Lane, Ex Parte Carrie Denise

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,141

EX PARTE CARRIE DENISE LANE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM SMITH COUNTY

J OHNSON, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, H OLCOMB, and C OCHRAN, JJ., joined. K ELLER, P.J., and K EASLER and
H ERVEY, JJ., concurred.

OPINION

A jury convicted applicant of possession of a controlled substance, methamphetamine, in the

amount of 200 grams or more, but less than 400 grams. The jury assessed a sentence of life

imprisonment. On appeal, the Twelfth Court of Appeals affirmed applicant’s conviction and

sentence. Applicant now seeks habeas corpus relief.

Applicant alleges that her trial counsel provided constitutionally ineffective assistance of

counsel at both the guilt and punishment stages of her trial. The trial court entered Findings of Fact

and Suggested Conclusions of Law recommending that this Court deny relief. We filed and set

applicant’s habeas corpus application and now grant relief on grounds of ineffective assistance of
 2

counsel at the punishment stage of trial.

Ineffective Assistance of Counsel

Before we may grant relief on a writ of habeas corpus for ineffective assistance of counsel,

an applicant must demonstrate that: 1) trial counsel’s performance fell below an objective standard

of reasonableness; and 2) there is a reasonable probability, sufficient to undermine confidence in the

outcome that, but for counsel’s deficient performance, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668 (1984). This two-pronged test is “the benchmark

for judging . . . whether counsel’s conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” Id. at 686.

A reviewing court’s scrutiny of counsel’s performance is highly deferential and begins with

the assumption that counsel’s conduct fell within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). An applicant may overcome this strong presumption by proving trial counsel’s

ineffectiveness by a preponderance of evidence. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d

at 813.

In evaluating the effectiveness of counsel, the reviewing court looks at the totality of the

representation and the particular circumstances of each case. Ex parte Felton, 815 S.W.2d 733, 735

(Tex. Crim. App. 1991); Thompson, 9 S.W.3d at 813. An applicant’s failure to satisfy both prongs

of the two-pronged test defeats a claim of ineffective assistance of counsel: if both prongs are not

met, an appellate court cannot conclude that the conviction resulted from a breakdown in the

adversarial process that renders the result unreliable. Thompson, 9 S.W.3d at 812-13.
 3

Facts

On April 18, 2005, applicant and her co-defendant, Joseph Lopez, were stopped on Interstate

20 in Smith County for failing to signal before changing lanes. (Trial Record, 3 R.R. 41-42.)

Applicant was the driver, and Lopez was the passenger. No other persons were inside the vehicle.

Id. at 43. Department of Public Safety (DPS) Trooper Kenneth Richbourg smelled a strong odor

of burnt marijuana coming from the vehicle. Id. at 67. Both applicant and Lopez denied that they

were smoking marijuana. Id. at 71-72. During an initial search of the vehicle, Trooper Richbourg

found two baggies of marijuana and two burnt marijuana cigarettes on and around the passenger-side

front seat. Id. at 73-74. He also found 225.44 grams of crystal methamphetamine in a cup in the

center console of the vehicle. Id. at 75. At that point, he arrested appellant and her passenger. Id.

at 77.

Trooper Richbourg interviewed applicant on the way to Richbourg’s office. Applicant stated

that she and Lopez were dating and that she had gone to Dallas by herself the night before the stop;

she did not join Lopez in Dallas until the morning of the stop. Id. at 81. However, Lopez told DPS

Trooper Jim Burkett that he and applicant had stayed together the night before the stop. Id. at 190.

Applicant denied that the methamphetamine was hers. Id. at 82. She stated that she had

lent her vehicle to someone the day before. Id. She would not say who that person was. Id. Lopez

also denied ownership of the methamphetamine and said that he had seen two other persons driving

applicant’s vehicle the day before.

During a subsequent search of applicant’s vehicle, Trooper Richbourg discovered a small

scale like that often used to weigh narcotics, a loaded 9mm pistol, and a duffle bag containing a

man’s belongings and a knife. Id. at 97-98. He also discovered a cosmetics bag containing two
 4

baggies of pills and two baggies of crystal methamphetamine. Two of the four baggies had

applicant’s first name written on them. Id. at 97-98.

Ineffective assistance of counsel at the guilt stage

Applicant alleges that she was denied effective assistance of counsel at the guilt stage of trial

because trial counsel failed to object to: 1) testimony that Lopez had made statements that

incriminated applicant; 2) testimony regarding the extent of the methamphetamine problem, the

manner in which methamphetamine is distributed in Texas, and the wholesale and retail prices of

methamphetamine; and 3) the prosecutor’s argument, outside the record, that applicant was bringing

methamphetamine into Smith County to poison the children and turn them into addicts, and that

children were in fact shooting up and smoking methamphetamine. (Applicant’s Brief at 4-12.) To

establish an ineffective assistance of counsel claim, an applicant must demonstrate that trial

counsel’s performance was both deficient and prejudicial. Strickland, 466 U.S. 668.

Failure to object to testimony that Lopez made
statements to officers that incriminated applicant

Trooper Richbourg testified without objection that Lopez said he did not know anything

about the methamphetamine in the vehicle and that only the duffle bag belonged to him.1 (Trial

Record, 3 R.R. 135-37.) Both Trooper Burkett and DPS Sergeant Kenneth Bond testified without

objection that Lopez had stated that he and applicant had stayed together the previous night. Id. at

190, 223.

