IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
JAMES SMITH §
§
Petitioner §
§ PD-0405-15
VS §
§
THE STATE OF TEXAS §
§
Appellee §
CORRECTED PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
ELEVENTH DISTRICT OF TEXAS
NO. 11-12-00095-CR
ORAL ARGUMENT REQUESTED
Submitted by:
Parker & Blizzard, P.L.L.C., 702-C Hickory St., Abilene, Texas 79601, Tel. 325-
676-1000, Fax. 325-455-8842, Jacob Blizzard for Petitioner.
i
IDENTITY OF PARTIES
James Smith, Appellant State of Texas, Appellee
Appellant’s Appeal Counsel Appellee’s Trial & Appeal Counsel
Parker & Blizzard, P.L.L.C. Taylor County District Attorney’s
702-C Hickory St., Office
Abilene, Texas 79601 300 Oak Street, Suite 300,
Tel. 325-676-1000 Abilene, Texas 79602
Fax. 325-455-8842 Tel. (325) 674-1261
Jacob Blizzard for Appellant. Fax. (325) 674-1306
TBN: 24068558
Appellant’s Trial Counsel
Billy L. “Bill” Fisher
3301 South 3rd St., Suite 107
Abilene, Texas 79603
Tel. (325) 677-8384
Fax. (325) 677-6999
TBN: 07049200
(Deceased)
Trial Court
350th District Court
Taylor County, Texas
Thomas Wheeler Presiding
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES......................................................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES .....................................................................................v
RECORD REFERENCES .........................................................................................1
PARTY REFERENCES ............................................................................................1
STATEMENT OF THE CASE ..................................................................................2
STATEMENT OF PROCEDURAL HISTORY........................................................3
STATEMENT REGARDING ORAL ARGUMENT ...............................................4
I. FIRST GROUND FOR REVIEW .......................................................................4
A. REASONS FOR REVIEW...............................................................................4
B. ARGUMENT: ..................................................................................................5
1. Failure to request limiting instruction could not be sound trial strategy ......5
2. The Court of Appeals analysis of Petitioner’s ineffective assistance of
counsel claim improperly concluded opening the door to Petitioner’s prior
criminal history does not undermine the reliability of the trial ...........................8
II. SECOND GROUND FOR REVIEW ................................................................10
A. REASONS FOR REVIEW.............................................................................10
B. ARGUMENT: ................................................................................................11
1. The Court of Appeal’s opinion is in opposition with Hooper’s prohibition
against speculation .............................................................................................11
III. PRAYER ........................................................................................................14
CERTIFICATE OF SERVICE ................................................................................15
CERTIFICATE OF COMPLIANCE .......................................................................15
iii
APPENDIX ..............................................................................................................16
iv
TABLE OF AUTHORITIES
Texas Cases
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994)........................................9
Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) ......................................5
Ex parte Varelas, 45 S.W.3d 20 (Tex. Crim. App. 2001) .........................................5
Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App. 1994) ....................................5, 7
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................ 10, 11, 12
Samaniego v. State, No. 03-01-00718-CR, 2002 WL 1724016 (Tex. App.—Austin
July 26, 2002, no pet.)...........................................................................................13
Smith v. State, No. 11–12–00095–CR (Tex. App.—Eastland, delivered January 29,
2015) (not designated for publication) ...................................................................3
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .......................................6
Federal Cases
Strickland v. Washington, 466 U.S. 668 (1984) ............................................. 6, 8, 10
Rules
Texas Rules of Appellate Procedure 66.3(b),(c), and (f) .................................... 4, 10
v
RECORD REFERENCES
The Clerk’s Record contains one volume and includes all of the pleadings,
orders, and correspondence filed with (or sent to) the trial court and clerk that are
pertinent to this petition. References in this brief to the Clerk’s Record are by page
number, indicated as “CR __.” The Reporter’s Record contains six volumes.
References to the Reporter’s Record are by volume, page number, and line number
(where applicable), indicated as “RR ___:___:___.”
PARTY REFERENCES
James Smith will be referred to as “Petitioner.” The State of Texas will be
referred to as the “State.” Jacob Blizzard, for Petitioner, will be referred to as
“Counsel.” Billy L. “Bill” Fisher, trial counsel for Petitioner, will be referred to as
“Trial Counsel.”
1
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now, Petitioner, and requests the Court to grant the Defendant’s
Petition for Discretionary review, allowing full briefing on the issues, hear oral
argument of the parties, overturn the court of appeals’ decision and the trial court’s
judgment of guilt, and enter a finding of acquittal in favor of Petitioner, or, in the
alternative, remand the case for a new trial on the merits.
STATEMENT OF THE CASE
Petitioner was indicted for the offense of possession of a controlled
substance (Cocaine) in the amount of less than one gram, a State Jail Felony
offense, enhanced to a second degree felony through two prior felony
enhancements. CR 6.
