NUMBER 13-13-00444-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KEDRICK DARON FLETCHER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court
of Wharton County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Kedrick Daron Fletcher challenges his conviction for possession of four
grams or more but less than 200 grams of a controlled substance with intent to deliver, a
first-degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2010). The
jury returned a guilty verdict. For enhancement purposes, it found that Fletcher
possessed the substance in a drug-free zone and that he had two prior convictions. See
TEX. PENAL CODE ANN. § 12.42 (West Supp. 2012). The jury sentenced Fletcher to fifty
years in the Institutional Division of the Texas Department of Criminal Justice. By two
issues, Fletcher contends that (1) the trial court erred when it admitted the opinion
testimony of Detective Jason Mican; and (2) alternatively, the admission of this testimony,
even if no objection was made, constituted fundamental structural error and should be
addressed on appeal. By a third issue, Fletcher argues that by not objecting to this lay
opinion testimony, his trial counsel was ineffective. We affirm.
I. BACKGROUND
Detective Mican, a narcotics task force officer who conducted a raid at a hotel on a
“no-knock” search warrant, testified that he was the first person to enter the hotel room on
the night Fletcher was arrested.1 Detective Mican testified that he hit or “rammed” the
door and yelled, “Search warrant, police, get down, search warrant.” According to
Detective Mican, he immediately saw Fletcher who “stood up from the bed and raised his
arms up into the air,” letting go of something in his hand—a bag of marihuana that hit
Detective Mican on the chest and fell to the ground. When he stood, Fletcher was
between the bed and a couch where two other occupants of the room were seated. 2
Detective Mican described the hotel room. In addition to the hotel furnishings,
there were a number of items on top of the bed, which he identified from pictures that
were admitted as trial exhibits. According to Detective Mican, the following items were
on the bed only inches away from Fletcher: (1) two pillows; (2) a purse; (3) a box of
1
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
2
Detective Mican later identified the two people on the couch as Jeffrey King and Audrey Gebara
and described them as drug users.
2
“Swisher Sweets,” which he described as cigar-cigarettes; (4) a clear plastic baggie
containing crack cocaine; (5) two clear plastic baggies containing cocaine in its powder
form; (6) a lighter; and (7) baking soda. Detective Mican also identified a glass crack
pipe that was found on the couch and a clear plastic bag of marihuana in an open dresser
drawer.
Detective Mican responded to the State’s questions, as follows:
Q. Well, were all three suspects arrested?
A. Yes, they were.
Q. Were they all arrested for possession of that cocaine?
A. Yes, they were.
Q. Based on your training and experience and what you saw that night,
is there any doubt in your mind that all three are responsible and had
control over that cocaine?
A. No doubt.
Fletcher did not object to Detective Mican’s opinion testimony.
II. PRESERVATION
By his first issue, Fletcher asserts that the trial court erroneously admitted
Detective Mican’s lay opinion testimony because it constituted an impermissible opinion
as to Fletcher’s guilt. Detective Mican testified that three people, including Fletcher, had
responsibility for and possession of cocaine found in the hotel room. Fletcher contends
that Detective Mican’s opinion `constituted an impermissible opinion as to Fletcher’s guilt
and that the trial court admitted that testimony in error. However, to preserve a
complaint of error relating to the admission of evidence, an appellant must have made a
specific and timely objection to the evidence at trial. See TEX. R. APP. P. 33.1(a);
3
Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Because Fletcher
failed to make a timely and specific objection to Detective Mican’s lay opinion testimony at
trial, he preserved nothing for our review. We overrule Fletcher’s first issue.
III. FUNDAMENTAL STRUCTURAL ERROR
By his second issue, Fletcher argues, in the alternative, that the trial court’s error
constituted fundamental structural error, and, even without objection, we should address
his appellate issue. See Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991)
(explaining that only in the case of fundamental or structural error is an unobjected-to
error preserved for appeal); Rey v. State, 897 S.W.2d 333, 344–45 (Tex. Crim. App.
1995) (en banc) (same). However, we conclude below that the trial court did not err in
admitting the complained-of testimony, and, without error, the premise of this argument
fails. We overrule the second issue.
IV. INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
By his third issue, Fletcher argues that his trial counsel provided ineffective
assistance based on his failure to object to Detective Mican’s lay opinion testimony
relating to Fletcher’s possession of the cocaine. The State responds that counsel was
not ineffective for not objecting because the testimony was permissible lay opinion based
on the witness’s perceptions and because it was helpful to the jury to understand his
testimony or to determine a fact issue. We agree with the State.