Applicant argues that trial counsel should have objected to the testimony.2 In support, she

1
Applicant and Lopez were tried together.

2
Applicant must show that it would have been error for the court to overrule an objection to the admissibility of the
evidence. Vaughn v. State, 913 S.W.2d 564, 566 (Tex. Crim. App. 1996).
 5

cites Bruton v. United States, 391 U.S. 123 (1968), which held that “a defendant is deprived of his

rights under the Confrontation Clause when his co-defendant’s incriminating confession is

introduced at their joint trial.” Cruz v. New York, 481 U.S. 186, 186 (citing Bruton, 391 U.S. 123).

Applicant argues that the officers’ testimony “inferentially incriminated applicant”: Lopez’s

statement that he did not know anything about the methamphetamine and that only the duffle bag

belonged to him implied that applicant was the owner of the 225.44 grams of methamphetamine

found in the center console of the vehicle. (Applicant’s Brief at 7-8.)

Applicant must “overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). At the evidentiary hearing, trial counsel testified that his

defensive theory was that his “client was not responsible for anything but the two baggies that had

her name on it.” (Habeas Hearing, 1 R.R. 82.) Lopez’s statement was that he did not know

anything about the methamphetamine and that he had seen two other persons driving applicant’s car

the day before her arrest. Although the jury could reasonably infer from Lopez’s statement that

applicant was the owner of the methamphetamine, the statement itself did not incriminate applicant;

counsel’s failure to object to the admission of the statement did not constitute deficient performance.

Failure to object to an officer’s testimony regarding
the extent of the methamphetamine problem

Applicant asserts that trial counsel should have objected to Sergeant Bond’s testimony

regarding the extent of the methamphetamine problem. Texas Rule of Evidence 401 defines

relevance as having any tendency to make the existence of any fact that is of consequence to the

determination of the action more or less probable. TEX . R. EVID . 401. Even if the evidence were
 6

relevant, it may still be excluded if the danger of unfair prejudice substantially outweighs its

probative value. TEX . R. EVID . 403. Unfair prejudice means the tendency of the evidence “to prove

some adverse fact not properly in issue or unfairly to excite emotions against the defendant.”

Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1991) (op. on reh’g).

Applicant was charged with possession of 225.44 grams of methamphetamine. To sustain

a conviction for unlawful possession of a controlled substance, the state must prove that the accused

exercised care, control, and management over the contraband and that the accused knew the matter

was contraband. Martin v. State, 753 S.W.2d 384, 386 (Tex. Crim. App. 1988).

At the guilt phase of trial, Sergeant Bond testified that there is a methamphetamine epidemic

in Texas. (Trial Record, 3 R.R. 213.) Evidence that there is a methamphetamine epidemic in Texas

is not a factor linking applicant with, or bearing on, possession of the methamphetamine, but it does

have the tendency “to prove some adverse fact not properly in issue or unfairly to excite emotions

against the defendant.” Montgomery, 810 S.W.2d at 378. Thus, trial counsel should have objected

to testimony regarding the extent of the methamphetamine problem. Failure to do so was deficient

performance.

Failure to object to an officer’s testimony regarding the
manner in which methamphetamine is distributed in Texas,
and the wholesale and retail prices of methamphetamine

Applicant contends that trial counsel should have objected to Sergeant Bond’s testimony that:

1) methamphetamine comes primarily from Mexico; 2) Dallas is a major hub for distribution; 3)

methamphetamine is typically transported by vehicle from Dallas to rural communities; and 4)

Interstate 20 is one of the main drug corridors in east Texas. (Trial Record, 3 R.R. 213-14, 216.) She

asserts that Sergeant Bond’s testimony was admitted as evidence of an uncharged offense of
 7

possession of a controlled substance with intent to deliver.

An accused may not be tried for a collateral crime or for being a criminal generally.

Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987); Albrecht v. State, 486 S.W.2d 97,

100 (Tex. Crim. App. 1972); Young v. State, 261 S.W.2d 836, 837 (Tex. Crim. App. 1953).

Evidence of an uncharged offense, however, may be admissible to show the context in which the

criminal act occurred. Wilkerson, 736 S.W.2d at 659-60; Albrecht, 486 S.W.2d at 101. In addition,

under Texas Rule of Evidence 404, evidence of other crimes, wrongs, or acts, may “be admissible

for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake.”

In Hoffert v. State, 623 S.W.2d 141, 144 (Tex. Crim. App. 1981), the defendant pled guilty

before a jury to the delivery of methamphetamine. This Court held that the evidence of smoking

marijuana and offers to sell additional marijuana and methamphetamine was properly admitted at

trial to demonstrate the context of the charged offense. We further noted that “the jury has a right

to hear what events immediately surrounded the criminal act charged so that they may realistically

evaluate the evidence.” Hoffert, 623 S.W.2d at 144 (citing Albrecht, 486 S.W.2d 97).