The case was tried to a jury in the 350th Judicial District Court of Taylor
County, Texas beginning on February 27, 2012. RR 4:4. Petitioner filed an election
for punishment by the jury. CR 44. Petitioner did not testify during the
guilt/innocence phase of the trial, but elected to testify in the punishment phase of
trial. The jury found Petitioner guilty on the sole count of the indictment on
February 28, 2014. RR 5:39. Trial on punishment was conducted before the jury on
February 28, 2014. RR 5:43. The Defendant pled Not True to both enhancement
allegations. RR 5:43. The jury found both enhancement allegations to be True and
assessed punishment at 8 years confinement and no fine. RR 5:86. Petitioner was
2
sentenced on February 28, 2012. RR 5:90. Petitioner filed his motion for new trial
and arrest of judgment on March 2, 2012. CR 64. No hearing was conducted on the
motion, and the motion was denied by order of the Court on March 6, 2012. CR
68. Petitioner filed his notice of appeal on March 2, 2012. CR 66.
STATEMENT OF PROCEDURAL HISTORY
Petitioner’s conviction was affirmed on original submission, Smith v. State,
No. 11–12–00095–CR (Tex. App.—Eastland, delivered January 29, 2015) (not
designated for publication). On February 10, 2015, Petitioner filed a motion to
extend time to file a motion for rehearing. The Court of Appeals granted
Petitioner’s motion and set the deadline to file a motion for rehearing on March 9,
2015. Petitioner filed his motion for rehearing on March 6, 2015. On March 12,
2015, the Court of Appeals denied Petitioner’s motion for rehearing. Petitioner’s
Petition for Discretionary Review was due in this Court by April 10, 2015.
Petitioner filed a motion for extension of time to file Petition for Discretionary
Review. The Court granted Petitioner’s motion and set the deadline for submission
of his Petition for Discretionary Review to May 13, 2015, and it is therefore timely
filed.
3
STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes that oral argument would assist this Court in explication
and disposition of the issues presented in this petition. Therefore, Petitioner
respectfully requests oral argument.
I. FIRST GROUND FOR REVIEW: The Court of Appeals erred by
concluding Petitioner did not satisfy the two-prong Strickland test where (A) Trial
Counsel made an error in failing to request a limiting instruction regarding
extraneous offenses to which Trial Counsel accidentally introduced, and (B) there
is a probability that the result of the proceeding would have been different had
Trial Counsel not opened the door to Petitioner’s criminal history and failed to
request a limiting instruction.
A. REASONS FOR REVIEW
This Court should review the decision of the Court of Appeals under Texas
Rules of Appellate Procedure 66.3(b),(c), and (f). The issue of ineffective
assistance of counsel is a subject of many criminal appeals and the Court of
Criminal Appeals and United States Supreme Court has spoken on the issue
numerous times. The Court of Appeals has misapplied the precedents of this Court
and the United States Supreme Court to its decision. However, the specific issue of
a trial counsel failing to request a limiting instruction after counsel’s own error has
4
not been directly addressed by this Court in a direct appeal.1 Additionally, the
Court of Appeals’ decision is far departed from the accepted and usual course of
judicial proceedings in relationship to the precedents of the Court of Criminal
Appeals and the United States Supreme Court.
B. ARGUMENT:
1. Failure to request limiting instruction could not be sound trial strategy
The Court of Appeals improperly concluded that Trial Counsel could have
engaged in sound trial strategy by his failure to request a limiting instruction. The
Court of Appeals points to several cases which stand for the proposition that Trial
Counsel can decline to request a limiting instruction with sound discretion.
However, each of the cases cited are situations which were not originally errors
created by Trial Counsel. In Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim.
App. 2007), cited by the Court of Appeals, the evidence offered was same
transaction contextual evidence offered by the State. In Garcia v. State, 887
S.W.2d 862 (Tex. Crim. App. 1994), the evidence was offered by the State and not
objected to by trial counsel. Petitioner does not know of a case where the trial
counsel himself solicited the harmful information in error and then engaged in
sound trial strategy to decline requesting a limiting instruction. The error in and of
itself lacks sound trial strategy. Any action following from Trial Counsel’s original
1
Although Ex parte Varelas, 45 S.W.3d 20 (Tex. Crim. App. 2001) addresses the issue on writ
of habeas corpus review.
5
error is analogous to “fruit of the poisonous tree,” in that Trial Counsel could not
have engaged in sound trial strategy thereafter because Trial Counsel caused the
problem which he then faced, both of which were harmful. Therefore, any choice
made by Trial Counsel which rises to the level of prejudice under Strickland is
sufficient to warrant a reversal of Petitioner’s conviction. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Thompson v. State, 9 S.W.3d 808, 812
(Tex. Crim. App. 1999). The prejudice is demonstrated when the petitioner shows
“a probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. Strickland, 466 U.S. at 694.
