Sanders, Curits v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Opinion filed May 5, 2005

Affirmedand Opinion filed May 5, 2005.

In The

Fourteenth Court of Appeals

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NOS. 14-04-00391-CR;

14-04-00392-CR

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CURTIS SANDERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 952,797; 952,798

O P I N I O N

Appellant, Curtis Sanders, appeals from his convictions for delivery of a controlled substance weighing less than one gram and possession of a controlled substance weighing more than one gram but less than four grams. After a jury found him guilty, appellant was sentenced pursuant to a plea bargain agreement to twenty years incarceration for the delivery conviction and thirty-five years incarceration for the possession conviction. On appeal, appellant contends that (1) the evidence is legally and factually insufficient to support his convictions, and (2) he received ineffective assistance of counsel in both the guilt/innocence and punishment phases of trial. We affirm.

Background

Officer Jim Goies of the Houston Police Department testified that on June 20, 2003, he was working undercover for the Narcotics Division. He went to an intersection that had been the subject of numerous complaints regarding the sale of illicit drugs. After failing to purchase drugs from anyone inside a laundromat, Goies exited and saw two people sitting in a vehicle in the parking lot. Goies stated that he gave them a street sign suggesting that he wanted to purchase drugs, and the driver of the vehicle motioned him over. Goies identified appellant as the driver of the vehicle. Goies stated that he told appellant he wanted to purchase $20 worth of crack cocaine, and appellant told him to get inside the car. Goies got in, and appellant retrieved a plastic bag containing rock-like substances from the driver s door. Appellant reached into the bag, pulled out two objects, and gave them to Goies. Goies gave appellant $20 and exited the vehicle. Goies then contacted his partner, Shy Reece, and told him that an illicit drug transaction had just occurred.

Officer Reece testified that he was watching the transaction through binoculars from a distance. Although he could not see the details of the transaction, he did see Goies enter and exit a tan Mazda. After receiving word from Goies, Reece contacted another officer in a marked patrol unit, giving him a description of the vehicle and requesting that he detain the occupants. A uniformed officer then detained appellant and the female in the car until Goies reappeared on the scene. Goies identified the appellant at the scene and arrested him. The female was released. Goies then searched the vehicle and discovered a plastic bag containing additional rock-like substances in the driver s door. Goies acknowledged that the $20 bill he had given appellant was never recovered.

Vipul Patel, an HPD chemist, testified that he tested the substances delivered to Goies and the substances found in the plastic bag. Both tested positive for cocaine. The substance delivered to Goies weighed less than one gram, and the substance found in the bag weighed 1.5 grams.

Appellant testified that on the night in question, he was at the laundromat with his common law wife to wash clothes. He stated that he drove a gold Chrysler Sebring and not a tan Mazda. He further stated that while he was talking to a woman whom he knew, a police officer called him over to the officer s vehicle, searched him, his wife, and his vehicle, but found nothing. The officer told him to get in the car; they drove around for awhile before returning to find appellant s car with the door open and the windows rolled down. According to appellant, the officer then drove him to a police substation and made two or three calls on his radio, saying y all better come over and identify this man. If you don t I m going to turn him a loose [sic]. Appellant said that his vehicle was towed to the substation and searched once more; this time the officer pulled something out. Appellant specifically denied having seen Goies prior to appearing in court. He also denied selling drugs.

Appellant was charged with and convicted of unlawfully, intentionally, and knowingly possessing a controlled substance, namely cocaine, weighing more than one gram but less than four grams. See Tex. Health & Safety Code Ann. 481.115 (Vernon 2003). He was further charged with and convicted of unlawfully and knowingly delivering by actual transfer to Officer Goies, a controlled substance, namely cocaine, weighing less than one gram. Id. 481.112. The State sought to increase punishment by making several enhancement allegations. After the jury returned a verdict of guilty, counsel and appellant announced to the court that they had reached a plea bargain regarding punishment. The court sentenced appellant pursuant to this agreement to twenty years incarceration for the delivery conviction and thirty-five years incarceration for the possession conviction.

Sufficiency of the Evidence

In his first four issues, appellant attacks the legal and factual sufficiency of the evidence to support his convictions for possession and delivery of a controlled substance. Because appellant makes the same basic arguments under each issue, we will discuss them together. We utilize the normal standards in conducting our sufficiency review. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency standards).

Appellant contends that the evidence was insufficient to sustain his convictions because the record reflects that (1) the $20 bill that was allegedly used to purchase the cocaine was not recovered, and appellant did not have time to dispose of it; (2) Officer Reece did not see a drug transaction occur or see the appellant toss anything out of the vehicle s window, even though he was watching through binoculars; (3) appellant was driving a gold Chrysler on the evening in question and not a tan Mazda; and (4) appellant testified that very different events occurred that evening.

Appellant s first point, that the $20 bill was not recovered, must be viewed in light of Goies s positive, clear, direct testimony that he purchased and received cocaine from appellant. See Bailey v. State, 848 S.W.2d 321, 321-22 (Tex. App. Houston [1st Dist.]) ( The evidence showed appellant made a face to face, hand to hand sale of cocaine to a Houston police officer. He was arrested minutes later, despite his attempt to flee. The officer identified appellant at trial. The evidence is sufficient. ), vacated and remanded on other grounds, 867 S.W.2d 42 (Tex. Crim. App. 1993). Although the jury could have considered the failure to recover the bill in assessing Goies s credibility as a witness, this fact was not so damaging that the jury could not still have believed Goies s testimony over that of appellant. See Coleman v. State, 794 S.W.2d 926, 928 (Tex. App. Houston [1st Dist.] 1990, no pet.) (holding failure to offer marked $20 bill into evidence did not render evidence insufficient where officer testified that he purchased illicit drugs from defendant); see also Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (stating that the jury is the sole judge of the credibility of witnesses and has exclusive authority to reconcile conflicts in the evidence). Indeed, the testimony of Goies and Reece reflects that several minutes elapsed between the time Goies was in the vehicle and the time appellant was arrested and searched. Appellant could have easily disposed of the bill in some fashion during that time. Goies testified that they do not always recover marked money when making an arrest for selling illicit drugs to an undercover officer.