During an initial search of applicant’s vehicle, Trooper Richbourg found 225.44 grams of

crystal methamphetamine in the center console. Then, during a subsequent search of applicant’s

vehicle, Trooper Richbourg discovered a small scale, a loaded 9mm pistol, and a cosmetics bag

containing two baggies of pills and two baggies of crystal methamphetamine. (Trial Record, 3 R.R.

97-98.) Two baggies had applicant’s first name written on them, and one baggie had “Ryan” written

on it. Id. at 98.

Here, the evidence of possession of drugs with intent to deliver is inextricably intertwined
 8

with the evidence used to prove the offense of possession of methamphetamine. Sergeant Bond’s

testimony offered evidence about the context of the charged offense of methamphetamine possession

and was relevant and thus admissible. However, applicant asserts that, even if relevant, the evidence

was unduly prejudicial and that the introduction of Sergeant Bond’s testimony regarding possession

with intent to deliver placed applicant at risk of being convicted on the basis of that offense.

When weighing considerations of unfair prejudice against the probative value of the

evidence, such considerations do not prevail. This Court has held in the past that “[r]arely will the

prejudicial value render inadmissible any evidence that is context of the offense.” Mann v. State,

718 S.W.2d 741 (Tex. Crim. App. 1986). In the instant case, evidence of the uncharged offense

provided the context for the charged offense and was relevant to determining applicant’s guilt of the

charged offense. The prejudicial effect of the evidence in tending to confuse the issues before the

jury is outweighed by its probative value. Thus, trial counsel’s performance was not deficient in

failing to object to testimony regarding the manner in which methamphetamine is distributed in

Texas.

Sergeant Bond also testified that a half pound of methamphetamine costs $6,000 to $9,000

and can be sold retail for triple that amount. (Trial Record, 3 R.R. 219.) Applicant argues that this

evidence is irrelevant and unduly prejudicial. However, in Kemner v. State, 589 S.W.2d 403, 406

(Tex. Crim. App. 1979) and Castro v. State, 432 S.W.2d 948 (Tex. Crim. App. 1968), both

possession of marijuana cases, this court held that it is not error to admit evidence regarding the

value of narcotics.

Applicant cites Cabrales v. State, 932 S.W.2d 653, 658 (Tex. App.—Houston [14th Dist.]

1996, no pet.) for the proposition that testimony regarding the street value of an illegal drug is
 9

irrelevant to whether defendant intentionally or knowingly possessed it. However, Cabrales is

distinguishable from the instant case. In Cabrales, the defendant was indicted for possession of

powdered cocaine. A police officer testified, however, to the value of crack cocaine, which the court

held was irrelevant in defendant’s case.

In this case, applicant was indicted for possession of 225.44 grams of methamphetamine,

which is approximately a half pound. Sergeant Bond testified as to the value of that

methamphetamine. Any risk that this evidence might confuse the issues before the jury was

outweighed by its helpfulness in translating the testimony into terms that were easily comprehended

by the jury. Kemner, 589 S.W.2d at 404. Thus, trial counsel’s performance was not deficient in

failing to object to testimony regarding the wholesale and retail prices of methamphetamine.

Failure to object to the prosecutor’s argument, outside the record,
that applicant was bringing methamphetamine into Smith County
to poison the children and turn them into addicts, and that
children were in fact shooting up and smoking methamphetamine

The record reflects that a prosecutor argued in closing in the guilt phase that “[p]eople are

bringing [methamphetamine] through our county to its destination: Our kids and our family

members, so it will poison them and turn them into addicts. . . . They are drug dealers. How dare

you bring this into our county.” (Trial Record, 4 R.R. 97.) She also expressed her opinion that 225

grams is not a user amount. “That is for resale. That is to poison other people. . . . They are drug

dealers. And shame on you for bringing this in our freaking county. Shame on you.” (Trial Record,

4 R.R. 96.)3 Applicant asserts that “people” was meant to be understood as “the defendant” and that

3
A prosecutor argued during summation that “[methamphetamine] is the poison that is infiltrating our society and
our county. And it is deadly . . . . Bringing it here, poisoning our kids, and addicting them to that stuff, that poison,
those crystals. 225 [buyers]. At a very minimum, . . . it is ruining that many lives.” (Trial Record, 4 R.R. 88.) Id.
at 96-97. And she then concluded, “That’s poisonous . . . . You get somebody hooked, they’re a repeat customer.
 10

the “shame on you” and “how dare you” remarks were aimed at her specifically. Applicant argues

that trial counsel’s performance was deficient when he failed to object to this argument on the basis

of irrelevance and undue prejudice.

Proper jury argument generally will fall within one of four categories: 1) summary of

evidence; 2) reasonable deduction from the evidence; 3) response to argument of opposing counsel;

and 4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). The

prosecutor’s argument does not fall into any of these categories. Instead, the prosecutor’s argument

referred to facts that were neither in evidence nor inferable from the evidence and made an improper

plea for law enforcement.

Evidence of possession with intent to deliver was admissible for the purpose of showing the

context of the charged offense. Id. at 57. In summation, however, the prosecutor went beyond

making reasonable deductions from the admitted evidence. The prosecutor referred to a wholly new

and unsubstantiated allegation that “people” sell methamphetamine to children, who in turn use the

methamphetamine and become addicts. “[A] prosecutor may not use closing argument to get

evidence before the jury which is outside the record and prejudicial to the accused.” Id. This court

has held that improper references to facts that are neither in evidence nor inferable from the evidence

are “designed to arouse the passion and prejudices of the jury and as such are highly inappropriate.”