A. Standard of Review and Applicable Law
We review ineffective assistance of counsel claims under the two-pronged test
articulated in Strickland v. Washington. 466 U.S. 668, 687 (1984); see Hernandez v.
State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc) (adopting Strickland as
4
applicable standard under Texas Constitution). The first prong of the Strickland test
requires a showing that counsel's performance was deficient; that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. The second prong of the Strickland test
requires a showing that counsel's deficient performance prejudiced the defense; that
counsel's errors were so serious as to deprive the defendant of a fair trial. Id. “[T]here
is no reason for a court deciding an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the inquiry if the defendant makes
an insufficient showing on one.” Id. at 697; see Cox v. State, 389 S.W.3d 817, 819 (Tex.
Crim. App. 2012) (concluding that a reviewing court need not consider both prongs of the
Strickland test and can dispose of an ineffectiveness claim if the defendant fails to
demonstrate sufficient prejudice).
Our review of a claim of ineffective assistance of counsel must be highly
deferential to trial counsel's trial strategies and decisions. Strickland, 466 U.S. at 689.
“To successfully assert that trial counsel's failure to object amounted to ineffective
assistance, the [appellant] must show that the trial judge would have committed error in
overruling such an objection.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.
2011).
We review a trial court's decision to admit or exclude evidence under an abuse of
discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2011).
The trial court does not abuse its discretion unless its determination lies outside the zone
of reasonable disagreement. Id. If the trial court's decision is correct on any theory of
law applicable to the case, we will uphold the decision. De La Paz v. State, 279 S.W.3d
5
336, 344 (Tex. Crim. App. 2009).
B. Discussion
Regarding the admission of evidence, Fletcher generally cites authority for the
propositions that no witness may voice an opinion as to guilt or innocence, see Boyde v.
State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974), that the intent of the defendant is a
fact question to be determined by the jury from all the facts and circumstances of the
evidence, see Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974), and that
the testimony of any witness regarding state of mind of another is pure speculation and,
therefore, incompetent. See Steve v. State, 614 S.W.2d 137, 139 (Tex. Crim. App.
1981). We find Fletcher's argument unpersuasive.
Detective Mican’s testimony was based on his observations of what took place
contemporaneously to the offense. When such an opinion is drawn from the witness’s
own experiences or observations, as in this case, it is proper. See Osbourn v. State, 92
S.W.3d 531, 535 (Tex. Crim. App. 2002) (explaining that a witness’s testimony can
include opinions, beliefs, or inferences as long as they are drawn from his or her own
experiences or observations); Fairow v. State, 943 S.W.2d 895, 898–901 (Tex. Crim.
App. 1997) (en banc). Rule of evidence 701 states that a non-expert “witness'[s]
testimony in the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness'[s] testimony or the determination of a fact in issue.” TEX.
R. EVID. 701; see Osbourn, 92 S.W.3d at 535. And rule of evidence 602 provides that
“[a] witness may not testify to a matter unless evidence is introduced sufficient to support
a finding that the witness has personal knowledge of the matter.” TEX. R. Evid. 602.
6
Detective Mican’s personal knowledge of the matter, including details of his entry
into the hotel room and what he saw upon his entry, formed the basis of his objective
perception of events and his lay opinion testimony regarding the people in the motel
room. See id. at R. 602 & R. 701; Osbourn, 92 S.W.3d at 535. This opinion summed up
his testimony. It was a rational conclusion based on his personal knowledge and was
helpful to the determination of a fact in issue. See TEX. R. EVID. 701; Osbourn, 92
S.W.3d at 535. Because the record supports the trial court’s decision to admit Detective
Mican’s lay opinion testimony under rule 701, a theory of law applicable in this case, we
conclude the trial court did not abuse its discretion by denying any motion to exclude the
testimony. See Martinez, 327 S.W.3d at 736; De La Paz, 279 S.W.3d at 344.
Accordingly, counsel’s assistance was not deficient for not objecting to admissible
testimony. See Ex parte Martinez, 330 S.W.3d at 901.
Having concluded that Fletcher did not meet the first prong of Strickland—the
deficient-performance prong, we need not address the second prong—the prejudice
prong. See Strickland, 466 U.S. at 697; Cox, 389 S.W.3d at 819. We overrule
Fletcher’s third issue.
V. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 30th
day of January, 2014.
7