Here, had Trial Counsel not opened the door to Petitioner’s criminal
history/extraneous offenses, the jury more likely would have believed Petitioner’s
other defenses raised, the defensive theory that the substance was not cocaine when
seized from Petitioner by police and that it was altered, tampered, or substituted
with cocaine at a later date for testing. However, the Petitioner’s primary defense
was severely diminished by his own counsel, because the jury had no limits and no
guidance on prior arrests which were brought up by his own counsel in error.2
Trial Counsel’s choice or oversight, failing to request a limiting instruction
did not limit the impact to the jury as was the trial strategy in Garcia, rather here
2
Trial Counsel’s other errors, not objecting the State’s exhibit 2 based on chain of evidence and
allowing testimony on a field test, contributed to the self-inflicted dismantling of Petitioner’s
defense.
6
the extraneous offense was discussed at length and the details further hashed out.
See Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994). The Court of
Appeals reasoned that Trial Counsel could have elected not to request the limiting
instruction because he did not want to call attention to it, however, Trial Counsel
went on the discuss the extraneous offenses in more detail. Garcia was specifically
dealing with evidence that was offered by the State, which was not introduced
through the error of Trial Counsel. See id. The decision to not draw attention to
State’s evidence is a reasonable trial strategy, while the decision not to request a
limiting instruction to Trial Counsel’s own error solicited information is not sound
trial strategy.
Additionally, it could not have been sound trial strategy not to request a
limiting instruction which would have prohibited the jury from considering the
extraneous offenses unless they were proven beyond a reasonable doubt. The jury
would have been prohibited from considering the extraneous offenses because
there was no proof to establish the extraneous offenses were committed beyond a
reasonable doubt. Only the arrests were discussed. RR Vol. 4, Pg. 41 Line 18 – Pg.
43 Line 10, Pg. 56, Lines 22-25, and Pg. 58. In Garcia, Trial Counsel did not
request a limiting instruction which would limit the impact of certain testimony,
but would call attention to it in the jury charge. Here, the result is the opposite.
Trial Counsel’s request for the limiting instruction would have effectively cured
7
most of Trial Counsel’s error. The jury would be instructed to disregard the
evidence because it was not proven beyond a reasonable doubt. Therefore, the
request for a limiting instruction is the only sound strategy which could have been
taken given Trial Counsel’s initial error.
2. The Court of Appeals analysis of Petitioner’s ineffective assistance of
counsel claim improperly concluded opening the door to Petitioner’s
prior criminal history does not undermine the reliability of the trial
Opening the door to Petitioner’s criminal history created a reasonable
probability that, but for counsel’s error, the result of the proceeding would have
been different. The Court of Appeals, in its opinion acknowledges that Trial
Counsel made a mistake in opening the door to Petitioner’s criminal history,
satisfying the first prong of the Strickland test, but then fails to meaningfully
address the second prong of Strickland to determine that a reasonable probability
exists that, but for counsel’s error, the result of the proceeding would have been
different. See Strickland, 466 U.S. at 687. Petitioner’s trial strategy was
significantly impaired and made to be less believed because Trial Counsel was
alleging a theory which was based upon the fabrication or tampering of evidence.
However, evidence related to prior drug possession and distribution cases was
offered into evidence, and such evidence prejudiced the jury against Petitioner
based on prior unproven conduct. RR Vol. 4, Pg. 58.
8
Additionally, the Court of Appeals stated that it is essentially plain error to
open the door to the past criminal history, but it is not a plain error to not request
the limiting instruction. The Court of Appeals fails to acknowledge, however, that
the position of being forced to make the supposed strategic decision was created by
the error of counsel. But for Trial Counsel’s mistake, there would be no evidence
of extraneous conduct revealed. Under Abdnor v. State, 871 S.W.2d 726 (Tex.
Crim. App. 1994), some harm is presumed when a properly requested limiting
instruction is not given. The Abdnor Court notes “‘the presence of any harm,
regardless of degree . . . is sufficient to require a reversal of the conviction. Id.
Cases involving preserved charging error will be affirmed only if no harm has
occurred.’ Arline, 721 S.W.2d at 351.” Abdnor, 871 S.W.2d at 732. Further, the
Court states that “We have consistently acknowledged that the introduction of
extraneous offenses to the jury is inherently ‘prejudicial.’” Id. at 738. It cannot be
the state of the law that it is harmful error for a trial court to deny a properly
requested limiting instruction, but not harmful error when trial counsel does not
request the same limiting instruction. While the harm analysis for limiting
instructions and ineffective assistance of counsel claims are different, in this
situation they overlap. The failure to request a limiting instruction is “some harm,”
but then the question comes, is it harm sufficient to establish “a probability that,
but for counsel's unprofessional errors, the result of the proceeding would have
9
been different.” Strickland, 466 U.S. at 694. If it is some harm sufficient to warrant
a reversal had the requested instruction been requested and improperly denied, then
it naturally follows that the proceedings probably would have would have been
different because of the prejudicial nature of the extraneous offenses against which
a limiting instruction is intended to protect. At a minimum Petitioner would
preserve his appellate rights on the jury charge if the judge denied Trial Counsel’s
request. A limiting instruction cannot be so valuable that it must be given or harm
is presumed, but then be of so little value that the failure to request it does not
affect the outcome of the case.
II. SECOND GROUND FOR REVIEW: The Court of Appeals erred by
allowing a conviction with legally insufficient evidence to stand on speculation in
violation of Hooper v. State.
