Edwards, Brandon v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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BRANDON EDWARDS, ) No. 08-00-00551-CR

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Appellant, ) Appeal from

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v. ) 161st District Court

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THE STATE OF TEXAS, ) of Ector County, Texas

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Appellee. ) (TC# B-28,045)

O P I N I O N

Brandon Edwards appeals his conviction for the offense of manufacturing or possessing with intent to manufacture more than 400 grams of methamphetamine, enhanced by two prior felony convictions. A jury found Appellant guilty, found the enhancement paragraphs true, and assessed punishment at imprisonment for a term of forty-five years. We affirm.

FACTUAL SUMMARY

During the early morning hours of November 5, 1999, Officer Josh Greggory of the Odessa Police Department stopped a pickup truck due to a seat belt violation. Greggory approached the driver, Timothy Perry, and obtained his driver=s license and insurance information. He arrested Perry for driving with a suspended driver=s license. The passenger, later identified as Appellant, told Greggory that he owned the truck but it was registered to his mother. Following Perry=s arrest, Appellant consented to a search of the truck. Greggory noticed that the bed of the pickup had a lot of trash in it along with some car parts and a blue and white ice chest. Another officer found a syringe in the glove compartment. Appellant told the officers that the syringe belonged to his diabetic mother.

Appellant initially presented a Texas driver=s license and identified himself to Greggory as AStance Ren,@ but a second officer who knew Appellant arrived at the scene and identified him. Consequently, Greggory arrested Appellant for false identification. Greggory and another officer transported Perry and Appellant to jail. A third officer, Michael Gerke, impounded Appellant=s pickup. Before leaving, Greggory asked Gerke to look inside of the ice chest to determine whether it had any alcoholic beverages in it. In the ice chest, Gerke found a large pickle jar containing a clear liquid and some coffee filters. He also found a beaker which had lines on it to indicate measurements. Gerke noted these items on the impound report as things of value but he did not recognize their significance.

Mike Simms, who worked for a wrecker service at the time, went to the scene to transport Appellant=s truck to the impound yard. He had to wait for the police to finish with their business and move their patrol cars before he could pick up the truck. Upon walking up to the truck, Simms immediately noticed the strong smell of methamphetamine, which he described as being so strong that he almost Amessed his pants.@ Simms recognized the odor as methamphetamine because he Ahad an eighteen year problem with it.@ He did not mention what he had noticed to anyone and simply transported the truck to the wrecking yard in Odessa which is secured by a fence and locked gate. Simms recalled that the following afternoon, someone came to the wrecking yard and got some property out of the truck.

Appellant=s mother, Virgie Worley, testified at trial on behalf of the State. Worley owned the pickup driven by Appellant but he had used it regularly because of trouble with his own car. Appellant called Worley and told her that he had been arrested and her truck had been impounded. Worley went to the wrecking yard to pick it up later that same day. Before driving home to Monahans, she stopped and put oil, gas, and water in the truck because the truck smelled so bad and she thought Appellant had Aburnt it up.@ When she found a Aneedle@ in the front of the pickup, she threw it out the window. Worley does not have diabetes and she did not own a blue and white ice chest or any of the items found in the ice chest.

After Worley arrived in Monahans, she went to the grocery store. She put the groceries in the back of the truck and noticed the blue and white ice chest. Upon opening it and seeing the jar with a hose and some coffee filters, Worley became afraid because the items in it Adidn=t look right.@ Worley put the ice chest in the trunk of a car owned by Appellant=s girlfriend.[1] The girlfriend=s car had broken down earlier in the day at the same grocery store and was still in the parking lot. Worley then drove home. Still concerned, Worley called her probation officer and told him what she had found. Juan Rodriguez, Jr., a deputy sheriff, and her probation officer met her in the parking lot that evening. Worley opened the trunk and showed them the ice chest and its contents. Rodriguez described the items as smelling like ether. After contacting other law enforcement officers, Rodriguez seized the items. Subsequent laboratory analysis revealed that the jars contained approximately 2,114 grams of methamphetamine. Latent fingerprints taken from the jars matched Appellant=s fingerprints.

Appellant testified in his own defense. He falsely identified himself to Greggory because he knew that he had an outstanding blue warrant. He gave the officer consent to search the truck because he had nothing to hide. He denied telling the officers that his mother was a diabetic. He also denied manufacturing methamphetamine and insisted he did not know methamphetamine was in the truck. The jury rejected Appellant=s defense and found him guilty as alleged in the indictment.

