that are purportedly similar to the present case: Rhyne v. State, 620 S.W.2d 599 (Tex. Crim. App. 1981); and Roberson v. State, 80 S.W.3d 730 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). However, in these cases, the defendant=s mere presence in the home or vehicle where narcotics were found was insufficient to establish possession absent any other links. See Rhyne, 620 S.W.2d at 600B02; Roberson, 80 S.W.3d at 733B42. In contrast, significant evidence in the present case, including the accomplice-witness testimony and other links outlined above, showed much more than appellant=s mere presence in the vehicle.
In sum, based on all the above-cited evidence, the jury could have found beyond a reasonable doubt that appellant knowingly possessed the cocaine and methamphetamine. Further, the evidence is not so weak that the verdict seems clearly wrong or manifestly unjust, and the verdict is not contrary to the great weight and preponderance of the evidence. B. Sufficiency of Evidence to Corroborate Accomplice-Witness Testimony
AA conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.@ Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). We eliminate all accomplice testimony from consideration and then examine the remaining portions of the record to determine if there is any evidence that tends to connect the defendant with commission of the crime. Castillo, 221 S.W.3d at 691; Hardy, 246 S.W.3d at 297. The corroborating evidence need not directly link the defendant to the crime or be sufficient by itself to establish guilt beyond a reasonable doubt; there simply must be other evidence that tends to connect the defendant to the offense. Castillo, 221 S.W.3d at 691; Hardy, 246 S.W.3d at 297.
In our analysis above, we outlined the evidence besides the accomplice-witness testimony linking appellant to the cocaine and methamphetamine, particularly that he rented and drove the vehicle and the amount and location of the various narcotics found throughout the car. We conclude this evidence tended to connect appellant to possession of the cocaine and methamphetamine and thus was sufficient to corroborate the accomplice-witness testimony. Accordingly, we overrule appellant=s seventh through tenth issues.
V. Jury Instruction Regarding Accomplice Testimony
In his fifth and sixth issues, appellant argues the trial court erred by submitting an incorrect jury instruction regarding accomplice testimony. The trial court submitted two separate but identical accomplice-testimony instructions pertaining to McCann and Tieken. In each paragraph, the trial court instructed the jury it could not convict appellant on the testimony of the accomplice unless it believed there was other testimony tending to connect appellant with the offense See Tex. Code Crim. Pro. Ann. art. 38.14.[4] Appellant contends the trial court erred by failing to also instruct the jury that the testimony of an accomplice witness cannot be corroborated by the testimony of another accomplice witness. We agree. See Taylor v. State, 7 S.W.3d 732, 736B37 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (holding accomplice-witness instruction was incorrect because trial court failed to instruct jury that two accomplice witnesses could not corroborate each other); see also Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971) (holding one accomplice witness cannot corroborate testimony of another accomplice witness).
Because appellant failed to object, or request any additions, to the instruction, he must show egregious harm. See Taylor, 7 S.W.3d at 737 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)); see also Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) (holding appellant must show egregious harm if he failed to object to lack of any accomplice-witness instruction).[5] Under the egregious-harm standard, the corroborating evidence must be so unconvincing as to render the State=s overall case for conviction clearly and significantly less persuasive. See Taylor, 7 S.W.3d at 737 (citing Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991), which applied this standard when determining whether egregious harm resulted from failure to give any accomplice-witness instruction); see also Herron, 86 S.W.3d at 632 (recognizing non-accomplice evidence can render harmless a failure to submit an accomplice-witness instruction by fulfilling the purpose the instruction is designed to serve).
We already have discussed the corroborating evidence linking appellant to possession of the cocaine and methamphetamine. Further, it was the police officers who supplied this evidence and explained its significance to connect appellant with these narcotics. Therefore, we conclude the corroborating evidence was not so unconvincing in fact as to render the State=s overall case for conviction clearly and significantly less persuasive. Accordingly, because the error did not rise to the level of egregious harm, we overrule appellant=s fifth and sixth issues.
VI. Ineffective-Assistance-of-Counsel Claim
In his eleventh and twelfth issues, appellant argues he was denied his Sixth Amendment right to effective assistance of counsel. To prevail on an ineffective-assistance claim, an appellant must prove (1) counsel=s representation fell below the objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In considering an ineffective-assistance claim, we indulge a strong presumption that counsel=s actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle for raising such a claim because the record is generally undeveloped and cannot adequately reflect the motives behind trial counsel=s actions. Rylander v. State, 101 S.W.3d 107, 110B11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813B14. When the record is silent regarding trial counsel=s strategy, we will not find deficient performance unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Appellant contends his trial counsel=s performance was deficient in numerous respects as follows.