Id. Moreover, the prosecutor attempted to persuade the jury to convict applicant based on an

uncharged offense for which applicant was not on trial. This court has held that “[t]he law provides

for, and presumes, a fair trial, free from improper argument by the prosecuting attorney.” Long v.

State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991)(applying Borjan to argument at guilt phase).

That’s easy money right there.” Id. at 100.
 11

The prosecutor’s argument during summation was improper. No sound strategy could justify trial

counsel’s failure to object to the prosecutor’s argument. Thus, trial counsel’s performance was

deficient in failing to object to the prosecutor’s argument.

Prejudice

Applicant has demonstrated that trial counsel was deficient for failing to object to: 1) an

officer’s testimony regarding the extent of the methamphetamine problem; and 2) the prosecutor’s

argument, that “people” were bringing methamphetamine into Smith County to poison the children

and turn them into addicts and that children were in fact shooting up and smoking

methamphetamine. However, in addition to demonstrating that trial counsel’s representation fell

below an objective standard of reasonableness, to establish a claim of ineffective assistance of

counsel applicant must also show that she was prejudiced as a result of the deficient performance

of the attorney. Strickland, 466 U.S. at 688; Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.

App. 1999). The reviewing court must judge the claim based on the totality of the representation.

Strickland, 466 U.S. at 695. Here, applicant’s claim of ineffective assistance of counsel fails because

applicant is unable to show that there is a reasonable probability, sufficient to undermine confidence

in the outcome that, but for counsel’s deficient performance, the result of the trial would have been

different. See generally id.

The evidence that was presented at the guilt stage of trial was strong. Applicant and Lopez

were the only persons inside applicant’s vehicle when it was stopped in Smith County while they

were traveling from Dallas, a major hub for drug distribution, on Interstate 20, one of the main drug

corridors in east Texas. During the initial search of applicant’s vehicle, Trooper Richbourg found

225.44 grams of crystal methamphetamine in a cup in the center console. During a subsequent
 12

search of applicant’s vehicle, law-enforcement personnel discovered a small scale, two baggies of

drugs with applicant’s first name written on them, and a loaded 9mm pistol. Applicant’s explanation

for the methamphetamine was that some other person had been driving applicant’s vehicle earlier

that day. No further evidence was developed as to the existence or the identity of the other person.

Further, when Trooper Richbourg stopped applicant, he smelled marijuana smoke coming

from her vehicle. During the initial search of the vehicle, Trooper Richbourg found two baggies of

marijuana and two burnt marijuana cigarettes on and around the passenger-side front seat. Applicant

denied that she had been smoking marijuana.4 (Trial record, 3 R.R. 72.)

Applicant has failed to show that, but for trial counsel’s deficient performance, the outcome

at the guilt stage would have been any different. Applicant’s claim of ineffective assistance of

counsel at the guilt stage must therefore fail.

Ineffective assistance of counsel at the punishment stage of trial

Applicant alleges that she was also denied effective assistance of counsel at the punishment

stage of trial. She argues that trial counsel’s performance was deficient for failing to object to DEA

Agent Joseph Downing’s testimony regarding the societal problems caused by methamphetamine.

Applicant also urges that trial counsel’s performance was deficient for failing to request pre-trial

notice of the state’s experts, determine that a DEA agent would testify about methamphetamine

addiction, properly object to his testimony about addiction and that 45,000 people could get high

from the methamphetamine that applicant possessed, and call an expert in rebuttal. Furthermore,

applicant alleges that trial counsel’s performance was deficient when he failed to object to a

prosecutor’s argument to the jury that it should consider the application of parole law to applicant.

4
Applicant later claimed the marijuana. (Trial record, 3 R.R. 78.)
 13

Failure to object to the DEA agent’s testimony regarding
the societal problems caused by methamphetamine

Applicant specifically alleges that Agent Downing testified that he had investigated a

methamphetamine lab in Dallas where two people died from poisonous gas, he was familiar with a

woman who used methamphetamine during her pregnancy, and that the community has to subsidize

the costs of health care, clean up, and theft associated with methamphetamine use because a user

typically loses his job, runs out of money, and then steals to get money to buy drugs. (Applicant’s

Brief at 19.) Applicant argues that trial counsel’s failure to object constituted deficient performance

because the testimony was not relevant, was unduly prejudicial, and referred to extraneous offenses

that were not connected to applicant. In support of her allegations, she cites two cases: 1) Ewes v.

State, 841 S.W.2d 16, 18 (Tex. App.—Dallas 1992, pet. ref’d); and 2) Contreras v. State, 846

S.W.2d 48 (Tex. App.—Corpus Christi 1992, pet. ref’d).

During the punishment stage in Ewes, a drug-delivery trial, the trial court admitted the

testimony of a police officer about the number of drug-related homicides in the county. The

defendant argued that such evidence encouraged the jury to punish him for offenses for which he was

not on trial and in which he did not participate. The Fifth Court of Appeals held that the trial court

erred in admitting this testimony because it was unduly prejudicial and “its admission tended to

confuse the punishment issues before the jury.” Ewes, 842 S.W.2d at 18.

