Opinion filed October 31, 2017
In The
Eleventh Court of Appeals
__________
Nos. 11-15-00277-CR & 11-15-00278-CR
__________
SHANNA LYNN HUGHITT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Nos. CR23116 & CR23242
OPINION
The jury convicted Shanna Lynn Hughitt of two offenses: (1) engaging in
organized criminal activity (Cause No. 11-15-00277-CR) and (2) possession with
intent to deliver between four and 200 grams of methamphetamine in a drug-free
zone (Cause No. 11-15-00278-CR). The trial court assessed Appellant’s punishment
at confinement in the Institutional Division of the Texas Department of Criminal
Justice for eighteen years for the offense of engaging in organized criminal activity
and ten years for the offense of possession with intent to deliver in a drug-free zone.
The trial court ordered that the sentences run consecutively.
Appellant presents three issues on appeal. She asserts in her first issue that
the trial court erred in denying her motion to quash the indictment and her motion
for directed verdict on the charge of engaging in organized criminal activity. In her
second issue, she challenges the sufficiency of the evidence supporting both
convictions. In her third issue, Appellant contends that her trial counsel was
ineffective.
Because the indictment in Cause No. 11-15-00277-CR failed to allege an
offense, we vacate the judgment of conviction for engaging in organized criminal
activity and dismiss the indictment. Further, we conclude that there is insufficient
evidence to support a conviction for possession with intent to deliver
methamphetamine in an amount between four and 200 grams in Cause No. 11-15-
00278-CR. However, because we find that the evidence is sufficient to support the
lesser included offense of possession with intent to deliver methamphetamine in an
amount between one and four grams, we remand that cause to the trial court to
reform the judgment and to conduct a new trial as to punishment only.
Background Facts
This case originated from an investigation called “Operation Tangled Web,”
which was undertaken by the Brown County Sheriff’s Department over a period of
several months The purpose of Operation Tangled Web was to conduct surveillance
on a group of people involved in methamphetamine distribution in Brownwood.
Investigator Carlyle Noe Gover, a narcotics investigator for the Brown County
Sheriff’s Department, conducted surveillance of Kevin Sliger. Sliger was a drug
dealer. He brought methamphetamine into Brown County from the
Dallas-Fort Worth Metroplex and participated in buying and selling
2
methamphetamine with several other drug dealers in Brownwood. Appellant was
Sliger’s romantic partner.1
Appellant and Sliger used methamphetamine together. Appellant often drove
Sliger around because Sliger did not have a driver’s license. Appellant was present
during a drug transaction between Sliger and another drug dealer named Butch
Landon Spearman. Appellant and Sliger stayed together and moved from place to
place until January 8, 2014, when Appellant and Sliger moved into a house on Eighth
Street. Appellant paid the rent and utilities for the house. The house on Eighth Street
was within 1,000 feet of a youth activity center.
On January 15, 2014, law enforcement executed a search warrant on the house
on Eighth Street. Appellant and Sliger were both present in the house during the
search. Sliger was in the dining room. On Sliger’s person, police found
approximately thirty-two grams of “cut” (an additive used by drug dealers to dilute
drugs), over sixteen grams of methamphetamine, some cocaine, some morphine
tablets, lottery tickets, and forty-four dollars in cash. Elsewhere in the dining room,
police found marihuana residue and rolling paper.
Appellant was located in the back bedroom. On her person, police found a
little over one gram of methamphetamine. On the mattress where Appellant was
sitting, police found a broken methamphetamine pipe and a gallon ziplock bag with
methamphetamine residue inside. In the bedroom closet, police found almost an
ounce of marihuana. Inside the pocket of a pair of men’s jeans, police found $786
in cash.
In the kitchen, police found a bean can containing two quarts of “cut.”
Throughout the house and in plain view, police found packaging, syringes, scales,
and a police scanner. Additionally, police found a surveillance camera in the front
1
At trial, the extent of Appellant and Sliger’s romantic involvement was contested. However,
Appellant concedes that she and Sliger had an “on-again, off-again” relationship.
3
bedroom window. The contents of the house indicated that both a male and a female
lived there.
