MICHAEL ANGELO YZAGUIRRE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued December 8, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00573-CR
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MICHAEL ANGELO YZAGUIRRE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F07-48856-L
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OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Morris
        At trial, Michael Angelo Yzaguirre waived his right to by tried by a jury and was convicted by the court of possession of cocaine with intent to deliver. He now complains on appeal that the evidence against him is factually insufficient to support his conviction and he received ineffective assistance of counsel. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
        Several police officers visited appellant's house based on a complaint that someone there was selling drugs. Appellant let the officers in the house. He told them he lived there and gave them written permission to search the premises. When the officers asked about the marijuana odor in the house, he admitted he had been smoking marijuana. He also told the officers he had a gun in the drawer of his bedside table. Appellant's two brothers, Adam and Alex Porras, were in the home as well, but they denied living there.
        During an extensive search of the house, an officer found over 400 grams of cocaine hidden in the attic insulation. The cocaine, worth approximately $12,500, was well hidden in the insulation and was not found the first time the attic was searched. Officers also found a triple beam scale in appellant's bedroom and a floor scale in the laundry room. An officer testified that the two types of scales are commonly used to measure out small and large amounts of drugs, respectively. In the bedside table near appellant's gun, the officers found what appeared to be a drug-sale ledger. They did not find any baggies or large amounts of cash in the house or on appellant's person.
        When the officer who found the cocaine showed it to appellant and his brothers, appellant became aggressive and threatening to his brothers and told them that one of them was going to have to take responsibility for it. Andy and Alex denied that the cocaine belonged to them. It was clear to the officers that appellant was the person in charge at the house. One of the officers permitted appellant's brothers to go into appellant's bedroom to sort out the situation. The officers heard a noise in the room. When they went inside, they saw that Adam had jumped out the bedroom window and was fleeing from the house. Alex was on the floor. He appeared to be acting like he had been hit by Adam and he was “fake crying.” The officers did not pursue Adam or arrest Alex.
        Appellant admitted to the officers that the surveillance cameras at the house belonged to him. He told them they were for protecting his dog breeding business at the house. At trial, appellant maintained that he used the surveillance cameras to protect his dog breeding business. He stated that he also kept the gun to protect his family and his business. He claimed he had never been in the attic because he had “no reason to go up there” and the cocaine was not his. Appellant claimed that his brother Adam had been arrested the night before the search and gotten out of jail that morning. He further claimed that Adam was a heroin addict and a drug dealer. Appellant testified that he allows Adam to store his drug-selling supplies, such as the scales, at the house but he does not allow him to use them in the house. He stated that he was surprised when the drugs were found in the attic.         Appellant testified that he did not permit Andy to sell drugs in the house because his children sometimes stayed there. When asked why he smoked marijuana in the house if his children were sometimes present, appellant stated that he usually did so outside. Appellant had previously been convicted of possession of more than five pounds of marijuana. The defense admitted into evidence bills showing that appellant's brother Alex pays for the electricity and water at the house. Appellant's brother Jesse Porras also testified that, at the time of the search, Adam and Alex were living in the house with appellant.
Discussion
        In his first point of error, appellant challenges the factual sufficiency of the evidence against him. He argues that the record is devoid of circumstantial evidence supporting his guilt and it allows for an alternative reasonable hypothesis that his brother Adam actually possessed the cocaine. The Texas Court of Criminal Appeals recently overruled its opinion in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), that had adopted a factual sufficiency standard. The court held that the legal sufficiency standard of Jackson v. Virginia , 443 U.S. 307 (1979), is now “the only standard that a reviewing court should apply in determining whether evidence is sufficient to support each element of a criminal offense.” Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010). We will therefore not address appellant's factual sufficiency challenge but will address the legal sufficiency of the evidence in the interest of justice.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).
        Here, viewed in the light most favorable to the verdict, the evidence shows appellant was the only person who admitted living in the house, was smoking marijuana when the police arrived, kept a gun next to what appeared to be a drug-sale ledger, admitted possessing surveillance cameras, and appeared to take charge of his two brothers when the cocaine was found. The credibility of appellant and the officers who testified against him was for the trial court, as factfinder, to decide. The evidence against appellant is legally sufficient. We overrule his first point of error.
        Before addressing appellant's second point of error, we address the State's cross-point alleging that the judgment should be modified to reflect the correct offense for which appellant was convicted. Appellant was indicted for possession, with intent to deliver, of 400 grams or more of cocaine. The attorneys made reference to this amount of cocaine and its corresponding punishment range in their questioning of witnesses. And the parties stipulated that the substance found during the search constituted 433 grams of cocaine. The trial court found appellant guilty “as charged in this indictment.”
        During the punishment hearing, the prosecutor noted that they had offered appellant “the minimum [punishment], which is a 15 year sentence and a $3,000 fine.” The defense attorney stated that appellant agreed to the sentence, and the trial judge then stated, “. . . the Court having found you guilty, sets your punishment in this case at 15 years in prison, $3,000 fine. That is the minimum sentence, as you know, under the law.”
        The written judgment states that appellant was convicted of possession, with intent to deliver, “A CONTROLLED SUBSTANCE, TO -WIT; COCAINE,/200G.” The State asserts that we should modify the judgment to show that appellant was actually convicted of possession, with intent to deliver, of 400 grams or more of cocaine. The only documents in the record related to the smaller amount of cocaine are (1) a “plea agreement” unsigned by any of the parties or attorneys filed after appellant's conviction on the date of his sentencing hearing and indicating that appellant would plead guilty to possession with intent to deliver cocaine in an amount of 200 grams or more but less than 400 grams and (2) the “STATE'S MOTION TO REDUCE THE OFFENSE CHARGED,” also filed on the date of appellant's sentencing hearing, unsigned by the prosecutor but apparently signed by the judge, requesting that the court reduce the charged offense to “POSS INT TO DEL C/S 200-400g. TO WIT: COCAINE.” The statutory minimum for this lesser offense is ten years' confinement. See Tex. Health & Safety Code Ann. § 481.112(e) (West 2010).
        It appears the motion to reduce the charged offense was signed as the result of a clerical error. It is clear from the court reporter's record that the trial court found appellant guilty of the charged offense, not the reduced one. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). We therefore sustain the State's cross-point and modify the trial court's judgment to reflect that appellant was convicted of the charged offense, possession, with intent to deliver, of 400 grams or more of cocaine. See Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        Appellant complains in his second point of error that he received ineffective assistance of counsel when his attorney failed to object that his fifteen-year sentence exceeded the “minimum punishment” to which the parties had agreed. He argues that because the written judgment in his case reflects he was convicted of possessing, with intent to deliver, cocaine in an amount of 200 grams or more, but less than 400 grams, he should have been sentenced only to ten years' confinement.
        It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In this case, appellant cannot meet his burden. We have already concluded that the written judgment's recitation of the lesser amount of cocaine must be modified. Because appellant was convicted of possessing, with intent to deliver, more than 400 grams of cocaine, he did, in fact, receive the minimum sentence for his crime. We overrule appellant's second point of error.
        We affirm the trial court's judgment as modified.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090537F.U05