Tony Joseph Breaux v. The State of Texas--Appeal from 124th District Court of Gregg County

NO. 12-05-00279-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TONY JOSEPH BREAUX, APPEAL FROM THE 124TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE GREGG COUNTY, TEXAS

MEMORANDUM OPINION

Tony Joseph Breaux appeals his conviction for possessing with intent to deliver four hundred or more grams of cocaine, for which he was sentenced to imprisonment for twenty years. In three issues, Appellant challenges the legal and factual sufficiency of the evidence and contends that his trial counsel provided ineffective assistance. We affirm.

Background

Appellant was charged by indictment with one count of possession of four hundred or more grams of cocaine with intent to deliver, and one count of possession of four hundred or more grams of cocaine. Appellant pleaded not guilty, and the matter proceeded to trial by jury.

The State called Texas Department of Public Safety Trooper David John Reynolds as its first witness. Reynolds testified that on February 27, 2002 at approximately 6:30 p.m., he stopped a vehicle for excessive speed on Interstate 20 in Gregg County, Texas.1

The driver of the vehicle was Tyrone Aaron. Appellant was the only passenger.

Reynolds conversed with Aaron and learned that the vehicle had been rented by Aaron s girlfriend. The one day rental agreement listed Aaron as an additional driver. Reynolds requested that Aaron step to the rear of the vehicle, where Reynolds and Aaron conversed further. Reynolds stated that Aaron told him that he and Appellant were traveling from Dallas, Texas to Thibodaux, Louisiana to visit Appellant s grandmother, who had been in an accident. Aaron further told Reynolds that the two would be in Thibodaux for one day. Thereafter, Reynolds spoke to Appellant, who was still sitting in the front passenger seat of the car. According to Reynolds, Appellant told him that his grandmother had cancer and that he and Aaron would be in Thibodaux for three days. Reynolds stated that Appellant seemed uncomfortable and would not make eye contact with him. Reynolds described Appellant s level of nervousness as very heightened over what would normally be exhibited by a person during a traffic stop.

Reynolds testified that he returned to the rear of the vehicle and again asked Aaron why the two men were traveling to Thibodaux, Louisiana. Reynolds stated that Aaron responded that he did not know why because Appellant had not told him. Reynolds testified that he then asked Aaron for consent to search the vehicle, which Aaron granted him. Reynolds further testified that he next approached Appellant, who was still sitting in the car, and asked Appellant for his consent to search the vehicle. Reynolds stated that Appellant also gave him consent to search the vehicle.

Reynolds asked Appellant to exit the vehicle and began to search the passenger compartment. Reynolds testified that he located a small black bag in between the passenger seat and the console from which emanated an odor of some type of perfume or air freshener. Reynolds stated that he was suspicious of the black bag because it is common for people transporting narcotics to use cologne, perfume, or air freshener to disguise the odor of the narcotics. Reynolds further stated that he asked Appellant what the bag was. Appellant responded that they had gone to the store earlier and that the bag had come from the store.2 Reynolds testified that he also searched the driver s side of the passenger compartment of the vehicle. Reynolds further testified that he looked underneath the center console toward the rear of the vehicle and could see duct tape wrapped bundles under the console. Reynolds stated that after locating the bundles, which he suspected contained narcotics, he and another trooper present on the scene arrested Aaron and Appellant to ensure that the scene remained safe. Reynolds testified that he then resumed his search and removed the four bundles from underneath the console.3 Reynolds further testified that from the four bundles emanated the same fragrance that he smelled on the bag located in between the passenger seat and the console. Reynolds stated that he believed that the bag was originally used to transport the bundles. Reynolds further stated that he inspected the four bundles and that each contained cocaine.

Karen Ream, a forensic chemist with the Texas Department of Public Safety crime lab, testified as the State s next witness. Ream identified the four bundles recovered from the car in which Appellant was a passenger. Ream testified that each of the bundles contained cocaine. Ream further testified that the aggregate weight of the cocaine contained in the four bundles was 493.26 grams.

Brian Ray, a narcotics investigator for the Longview Police Department, testified as an expert for the State. Ray testified that the quantity of cocaine recovered was large. Ray also testified that the cocaine recovered was undiluted or uncut based on its appearance.4 According to Ray, the cocaine recovered had an uncut value of approximately forty thousand dollars, but that the street value would increase exponentially assuming that the cocaine would be cut multiple times before it was sold. Ray further stated that it is common for persons trafficking drugs to use a substance such as grease, peanut butter, or a fabric softener sheet to attempt to cover the odor and interfere with a drug dog s ability to detect the narcotics. Ray testified that rental cars are often used in trafficking drugs so that if the traffickers are convicted, the vehicle will not be subject to seizure and forfeiture. Ray elaborated that rental cars may also be utilized because they are more reliable and less likely to break down. Ray further stated that persons transporting drugs through Gregg County are usually traveling from south to north or west to east. Ray testified that due to the quantity of cocaine seized, it was his opinion that it was definitely an amount to be distributed.