In addition to Sliger, Operation Tangled Web involved surveillance of several
other individuals who were a part of a network of methamphetamine distributors in
Brown County, including John Philip Couch, John Simon Armendarez, Butch
Landon Spearman, Auston Welker, Chad Cooper, Carri Vickers, Charles Burt, and
others. Together, these distributors moved well over 400 grams of metham-
phetamine into Brown County.
The trial court recognized Investigator Gover and Sergeant James Stroope as
experts in narcotics. Investigator Gover and Sergeant Stroope both opined that it is
common for a male drug dealer to use a female companion to transport narcotics
because it is more difficult for male law enforcement officers to search a female.
Sergeant Stroope opined that it is common for someone in a relationship with a drug
dealer to benefit from that relationship by receiving houses, cars, phones, clothing,
food, and money. Investigator Gover opined that the fact that the house on Eighth
Street had drug paraphernalia, such as packaging, syringes, and scales, in plain view
was an indication that there were no innocent parties residing in the house.
Analysis
Engaging in Organized Criminal Activity
In Appellant’s first issue, she asserts that possession with intent to deliver is
not one of the enumerated offenses that may form the basis of a conviction for
engaging in organized criminal activity. She contends that the trial court erred in
denying her motion to quash the indictment in Cause No. 11-15-00277-CR based
upon this contention. We agree.
Sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d
599, 601 (Tex. Crim. App. 2004). Accordingly, we review de novo a trial court’s
ruling on a motion to quash an indictment. See id. The indictment must state facts
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that, if proved, show a violation of the law; the indictment must be dismissed if such
facts would not constitute a criminal offense. Posey v. State, 545 S.W.2d 162, 163
(Tex. Crim. App. 1977); Rotenberry v. State, 245 S.W.3d 583, 586 (Tex. App.—
Fort Worth 2007, pet. ref’d).
The State sought to prosecute Appellant for engaging in organized criminal
activity pursuant to Section 71.02 of the Texas Penal Code. TEX. PENAL CODE ANN.
§ 71.02 (West Supp. 2016). Under that statute, a person engages in organized
criminal activity “if, with the intent to establish, maintain, or participate in a
combination or in the profits of a combination . . . , [she] commits or conspires to
commit one or more [enumerated offenses].” Id. § 71.02(a); see Hart v. State, 89
S.W.3d 61, 63 (Tex. Crim. App. 2002).
The enumerated offense alleged in the indictment was “Possession of a
Controlled Substance with Intent to Deliver in an amount of 400 grams or more.”
That specific offense does not appear within the list of enumerated offenses
described in the organized crime statute. See PENAL § 71.02(a)(1)–(18). We note at
the outset of our analysis that two of our sister courts have recently held that
possession with intent to deliver is not a proper predicate offense for engaging in
organized criminal activity under Section 71.02(a). Walker v. State, No. 07-16-
00245-CR, 2017 WL 1292006, at *2 (Tex. App.—Amarillo Mar. 30, 2017, pet.
granted) (mem. op., not designated for publication); State v. Foster, No. 06-13-
00190-CR, 2014 WL 2466145, at *2–3 (Tex. App.—Texarkana June 2, 2014, pet.
ref’d) (mem. op., not designated for publication).
Among the list of enumerated offenses is “unlawful manufacture, delivery,
dispensation, or distribution of a controlled substance or dangerous drug, or unlawful
possession of a controlled substance or dangerous drug through forgery, fraud,
misrepresentation, or deception.” PENAL § 71.02(a)(5). As noted by the Texarkana
Court of Appeals, “[p]ossession of a controlled substance with intent to deliver does
5
not explicitly violate Texas’ organized crime statute, but delivery of controlled
substances does.”2 Foster, 2014 WL 2466145, at *1. The State contends that
possession with intent to deliver is encompassed within the meaning of “delivery”
found in Section 71.02. The State bases this contention on Section 481.112 of the
Texas Health and Safety Code, which sets out a list of offenses for manufacture and
delivery of controlled substances in Penalty Group 1. See TEX. HEALTH & SAFETY
CODE ANN. § 481.112(a) (West 2017) (“[A] person commits an offense if the person
knowingly manufactures, delivers, or possesses with intent to deliver a controlled
substance listed in Penalty Group 1.”). The State asserts that, under Section 481.112,
possession with intent to deliver is the equivalent of delivery.