In Contreras, a drug-possession case, the trial court admitted the opinion testimony of a

deputy sheriff as to what a hypothetical drug dealer would do with an ounce of cocaine. The deputy

sheriff testified that persons with an ounce of cocaine were generally involved with the sale and

distribution of cocaine. Contreras, 846 S.W.2d at 49. The Thirteenth Court of Appeals found that
 14

the state was attempting to link the defendant’s crime with that of cocaine importers. It held that the

trial court erred in admitting this testimony because it was irrelevant to the punishment that the

defendant should receive for possession of cocaine. Id. at 50.

Article 37.07, § 3(a), of the Texas Code of Criminal Procedure is “one of the guiding

principles for the admissibility of evidence at the punishment stage of trial.” Sunbury v. State, 88

S.W.3d 229, 233 (Tex. Crim. App. 2002) (citing Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim.

App. 1999)). Pursuant to Article 37.07, § 3(a)(1), “evidence may be offered by the State and the

defendant as to any matter the court deems relevant to sentencing.” TEX . CODE CRIM . PROC. art.

37.07, § 3(a)(1).

Rule 401 is helpful for determining what evidence should be admitted under Article 37.07,

§ 3(a), but it is not a perfect fit in the punishment context. Sunbury, 88 S.W.3d at 234. Determining

what is relevant at the punishment stage is a question of “what is helpful to the jury in determining

the appropriate sentence for a particular defendant in a particular case.” Rogers, 991 S.W.2d at 265.

Evidence that is relevant to the determination of a sentence may still be excluded if the danger of

unfair prejudice substantially outweighs its probative value. TEX . R. EVID . 403. Rule 403 favors

the admission of relevant evidence, presuming that relevant evidence will be more probative than

prejudicial. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g).

Applicant argues that Ewes and Contreras should be interpreted to hold that it is error for a

trial court to admit testimony regarding the dangers and societal costs related to drug use at the

punishment stage of a trial for possession or delivery of controlled substances. We decline to accept

this interpretation of Ewes and Contreras. First, the courts in Ewes and Contreras relied on a purely

factual analysis in determining the relevance of the evidence. Second, applicant’s interpretation of
 15

Ewes and Contreras is too broad. Determining what is relevant should be specific to a particular

defendant in a particular case. Sunbury, 88 S.W.3d at 234. In the present case, the trial court ruled

that the testimony regarding the societal problems caused by methamphetamine addiction that was

given in the punishment stage of trial was relevant and admissible. That court cited TEX . CODE

CRIM . PROC. art. 37.07, § 3(a)(1) for support.

Agent Downing’s testimony about the dangers of drug use went well beyond demonstrating

the context of applicant’s offense. His testimony attempted to connect applicant to offenses to which

there appear to be no connection. At trial, evidence was presented that implied that applicant was

involved in the sale and delivery of drugs.5 It is not apparent, however, that testimony from

witnesses, other than Agent Downing, established or even suggested that applicant engaged in

manufacturing drugs or fed the addiction of a pregnant woman. Those unconnected cases were not

“helpful to the jury in determining the appropriate sentence” for applicant. Rogers, 991 S.W.2d at

265.

The testimony on the societal problems caused by drug use also went well beyond

demonstrating the context of the instant offense. It is conceivable that testimony on community

subsidization of the costs of health care, clean up, and theft associated with methamphetamine use

could be helpful to a jury in determining an appropriate sentence. It provides context for why

possession of a controlled substance is prohibited. However, in this case, it appears that no facts

were elicited to substantiate the claims in Agent Downing’s testimony. He merely made broad

generalizations about the impact of drugs on society as a whole, not the geographical area in which

5
During a search of applicant’s vehicle, investigators recovered a small black scale, a cosmetic bag containing two
baggies each of pills and crystal methamphetamine, and a loaded 9mm pistol in a gun case. (Trial Record, 3 R.R.
97-98.) Lopez was carrying over $1000 cash in his pocket at the time of the arrest. Id. at 129.
 16

he works or in which applicant was alleged to have possessed a controlled substance. We conclude

that the testimony was irrelevant.

Even if the evidence were relevant, we believe that considerations of substantially unfair

prejudice would have sufficed to bar the admission of the testimony regarding the general dangers

and societal costs related to drug use. Any probative value that the testimony may have had with

respect to determining the appropriate length of applicant’s sentence was substantially outweighed

by the danger that it would give rise to substantially unfair prejudice. “Unfair prejudice” refers to

an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily,

an emotional one.” Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Agent Downing’s

testimony implied a link between applicant’s offense of possession of methamphetamine with the

unconnected offenses of the manufacture of drugs, delivery of drugs to a pregnant woman, and theft.

The testimony was inflammatory and tended to confuse the issues before the jury. The testimony,

more likely than not, encouraged the jury to consider irrelevant evidence when assessing the sentence

and gave rise to a risk that the jury would punish applicant for matters that were not reasonably

related to the sentencing determination before it.