A. Evidence Regarding Stolen Gun
Appellant first complains his trial counsel committed the following acts or omissions relative to evidence the gun found in the vehicle was stolen: (1) failed to request notice of the State=s intent to use any extraneous bad acts and file a motion in limine requiring the State to approach the bench before eliciting such evidence; (2) lodged no objection on hearsay and extraneous-offense grounds when Officer Cohea testified the gun was stolen; (3) did not request limiting and reasonable-doubt instructions in the jury charge; (4) failed to object when the State implied during closing argument that appellant stole the gun; and (5) mentioned the stolen gun during his own closing argument. Appellant argues counsel had no command of the law or facts and allowed appellant to be tried as a criminal in general.
Even if appellant had a valid objection to the evidence and argument and was entitled to the jury instructions, we cannot foreclose the possibility his counsel had a trial strategy for the above-listed actions or omissions. See Delgado, 235 S.W.3d at 250B52 (recognizing counsel=s failure to object to lack of jury-charge instructions regarding extraneous offense can constitute plausible trial strategy); Johnson v. State, 233 S.W.3d 109, 116 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (same with respect to failure to object to State=s argument); Heiman v. State, 923 S.W.2d 622, 626 (Tex. App.CHouston [1st Dist.] 1995, no pet.) (same with respect to failure to object to inadmissible testimony).[6]
Counsel=s cross-examination of witnesses and closing argument reflect his defense was twofold: (1) the officers did not conduct a thorough investigation to determine which party was responsible for the narcotics and instead charged all occupants simply by virtue of their presence in the vehicle; and (2) the accomplices, particularly McCann, who lacked any credibility, were responsible for the narcotics, and appellant was merely an unwitting passenger. In line with this second defense, during closing argument, counsel suggested McCann placed the gun in the vehicle despite his professed ignorance of the gun. Counsel argued (1) although McCann testified he drove to New Orleans while appellant flew, appellant could not have cleared airport security if he possessed a gun or drugs and (2) McCann lived in the area where the gun was stolen. Consequently, considering the State did not actually connect appellant to theft of the gun, counsel may have deliberately refrained from seeking to exclude evidence or argument that the gun was stolen to intimate it was stolen by McCann.
We acknowledge it is questionable whether counsel employed this strategy considering he did object once when the owner was questioned about the gun. However, appellant objected on relevancy grounds and not specifically Rule 404(b); thus, he possibly intended to exclude only evidence regarding the identity of the owner as irrelevant. If Acounsel=s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal.@ See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).
B. Hearsay Regarding Rental of the Vehicle
Next, appellant complains of three instances purportedly demonstrating his counsel failed Ato make every effort@ to exclude on hearsay grounds evidence appellant had rented the vehicle: (1) counsel did not object to Officer Cohea=s testimony that he learned the identity of the renter from the rental contract;[7] (2) counsel did not object to a portion of the videotape reflecting that the officer searching McCann asked who rented the vehicle, and McCann responded, Ahe did,@ obviously referring to appellant; and (3) subsequently, when cross-examining McCann, counsel confirmed appellant rented the car in New Orleans. As appellant asserts, the fact appellant had rented the vehicle was a significant factor linking him to the narcotics found therein. Therefore, appellant argues his counsel=s actions assisted the State in gaining a conviction.[8]
We again conclude counsel may have had a strategy for his actions. He possibly knew appellant rented the vehicle and any voir dire of the officers or McCann would reveal they learned this information from appellant. Thus, counsel may have decided to instead focus on attacking the significance of appellant=s rental of the vehicle; on cross-examination, counsel had Officer Cohea confirm there are also Ainnocent@ purposes for renting a vehicle. Moreover, counsel possibly emphasized McCann=s claim that appellant flew to New Orleans and rented the vehicle to argue appellant could not have taken narcotics and a gun to New Orleans. Counsel also confirmed on cross-examination that McCann was too young at the time of his arrest to rent a car. Consequently, counsel may have tried to suggest that appellant rented the vehicle on McCann=s behalf. In sum, we cannot conclude counsel=s actions relative to evidence appellant rented the vehicle were so outrageous no competent attorney would have engaged in them.