The State presented the same argument in Foster. The Texarkana Court of
Appeals rejected this argument, explaining that incorporating “possession with
intent to deliver” into the meaning of “delivery” under Section 71.02 of the Penal
Code is inconsistent with the definition of the term “deliver” in the Controlled
Substances Act, which means “to transfer, actually or constructively, to another a
controlled substance.” Foster, 2014 WL 2466145, at *2–3 (citing HEALTH &
SAFETY § 481.002(8)). We additionally note that the Amarillo Court of Appeals
agreed with Foster’s holding. Walker, 2017 WL 1292006, at *2.3 We also agree
with the analysis in Foster and conclude that possession of a controlled substance
with the intent to deliver does not constitute a proper predicate offense for engaging
in organized criminal activity under Section 71.02(a).
2
The court noted in Foster that Section 71.02(a)(5) also includes unlawful “possession of a
controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception.” Foster,
2014 WL 2466145, at *1 n.1 (emphasis added). As was the case in Foster, this provision is not applicable
here.
3
In Walker, the Court of Criminal Appeals granted the State’s petition for discretionary review on
August 23, 2017. We note that the State did not seek a review of the Amarillo Court of Appeals’
determination that possession with intent to deliver is not a proper predicate offense under Section 71.02
but, rather, sought a review of the disposition of the case ordered by the Amarillo Court of Appeals.
6
The indictment in Cause No. 11-15-00277-CR failed to allege an offense
under Section 71.02 for engaging in organized criminal activity. Thus, the trial court
should have granted Appellant’s motion to quash the indictment. We sustain
Appellant’s first issue to the extent that it challenges the trial court’s ruling on the
motion to quash. We need not consider the remainder of Appellant’s first issue or
the portions of her second and third issues challenging her conviction for engaging
in organized criminal activity because her successful challenge to the indictment is
dispositive of her appeal of that conviction. See Rotenberry, 245 S.W.3d at 589
(citing TEX. R. APP. P. 47.1). We vacate the trial court’s judgment of conviction in
Cause No. 11-15-00277-CR and dismiss the indictment. See TEX. R. APP. P. 43.2(e);
Rotenberry, 245 S.W.3d at 589.
Possession with Intent to Deliver
In Appellant’s second issue, she asserts that the evidence is insufficient to
support her conviction for possession with the intent to deliver methamphetamine in
an amount between four and 200 grams in a drug-free zone. She focuses her
evidentiary challenge on two contentions. Appellant contests the amount of
methamphetamine that the evidence showed she possessed. She also challenges the
evidence supporting the element that she possessed any methamphetamine with an
intent to deliver it.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
7
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
It is undisputed that Appellant was in possession of a little over one gram of
methamphetamine. Therefore, in order to convict Appellant of possession of
between four and 200 grams of methamphetamine, the State needed to show that
Appellant had possession of the sixteen grams of methamphetamine found on
Sliger’s person. A person need not have exclusive possession of a controlled
substance in order to be guilty of possession—joint possession will suffice. See
McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). Appellant
asserts that the evidence failed to demonstrate that she jointly possessed the
methamphetamine found in Sliger’s pocket. We agree.
A person commits the offense of possession with intent to deliver a controlled
substance if she knowingly possesses a drug with the intent to deliver it. See HEALTH
& SAFETY § 481.112(a). Possession is defined as “actual care, custody, control, or
management.” PENAL § 1.07(a)(39). To prove unlawful possession of a controlled
substance, the State must show (1) that the accused exercised control, management,
or care over the substance and (2) that the accused knew the matter possessed was
contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005),
8
overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 &
n.32 (Tex. Crim. App. 2015). The evidence must establish that the accused’s
connection with the drugs is more than just her fortuitous proximity to someone
else’s drugs. Id. at 405–06.
Texas courts have formulated the “affirmative links rule,” which provides
that, “[w]hen the accused is not in exclusive possession of the place where the
substance is found, it cannot be concluded that the accused had knowledge of and
control over the contraband unless there are additional independent facts and
circumstances which affirmatively link the accused to the contraband.” Id. at 406
(alteration in original) (emphasis added) (quoting Deshong v. State, 625 S.W.2d 327,
329 (Tex. Crim. App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex.
