Jadon Marque Ballard v. The State of Texas--Appeal from 208th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00013-CR

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JADON MARQUE BALLARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th Judicial District Court

Harris County, Texas

Trial Court No. 915943

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Jadon Marque Ballard has appealed from his conviction by the trial court for possession of a controlled substance, between one and four grams, as a habitual offender. The court assessed his punishment at twenty-five years' imprisonment.

On appeal, Ballard's appellate counsel summarized pretrial and trial activities in his brief. He then filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which, after reviewing the facts, with appropriate citation to the record and the procedures followed in the prosecution of the case, and the application of appropriate legal authorities as necessary, he concluded the record was devoid of any arguable point of error. His brief contains a professional evaluation of the record and contains four points of error that arguably support reversal, thus complying with the requirements of Anders, 386 U.S. 738; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

Counsel provided a copy of his brief to Ballard June 23, 2003, and notified Ballard of his right to review the record and to file a brief pro se. Ballard filed a brief pro se August 11, 2003.

The following sequence of events is shown by the record. The arresting officer, Nathaniel Sanchez, saw a vehicle with two female occupants stopped in the road, with Ballard standing with his bicycle next to the driver's side window. The officer questioned the three of them and did a pat-down search of Ballard. He testified he found nothing, but because there were three individuals there and because of his fear that matters might escalate, he placed Ballard in the back of his police car while he was running a records search. The search took only two or three minutes and revealed that Ballard had outstanding warrants. The officer testified he took a bag from the handlebars of Ballard's bicycle and found a Right Guard can, in which he found crack cocaine. The officer also testified he noticed the bag hanging from the handlebars when he first approached Ballard. Ballard testified that he had never seen the can before and that it must have been on the ground under his bicycle where he laid it down on the street when the officer took him to the police car.

In his pro se brief, Ballard argues the evidence is insufficient to support his conviction. In our review of the legal sufficiency of the evidence, we view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing for factual sufficiency, we view the evidence in a neutral light, favoring neither party. Id. We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

In this case, there is testimony that leads to the conclusion Ballard was in possession of the contraband, and there is testimony from Ballard that it did not belong to him. When evidence is in conflict, it is the duty of the fact-finder to decide. The evidence is legally sufficient, and we cannot say the fact-finder's determination is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. The contention is overruled.

Ballard also contends the evidence was received through some type of unlawful search and should therefore not have been admitted. He argues that his detention was unlawful because the stop was merely as the result of an "inarticulate hunch" of the officer and that everything obtained after that point should have been suppressed. No motion was made to suppress, and this contention was not otherwise brought to the attention of the trial court. The contention has not been preserved for appellate review. See Tex. R. App. P. 33.1.

Ballard also contends he was denied effective assistance of counsel. The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced her or his defense. Id.; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that his or her attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

In this case, Ballard argues his lawyer was ineffective because he filed no motion to suppress the evidence. The evidence shows, however, that Ballard was stopped with his bicycle in the middle of a public thoroughfare talking to people in a stopped car. It is a violation of the Penal Code to obstruct a street, // and the Transportation Code contains several sections providing that it is a traffic offense to park or stop a vehicle on the roadway in a number of circumstances. // Thus, there are various bases that might have been brought forward by the State to justify Ballard's detention had that matter been raised.

In order to prevail on an ineffective assistance of counsel argument, the allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). That another attorney, including appellant's counsel on appeal, might have pursued a different course of action does not necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App. Texarkana 1999, no pet.).

In addition, as far as strategic or tactical reasons for counsel's action or inaction, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In this case, the record suggests that a motion to suppress would have been unavailing. The record does not affirmatively show to the contrary; thus, on the record presented, we cannot conclude counsel was ineffective for failing to bring a motion that was not likely to prevail. // The contention of error is overruled.

We have reviewed the record and agree with counsel there are no arguable sources of error in this case.

We affirm the judgment of the trial court.

Donald R. Ross

Justice

Date Submitted: November 10, 2003

Date Decided: November 20, 2003

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