C. Accomplice-Witness Instruction
Appellant also contends his counsel was deficient by failing to request a correct charge instructing the jury that neither accomplice-witness=s testimony could be corroborated by the testimony of the other accomplice-witness, as we discussed relative to appellant=s fifth and sixth issues. Even if counsel was deficient based on this omission, we conclude appellant was not prejudiced because, as we have outlined, the State presented ample corroborating evidence. See Patterson v. State, 204 S.W.3d 852, 861 (Tex. App.CCorpus Christi 2006, pet. ref=d) (holding trial counsel=s Aglaring error@ in failing to request jury instruction on accomplice-witness corroboration was not ineffective assistance when defendant was not prejudiced because State produced ample corroboration evidence). Even if we exclude evidence the gun had been stolen and appellant rented the vehicle, based on appellant=s claim his counsel should have objected to this evidence, there was still ample corroborating evidence, considering that appellant was the driver and the amount and location of the narcotics found throughout the vehicle.
D. Voir Dire
Additionally, appellant contends his trial counsel was ineffective based on his failure to properly voir dire the jury panel on the presumption of innocence. At the outset of voir dire, the trial court explained to the panel that the indictment was not evidence of guilt and appellant must be afforded the presumption of innocence. During his voir dire, appellant=s counsel reiterated the trial court=s earlier remarks. Counsel then asked each panel member to consider on a sliding scale whether he or she viewed appellant as innocent at that point. Counsel explained: A0@ means appellant is innocent; A5@ means Awhere there is smoke there is fire@CAthere must have been something there@ for appellant to be on trial; and A10@ means appellant is guilty and the panel member does not need to hear any evidence. The panel members who ultimately sat on the jury replied as follows: only two answered A0,@ nine provided answers between A3@and A5@; and one answered A10.@ As appellant asserts, his counsel did not ask any further questions to determine whether the panel members who answered anything but A0@ would nonetheless follow the law, challenge any of these panel members for cause, or exercise peremptory challenges on them.
We admit that we are troubled by counsel=s actions. We have difficulty conceiving of a strategy for failing to ensure appellant=s jury did not consist of one person who already believed he was guilty and nine persons who did not completely afford him the presumption of innocence. Nevertheless, based on precedent from our court of criminal appeals, we are bound to presume counsel may have had some strategy relative to jury selection. Specifically, in Delrio v. State, during the defendant=s trial for cocaine possession, counsel failed to challenge for cause or use a peremptory challenge against a panel member who stated during voir dire he was a former narcotics officer, knew the defendant by virtue of this employment, and could not be fair and impartial, and he actually served on the jury. 840 S.W.2d 443, 444B47 (Tex. Crim. App. 1992). The court recognized that a single partial juror will vitiate a conviction; however, the right to trial by impartial jury is subject to waiver or forfeiture by the defendant in the interest of overall trial strategy. Id. at 445B46; see also State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) (summarizing Delrio). On a cold record, there was insufficient basis to overcome the presumption that counsel was better positioned than the appellate court to judge the pragmatism of the case and made all significant decisions in the exercise of reasonable professional judgment. Delrio, 840 S.W.2d at 446B47; see also Morales, 253 S.W.3d at 696B98 (citing Delrio when holding Morales counsel was not ineffective for failing to exercise peremptory challenge, after challenge for cause denied, against panel member who was a district attorney in office prosecuting defendant although she may have been impliedly biased).
Likewise, on this cold record, we cannot foreclose the possibility that appellant=s counsel had some reason for failing to further question or challenge these particular panel members. For instance, counsel may have found them preferable to other panel members, despite their expressed views. See Morales, 253 S.W.3d at 698B99 (recognizing that counsel could have employed legitimate tactical decision by retaining district-attorney panel member because he believed she was preferable to at least one other prospective juror). Consequently, appellant has not overcome the presumption his counsel exercised reasonable professional judgment during jury selection.
E. AOpening the Door@ to Post-Arrest Silence
Next, we consider appellant=s contention his counsel was deficient by Aopening the door@ to appellant=s post-arrest silence in three instances.
First, counsel asked Officer Cohea, ATo your knowledge, no statement was ever taken from my client, was there?,@ to which he replied ANo.@ Appellant acknowledges counsel=s question comported with his strategy to show the officers did not perform a thorough investigation. Reading the question in context, we agree counsel apparently was not establishing appellant refused to give a statement to protest his innocence, but trying to show the officers did not bother to obtain a statement before charging him. Nevertheless, appellant claims this strategy was Aludicrous@ because demonstrating appellant=s post-arrest silence harmed him. However, considering the officers presented significant evidence linking appellant to the narcotics and corroborating the accomplice-witness testimony, we cannot conclude counsel=s eliciting the above-cited testimony in an attempt to discredit the officers rendered his performance ineffective.