Crim. App. 2006) (listing affirmative links recognized by courts).4 The affirmative
links rule is routinely employed to establish joint possession when the accused is not
in exclusive possession of the place where the drugs are found. Poindexter, 153
S.W.3d at 406. “This rule simply restates the common-sense notion that a person—
such as a father, son, spouse, roommate, or friend—may jointly possess property
like a house but not necessarily jointly possess the contraband found in that house.”
Id.
4
Courts have identified the following factors as affirmative links that may establish an accused’s
knowing possession of a controlled substance: (1) the accused’s presence when a search is conducted;
(2) whether the contraband was in plain view; (3) the accused’s proximity to, and the accessibility of, the
contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the
accused possessed narcotics or other contraband when arrested; (6) whether the accused made incriminating
statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive
gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia
were present; (11) whether the accused owned or had the right to possess the place where the contraband
was found; (12) whether the place where the contraband was found was enclosed; (13) whether the accused
was found with a large amount of cash; and (14) whether the conduct of the accused indicated a
consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. Many of these same factors have been used by
courts to determine if a person possessed a controlled substance with the intent to deliver. See Guttery v.
State, No. 11-12-00160-CR, 2014 WL 3398144, at *2–3 (Tex. App.—Eastland July 10, 2014, pet. ref’d).
9
The State relies on an “affirmative links” analysis to establish that Appellant
had care, custody, or control of all of the methamphetamine found as a result of the
officer’s search pursuant to the search warrant. However, the affirmative links
analysis is not readily applicable because the sixteen grams of methamphetamine
were not found in a place that was in the joint possession of Appellant and Sliger
but, rather, were found in Sliger’s exclusive possession—in his pocket. There is no
evidence that Appellant exercised control, management, or care over the
methamphetamine found in Sliger’s pocket.
In Ward v. State, the Texarkana Court of Appeals had to decide if there was
sufficient evidence to convict the defendant of possession of drugs that were found
on his companion. Ward v. State, No. 06-16-00059-CR, 2016 WL 7175292, at *1
(Tex. App.—Texarkana Dec. 9, 2016, pet. ref’d) (mem. op., not designated for
publication). In that case, the defendant and a female companion were in a vehicle
together when law enforcement pulled them over. Id. Law enforcement noticed
movement between the defendant and his companion that indicated that the
defendant had passed her the drugs. Id. at *3. The court determined that this was
sufficient evidence to convict the defendant of possession of the drugs, even though
they were found on his companion. Id. at *3–4. In reaching this result, the court did
not conduct an affirmative links analysis to determine if the defendant knowingly
possessed the drugs found on his companion.
Ward is distinguishable from this case. Here, there is no evidence that
Appellant passed the sixteen grams of methamphetamine to Sliger. In fact, during
the search of the house, law enforcement found Appellant and Sliger in different
rooms. To infer that Appellant had any care, custody, or control of the
methamphetamine found in Sliger’s pocket would be speculation. Although
Appellant leased the house, was a drug user, and had drug paraphernalia and cash at
the house, Sliger exclusively possessed the large amount of methamphetamine
10
contained within a single baggie in his pocket, and no one testified that Appellant
knew about the drugs in Sliger’s pocket. Therefore, there is insufficient evidence to
convict Appellant of possession of between four and 200 grams of
methamphetamine.
Because we have found that the evidence is insufficient to support Appellant’s
conviction for possession with the intent to deliver methamphetamine in an amount
between four and 200 grams, we must now decide whether the conviction should be
reformed to reflect a conviction for the lesser included offense of possession with
intent to deliver between one and four grams. See Thornton v. State, 425 S.W.3d
289, 299–300 (Tex. Crim. App. 2014). A conviction should be reformed when
(1) every element necessary to prove the lesser included offense was found when
Appellant was convicted of the greater offense and (2) the evidence is sufficient to
support a conviction for the lesser included offense. Id. at 300. Possession with
intent to deliver methamphetamine, if between one and four grams, is a lesser
included offense of possession with intent to deliver methamphetamine in an amount
between four and 200 grams. See HEALTH & SAFETY § 481.112(c), (d). Therefore,
we will review the evidence to determine whether it is sufficient to support a
conviction for possession with intent to deliver methamphetamine in an amount
between one and four grams. See Thornton, 425 S.W.3d at 300. As noted
previously, there is no dispute that Appellant possessed over one gram of
methamphetamine. Accordingly, we direct our analysis on the “intent to deliver”
element.