At the conclusion of Ray s testimony, the State and Appellant rested. The jury found Appellant guilty as charged as to the count for possession with intent to deliver. Following a trial on punishment, the jury assessed Appellant s punishment at imprisonment for twenty years. The trial court sentenced Appellant accordingly, and this appeal followed.

Evidentiary Sufficiency

In his first issue, Appellant argues that the evidence was factually insufficient to support the jury s verdict. In his second issue, Appellant contends that the evidence was legally insufficient to support the jury s verdict.

Legal Sufficiency

Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that 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 tried. Id.

A person commits an offense if the person knowingly or intentionally possesses a controlled substance in Penalty Group 1 with intent to deliver. See Tex. Health & Safety Code Ann. 481.112(a) (Vernon 2003). To support a conviction for possession of a controlled substance, the evidence must support (1) that the accused exercised actual care, control, or custody of the substance, (2) that he was conscious of his connection with it, and (3) that he possessed the substance knowingly or intentionally. See Tex. Health & Safety Code Ann. 481.103(3)(D), 481.115(f) (Vernon 2003 & Supp. 2006); Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The evidence used to satisfy these elements can be either direct or circumstantial. Id. Intent to deliver may be inferred from the quantity of drugs possessed and from the manner in which they are packaged. Parker v. State, 192 S.W.3d 801, 805 (Tex. App. Houston [1st Dist.] 2006, pet. ref d).

Be it by direct or circumstantial evidence, the State must establish that the accused s connection with the substance was more than just fortuitous. Id. However, when the contraband is not found on the accused s person or is not in the accused s exclusive possession, additional facts must affirmatively link the accused to the contraband. See Jones v. State, 963 S.W.2d 826, 830 (Tex. App. Texarkana 1998, pet. ref d). The affirmative link ordinarily emerges from an orchestration of several factors and the logical force they have in combination. Id.

Among the nonexclusive factors that may be considered when evaluating affirmative links are (1) whether the contraband was in plain view or recovered from an enclosed place; (2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found, or was the owner or driver of the automobile in which the contraband was found; (3) whether the accused was found with a large amount of cash; (4) whether the contraband was conveniently accessible to the accused, or found on the same side of the vehicle as the accused was sitting; (5) whether the contraband was found in close proximity to the accused; (6) whether a strong residual odor of the contraband was present; (7) whether the accused possessed other contraband when arrested; (8) whether paraphernalia to use the contraband was in view, or found on the accused; (9) whether the physical condition of the accused indicated recent consumption of the contraband in question; (10) whether conduct by the accused indicated a consciousness of guilt; (11) whether the accused attempted to escape or flee; (12) whether the accused made furtive gestures; (13) whether the accused had a special connection to the contraband; (14) whether the occupants of the premises gave conflicting statements about relevant matters; (15) whether the accused made incriminating statements connecting himself to the contraband; (16) the quantity of the contraband; and (17) whether the accused was observed in a suspicious place under suspicious circumstances. See Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App. Corpus Christi 2002, no pet.).

In the case at hand, Reynolds testified that an eastbound interstate highway, such as Interstate 20, is a heavily traveled narcotics trafficking route. Reynolds further testified that Dallas, Texas is a common narcotics distribution center. Reynolds and Ray both testified that it is common for drug traffickers to use rental cars to avoid having their own vehicles subject to seizure if they are apprehended. The record reflects that Appellant and Aaron were stopped on Interstate 20 in a rental car and that Aaron s name appeared on the rental application as an authorized driver. See, e.g., Mohmed v. State, 977 S.W.2d 624, 627 (Tex. App. Fort Worth 1998, pet. ref d). The record reflects that Aaron s girlfriend had rented the car and that the rental agreement was for one day. Willis and Appellant gave conflicting stories about the underlying reason for their trip from Dallas, Texas to Thibodaux, Louisiana, with Aaron telling Reynolds that Appellant s grandmother had been in an accident while Appellant told Reynolds his grandmother had cancer. There was also a discrepancy between the two men s statements as to the amount of time they planned to spend in Louisiana. An overwhelming scent of cologne or air freshener emanated from the bag located in between the passenger seat in which Appellant was located and the center console. A similar scent emanated from the bundles of cocaine Reynolds located underneath the console. One of the bundles of cocaine also had grease smeared on it. Both Reynolds and Ray testified that the use of air fresheners or grease is a common practice employed by drug traffickers to cut down the smell of the drugs. Reynolds further testified that Appellant avoided making eye contact with him to an unusual degree and seemed uncomfortable. Reynolds described Appellant s level of nervousness as very heightened over what would normally be exhibited by a person during a traffic stop. Reynolds testified that the cocaine found beneath the console was accessible to Appellant and Aaron. Ray further stated that the cocaine recovered from the vehicle was a large amount of cocaine and uncut. Furthermore, Ray testified that due to the quantity of cocaine seized, it was his opinion that it was definitely an amount to be distributed.