Second, appellant cites a portion of his counsel=s cross-examination of Officer Nichols. However, counsel examined only the officer=s general practices with respect to taking an accused=s statement. Counsel did not ask, and Officer Nichols did not testify, whether appellant specifically gave a statement. Moreover, counsel=s questioning was apparently consistent with his strategy of suggesting the officers failed to perform a thorough investigation because Officer Nichols confirmed it is the officers= role to request a statement.
Finally, while establishing McCann did not give a statement to the officers at the scene of his arrest, counsel asked him, ABut in any event, nobody ever asked you; right?@ McCann responded, ANo. [Appellant] told me not to say anything either way.@ However, the question was clearly not intended to elicit this gratuitous response. Although counsel perhaps should have objected to this comment as non-responsive, this omission is not appellant=s ineffective-assistance complaint; rather he claims only that counsel opened the door to this comment. Further, McCann=s comment did not demonstrate appellant=s post-arrest silence, but only that he instructed McCann to refrain from speaking to the officers
F. AOpening the Door@ to Other AExtraneous Bad Acts@
As we have mentioned, during direct examination, McCann generally testified he knew illegal activity was involved when he solicited phone numbers in New Orleans. It was appellant=s counsel who confirmed on cross-examination that McCann was obtaining numbers so appellant could sell drugs. Counsel also elicited McCann=s testimony that appellant provided the cocaine which the parties used at the hotel and appellant lit a marijuana cigarette in the car while traveling toward Houston. Appellant asserts that A[i]t=s like defense counsel was trying to help the State make their case@ by Aopening the door@ to these other Aextraneous bad acts.@
Once again, we cannot foreclose the possibility that counsel=s questioning was based on trial strategy, despite his obtaining testimony that seemed damaging to appellant. Counsel may have decided McCann=s testimony on direct examination sufficiently suggested appellant was responsible for the narcotics such that counsel=s only option was to make McCann=s claim regarding his limited role and familiarity with the narcotics seem so incredulous the jury would believe he was solely responsible for these substances. For example, appellant=s counsel established: McCann claimed appellant was the narcotics dealer, yet McCann was soliciting customers; McCann claimed his snorting cocaine in the hotel room was his first experiment with the substance although cocaine was found on his person when stopped by the officers; and McCann suggested only appellant was smoking marijuana in the car when the officers clearly noticed McCann was doing so. Of course, we do not know whether counsel utilized this strategy, and if so, it obviously was unsuccessful; however, on this record, we cannot hold counsel failed to function within prevailing professional norms. See Delrio, 840 S.W.2d at 446B47 (refusing to find ineffective assistance where counsel=s possible adoption of a strategy that was Aundoubtedly risky@ and failed to Apay off@ did not necessarily mean it was unacceptable).
G. Opening Statement
Appellant=s last claim concerns two aspects of his counsel=s opening statement which ended as follows:
Richard Thomas is going to testify today at some point during this trial, the passenger in this vehicle, and he is going to take responsibility for the drugs in that cereal box and that my client did not know of those drugs in this cereal box.
As appellant asserts, (1) counsel misstated Thomas McCann=s name and (2) contrary to counsel=s promise, McCann did not take responsibility for the drugs in the cereal box or testify appellant had no knowledge of these drugs. Appellant primarily contends counsel=s promise of certain testimony when the jury actually heard the opposite undermined counsel=s credibility and demonstrated he had no command of the law or facts. As appellant notes, during its closing argument, the State reminded the jury of counsel=s unfulfilled promise that McCann would take responsibility for the narcotics.
We acknowledge it seems unlikely appellant=s counsel was merely mistaken about the nature of McCann=s anticipated testimony because he had notice the State planned to call him. Nevertheless, we conclude there is not a reasonable probability that, but for the deficiencies during opening statement, the result of the proceeding would have been different. The opening statement was very brief (constituting less than one page of the record), misstatement of the name was obviously a simple mistake because his full name is AThomas Richard McCann,@ counsel did not belabor the point about McCann=s predicted testimony, the State=s comment during closing argument was quite brief, and the jury heard significant evidence regarding appellant=s guilt.
Finally, as we have discussed, some of our conclusions that counsel=s actions may have been motivated by sound trial strategy are tenuous. Accordingly, we emphasize that we examine the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. Overall, trial counsel thoroughly cross-examined the police officers and accomplice-witnesses, attempting to elicit testimony supporting his twofold defense, and gave a comprehensive closing argument highlighting this testimony. Consequently, despite some questionable actions by counsel, we cannot conclude his overall representation was ineffective. Accordingly, we overrule appellant=s eleventh and twelfth issues.