 DENIAL OF COUNSEL=S MOTION TO WITHDRAW

In Point of Error No. One, Appellant contends that the trial court abused its discretion in refusing to permit trial counsel to withdraw. Asserting that his attorney had a conflict of interest as a result of the grievance filed against him, Appellant urges that the denial of the motion to withdraw results in a violation of his right to counsel guaranteed by the Sixth Amendment. When reviewing a trial judge=s ruling on a motion to withdraw, we apply an abuse of discretion standard. Green v. State, 840 S.W.2d 394, 408 (Tex.Crim.App. 1992), cert. denied, 507 U.S. 1020, 113 S. Ct. 1819, 123 L. Ed. 2d 449 (1993). We will not disturb the trial court=s decision absent an abuse of discretion. See Id.

Appellant was indicted on March 20, 2000. The trial court appointed Jason Leach to represent him. Leach filed a motion to withdraw on May 31, 2000, alleging that he had been instructed by Appellant to file the motion to withdraw because he intended to hire counsel. Leach further alleged that he could not effectively communicate with Appellant. Appellant was unable to retain counsel and the trial court denied the motion after a hearing.

Leach filed a second motion to withdraw on November 22, 2000, less than a week before trial. At the hearing on the motion, Leach informed the court that he could not communicate with Appellant, who was highly dissatisfied with his representation. Leach believed a conflict of interest existed because Appellant had filed a grievance against him. He further informed the court that Appellant wished to represent himself if the court did not appoint new counsel and he had refused to wear the civilian clothes counsel had brought for him to wear at trial.

In response to questioning by the trial court, Appellant accused Leach of perjury and suborning perjury. Appellant also complained that Leach had only visited him three times in the jail, had refused to pursue a bond reduction, had not undertaken an adequate investigation of the facts, had not been prepared for the suppression hearing, and had refused to pursue Appellant=s defensive theories. Appellant confirmed that he had filed a grievance with the State Bar of Texas alleging that Leach had not communicated with him or his family.

Leach denied that he had only visited Appellant three times and he maintained that he had communicated not only with Appellant but his family as well. He had reviewed the State=s file and had interviewed witnesses in preparation for trial. Contrary to Appellant=s version of what occurred at the suppression hearing, Leach explained that he could not proceed with the motion to suppress due to a lack of standing because Appellant refused to admit an ownership interest in the truck. Leach=s insistence that Appellant had to claim an ownership interest in the truck in order to file the motion to suppress is the basis of Appellant=s accusation that Leach had asked him to perjure himself. Counsel had not initially pursued a bond reduction because Appellant was held pursuant to a blue warrant so release on bond was simply not an available option. Later, however, the blue warrant was released and counsel could have sought a bond reduction but had not done so.

After hearing all of this evidence, the trial judge informed Appellant of his confidence in Leach=s ability and observed that Appellant probably would not be happy with any attorney appointed to represent him. Finding that Appellant=s allegations against Leach were groundless and that an actual conflict of interest did not exist under these facts, the court denied the motion to withdraw. At this point and despite the court=s stern admonishments, Appellant informed the court that he wished to be tried in jail clothes. Further, he insisted that he would rather represent himself than continue with Leach as his attorney. The court admonished Appellant at length regarding self-representation but Appellant persisted in his desire to represent himself. The court requested that Leach remain in the courtroom in the event Appellant changed his mind. Appellant represented himself during voir dire but later requested that Leach represent him through the remainder of trial. The right to counsel afforded an indigent defendant by the Sixth Amendment may not be manipulated in such a manner as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. See Hubbard v. State, 739 S.W.2d 341, 344 (Tex.Crim.App. 1987). A defendant does not have the right to his own choice of appointed counsel, and unless he waives his right to counsel and chooses to represent himself or shows adequate reason for the appointment of new counsel, he must accept the counsel appointed by the court. Garner v. State, 864 S.W.2d 92, 98 (Tex.App.--Houston [1st Dist.] 1993, pet. ref=d). A trial court is under no duty to search until it finds an attorney agreeable to the defendant. Id. However, there are circumstances in which a defendant may, upon a proper showing, be entitled to a change of counsel. Id. A defendant must bring the matter to the trial court=s attention and must carry the burden of proving he is entitled to new counsel. Malcolm v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982); Webb v. State, 533 S.W.2d 780, 784 n.3 (Tex.Crim.App. 1976).