A. REASONS FOR REVIEW
This Court should review the decision of the Court of Appeals under Texas
Rules of Appellate Procedure 66.3(b),(c), and (f). The issue of legally insufficient
evidence as it relates to the jury ability to either draw inferences from the evidence
or speculate has been addressed by this Court in several decisions. Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) stands as the on point case to describing the
difference between allowed inference and speculation. The Court of Appeals
decision stands in opposition of the Hooper decision. The particular facts in this
10
case give rise to an important issue of Texas and federal jurisprudence and should
be decided by this Court because there is not clear case law to demonstrate what
constitutes a showing of tampering sufficient to either exclude evidence or render
the evidence legally insufficient. Additionally, the Court of Appeals’ decision is far
departed from the accepted and usual course of judicial proceedings in relationship
to the precedents of the Court of Criminal Appeals and the United States Supreme
Court.
B. ARGUMENT:
1. The Court of Appeal’s opinion is in opposition with Hooper’s
prohibition against speculation
The concept that the jury can make reasonable inferences is subject to the
reasonable inferences that may be deduced from the evidence. Hooper, 214 S.W.3d
at 16. The jury is not allowed to draw conclusions based on speculation. Id. The
Court of Criminal Appeals in Hooper gave the following hypothetical to
distinguish between inferences and speculation:
A woman is seen standing in an office holding a smoking gun. There
is a body with a gunshot wound on the floor near her. Based on these
two facts, it is reasonable to infer that the woman shot the gun (she is
holding the gun, and it is still smoking). Is it also reasonable to infer
that she shot the person on the floor? To make that determination,
other factors must be taken into consideration. If she is the only
person in the room with a smoking gun, then it is reasonable to infer
that she shot the person on the floor. But, if there are other people
with smoking guns in the room, absent other evidence of her guilt,
11
it is not reasonable to infer that she was the shooter. No rational
juror should find beyond a reasonable doubt that she was the
shooter, rather than any of the other people with smoking guns.
To do so would require impermissible speculation. But, what if
there is also evidence that the other guns in the room are toy guns and
cannot shoot bullets? Then, it would be reasonable to infer that no one
with a toy gun was the shooter. It would also be reasonable to infer
that the woman holding the smoking gun was the shooter. This would
require multiple inferences based upon the same set of facts, but they
are reasonable inferences when looking at the evidence. We first have
to infer that she shot the gun. This is a reasonable inference because
she is holding the gun, and it is still smoking. Next, we have to infer
that she shot the person on the floor. This inference is based in part on
the original inference that she shot the gun, but is also a reasonable
inference drawn from the circumstances.
Id. at 16. (emphasis added).
In Petitioner’s case no evidence or testimony was offered to explain a
variation in or substitution of the substance from the time of the seizure to the time
of trial. At the time of the testing the substance was different from the original
substance. RR 4:20:15-19 & 54:5-22. The evidence submitted for testing was a
powder, while the evidence seized were small rocks. RR 5:12:9-15.
The Court of Appeals opinion focuses on that the method of securing the
substance from seizure to testing and testing to trial. However, the Court neglects
to address what Petitioner focused on at trial, that the substance was tampered with
and/or replaced with another substance prior to securing it in the evidence locker.
RR 5:34-35. At trial, Petitioner made the point that Officer Shriver took the
substance off camera, and then called the substance bb sized rocks, but then later a
12
powder was submitted. RR 5:34-35.
The Court of Appeals states that the jury could have reasonably believed that
the substance had broken down, referencing Samaniego v. State, No. 03-01-00718-
CR, 2002 WL 1724016 (Tex. App.—Austin July 26, 2002, no pet.) for the
proposition that a showing that the substance changed between the time of seizure
and trial is not sufficient to show tampering. However, this assertion by the Court
would require more than reasonable inferences, but actually call for speculation on
the part of the jury. The Court of Appeals erred in its reasoning and reference to
the Samaniego decision, because in Samaniego testimony was offered to explain
why the substance had changed form. Id. at *3-4. Here, the jury had to speculate
that the substance could have broken down, without any evidence of such a
possibility. Such an inference requires the knowledge and testimony of an expert or
at least a lay person who personally observed the breakdown of the substance.
Such a call for speculation from the jury means that the State can present any
substance no matter the form and expect the jury to find that it is the same. If the
substance was a different color, the jury could speculate that it was burned. If the
substance was larger, the jury could speculate that such a substance was subject to
expansion from heat. If the substance was not present at all, the jury could
speculate that the substance was used up in testing.
Here, the jury could not have reasonably believed that the substance broke
13
down to a powder without any evidence to support that conclusion, because as in
the Hooper hypothetical, there are more possibilities than the substance had
transformed from a rock to a powder. There is the possibility of tampering and the
jury was given no evidence that there was not tampering. The change in the
substance itself without explanation is evidence of tampering on its face. In this
case, there are two smoking guns with no evidence from the State to suggest which
smoking gun was fired at the body on the floor. Here, the State produced no
evidence to suggest that the substance had broken down due to transport or testing,
therefore there is no evidence upon which the jury could have made a reasonable
inference that the break down was from transport or testing.
III. PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner, and requests the
Court to grant the Defendant’s Petition for Discretionary review, allowing full
briefing on the issues, hear oral argument of the parties, overturn the court of
appeals’ decision and the trial court’s judgment of guilt, and enter a finding of
acquittal in favor of Petitioner, or, in the alternative, remand the case for a new
trial on the merits.
14
Respectfully submitted,
PARKER & BLIZZARD P.L.L.C.
702-C Hickory St.
Abilene, Texas 79601
Tel: (325) 676.1000
Fax: (325) 455.8842
By:/s/Jacob Blizzard
Jacob Blizzard
State Bar No. 24068558
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
This is to certify that on May 13, 2015, a true and correct copy of the above
and foregoing document was served on the Taylor County District Attorney's
Office, Taylor County, Texas, by facsimile transmission to (325) 674-1261 and the
State Prosecuting Attorney by facsimile transmission to (512) 463-5724.
/s/ Jacob Blizzard
Jacob Blizzard
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it
contains 2929 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Jacob Blizzard
Jacob Blizzard
15
APPENDIX
16
Opinion filed January 29, 2015
In The
Eleventh Court of Appeals
__________
No. 11-12-00095-CR
__________
JAMES WILLIAM SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 10035-D
MEMORANDUM OPINION
The jury found James William Smith, Appellant, guilty of the offense of
possession of cocaine. 1 The jury found that Appellant had two prior felony
convictions for possession of cocaine and assessed punishment at confinement for
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.102(3)(D) (Penalty Group 1), § 481.115(b)
(Offense: Possession of Substance in Penalty Group 1) (West 2010).
eight years. The trial court sentenced Appellant accordingly. Appellant challenges
the sufficiency of the evidence to support his conviction, and he also asserts that he
received ineffective assistance of counsel. We affirm.
I. The Charged Offense
The grand jury indicted Appellant for possession of less than one gram of
cocaine with two prior felony convictions for possession of cocaine. Appellant’s
first prior conviction was a third-degree felony, and his second prior conviction
was a second-degree felony.
A person commits the offense of possession of cocaine if he intentionally or
knowingly possesses cocaine. HEALTH & SAFETY §§ 481.102(3)(D), 481.115(a).
Possession of less than one gram of cocaine is a state jail felony. HEALTH &
SAFETY § 481.115(b). A state jail felony with two prior felony convictions
becomes punishable as a second-degree felony, which shall be punished by
imprisonment “for any term of not more than 20 years or less than 2 years” and an
optional fine “not to exceed $10,000.” 2 TEX. PENAL CODE ANN. § 12.33 (West
2011) (Second Degree Felony Punishment), § 12.425(b) (West Supp. 2014)
(Penalties for Repeat and Habitual Felony Offenders on Trial for State Jail Felony).
Appellant pleaded “not guilty” and proceeded to trial.
II. Evidence at Trial
Cati Schriver, a detective with the Abilene Police Department, testified that
she pulled Appellant over because she “thought [Appellant] would possibly be
intoxicated.” Detective Schriver testified that she turned on her “Coban” when she
began following Appellant and that the video accurately depicted what happened.3
2
The two previous convictions must not be state jail felony convictions, and the second previous
conviction must have occurred subsequent to the first previous conviction. PENAL § 12.425(b).
3
Detective Schriver explained that a “Coban” is a camera system mounted behind the rearview
mirror of the police car that records audio and video.
2
She called for a K-9 officer, and Officer Kevin Easley arrived five to seven
minutes later. She also performed a horizontal gaze nystagmus test on Appellant
and believed that he was not intoxicated.
Officer Easley, a K-9 handler with the City of Abilene, had a K-9 named
Rocco at the time of Appellant’s arrest in this case. Officer Easley testified that he
received a call for a K-9 officer for a traffic stop, that Officer Schriver was the
officer involved, and that Appellant was the citizen who was stopped. Officer
Easley did not remember any other officers or citizens present. Officer Easley
advised Detective Schriver that the dog gave a positive alert; whereupon, Detective
Schriver searched Appellant. Detective Schriver testified that she found “small
off-white rock substances” in Appellant’s shirt pocket that she believed was crack
cocaine.
Officer Easley testified that Rocco alerted to a piece of plastic on the ground
near Appellant’s pickup and to the driver’s door of Appellant’s pickup. Officer
Easley testified that, after Rocco made a positive alert, Officer Easley searched
Appellant’s pickup but did not find any drugs. He said that Detective Schriver
reported that she found “some small objects” on Appellant and that they suspected
it was crack cocaine. He also said that he tested the substance that Detective
Schriver seized from Appellant’s shirt pocket and that it tested positive for cocaine.