Agent Downing’s testimony on the general dangers and societal costs caused by

methamphetamine was irrelevant and unduly prejudicial. We can find no objectively reasonable

basis in this case for trial counsel’s failure to object to this testimony. Thus, we find that trial

counsel’s performance in failing to object to Agent Downing’s testimony regarding the dangers and

societal costs caused by methamphetamine constituted deficient performance.

Failure to request pre-trial notice of the State’s experts,
determine that a DEA agent would testify about methamphetamine
addiction, properly object to his testimony about addiction and
 17

that 45,000 people could get high from the methamphetamine
that applicant possessed, and call an expert in rebuttal

Applicant argues that trial counsel’s performance was deficient when he failed to request pre-

trial notice of the State’s experts,6 determine that a DEA agent would testify about methamphetamine

addiction, properly object to his testimony about addiction and that 45,000 people could get high

from the methamphetamine that applicant possessed, and call an expert in rebuttal. Whether trial

counsel’s performance was deficient largely depends on whether Agent Downing’s testimony was,

in fact, objectionable.

Failure to properly object to a DEA agent’s testimony about addiction

Agent Downing testified without objection that methamphetamine is one of the two most

addictive drugs and that he has known only one person who recovered from methamphetamine

addiction. Applicant argues that trial counsel should have objected on the grounds that research does

not support the assertion that methamphetamine is one of the two most addictive drugs,7 and that

6
Pursuant to Article 39.14(b) of the Code of Criminal Procedure, “[o]n motion of a party and on notice to the other
parties, the court in which an action is pending may order one or more of the other parties to disclose to the party
making the motion the name and address of each person the other party may use at trial to present evidence under
Rules 702, 703, and 705, Texas Rules of Evidence.” T EX . C O D E C RIM . P RO C . art. 39.14 (b).

7
W hether methamphetamine is one of the two most addictive drugs depends on who is consulted. The general
consensus is that a legal drug, nicotine, heads the list, based on likelihood of addiction (96.5%) and difficulty of
withdrawal. See, e.g., Rob Crane, MD, The Most Addictive Drug, the Most Deadly Substance: Smoking Cessation
Tactics for the Busy Clinician, 34 P RIM ARY C ARE : C LIN ICS IN O FF . P RAC ., 117-35 (M arch 2007). The next two highly
addictive drugs are illegal: crack cocaine (95.5%) and “ice” (92.5%), the form of methamphetamine that is smoked.
They are variously listed as the second or third most addictive drugs. They are followed by crystal meth (89.5%),
the injected form of methamphetamine, as the fourth most addictive drug. See, e.g., John Hastings, Relative
Addictiveness of Various Substances, I N H EALTH , Nov/Dec 1990 (“To rank today's commonly used drugs by their
addictiveness, we asked experts to consider two questions: How easy is it to get hooked on these substances and how
hard is it to stop using them? Although a person's vulnerability to drug also depends on individual traits --
physiology, psychology, and social and economic pressures–these rankings reflect only the addictive potential
inherent in the drug. The numbers below are relative rankings, based on the experts' scores for each substance [+/-
1%]: 100 Nicotine[,] 99 Ice, Glass (Methamphetamine smoked)[,] 98 Crack[,] 93 Crystal Meth (Methamphetamine
injected)[,] 85 Valium (Diazepam) . . . .”). See also http://www.druglibrary.org/schaffer/Misc/addictiv.htm (last
visited Dec. 9, 2009)(same); Blurtit, What Are the Most Addictive Drugs?, http://www.blurtit.com/q3150977.html
(last visited Dec. 9, 2009)(nicotine, crack, ice/glass, crystal methamphetamine, oxycodone).
 18

Agent Downing’s testimony that he has seen only one person recover from methamphetamine

addiction is misleading. (Applicant’s Brief at 19.) Applicant also argues that trial counsel should

have objected on the grounds that Agent Downing is not qualified to testify to these opinions. Id.

As support, applicant cites to Texas Rule of Evidence 702 and an affidavit from Dr. Ashraf

Mozayani, a board-certified forensic toxicologist.

In Dr. Mozayani’s affidavit, she stated that: 1) a narcotics agent is not qualified to testify that

methamphetamine is one of the two most addictive drugs; 2) research does not support the assertion

that methamphetamine is one of the two most addictive drugs; and 3) Agent Downing’s testimony

that he has only seen one person recover from methamphetamine addiction is misleading because

a narcotics agent does not generally interact with methamphetamine addicts long enough to

accurately determine their rate of recovery. (Mozayani’s Affidavit at 3.) The trial court, in its

Findings of Fact and Suggested Conclusions of Law, found that the affidavit is not relevant to any

issue at trial. (Findings of Fact and Suggested Conclusions of Law at 8.) However, we find that the

affidavit effectively calls into question the admissibility of Agent Downing’s testimony about

addiction.

Pursuant to Texas Rule of Evidence 702, “if scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise.” TEX . R. EVID . 702. Rule 702 requires that: 1) the

witness is qualified; 2) the proposed testimony is scientific, technical, or other specialized

knowledge; and 3) the testimony assists the trier of fact to understand the evidence or to determine
 19

a fact in issue. E.I. du Pont de Nemours and Co., Inc v. Robinson, 923 S.W.2d 549, 556 (Tex.