Ineffective assistance of counsel may result from an attorney=s conflict of interest. Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984). When a possible conflict of interest is brought to the trial court=s attention, as in this case, the court must take adequate steps to ascertain whether the risk of the conflict is too remote to warrant remedial action. Dunn v. State, 819 S.W.2d 510, 519 (Tex.Crim.App. 1991). The defendant=s filing of a grievance or other legal proceeding against appointed counsel does not create an actual conflict of interest per se even though this may result in trial counsel and the defendant being adversaries in other legal proceedings. See Dunn, 819 S.W.2d at 519 (defendant filed legal malpractice action); Perry v. State, 464 S.W.2d 660, 664 (Tex.Crim.App.), cert. denied, 404 U.S. 953, 92 S. Ct. 324, 30 L. Ed. 2d 270 (1971)(lawsuit under Civil Rights Act); Garner, 864 S.W.2d at 99 (complaint letter to bar association). An actual conflict of interest exists if counsel is required to choose between advancing his own client=s interests in a fair trial or advancing other interests, including his own, to the detriment of his client=s interest. See Ex parte Morrow, 952 S.W.2d 530, 538 (Tex.Crim.App. 1997), cert. denied, 525 U.S. 810, 119 S. Ct. 40, 142 L. Ed. 2d 31 (1998). In order to demonstrate that a conflict of interest violated his right to reasonably effective assistance of counsel, a defendant must show that (1) defense counsel was actively representing conflicting interests and (2) the conflict had an adverse effect on specific instances of counsel=s performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Morrow, 952 S.W.2d at 538.

The grievance is based upon the same complaints aired by Appellant at the hearing. These complaints all concern Leach=s alleged failure to communicate with Appellant and his refusal to conduct the investigation and defense of the case in the manner desired by Appellant. The trial judge heard substantial evidence of the efforts made by Leach on Appellant=s behalf. The trial court correctly concluded that an actual conflict of interest did not exist due to the filing of the grievance. On appeal, Appellant maintains that a conflict of interest automatically exists since he accused his attorney of committing two crimes, perjury and subornation of perjury. The only evidence offered at the hearing on this subject demonstrated that the accusations arose out of counsel=s discussions with Appellant that he must claim an interest in the vehicle in order to have standing for purposes of the motion to suppress. This does not establish any basis for the accusations. If there is any other basis for the accusations, it does not appear in the record. While we appreciate trial counsel=s plight in dealing with a client insistent on making unsupported accusations of wrongdoing, we are also concerned, as was the trial court, with a defendant who makes these types of allegations in order to manipulate the trial court and his right to counsel. Under these facts, we find that an actual conflict of interest does not exist.

Finally, Appellant argues that the complaints he voiced about his attorney during voir dire also resulted in a conflict of interest. He does not explain how these complaints caused counsel to represent conflicting interests. Even if Appellant had established the existence of a conflict of interest at the hearing, there is no evidence to show that it had an adverse effect on counsel=s performance at trial. Finding no abuse of discretion, we overrule Point of Error No. One.

SELF-REPRESENTATION

In Point of Error No. Two, Appellant argues that the trial court erred in permitting him to represent himself during voir dire. The Sixth Amendment guarantees defendants the right to assistance of counsel in criminal cases. See Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Cain v. State, 976 S.W.2d 228, 235 (Tex.App.--San Antonio 1998, no pet.). Implied in the right to counsel and other Sixth Amendment protections is a right to self-representation. See Faretta, 422 U.S. at 820, 95 S. Ct. at 2533-34. A waiver of counsel must be made competently, knowingly and intelligently, and voluntarily. Collier v. State, 959 S.W.2d 621, 625 26 (Tex.Crim.App. 1997), citing Godinez v. Moran, 509 U.S. 389, 400 01, 113 S. Ct. 2680, 2687, 125 L. Ed. 2d 321 (1993). The decision to waive counsel and proceed pro se is made knowingly and intelligently if it is made with a full understanding of the right to counsel, which is being abandoned, as well as the dangers and disadvantages of self representation. Collier, 959 S.W.2d at 626. A waiver of the right to counsel will not be lightly inferred, and the courts will indulge every reasonable presumption against the validity of such a waiver. Geeslin v. State, 600 S.W.2d 309, 313 (Tex.Crim.App. [Panel Op.] 1980).