Detective Schriver testified that State’s Exhibit No. 2 was the same envelope
that she signed into evidence into which she had placed the rocklike substance that
she took from Appellant’s shirt pocket. She placed a clear piece of tape on the
back of the envelope with her initials “half on half off the tape” to make it obvious
if anyone “breaks that seal” “because it won’t line up anymore.” After she signed
the envelope, she locked it in the evidence vault. One of three evidence clerks
moved it from the small vault lockbox “into the bigger,” and that person’s name
appeared on the envelope. Detective Schriver said that she knew the envelope was
3
delivered to the “Texas Department of Safety’s laboratory” for analysis because
two seals appeared on the envelope: the person who took it from the police
department placed one seal, and the person who received it at the lab placed the
other seal. She also said that Jimmy Seals’s name appeared on the seal that
showed Seals took the envelope from the police department to the lab.
On cross-examination, Detective Schriver testified that she pulled Appellant
over for weaving and speeding. Appellant’s trial counsel subsequently asked
Detective Schriver, “What caused you to go from speeding and weaving to drug
possession? . . . What about that event caused you to think that . . . you needed to
search him or his vehicle for drugs?” Detective Schriver answered, “Whenever we
stop somebody, we run their name through our system and I could see previous
history of drug possession.” Appellant’s trial counsel objected to
Detective Schriver’s answer and explained, “[T]he witness has testified to my
client’s prior record. . . . And we’re in the guilt and innocence phase of this, Your
Honor. There is no place for us to be getting into his prior record at this point.”
The trial court responded, “You opened the door . . . . That question just begs for
that response,” and overruled the objection.
Detective Schriver also testified on cross-examination that she had stopped
Appellant once prior to this stop, had called the drug dog, had searched Appellant,
and had not found any drugs in Appellant’s vehicle or on his person during the
prior stop. She agreed that she had made a mistake about drug possession the
previous time she pulled Appellant over. She also agreed that she was mistaken
during the second stop when she thought that Appellant was intoxicated. She said
that the objects found in Appellant’s shirt pocket were “small pieces of an off-
white rocklike substance” “approximately the size of a BB,” that “there was more
than one,” and that “[t]hey were all small. They looked as if maybe they had
crumbled.”
4
William Chandley, a chemist with the drug section of the Department of
Public Safety’s crime lab, testified that he recognized the envelope labeled as
State’s Exhibit No. 2, that he tested the substance contained in it, and that
Appellant’s name appeared as the suspect on the report and the submission form.
Chandley testified that he received the envelope from Seals, the “evidence person”
for the Abilene Police Department. Chandley testified that the envelope did not
“appear to have been tampered with in any way” when he received it. Chandley
testified that he analyzed the contents of the envelope and determined that it
contained .03 grams of cocaine. On cross-examination, Chandley testified that
State’s Exhibit No. 2 contained a powder and that he received it from the police
department in powder form.
Detective Schriver’s “Coban” video showed that she followed Appellant.4
Officer Easley and Rocco walked around Appellant’s pickup after
Detective Schriver pulled Appellant over. Rocco looked back and forth from the
ground to Officer Easley. Officer Easley picked up something that was on the
ground and searched the cab of Appellant’s pickup.
The video also showed that Detective Schriver performed the horizontal
gaze nystagmus test on Appellant while the K-9 unit walked around and searched
the pickup. Detective Schriver determined that Appellant was not intoxicated
while Officer Easley searched the cab of Appellant’s pickup. Detective Schriver
subsequently began to search Appellant. Detective Schriver pulled out several
objects, including a razor blade, from Appellant’s shirt pocket. Detective Schriver
talked with Officer Easley about what she had found. Detective Schriver arrested
Appellant and told him that the “little white rocks” she had pulled out of his shirt
“tested positive.”
4
The record shows that both the State and Appellant agreed to stop the video at a certain point,
but the record does not state when. We will describe the pertinent facts contained in the video.
5
III. Issues Presented
Appellant presents two points of error on appeal. In the first point, he
challenges the sufficiency of the evidence to convict him. In the second point, he
asserts that he received ineffective assistance of counsel.
IV. Standard of Review
We apply the sufficiency standard outlined in Jackson and its progeny to
Appellant’s sufficiency point. Jackson v. Virginia, 443 U.S. 307, 318 (1979);
Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010); Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence
introduced by both the State and Appellant in the light most favorable to the jury’s
verdict and decide whether any rational jury could have found each element of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We rely on the jury
to resolve conflicts in the evidence, weigh the evidence, and draw reasonable
inferences from basic facts to ultimate facts. See id. We review all evidence,
whether the trial court properly or improperly admitted it. Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). With respect to Appellant’s complaint
of ineffective assistance of counsel, we apply the well-recognized standard of
review from Strickland v. Washington, 466 U.S. 668, 686 (1984).
V. Analysis
A. Point One: Sufficiency of the evidence
Appellant challenges the sufficiency of the evidence to support his
conviction because the State, he asserts, did not prove the chain of custody of the
cocaine. He complains that a break in the chain of custody existed between
Detective Schriver, who booked the substance into police evidence, and Chandley,
who received the substance at the lab. Appellant asserts that the change from the
“rocklike substance” that Detective Schriver seized from Appellant’s shirt pocket
to the “powder” that the lab received “gives rise to an inference that tampering or
6
alteration took place.” Appellant did not object to the admission of State’s Exhibit
No. 2 and does not challenge its admission on appeal.