Second, appellant relies on Reece s testimony that he could not actually see the details of what transpired inside the vehicle and did not see appellant throw anything outside the vehicle. Reece was seventy-five yards away from the vehicle at the time of the transaction, and although he was watching through binoculars, he stated that he could not have seen anything below the vehicles windows. Thus, Reece s testimony does not refute Goies s testimony that he purchased cocaine from appellant. Further, just because Reece did not see appellant throw anything out of the vehicle s window does not mean that appellant did not dispose of the $20 bill at some point. Reece did not testify that he kept close watch on appellant s movement from the time Goies exited the vehicle until the time appellant was searched.

Appellant s third assertion, that he was driving a gold Chrysler when Reece testified appellant was driving a tan Mazda, is completely a matter of witness credibility for the jury to decide. The jury could have believed Reece s testimony on this point and disbelieved appellant s testimony. See Margraves, 34 S.W.3d at 919. Likewise, regarding appellant s fourth assertion, the fact that appellant testified to very different events than did Officers Goies or Reece was also a matter of assessing credibility and reconciling conflicts in the evidence; thus, whether to believe appellant or the officers was for the jury to decide. See id.

In summary, none of the arguments raised by appellant renders the evidence legally or factually insufficient to sustain the verdict. See King, 29 S.W.3d at 562; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant s first four issues.

Ineffective Assistance of Counsel

In his fifth and sixth issues, appellant contends that he received ineffective assistance of counsel during both the guilt/innocence and the punishment phases of the proceedings below. The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In reviewing an ineffective assistance claim, an appellate court must indulge a strong presumption that counsel s conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland v. Washington, 466 U.S. 668, 689 (1984). Under the two pronged Strickland test, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. The Court of Criminal Appeals has stated that in the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). This is particularly true when the alleged deficiencies are matters of omission and not of commission that may be revealed in the record. Id.

In his fifth issue, appellant specifically argues that his counsel was ineffective during the guilt/innocence phase because she failed to (1) make an opening statement, (2) file a motion for the appointment of an investigator, (3) file a motion to have the substances weighed without packaging materials, and (4) obtain rulings on various motions. We begin by noting that each of these alleged deficiencies is a matter of omission, and the record is silent as to why appellant s trial counsel failed to perform these tasks. See id.

Regarding appellant s first argument, concerning counsel s failure to make an opening statement, we further note that the record reflects that the prosecutor did not make an opening statement; thus, defense counsel could not make an opening statement prior to presentation of the State s case. See Moore v. State, 868 S.W.2d 787, 791 (Tex. Crim. App. 1993). Because the defense called only one witness, appellant himself, trial counsel may have had strategic reasons for waiting until closing argument to address the jury.

Regarding appellant s second argument, concerning the failure to have an investigator appointed, the record is silent as to what investigation trial counsel herself performed and as to why counsel may have concluded that there was no need for the appointment of an investigator. If she adequately investigated the matter, there may have been no reason to have an investigator appointed.[1]

Third, regarding the argument that counsel failed to have the substances weighed without the packaging, the record is devoid of any evidence of what investigation counsel may have done regarding the substances and of any suggestion that the weight of the packaging would have been sufficient to change the level of the offense. See Diaz v. State, 905 S.W.2d 302, 306, 308 (Tex. App. Corpus Christi 1995, no pet.) (holding counsel provided ineffective assistance based on counsel s motion for new trial testimony that he accepted the weight of the contraband as set forth in the offense reports and did not examine the contraband or request a quantitative analysis or that the contraband be weighed without packaging). Thus, appellant has failed in his burden to demonstrate that the failure to have the substance weighed without packaging constituted ineffective assistance of counsel.

Lastly under this issue, appellant argues that counsel s failure to obtain rulings on various motions (many apparently filed by appellant himself) constituted ineffective assistance. Appellant fails to provide any analysis of the motions or how the failure to obtain a ruling caused him any prejudice. Thus, this argument is inadequately briefed and not supported by the record. See Tex. R. App. P. 38.1(h); Jackson, 973 S.W.2d at 957.

In his sixth issue, appellant specifically argues that trial counsel was ineffective during the punishment phase because she failed to (1) object to the State s failure to prove the enhancement paragraphs, (2) obtain a ruling on the motion to quash the enhancement paragraphs, and (3) adequately investigate the alleged prior convictions. Again, the record is completely silent regarding counsel s omissions. See Jackson, 973 S.W.2d at 957. Specifically, the record does not reflect whether or not counsel investigated the prior convictions or what an investigation would have revealed. Thus, appellant cannot meet either prong of the Strickland test. See Thompson, 9 S.W.3d at 812.

Based on the foregoing, we find that appellant failed to meet his burden of demonstrating ineffective assistance of counsel on the record. Accordingly, we overrule his fifth and sixth issues.

We affirm the trial court s judgment.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Opinion filed May 5, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] While counsel does have a duty to make an independent investigation of the facts, the existence of this duty does not relieve a defendant of the burden of proving ineffective assistance by a preponderance of the evidence. See Melton v. State, 987 S.W.2d 72, 76-77 (Tex. App. Dallas 1998, no pet.) (applying preponderance of the evidence standard in holding that counsel was ineffective for failing to independently investigate).