Eloy Pina Magallanes v. State of Texas--Appeal from 238th District Court of Midland County

Opinion filed January 17, 2008

In The

Eleventh Court of Appeals

__________

 No. 11-06-00119-CR

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ELOY PINA MAGALLANES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR30915

O P I N I O N

Eloy Pina Magallanes was indicted for possession of cocaine in the amount of four grams or more but less than 200 grams. Appellant pleaded not guilty and proceeded to a jury trial. The jury found him guilty and assessed punishment at five years confinement in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Issues on Appeal

Appellant raises two issues on appeal. He asserts that he was denied effective assistance of counsel and that the trial court erroneously denied his motion for instructed verdict and motion for new trial based on insufficient evidence.

Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer=s performance fell below an objective standard of reasonableness and that there is a Areasonable probability@ the result of the proceeding would have been different but for counsel=s deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).

The review of defense counsel=s representation is highly deferential and presumes that trial counsel=s actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). 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 (Tex. Crim. App. 1994); Hayden v. State, 155 S.W.3d 640, 648 (Tex. App.CEastland 2005, pet. ref=d). When the record is silent on the motivations underlying trial counsel=s tactical decisions, appellant usually cannot overcome the strong presumption that counsel=s conduct was reasonable. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In order to defeat Strickland=s presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Appellant contends that his trial counsel was ineffective in failing to adequately inform him of his potential punishment and in failing to help him make an informed decision regarding punishment. In a separate case prior to this trial, appellant pleaded guilty to credit card abuse, and the trial court sentenced him to 180 days in the State Jail Division of the Texas Department of Criminal Justice. Appellant argues that trial counsel did not inform him that his plea of guilty to credit card abuse would make him ineligible for community supervision in this case. Appellant argues that he would not have pleaded guilty to credit card abuse had he known that he would not be eligible for community supervision in this case.

Appellant=s contentions are not supported by the record. There is nothing in the record regarding any of the plea agreement discussions regarding the credit-card-abuse case. There are countless reasons why trial counsel could have advised appellant to plead guilty to credit card abuse, and we will not speculate as to those reasons. Further, appellant=s credit-card-abuse case is not before this court, and we could not consider any evidence of that plea agreement.

There is nothing in the record regarding discussions trial counsel had with appellant regarding his punishment options and the possibility of being eligible for community supervision in this case. The application for community supervision is not part of the appellate record.[1] We cannot determine if trial counsel informed appellant that he was ineligible for community supervision or if trial counsel and appellant agreed that community supervision was not a good option for him in this case. Appellant has not overcome the presumption that trial counsel=s actions were reasonable in this case. The record does not establish any alleged ineffectiveness by trial counsel. We overrule appellant=s first issue on appeal.

Insufficient Evidence

In his second issue, appellant contends that the trial court erred in denying his motion for instructed verdict and his motion for new trial because the evidence was insufficient to show he was guilty of possession of cocaine. A trial court=s ruling on a motion for new trial is reviewed for an abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). We do not substitute our judgment for that of the trial court but, rather, decide whether the trial court=s decision was arbitrary or unreasonable. Id. A challenge to the trial court=s ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Therefore, when considering an issue contending the trial court erred in overruling a motion for instructed verdict, we will determine whether the evidence was sufficient to support the conviction.

In order to determine if the evidence is legally sufficient, 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 essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

In order to prevail in a possession-of-controlled-substance case, the State must prove, either directly or circumstantially, that the accused exercised actual care, custody, control, or management over the contraband and that the accused knew the matter possessed was contraband. Tex. Health & Safety Code Ann. ' 481.002(38) (Vernon Supp. 2007); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The evidence must affirmatively link the accused to the offense so that one may reasonably infer that the accused knew of the contraband=s existence and exercised control over it. Linton v. State, 15 S.W.3d 615, 619 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Mere presence at the location where drugs are found is insufficient by itself to establish actual care, custody, or control of the drugs. Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). However, presence or proximity when combined with other evidence may be sufficient to establish possession. Id.

In this case, the evidence was sufficient to establish that appellant exercised care, custody, and control over the cocaine. Trooper Matthew Swinney testified that he and his partner received a dispatch about a burglary in progress at a residence. They responded to the call and were investigating when a woman yelled, AThey=re running.@ Trooper Swinney testified that he saw approximately twenty kids running away from the location. Trooper Swinney and his partner gave chase. Trooper Swinney testified that he thought he was going to catch a group of five or seven kids who had stopped behind some bushes to catch their breath. However, when he made himself known, only appellant was behind the bushes. He testified that, as he approached appellant and announced himself, appellant jumped and tossed something to the ground. Trooper Swinney observed the direction and distance that appellant tossed the items. After securing appellant, Trooper Swinney went to investigate what appellant had tossed. Trooper Swinney testified that he found a Ahard rock.@

It was a white, hard rock, kind of broken up, maybe half the size of a baseball or B to me, it was big. . . .

And it was kind of in a debris field, so he had the rock and then it was kind of scattered in the same direction as he had thrown it, and kind of like a busted up baggie.

Trooper Swinney testified that there was no one else around in the area. He further testified that, because he saw appellant throw the item and observed where it landed, he did not believe that it belonged to anyone else. The evidence established that the Arock@ Trooper Swinney found was 58.92 grams of cocaine.

Appellant testified that he was attending a party at a mobile home and that someone came in and told them that the police were coming. He testified that everyone started running and that he did too. He further testified that he was running with a group of about six people and that they had stopped behind a bush to catch their breath. When they saw the officer, appellant was the last one to get up, and the officer tackled him. Appellant testified that the officer asked him if the cocaine was his and that he told the officer it was not. Appellant testified that he did not throw anything to the ground.

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). It is also the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook, 29 S.W.3d at 111. In this case, the jury was free to decide who to believe or disbelieve. Applying the applicable standards of review, the evidence is legally and factually sufficient to support the jury=s finding that appellant possessed cocaine. The trial court did not err in denying appellant=s instructed verdict and motion for new trial. Appellant=s second issue on appeal is overruled.

Holding

We affirm the trial court=s judgment.

RICK STRANGE

JUSTICE

January 17, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Appellant included an application for community supervision with his brief, but it is not file-marked and not part of the clerk=s record. Therefore, we cannot consider it as part of the appellate record. See Tex. R. App. P. 34.1.