COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-130-CR
DOUGLAS RAY ONICK APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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On our own motion, we withdraw our opinion and judgment of October 7,
2010, and substitute the following.
I. Introduction and Background
After his arrest following an undercover drug purchase, a grand jury
indicted, and a jury convicted Appellant Douglas Ray Onick for intentionally or
1
See Tex. R. App. P. 47.4.
knowingly possessing more than one but less than four grams of cocaine. 2
Appellant pleaded true to a habitual offender notice, and the trial court sentenced
him to twenty-five years’ imprisonment. In four points, Appellant complains of
alleged ineffective assistance of counsel, disjunctive allegations in the indictment,
fictitious witness testimony, and insufficient evidence of possession. We affirm.
II. Anders3 Brief and Motion to Withdraw by Appellant’s Retained Counsel
An attorney, whether appointed or retained, is under an ethical obligation
to refuse to pursue a frivolous appeal. See McCoy v. Court of Appeals of
Wisconsin, 486 U.S. 429, 436, 108 S. Ct. 1895, 1901 (1988); see also Tex. Disc.
R. Prof’l Conduct 3.01. Appellant’s retained counsel filed a motion to withdraw
as counsel and a brief in support of that motion. But ―the procedural safeguards
of Anders and its progeny do not apply to retained attorneys.‖ Nguyen v. State,
11 S.W.3d 376, 379 (Tex. App.—Houston [14th Dist.] 2000, no pet.). ―This is so
because by securing retained counsel, the appellant has received all that Anders
was designed to ensure.‖ Lopez v. State, 283 S.W.3d 479, 480 (Tex. App.—
Texarkana 2009, no pet.). Rather, a retained attorney, on determining that an
appeal is frivolous, must inform the court that the appeal has no merit and seek
leave to withdraw by filing a motion complying with rule 6.5 of the rules of
appellate procedure. See Pena v. State, 932 S.W.2d 31, 32 (Tex. App.—El Paso
2
See Tex. Health & Safety Code Ann. § 481.115(a) (Vernon 2010).
3
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967).
2
1995, no pet.); see also Tex. R. App. P. 6.5. We must then determine whether
the motion to withdraw satisfies the requirements of rule 6.5. See Pena, 932
S.W.2d at 33; Mays v. State, 904 S.W.2d 920, 923 n.1 (Tex. App.—Fort Worth
1995, no pet.).
Here, counsel’s motion does not comply with rule 6.5 because it does not
state that counsel notified Appellant in writing of his right to object to counsel’s
motion to withdraw as required by rule 6.5(a)(4). See Tex. R. App. P. 6.5(a)(4);
see also Rivera v. State, 130 S.W.3d 454, 458 (Tex. App.—Corpus Christi 2004,
no pet.). Accordingly, we deny counsel’s motion to withdraw. See Rivera, 130
S.W.3d at 458.
However, despite the deficiencies in counsel’s motion to withdraw, counsel
did inform Appellant of his right to file a pro se brief on his behalf, and Appellant
elected to do so. Thus, we will consider each of the points in Appellant’s pro se
brief. See generally Lopez, 283 S.W.3d at 481 (undertaking independent review
of record ―to determine whether the representation [by the appellant’s retained
counsel] regarding the frivolousness of the appeal was accurate‖).
III. Ineffective Assistance of Counsel
Appellant contends in his first point that his trial counsel rendered
ineffective assistance. Specifically, Appellant argues that all of his consultations
with his trial counsel focused on plea discussions; that his trial counsel did not
inquire about or investigate any defenses; that his trial counsel did not file any
motions, formulate a trial strategy, or subpoena any pertinent evidence; and that
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an attorney from his trial counsel’s firm, rather than trial counsel himself, actually
tried the case.
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). There is no requirement that
we approach the two-pronged inquiry of Strickland in any particular order, or
even address both components of the inquiry if the defendant makes an
insufficient showing on one component. See Strickland, 466 U.S. at 697, 104 S.
Ct. at 2069.
In evaluating the effectiveness of counsel under the first prong, we look to
the totality of the representation and the particular circumstances of each case.
Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was
reasonable under all the circumstances and prevailing professional norms at the
time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at
4
63. A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at
813–14. ―In the majority of cases, the record on direct appeal is undeveloped
and cannot adequately reflect the motives behind trial counsel’s actions.‖
Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the
presumption of reasonable professional assistance, ―any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting Thompson, 9
S.W.3d at 813). It is not appropriate for an appellate court to simply infer
ineffective assistance based upon unclear portions of the record. Mata v. State,
226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
Here, although Appellant makes several allegations about his trial
counsel’s representation, he does not cite to any portion of the record that would
arguably support his contention that his trial counsel rendered ineffective
assistance.4 And we note that, contrary to Appellant’s contention, Appellant’s
retained trial counsel participated in the trial by conducting the cross-examination
of the State’s first witness and making a closing argument. Further, the record is
silent concerning any reasons for trial counsel’s alleged inaction. Generally, a
silent record that provides no explanation for counsel’s actions will not overcome
the strong presumption of reasonable assistance. See Rylander v. State, 101
4
Appellant’s citations to the record concern only his reference to the trial
court’s refusal to allow him to change lawyers on the morning of trial.