We affirm the trial court=s judgment.
/s/ Charles W. Seymore
Justice
Panel consists of Justices Yates, Seymore, and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Although appellant presents twelve numbered issues, he essentially raises only six separate complaints because he presents two issues to raise each complaint for both underlying offenses.
[2] Citing Stoker v. State, 788 S.W.2d 1, 14 (Tex. Crim. App. 1989), appellant contends he was not necessarily required to object to the alleged misconduct because the court stated that whether the defendant objected is only one factor in determining if prosecutorial misconduct resulted in reversible error. However, Stoker was decided before Marin v. StateCthe Awatershed@ decision on preservation of errorC in which the court held that all but the most fundamental rights may be forfeited if not insisted upon by the party to whom they belong. See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993); see also Saldano v. State, 70 S.W.3d 873, 887B88 (Tex. Crim. App. 2002). That the State refrain from introducing evidence violating even constitutional rights is not such a fundamental right. See Saldano, 70 S.W.3d at 889. Moreover, a defendant=s Aright@ not to be subjected to incurable erroneous jury argument is forfeited by a failure to insist on its implementation. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
[3] In his reply brief, appellant contends Delgado is not controlling because the court addressed a jury instruction pertaining to evidence of an extraneous offense admitted as Asame-transaction contextual evidence,@ which was not involved in the present case. The Delgado court indeed emphasized that the extraneous evidence at issue was admitted as Asame-transaction contextual evidence.@ 235 S.W.3d at 253B54. The court stated that, when evidence is admitted on that basis, Rule 404(b) is not implicated and the defendant is not entitled to a limiting or reasonable-doubt instruction. Id. However, the court did not limit the above-quoted holding only to situations in which evidence of an extraneous offense was admitted as Asame-transaction contextual evidence.@ See id. at 251. Instead, as the court later stated,
Even if a limiting instruction on the use of an extraneous offense would have been appropriate here under Rule 404(b), the trial judge had no duty to include one in the jury charge for the guilt phase because appellant failed to request one at the time the evidence was offered. Because the trial judge had no duty to give any limiting instruction concerning the use of an extraneous offense in the guilt‑phase jury charge, it naturally follows that he had no duty to instruct the jury on the burden of proof concerning an extraneous offense.
Id. at 254 (footnote omitted).
[4] The jury instruction did not exactly track the language of the statute because it stated the accomplice-witness testimony had to be corroborated by other Atestimony,@ when the statute actually requires corroboration by other Aevidence.@ See Tex. Code Crim. Pro. Ann. art. 38.14. Regardless, appellant does not raise any issue regarding this variance.
[5] At one point, appellant acknowledges he must show egregious harm but then suggests he must show only some harm. We will follow the precedent of the court of criminal appeals and our court and apply the egregious-harm standard.
[6] The State argues there was no inadmissible evidence of an extraneous offense because the evidence did not connect appellant to theft of the gun. See Lockhart v. State, 847 S.W.2d 568, 573 (Tex. Crim. App. 1992) (recognizing that, to constitute an extraneous offense, evidence must show crime or bad act and defendant was connected to it); Gosch v. State, 829 S.W.2d 775, 784 (Tex. Crim. App. 1991) (holding defendant=s trial counsel was not ineffective by failing to object to admissible evidence). However, the testimony of McCann and Tieken circumstantially indicated appellant was the person who possessed the gun. Although there was no evidence directly connecting appellant with the theft, the State apparently offered evidence it was stolen to imply appellant stole it. Nevertheless, we need not decide whether testimony the gun was stolen constituted inadmissible evidence that appellant committed an extraneous offense because we cannot foreclose the possibility his counsel had a trial strategy for the above-listed actions or omissions.
[7] Officer Cohea used his report to refresh his memory that the rental contract reflected appellant as the renter. Although appellant seemed to object on hearsay grounds to the officer=s testifying from the report because it was not in evidence, he did not specifically object that information on the rental contract constituted hearsay.
[8] The State claims the videotape depicting the officers= stop of the vehicle reflected that appellant admitted renting the vehicle; therefore, this information was not hearsay and any objection when it was admitted through Officer Cohea or McCann would have been futile. However, we disagree that the videotape reflects any such admission at the point cited by the State. One officer asked who rented the vehicle. The response is barely comprehensible, but it sounds as though a male voice replied AI did.@ However, it is not possible to see or otherwise determine which male made this statement.