“‘Deliver’ means to transfer, actually or constructively, to another a controlled
substance . . . .” HEALTH & SAFETY § 481.002(8). Intent to deliver may be proved
with circumstantial evidence, including evidence that the defendant possessed the
contraband. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th
Dist.] 2006, pet. ref’d). “Intent can be inferred from the acts, words, and conduct of
11
the accused.” Id. at 326 (quoting Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim.
App. 1995)). The expert testimony of an experienced law enforcement officer may
be used to establish an accused’s intent to deliver. Id. The factors to be considered
in determining whether a defendant possessed contraband with an intent to deliver
include the nature of the location where the defendant was arrested, the quantity of
drugs the defendant possessed, the manner of packaging the drugs, the presence or
absence of drug paraphernalia, whether the defendant possessed a large amount of
cash, and the defendant’s status as a drug user. Kibble v. State, 340 S.W.3d 14, 18–
19 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Moreno, 195 S.W.3d at 325;
see Guttery v. State, No. 11-12-00160-CR, 2014 WL 3398144, at *3 (Tex. App.—
Eastland July 10, 2014, pet. ref’d) (mem. op., not designated for publication). This
list of factors is not exclusive, nor must they all be present to establish a defendant’s
intent to deliver. Kibble, 340 S.W.3d at 19.
We find that the evidence permitted a rational jury to determine that Appellant
had the intent to deliver the methamphetamine that she possessed. In the bedroom
where Appellant was located, police found a gallon ziplock bag with
methamphetamine residue inside. Investigator Gover opined that the presence of
this bag near Appellant indicated that, at one time, she possessed a larger amount of
methamphetamine and that she was distributing, rather than simply using, the drug.
Further, during the execution of the search warrant, scales and packaging were in
plain view throughout the house on Eighth Street. Investigator Gover opined that
this was inconsistent with a house that had innocent parties residing there.
We sustain Appellant’s second issue as it relates to her challenge to the
sufficiency of the evidence supporting her conviction in Cause No. 11-15-00278-
CR. However, because we find that the evidence is sufficient to support the lesser
included offense of possession with intent to deliver methamphetamine in an amount
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between one and four grams in a drug-free zone, we remand that cause to the trial
court to reform the judgment and to conduct a new trial as to punishment only.
Ineffective Assistance of Counsel
In Appellant’s third issue, she asserts that her trial counsel was ineffective. In
order to establish that trial counsel rendered ineffective assistance at trial, Appellant
must show that counsel’s representation fell below an objective standard of
reasonableness and that there is a reasonable probability that the result would have
been different but for counsel’s errors. Strickland v. Washington, 466 U.S. 668,
687–88 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005);
Thompson v. State, 9 S.W.3d 808, 812–13 (Tex. Crim. App. 1999). Courts must
indulge a strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance, and Appellant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound trial
strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.
App. 2000). “[C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690.
“[A]ny allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson,
9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 428, 500 (Tex. Crim.
App. 1996)). Under normal circumstances, the record on direct appeal is generally
undeveloped and rarely sufficient to overcome the presumption that trial counsel
rendered effective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.
2002). The Court of Criminal Appeals has said that “trial counsel should ordinarily
be afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If
trial counsel did not have an opportunity to explain his actions, we will not find
13
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001).
We note that Appellant did not allege in her motion for new trial that her trial
counsel rendered ineffective assistance, and the trial court did not receive any
evidence supporting Appellant’s ineffective assistance claim. Accordingly, the
appellate record does not contain an explanation from trial counsel concerning his
actions at trial or his trial strategy.