1995). To establish requirements two and three, the proponent of the proposed testimony must

establish that it is relevant and reliable. E.I. du Pont de Nemours and Co.,Inc., 923 S.W.2d at 556.

Agent Downing’s testimony that methamphetamine is one of the two most addictive drugs

was based solely on his personal observations as a DEA agent;8 he offered no other basis, such as

an authoritative treatise, for his belief. Agent Downing’s deductions did not logically flow from the

observations on which he based them. Therefore, Agent Downing’s testimony was objectionable,

and trial counsel’s performance was deficient when he failed to object.

Agent Downing also testified that he had known only one person who recovered from

methamphetamine addiction. Id. at 58-59. At the time of trial, Agent Downing had four years of

experience as a DEA agent. (Trial Record, 5 R.R. 21-22.) He was asked, “How many times have

you seen where somebody was involved and addicted to methamphetamine turn their life around?”

(Trial Record, 5 R.R. 58-59.) He responded, “I know of one person that I’ve ever been involved

with.” Id. at 59. The prosecutor followed up and asked, “That’s out of all the investigations and out

of all the people you’ve dealt with?” Agent Downing answered, “Correct.” Id. at 59.

Agent Downing’s statement that he’s been involved with only one person who had turned

their life around was misleading. His anecdotal statement was based solely on his limited personal

observations as a DEA agent.9 However, there is no evidence that he kept track of the

methamphetamine users that he had contact with in his job. Without testimony that Agent Downing

8
“I’ve got experience that tells me that some of the people that I’ve seen, some of the things I’ve witnessed, it’s got
to be addictive because, otherwise, they wouldn’t put their children in harm’s way.” (Trial Record, 5 R.R. 40.)

9
Agent Downing had 17 weeks of training at the DEA academy, and four years of experience as a DEA agent.
(Trial Record, 5 R.R. 21-22.)
 20

diligently kept track of each user he came into contact with and knew how each one fared, such a

statement is meaningless and akin to a statement such as “All Indians walk single file. At least the

one I saw did.” Anecdotal information of this particular type is not helpful to a jury in assessing an

appropriate punishment and is thus irrelevant. Agent Downing’s testimony that he has known only

one person who recovered from methamphetamine addiction and that methamphetamine is one of

the most addictive drugs was objectionable. Thus, trial counsel’s performance was deficient for

failing to object to that testimony.

Failure to properly object to a DEA’s testimony that 45,000 people
could get high from the methamphetamine that Applicant possessed

Agent Downing testified without objection that the dosage unit of methamphetamine for the

purpose of getting high is five milligrams and that 45,000 people could get high from the 225.44

grams of methamphetamine that applicant possessed. Applicant argues that Agent Downing was not

qualified to testify to these opinions. (Applicant’s Brief at 19.)

In support of her allegations, applicant first notes the inaccuracy of Agent Downing’s

testimony. She cites Dr. Mozayani’s affidavit for the proposition that Agent Downing’s testimony

that a five- milligram dosage will get a person “high” is incorrect. The amount of methamphetamine

that a person must ingest to get high depends on his tolerance level. An infrequent user of

methamphetamine requires dosages of 25 to 50 milligrams to get high, and a frequent user requires

dosages of up to 1,000 milligrams to get “high.” (Mozayani’s Affidavit at 3.) Accordingly, Dr.

Mozayani stated that testimony that 225 grams of methamphetamine will get 45,000 users high is

incorrect. Instead, 225 grams of methamphetamine would get 4,500 to 9,000 infrequent users or 225

frequent users high. Id.
 21

Although Dr. Mozayani’s expert opinion is open to challenge, it is at least founded on

scientific data and personal, specialized knowledge in forensic toxicology. Agent Downing was not

shown to have knowledge of, experience with, or training in the amount of a drug required to get

high. That is not to say that no law-enforcement officer can testify to such matters. An undercover

officer who had made buys and consorted with drug users and dealers might well have the

experience and knowledge to testify about how much of a drug must be ingested in order to get high,

but Agent Downing was not shown to have such knowledge or any other factual basis for his opinion

about dosages.

Applicant also cites Rule 702 to support her contention that Agent Downing was not

qualified to testify that 225 grams of methamphetamine will get 45,000 people high. The trial court

found that Agent Downing’s testimony was admissible because it was factually based on his

experience and training. (Findings of Fact and Suggested Conclusions of Law at 8.) However, we

find that this finding is not supported by the record. Agent Downing merely stated scientific

conclusions without citing any basis for them except his limited personal experience and training.10

Agent Downing’s testimony that 45,000 people could get high with 225 grams of

methamphetamine was inaccurate and misleading and therefore objectionable. In addition, his

testimony about addiction was objectionable. Thus, trial counsel’s performance was not only

deficient for failing to object to this testimony, but also for failing to request pre-trial notice of the

10
Agent Downing testified that:
A dosage unit is the amount of substance, in this case, methamphetamine, that it requires to produce an
effect or a high in the average person, like you and I, not someone that has been using methamphetamine for
a while. So just the typical person, this is the amount that it’s going to take to get you high...[The dosage
unit for methamphetamine is] five milligrams . . .. If you take 225 grams and divide it by 5 milligrams,
that’s going to be around 45,000 dosage units, which would be 45,000 people, like you and I, it would get
high. (Trial Record, 5 R.R. 52-53.)
 22

state’s experts, and to call an expert to rebut Agent Downing’s inaccurate testimony.