5
S.W.3d 107, 110 (Tex. Crim. App. 2003); Edwards v. State, 280 S.W.3d 441, 445
(Tex. App.—Fort Worth 2009, pet. ref’d). Because the record is silent as to trial
counsel’s strategy and methods used in discovering and preparing for Appellant’s
trial and because the claim of ineffectiveness is not firmly founded in the record,
we must presume that trial counsel rendered reasonable professional assistance.
See Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.
Consequently, we overrule Appellant’s first point.
IV. Disjunctive Allegations in Indictment
In his second point, Appellant contends that his indictment was
―inadmissible‖ because it provided that he intentionally or knowingly possessed a
controlled substance without specifying between intentional or knowing
possession. However, it is well-settled that an indictment may properly allege,
disjunctively, that an offense was committed intentionally or knowingly. See
Hunter v. State, 576 S.W.2d 395, 396 (Tex. Crim. App. [Panel Op.] 1979); see
also Tex. Health & Safety Code Ann. § 481.115(a) (―[A] person commits an
offense if the person knowingly or intentionally possesses a controlled substance
listed in Penalty Group 1.‖ (emphasis added)). Thus, we overrule Appellant’s
second point.
V. Sufficient Evidence of Possession
In his fourth point, Appellant contends that the evidence is insufficient to
establish that he possessed the controlled substance. He points to testimony by
Officer Tracey Crow that she did not actually see Appellant possess the
6
controlled substance and that she could not tell what was handed to the alleged
buyer. He also argues that the State must ―negate any other origins of
probability or potential possessors of the controlled substance to remove all
reasonable doubt.‖5
A. Standard of Review
In reviewing the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007); see Brooks v. State, No. PD-0210-09, 2010 WL
3894613, at *14 (Tex. Crim. App. Oct. 6, 2010) (―[T]he Jackson v. Virginia
standard is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense
that the State is required to prove beyond a reasonable doubt.‖).
B. Applicable Law
―[A] person commits an offense if the person knowingly or intentionally
possesses a controlled substance listed in Penalty Group 1, unless the person
5
This argument by Appellant is similar to the ―reasonable hypotheses‖ standard
for reviewing circumstantial evidence that required the evidence to exclude every
reasonable hypothesis inconsistent with the appellant’s guilt, but the court of
criminal appeals abolished the ―reasonable hypotheses‖ standard in Geesa v.
State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991), overruled on other grounds
by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).
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obtained the substance directly from or under a valid prescription or order of a
practitioner acting in the course of professional practice.‖ Tex. Health & Safety
Code Ann. § 481.115(a). Cocaine is a controlled substance listed in Penalty
Group 1. See id. § 481.102(3)(D) (Vernon 2010). ―’Possession’ means actual
care, custody, control, or management.‖ Id. § 481.002(38) (Vernon 2010).
C. Analysis
Appellant points to the testimony by Officer Crow, but Officer Rafael
Salazar’s testimony provides legally sufficient evidence of possession. Officer
Salazar testified that he saw Appellant sitting in the driver’s seat of a van in the K
& K Liquor Store parking lot, that a female exited an undercover vehicle and
approached the van, that Appellant opened the door, and that the female
returned to the undercover vehicle and left the scene. Officer Salazar testified
that he then heard the bust signal over the police radio and that he approached
the van in which Appellant was sitting. He testified that he ordered Appellant out
of the van, that Appellant tried to walk around the front of the vehicle, and that he
saw Appellant ―toss a clear plastic baggie to the ground.‖6 Officer Salazar
testified that he personally retrieved the baggie containing the controlled
substance after another officer detained Appellant. Officer Salazar testified that
the baggie was ―maybe a foot away‖ from Appellant. Thus, Officer Salazar’s
6
Appellant does not contest that the plastic baggie contained cocaine, and
we note that the State presented evidence that the plastic baggie did in fact
contain cocaine.
8
testimony establishes that Appellant possessed a controlled substance. We
therefore overrule Appellant’s fourth point. See Tex. Health & Safety Code Ann.
§§ 481.002(38), .115(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Clayton, 235 S.W.3d at 778.
VI. “Fictitious” Witness Testimony
Appellant argues in his third point that Officer Salazar gave fictitious and
perjured testimony. While the State may not obtain a conviction through the
knowing use of perjured testimony, the appellant bears the burden of showing
that the testimony used by the State was in fact perjured. Losada v. State, 721
S.W.2d 305, 311 (Tex. Crim. App. 1986). ―Discrepancies in testimony alone do
not make out a case for perjury.‖ Id. at 312.
In this case, to support his contention that Officer Salazar gave fictitious
testimony, Appellant cites a portion of Officer Salazar’s testimony where Officer
Salazar acknowledged that his arrest affidavit lists the name of another officer.
But Officer Salazar testified that the inclusion of the other officer’s name was
probably a typographical error made by the undercover officer who typed the
affidavit. The trier of fact is the sole judge of the weight and credibility of the
evidence, and we are not free to substitute our judgment for that of the factfinder.
See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270
S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009);
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529
U.S. 1131 (2000). Moreover, to the extent that Appellant offers his own version
9
of events at the time of his arrest to rebut other parts of Officer Salazar’s
testimony, we note that Appellant did not testify at trial. The assertions in
Appellant’s brief are not evidence, and we may not consider them as such on
appeal. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).
Thus, because Appellant has not met his burden of showing that Officer
Salazar’s testimony was perjured, we overrule his third point.
VII. Conclusion
Having denied counsel’s motion to withdraw and having overruled each of
Appellant’s four points, we affirm the trial court’s judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 18, 2010
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