Appellant alleges four matters for which she contends her trial counsel was
ineffective. First, Appellant contends that her trial counsel failed to file a motion for
severance asking for separate trials for her charge of engaging in organized criminal
activity and her charge for possession with intent to deliver. Because we have
already determined that the indictment for organized criminal activity was defective
and should have been quashed, we need not address this contention. We further note
that many of Appellant’s remaining claims of ineffective assistance of counsel stem
from the conviction for engaging in organized criminal activity—a conviction that
we are vacating.
Appellant next contends that her trial counsel “fail[ed] to mount a defense.”
Specifically, Appellant contends that her trial counsel was ineffective for failing to
give an opening statement, failing to present a “battered woman defense,” and failing
to suggest to the jury that Appellant would be better served by being sent to rehab
than by being sent to jail. These are matters that are inherently a matter of trial
strategy, and we may not second guess trial counsel’s strategy decisions. See
Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992) (“Just because a
competent defense attorney recognizes that a particular defense might be available
to a particular offense, he or she could also decide it would be inappropriate to
propound such a defense in a given case.”); Darkins v. State, 430 S.W.3d 559, 570
14
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“Whether to deliver an opening
statement is entirely optional.”).
Third, Appellant contends that her trial counsel failed to object to several
instances of hearsay, leading questions, and witness speculation. Specifically,
Appellant points to four “inflammatory” statements made by Investigator Gover
during direct examination, a leading question that the State’s attorney asked one of
its witnesses concerning the nature of relationships in the drug business, the
introduction of testimony concerning several of Sliger’s unrelated offenses, and the
failure of Appellant’s trial counsel to object that the State did not properly qualify
an expert in forensic science who identified some of the substances seized in this
case as methamphetamine. These are also matters that are inherently a matter of trial
strategy. See Thompson, 9 S.W.3d at 814 (explaining that, when the record is silent
as to why trial counsel failed to make an objection, the presumption that the decision
not to object to the admission of evidence was a reasonable one has not been
rebutted).
Fourth, Appellant contends that her trial counsel failed to effectively cross-
examine the State’s witnesses. Appellant contends that her trial counsel was
ineffective for failing to question Sliger regarding his relationship with Appellant
and his exclusive possession of the drugs found in his pocket. Additionally,
Appellant contends that her trial counsel was ineffective for failing to cross-examine
several of the State’s witnesses regarding the relationship between Appellant and
Sliger. In order to show that her trial counsel was ineffective on this basis, Appellant
must show what questions should have been asked and what the answers would have
been. See Davis v. State, 119 S.W.3d 359, 370 (Tex. App.—Waco 2003, pet. ref’d).
Appellant states in her brief that her trial counsel should have questioned Sliger
further about the nature of his relationship with Appellant and about whether or not
he had exclusive possession of the drugs found in his pocket. However, Appellant
15
has not shown what Sliger would have testified to had he been asked these questions
by trial counsel. Further, the record contains no explanation for why Appellant’s
trial counsel limited his cross-examination to the questions actually asked. See
Thompson, 9 S.W.3d at 814; Davis, 119 S.W.3d at 370. Therefore, Appellant has
failed to demonstrate that her trial counsel was ineffective on this basis.
All of Appellant’s claims of ineffective assistance of counsel are matters that
are inherently matters of trial strategy, and many of them arise from a conviction
that we have vacated. The record before us does not demonstrate that trial counsel’s
representation fell below an objective standard of reasonableness because there has
been no inquiry into trial counsel’s strategy. See Thompson, 9 S.W.3d at 812–13.
We overrule Appellant’s third issue.
This Court’s Ruling
Appellant’s judgment of conviction in Cause No. 11-15-00277-CR for
engaging in organized criminal activity is vacated, and the indictment is dismissed.
Appellant’s judgment of conviction in Cause No. 11-15-00278-CR for possession
with intent to deliver methamphetamine in an amount between four and 200 grams
in a drug-free zone is reversed. We remand this cause to the trial court to reform the
judgment to reflect a conviction for the offense of possession with intent to deliver
methamphetamine in the amount of one gram or more but less than four grams in a
drug-free zone and to conduct a new trial as to punishment only. See Thornton, 425
S.W.3d at 300, 307.
October 31, 2017 JOHN M. BAILEY
Publish. See TEX. R. APP. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
16