The evidence showed that Rocco made a positive alert for drugs on the piece
of plastic that fell to the ground. Detective Schriver subsequently searched
Appellant and found crumbled, off-white rocklike pieces of what she thought was
crack cocaine in his shirt pocket. Officer Easley performed a preliminary field test
on the rocklike substance, and it tested positive for cocaine.
Detective Schriver placed the rocklike substance that she took from
Appellant’s shirt pocket into an envelope; signed her name on the envelope, along
with her initials and the date of the arrest; and placed tape on the back with her
initials “half on half off the tape.” Detective Schriver locked the envelope in the
evidence vault, and the clerk’s name appeared on the envelope along with a seal
that showed that Seals took the envelope to the DPS lab. State’s Exhibit No. 2 was
that same envelope, and the case number on the envelope corresponded with
Appellant’s case. Chandley received the envelope from Seals and testified that it
had not been tampered with. Chandley tested the substance in the envelope and
found that it contained .03 grams of cocaine.
No evidence in the record indicated that anyone tampered with the envelope;
therefore, the jury was free to infer that the crumbled, rocklike substance became a
powder between the time Detective Schriver booked it into evidence and the time
Chandley received it at the lab. See Jackson, 443 U.S. at 319; see, e.g., Samaniego
v. State, No. 03-01-00718-CR, 2002 WL 1724016, at *4 (Tex. App.—Austin July
26, 2002, no pet.) (not designated for publication) (holding that “[t]here is no
reason to believe the evidence did not simply deteriorate by breaking down from
‘rock’ form to granular form over the time between the seizure and its presentation
at trial”). The evidence was sufficient for a rational jury to find beyond a
7
reasonable doubt all of the elements of the offense of possession of cocaine by
Appellant. See Jackson, 443 U.S. at 319. We overrule Appellant’s first point.
B. Point Two: Ineffective assistance of counsel
Appellant asserts that he received ineffective assistance from his trial
counsel. Specifically, Appellant complains that his trial counsel’s performance
was deficient because counsel opened the door to Appellant’s criminal history,
failed to request a limiting instruction or jury instruction in the charge, “failed to
object or preserve error for appeal on the issue of chain of custody or admission of
the substance alleged to be cocaine,” and “failed to object to or file a pretrial
motion to exclude the mention or use of field tests.”
The benchmark for evaluating an ineffective-assistance-of-counsel claim is
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.” Strickland, 466 U.S. at 686. The Strickland test has two prongs: (1) a
performance standard and (2) a prejudice standard. Id. at 687. For the
performance standard, we must determine whether Appellant has shown that
counsel’s representation fell below an objective standard of reasonableness. Id. If
so, we then determine whether there is a reasonable probability that the outcome
would have differed but for counsel’s errors. Wiggins v. Smith, 539 U.S. 510, 534
(2003); Strickland, 466 U.S. at 686; Andrews v. State, 159 S.W.3d 98, 102 (Tex.
Crim. App. 2005).
The reasonable probability must rise to the level that it undermines
confidence in the outcome of the trial. Isham v. State, 258 S.W.3d 244, 250 (Tex.
App.—Eastland 2008, pet. ref’d). A failure to make a showing under either prong
of the Strickland test defeats a claim of ineffective assistance of counsel. Perez v.
State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Andrews, 159 S.W.3d at 101.
A reviewing court need not consider both prongs of the Strickland test and can
8
dispose of an ineffectiveness claim on either prong. Walker v. State, 406 S.W.3d
590, 594 (Tex. App.—Eastland 2013, pet. ref’d) (citing Cox v. State, 389 S.W.3d
817, 819 (Tex. Crim. App. 2012)); see Strickland, 466 U.S. at 697.
The first prong of Strickland requires Appellant to establish that trial counsel
provided deficient assistance of counsel. There is a strong presumption that trial
counsel’s conduct fell within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689; Isham, 258 S.W.3d at 250. To overcome
this deferential presumption, an allegation of ineffective assistance must be firmly
founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999). In most cases, a silent record that provides no explanation for counsel’s
actions will not overcome the strong presumption of reasonable assistance. Id.
Appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648
(Tex. App.—Eastland 2005, pet. ref’d). Generally, the record on direct appeal will
not be sufficient to show that trial counsel’s representation was so lacking as to
overcome the presumption of reasonable conduct. Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002).
We do not inquire into trial strategy unless no plausible basis exists for trial
counsel’s actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel
Op.] 1981). When the record contains no evidence of the reasoning behind trial
counsel’s actions, we cannot conclude that counsel’s performance was deficient.
Jackson, 877 S.W.2d at 771. If trial counsel cannot explain the challenged actions,
then we will not conclude that those actions constituted deficient performance
unless they were so outrageous that no competent attorney would have engaged in
9
them. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
1. Opening the door
Evidence of other crimes, wrongs, or acts is inadmissible at the
guilt/innocence phase of trial to show the accused’s conformity with those other
acts. TEX. R. EVID. 404(b); Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim.
