TOMMY CROSSNO v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-04-487-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

  TOMMY CROSSNO, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 105th District Court

of Nuecees County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Tommy Crossno, appeals his conviction for possession of certain chemicals with intent to manufacture a controlled substance. See Tex. Health & Safety Code Ann. ' 481.124 (Vernon Supp. 2004-05). Following a jury trial, appellant was found guilty and sentenced to twelve years in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that this case Ais not a plea bargain case, and the defendant has the right of appeal.@ See Tex. R. App. P. 25.2(a)(2). By three points of error, appellant argues that the evidence was both legally and factually insufficient to support his conviction and that he received ineffective assistance of counsel. We affirm.

I. BACKGROUND

As this is a memorandum opinion and all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts in this memorandum opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. ANALYSIS

A. Legal Sufficiency

By his first point of error, appellant argues that the evidence offered at trial was legally insufficient to support his conviction because the State failed to establish that he knew of the existence and unlawful nature of the anhydrous ammonia detected in the air tank that was recovered from the bed of his truck. Appellant further contends the evidence failed to establish he was in exclusive possession of the vehicle in which the air tank was found.

In conducting a legal sufficiency review, this Court must look at the evidence in the light most favorable to the jury verdict and consider whether any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319-20 (1979). In doing so, we consider all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). The standard is the same for both direct and circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991) (en banc). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

On appeal, we measure the legal sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is being tried. Id.; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

In this case, we must decide whether a rational trier of fact could have found beyond a reasonable doubt that appellant, with intent to unlawfully manufacture a controlled substance, possessed anhydrous ammonia. See Tex. Health & Safety Code Ann. ' 481.124. Moreover, while the statute does not by its terms require knowing possession of any anhydrous ammonia, Amere omission of an element cannot be construed to plainly dispense with one.@ Wooton v. State, 132 S.W.3d 80, 86 (Tex. App.BHouston [14th Dist.] 2004, pet. ref'd) (citing Tex. Pen. Code Ann. ' 6.02(b) (Vernon 2003) (stating that if definition of offense does not prescribe mental state, one is required unless definition plainly dispenses with any mental element)). Finally, although anhydrous ammonia is not specifically listed as a controlled substance under the Texas Controlled Substances Act, case law construing Apossession@ in the context of knowing or intentional possession of a controlled substance is instructive. Id.

To prove unlawful possession of a controlled substance, the State must prove the accused exercised control, management, or care over the substance and was conscious of his connection with it and knew what it was. Id. (citing Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995) (en banc)). Whether this evidence is direct or circumstantial, Ait must establish, to the requisite level of confidence, that the accused=s connection with the drug was more than just fortuitous.@ Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Brown, 911 S.W.2d at 747). Thus, when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Id. This link need not be so strong that it excludes every other outstanding reasonable hypothesis except the defendant=s guilt. Brown, 911 S.W.2d at 748. Among such additional factors that can establish the affirmative link are (1) whether the contraband was in plain view, (2) whether the accused was the owner or driver of the automobile in which the contraband was found, (3) whether the contraband was found in close proximity to the accused, (4) whether a strong residual odor of the contraband was present, (5) whether the accused possessed other contraband when arrested, (6) whether paraphernalia to use the contraband was in view, or found on the accused, and (7) whether the accused attempted to escape or flee. Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.CCorpus Christi 2002, no pet.).

At trial, police testified that appellant=s truck was spotted at the motel where the methamphetamine lab was found. A clerk at the motel informed police that the room containing the methamphetamine lab was appellant=s room. Police testified that at the time they arrived, appellant was carrying contraband, including a gas mask, which can be used in the construction of a methamphetamine lab. Testimony also established that there was a strong odor coming from the contraband appellant was carrying. Other paraphernalia was in plain view of appellant. A tank containing anhydrous ammonia vapors, used in the making of methamphetamine labs, was found in the back of appellant=s truck. The tank was not an authorized container for the anhydrous ammonia but had been modified to aid in the making of methamphetamine. Also, the resident of the address where appellant was arrested after having fled from the police knew that a methamphetamine lab was being set up in a room at the motel.

Viewing the evidence in the light most favorable to the verdict, we find that the direct and circumstantial evidence, along with additional independent facts, could have led a rational jury to determine beyond a reasonable doubt that appellant committed the offense of possession of anhydrous ammonia with intent to unlawfully manufacture a controlled substance. See Jackson, 443 U.S. at 319-20; Earhart, 823 S.W.2d at 616. From this record the evidence is legally sufficient to establish that appellant knew of the existence and unlawful nature of the anhydrous ammonia detected in the air tank recovered from the bed of his truck and that he was in exclusive possession of the vehicle in which the air tank was found. We overrule appellant=s first point of error.

B. Factual Insufficiency

By his second point of error, appellant contends that the evidence is factually insufficient to support his conviction because the evidence failed to show that he possessed anhydrous ammonia with the intent to unlawfully manufacture a controlled substance. Thus, he urges that the jury=s decision was so contrary to the weight of the evidence as to be clearly wrong and manifestly unjust.