As already detailed, the trial court engaged in a lengthy discussion with Appellant about the dangers and disadvantages of self-representation and even went so far as to tell Appellant he should not represent himself. Although the court did not, as Appellant points out, question him about his educational background and legal training until after the venire was seated, the court did so before voir dire began. Despite the extensive warnings and admonishments given, Appellant finds fault with the trial court=s failure to determine whether Appellant had a firm command of the facts and legal issues, including the nature of the charges against him and the range of punishment. There is no requirement that a trial court follow Aformulaic questioning@ or a particular Ascript@ to assure itself that an accused who has asserted his right to self representation does so with eyes open. Burgess v. State, 816 S.W.2d 424, 428 (Tex.Crim.App. 1991). It is required only that the record contain proper admonishments concerning pro se representation and any necessary inquiries of the defendant so that the trial court may make an assessment of his knowing exercise of the right to defend himself. Id. The trial judge more than adequately warned Appellant of the dangers and disadvantages of self-representation, and he had a sufficient basis for determining that Appellant made his decision with full knowledge of the right to counsel. Point of Error No. Two is overruled.

LEGAL SUFFICIENCY

In Point of Error No. Three, Appellant challenges the legal sufficiency of the evidence to prove that he manufactured or possessed with intent to manufacture more than 400 grams of methamphetamine. Dennis Hambrick, a chemist with the Department of Public Safety, testified regarding the DPS lab analysis of the liquid and powdery substances recovered from various containers in the blue and white ice chest. The lab determined that the liquid substance was methamphetamine, which weighed 1.93 kilograms or 1,930 grams, including dilutants and adulterants. The powdered substance, weighing a total of 184.38 grams, was also found to be methamphetamine. The lab did not perform any quantitation of the liquid methamphetamine because it contained an interfering contaminant. According to Hambrick, the contaminant could be considered an adulterant or dilutant but he did not run any additional tests to determine its nature. He further stated that anything found mixed with a controlled substance could be considered an adulterant or dilutant.

Drawing a distinction between a contaminant, and adulterants or dilutants which increase the weight or bulk of the controlled substance, Appellant argues that a contaminant may not be included in the calculation of weight unless it is further identified as an adulterant or dilutant. The jury determined that Appellant, as charged in the indictment, manufactured and possessed with intent to manufacture more than 400 grams of methamphetamine, by aggregate weight and including any adulterants and dilutants. Under the Texas Health and Safety Code, Aadulterant or dilutant@ means any material that increases the bulk or quantity of a controlled substance, regardless of its effect on the chemical activity of the controlled substance. Tex.Health&Safety Code Ann. ' 481.002(49) (Vernon Pamph. 2002). The State is no longer required to prove that the added adulterants or dilutants did not affect the chemical activity of the controlled substance. Hines v. State, 976 S.W.2d 912, 913 (Tex.App.- Beaumont 1998, no pet.); Williams v. State, 936 S.W.2d 399, 405 06 (Tex.App. Fort Worth 1996, pet. ref=d). Because the Health and Safety Code now defines adulterants and dilutants as substances that increase the bulk or quantity of a controlled substance, testimony that the substances are adulterants and dilutants constitutes proof that they were added to increase bulk and quantity. Hines, 976 S.W.2d at 913; Collins v. State, 969 S.W.2d 114, 117 (Tex.App. Texarkana 1998, pet. ref=d). The current version of section 481.002(49) omits any requirement of intent to increase the bulk or quantity of the final product and negates the requirement that the added remainder (adulterants and/or dilutants) has not affected the chemical activity of the named illegal substance, thus eliminating the requirements that the State prove (1) intent to increase the bulk or quantity, and (2) the adulterants or dilutants have not affected the chemical activity of the named substance. Hines, 976 S.W.2d at 913; Warren v. State, 971 S.W.2d 656, 660 (Tex.App. Dallas 1998, no pet.). Hambrick=s testimony that the methamphetamine, including adulterants and dilutants, weighed more than 400 grams, and that the term adulterant or dilutant includes contaminants, is sufficient to support the jury=s finding of guilt. Point of Error No. Three is overruled.

FACTUAL SUFFICIENCY

In Point of Error No. Four, Appellant challenges the factual sufficiency of the evidence to support the element addressed in his third point. In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder=s determinations. See id. at 8 9; Clewis, 922 S.W.2d at 136. Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

Appellant did not present any expert testimony on the subject but instead argues that the State=s proof is so weak that it would be manifestly unjust to allow his conviction to stand. Although Hambrick initially drew a distinction between a contaminant and adulterants or dilutants, he later testified, after being reminded of the definition found in the Health and Safety Code, that a contaminant is also an adulterant or dilutant. When his testimony is read as a whole, there is sufficient evidence to show that the methamphetamine, including adulterants and dilutants, weighed more evidence than 400 grams. Point of Error No. Four is overruled. Having overruled each point of error, we affirm the judgment of the trial court.

August 15, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] Worley had a key to the trunk.