App. 1992). An accused may make otherwise inadmissible evidence admissible,
however, by “opening the door” through questions that elicit testimony about the
extraneous offenses. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009).
The record shows that Appellant’s trial counsel unintentionally elicited
testimony about Appellant’s criminal history. The trial court admitted that
testimony over counsel’s objections, ruling that counsel had “opened the door by
the nature of [his] question in this proceeding.” Appellant has failed to show by a
preponderance of the evidence that a reasonable probability exists that, but for
counsel’s error, the result of the proceeding would have been different. See
Strickland, 466 U.S. at 687.
2. Limiting instruction
Appellant complains that he was prejudiced when his trial counsel did not
request a limiting instruction subsequent to his opening the door to extraneous
offenses. Appellant cites to Ex parte Varelas, 45 S.W.3d 627, 631–32 (Tex. Crim.
App. 2001), to support his position. In Varelas, the defendant’s counsel failed to
request a burden of proof or limiting instruction after the trial court admitted State-
offered evidence of an extraneous offense. 45 S.W.3d at 631. In Varelas, a habeas
proceeding, the Court of Criminal Appeals had before it an affidavit from
Varelas’s trial counsel regarding his oversight, as opposed to trial strategy, in
failing to request a limiting instruction. Id. at 632. Moreover, the Court of
10
Criminal Appeals in Varelas recognized that the appellate record on direct appeal
is usually inadequate to develop a claim of ineffective assistance. Id. at 629–30.
Without evidence in the record, we will not speculate why Appellant’s trial counsel
did not request a limiting instruction. See Delgado v. State, 235 S.W.3d 244, 250
(Tex. Crim. App. 2007) (noting that “the decision of whether to request a limiting
instruction concerning the proper use of certain evidence, including extraneous
offenses, may be a matter of trial strategy”); Johnson, 614 S.W.2d at 152; cf. Ex
parte Varelas, 45 S.W.3d at 632 (using affidavit from trial counsel in habeas
proceeding to determine whether actions at trial were result of trial strategy). We
cannot conclude, based on a silent record, that counsel’s failure to request a
limiting instruction was deficient; nor can we conclude that it was so outrageous
that no competent attorney would do likewise. See Jackson, 877 S.W.2d at 771
(holding that lack of evidence in record of trial counsel’s reasons for actions
precludes court from concluding that trial counsel’s performance was deficient);
see, e.g., Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (holding
that counsel’s decision to not request a limiting instruction was not an
unreasonable trial strategy because a request may have drawn “more attention to
the incriminating evidence”).
3. Chain of custody
The State offered State’s Exhibit No. 2, which contained cocaine, without
objection from Appellant’s trial counsel. The record does not explain why
Appellant’s trial counsel did not object to State’s Exhibit No. 2; therefore, we
cannot conclude that his actions were deficient. See Jackson, 877 S.W.2d at 771.
Counsel’s actions were not so outrageous that a competent attorney would have
done otherwise. See Goodspeed, 187 S.W.3d at 392; see, e.g., O’Donoghue v.
State, No. 13-09-329-CR, 2010 WL 2783746, at *5 (Tex. App.—Corpus Christi
July 15, 2010, pet. ref’d) (mem. op., not designated for publication) (holding that
11
trial counsel’s failure to object to the chain of custody of certain evidence was not
outrageous).
4. Field test
Appellant’s trial counsel did not object to any testimony related to
Officer Easley’s field test of the substance that Detective Schriver seized from
Appellant, and no evidence exists in the record to show why Appellant’s trial
counsel acted in this manner. Without such evidence, we cannot conclude that his
actions were deficient. See Jackson, 877 S.W.2d at 771. Counsel’s actions were
not outrageous because Chandley’s testimony that the substance tested positive for
cocaine would make the introduction of the field test harmless error. See
Goodspeed, 187 S.W.3d at 392; Bonner v. State, No. 11-93-159-CR, 1994 WL
16189698, at *2 (Tex. App.—Eastland Dec. 1, 1994, pet. ref’d) (not designated for
publication) (citing Hicks v. State, 545 S.W.2d 805, 809–10 (Tex. Crim. App.
1977)) (holding that “any error brought about by counsel’s failure to object [to an
inadmissible field test] was rendered harmless upon the introduction of . . . the
chemist’s report”). For counsel’s actions or omissions related to the limiting
instruction, the chain of custody, and the field test, we do not reach the prejudice
prong of Strickland because Appellant has failed to satisfy the deficient-
performance prong. See Perez, 310 S.W.3d at 893. We overrule Appellant’s
second point.
VI. Conclusion
After reviewing the record, we hold that there was sufficient evidence for a
rational jury to have found beyond a reasonable doubt all of the elements for the
offense of possession of cocaine by Appellant. See Jackson, 443 U.S. at 318. We
also hold that Appellant has not satisfied both prongs under Strickland as required
to sustain his claim of ineffective assistance of counsel. See Strickland, 466 U.S.
at 686.
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VII. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
January 29, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
13