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, the Court determines whether Athe proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc)). We are not bound to view the evidence in the light most favorable to the verdict and may consider the testimony of all the witnesses. Johnson, 23 S.W.3d at 10-12. We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d). The jury is the sole judge of the credibility of the witnesses, and the weight to be given to the evidence. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

Appellant asserts that the State cannot affirmatively link him to the illegal substance because he was already in custody when the air tank was found in his truck. Additionally, he contends that the first officer to arrive at the residence testified that there was nobody in appellant=s vehicle at the time of the officer=s arrival, and therefore, there is no evidence that appellant was actually driving the vehicle so as to have exercised sole care, control and management of it. Appellant further contends that although the vehicle was registered to him, he had not been the sole occupant in the vehicle and he was not determined to have been the driver.

In light of the above stated evidence produced at trial, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury=s determination nor is the proof of guilt outweighed by contrary evidence. See Swearingen, 101 S.W.3d at 97. Any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson, 23 S.W.3d at 7. Thus, the evidence is also factually sufficient to support the verdict. We overrule appellant=s second point of error.

C. Ineffective Assistance of Counsel

By his third point of error, appellant complains of ineffective assistance of counsel. The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant's sixth amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986) (en banc); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.CCorpus Christi 2000, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney's representation fell below an objective standard of reasonableness and, (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State,17 S.W.3d 348, 349-50 (Tex. App.BCorpus Christi 2000, pet. ref=d).

Appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Munoz, 24 S.W.3d at 434; Stone, 17 S.W.3d at 350. An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded, and the record affirmatively demonstrates counsel's alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.CCorpus Christi 1996, no pet.).

There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective and an appellate court will not find ineffectiveness based on speculation. Bone v. State, 77 S.W.3d 828, 835-36 (Tex. Crim. App. 2002); Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d). In the absence of evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

Appellant contends that his trial counsel was ineffective because he failed to call a material witness, Rocky Crossland, who was allegedly available at the time of trial and whose testimony would have allegedly changed the outcome of appellant=s trial. Appellant asserts that his trial counsel failed to properly investigate and use due diligence to bench warrant Crossland to testify on appellant=s behalf.

Although counsel filed a motion for new trial, no hearing was held on the motion. Attached to the motion was a letter from Crossland stating that appellant had nothing to do with the illegal substance. Also attached to the motion was trial counsel=s affidavit wherein he concluded appellant received ineffective assistance of counsel due to his failure to call a material witness for the defense.[1] However, an affidavit attached to a motion is but a pleading that authorizes the introduction of supporting evidence. Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973); Martins v. State, 52 S.W.3d 459, 468 (Tex. App.CCorpus Christi 2001, no pet.). It is not evidence in itself, and in order to constitute evidence it needs to be introduced as such at a hearing on the motion. Stephenson, 494 S.W.2d at 910. Additionally, with claims of ineffective assistance of counsel, it is particularly important that memories and positions of interested parties, such as trial counsel in this case, be tested in the crucible of cross-examination. See Charles v. State, 146 S.W.3d 204, 210 (Tex. Crim. App. 2004).

Nonetheless, even assuming without deciding that the trial counsel=s affidavit was properly before the trial court, we conclude appellant has failed to show he received ineffective assistance of counsel. In the present case, defense counsel bench warranted Crossland to appear to testify; therefore, counsel knew of Crossland=s existence and his availability as a witness. Defense counsel also had a copy of the letter written by Crossland claiming full responsibility for the illegal substances. At trial, when asked by the trial court if he would call Crossland to testify, defense counsel stated he had not yet decided. Therefore, because defense counsel knew how Crossland would testify and contemplated calling him as a witness, it can be assumed that not calling Crossland as a witness was a part of the defense strategy. In his affidavit, while concluding that he gave ineffective assistance, counsel offers no reason why he chose not to call Crossland as a witness. Although appellant filed a motion for a new trial, there was no hearing on the motion and, therefore, no testimonial record of counsel=s reasons for not calling the witness. See Stephenson, 494 S.W.2d at 909-10; Martins, 52 S.W.3d at 468. Thus, we conclude appellant has not shown his counsel=s actions fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687. Furthermore, even assuming that trial counsel's representation was ineffective, appellant has not satisfied the second prong of Strickland. Id. Considering all the evidence presented supporting his conviction, it is unlikely, in this case, that Crossland=s testimony would have produced a different outcome. Id. Thus, we also conclude that appellant has not shown there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Id. Appellant's third point of error is overruled.

Additionally, we note that although appellant's attempt at a direct appeal has been unsuccessful, he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel may be raised in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997).

III. CONCLUSION

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 4th day of August, 2005.

[1] We note counsel also concludes he was ineffective because he did not properly advise appellant to elect to have a jury rather than the judge assess punishment. However, appellant does not complain of ineffective assistance on this basis.