Failure to object to a prosecutor’s argument to the jury that
it should consider the application of parole law to applicant

Applicant alleges that a prosecutor argued without objection that the jury should assess life

imprisonment, with the caveat that applicant could earn good-conduct time and the right to parole.11

(Trial Record, 5 R.R. 187-88.) She also alleges that another prosecutor asked the jury to assess life

imprisonment, reiterating that “[l]ife does not necessarily mean life,” because the length of the

sentence could be reduced by awarding parole based on her conduct while incarcerated. Id. at 215-

16. Applicant argues that trial counsel’s performance was deficient for failing to object to the

prosecutor’s argument to the jury that it consider the application of parole law to applicant.

Article 37.07, §4, of the Code of Criminal Procedure prohibits the jury from considering how

the parole law may apply to the defendant. Applicant argues that a prosecutor’s argument that the

defendant may be released on parole requires a new trial on punishment. In support, applicant cites

to Chester v. State, 167 S.W.3d 935, 937 (Tex. App.–Amarillo 2005, pet. ref’d), which held that it

is error for the prosecutor, during closing argument in the punishment stage of a trial, to tell the jury

about how parole law might affect the amount of time the defendant would serve.

Applicant’s reliance on Chester is misplaced. In Chester, the prosecutor stated that “[i]f

there is a 20 year sentence, Mr. Chester will not become eligible for parole until his actual time

11
The prosecutor argued:
I said we’re going to ask you to do something hard. W e’re going to ask you to sentence them to life. Now,
understand, as the judge’s instructions just explained to you, life doesn’t necessarily mean life. Both of
these defendants will have the opportunity, while they are incarcerated, to earn good conduct time and the
right to parole. You have no say in that. That, quite frankly, will be up to them. W hether or not they make
the decision, at that point in their life, to earn it, to prove they deserve it; because they certainly haven’t
proven they deserve it yet. They’ll have that opportunity. It will not be denied them. (Trial Record, 5 R.R.
187-88.)
 23

served, plus whatever credit they give him for good time served, equals 5 years, okay. That’s what

you know for sure.” The facts of the present case, however, are significantly different.

In this case, the prosecutors merely stated the law and how it could affect applicant. In

Hawkins v. State, 135 S.W.3d 72, 84 (Tex. Crim. App. 2004), the court held that it was neither

improper for the prosecutor to accurately restate the law given in the jury charge nor was it improper

for the prosecutor to ask the jury to take the existence of that law into account when assessing

punishment. Thus, trial counsel’s performance was not deficient for failing to object to the

prosecutors’ argument.

Prejudice

Applicant contends that the facts of this case did not merit a life sentence. She argues that

the only evidence that the state offered at the punishment stage, other than Agent Downing’s

testimony, was that applicant “successfully completed a one-year probation for possession of less

than two ounces of marijuana and a two-year probation for DWI.” (Applicant’s Brief at 22.) These

cases were dismissed in 2000 and 2001. Id.

The trial court disagreed with applicant. It found that the evidence against applicant in this

case was overwhelming. (Findings of Fact and Suggested Conclusions of Law at 10.) It also found

that applicant failed to offer any facts or legal authority to show that applicant did not receive

effective assistance of counsel. Id.

We have already determined that the trial counsel’s failure, at the punishment stage, to object

to Agent Downing’s testimony on the dangers and societal costs caused by methamphetamine

constituted deficient performance. We have also determined that trial counsel’s performance was

deficient because he failed to request pre-trial notice of the state’s experts, determine that a DEA
 24

agent would testify about methamphetamine addiction, properly object to the agent’s testimony about

addiction and the number of people who could get high from the methamphetamine that applicant

possessed, and call an expert in rebuttal. Moreover, we have determined that, during the guilt stage

of trial, trial counsel’s performance was deficient because he failed to object to testimony regarding

the extent of the methamphetamine problem and a prosecutor’s argument that applicant was bringing

methamphetamine into Smith County to poison children and turn them into addicts and that children

were, in fact, shooting up and smoking methamphetamine.

During the punishment stage of trial, the prosecutors asked for a life sentence, relying heavily

on the objectionable testimony that was introduced during both phases of trial. During summation,

a prosecutor argued that methamphetamine leaves destruction and devastation in everybody’s path

as it affects families, jobs, and children, making or ingesting it may kill, and users cannot hold jobs

and have to commit crimes to support their habits. (Trial Record, 5 R.R. 204, 208.) Further, a

prosecutor argued “[t]hat [the] amount they had would get 45,000 people . . .. [If] you line them up,

it would take you all the way from downtown Tyler to Bullard . . . affecting their families, . . . their

jobs, . . .[and] their children because they can’t let go.” Id. at 204.

Applicant received a life sentence, the maximum sentence available for her offense. We find

that applicant has shown that there is a reasonable probability–one sufficient to undermine

confidence in the result–that the outcome at the punishment stage would have been different but for

her counsel’s deficient performance.

We grant relief and remand the cause to the trial court for a new punishment hearing.

Delivered: December 16, 2009
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