Examining the aforementioned evidence in the light most favorable to the jury s verdict and in light of the nonexclusive factors set forth above, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant possessed the cocaine located beneath the console knowingly and intentionally, that he exercised actual care, custody, or control of the cocaine, and that he was conscious of his connection with it. We further conclude that the record supports that Appellant possessed the requisite intent to deliver the cocaine in question. Therefore, we hold that the evidence was legally sufficient to support the jury s verdict. Appellant s second issue is overruled.

Factual Sufficiency

Turning to Appellant s contention that the evidence is not factually sufficient to support the jury s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. SeeSantellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury s role as the sole judge of the

weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App. El Paso 1996, pet. ref d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).5

A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury's finding shocks the conscience, or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As the court of criminal appeals explained in Zuniga, There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt? See id. at 484.

In the case at hand, in addition to the evidence already discussed, the record reflects that some factors tend to support that Appellant could not be affirmatively linked to the cocaine in question. For instance, (1) the cocaine was not in plain view, (2) the record does not indicate that Appellant had signed or initialed the rental agreement, (3) Appellant did not have a large amount of cash on his person when he was arrested, (4) Reynolds stated that he could not smell the cocaine when he initially approached the car, (5) Appellant did not possess any contraband or drug paraphernalia at the time of his arrest, (6) Appellant was not impaired due to the consumption of narcotics, (7) Appellant did not attempt to escape, and (8) Appellant made no furtive gestures or incriminating statements.

We have reviewed the record in its entirety. We iterate that our evaluation should not substantially intrude upon the jury s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. We further note that there is no set formula for finding an affirmative link, but rather affirmative links are established by a consideration of a totality of the circumstances. See Hyett v. State, 58 S.W.3d 826, 830 (Tex. App. Houston [14th Dist.] 2001, pet. ref d).

Given the circumstances in the instant case, we conclude that the jury was entitled to find that the evidence tending to link Appellant to the cocaine in question was of greater consequence than the evidence not tending to so link Appellant. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the jury s verdict. Appellant s first issue is overruled.

Ineffective Assistance of Counsel

In his third issue, Appellant argues that he received ineffective assistance of counsel. Specifically, Appellant contends that his counsel was ineffective because he failed to pursue pretrial motions he filed by failing to appear at a pretrial hearing on such motions. As such, Appellant argues, his trial counsel failed to preserve error on his motion to suppress illegally seized evidence. Appellant further contends that his counsel was ineffective in failing to object to Ray, who not only was not listed as an expert witness, but whose testimony, according to Appellant, was irrelevant, speculative, and highly prejudicial.

Claims of ineffective assistance of counsel are evaluated under the two step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel s representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

A reasonable probability was defined by the Supreme Court as a probability sufficient to undermine confidence in the outcome. Id. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. See Hernandez, 726 S.W.2d at 55. The burden is on the appellant to overcome that presumption. See Burruss v. State, 20 S.W.3d 179, 186 (Tex. App. Texarkana 2000, pet. ref d). The appellant must show specific acts or omissions that constitute ineffective assistance and affirmatively prove that those acts fall below the professional norm for reasonableness. Id.

After proving error, the appellant must affirmatively prove prejudice. Id. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Id. It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney s errors, the outcome would have been different. See id.

Failure to Pursue Motion to Suppress Illegally Seized Evidence

With regard to his trial counsel s failure to pursue his motion to suppress, Appellant argues at length as to why his trial counsel s actions fell below the professional norm. However, even assuming arguendo that the actions of Appellant s trial counsel, as urged by Appellant in his brief, satisfied the first prong of the Strickland test, Appellant must still affirmatively prove prejudice. See Burruss, 20 S.W.3d at 186. It is not enough for the appellant to merely show that the errors had some conceivable effect on the outcome of the proceedings. Id.

Here, Appellant argues that had the motion to suppress been properly pursued, counsel would have been able to show that established case law supports his argument. Appellant elaborates on his contentions citing Kothe v. State, 152 S.W.3d 54 (Tex. Crim. App. 2004) in support of his proposition that an officer violates a person s Fourth Amendment rights when he unnecessarily detains the person while he engages in a fishing expedition in an effort to justify reasonable suspicion or probable cause. Yet Appellant s motion to suppress does not reference among the stated grounds that the detention in question exceeded the purpose or scope of the initial traffic stop.6 Furthermore, that Reynolds received consent from both Aaron and Appellant to search the vehicle does not increase the likelihood that Appellant s motion to suppress, even had it been pursued, would have been successful.

We iterate that the burden of proof as to this issue rests squarely upon Appellant. See Burruss, 20 S.W.3d at 186. Having considered the allegations in Appellant s motion to suppress and the pertinent evidence of record, we cannot conclude that had Appellant s counsel pursued the motion, he would have succeeded in having the evidence suppressed. Thus, we hold that Appellant has not satisfied his burden under the second prong of the Strickland test.

Ray s Testimony

We next consider Appellant s argument that his trial counsel was ineffective for his failure to object to the expert testimony offered by Ray. In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel s actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App. Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim);see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App. Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App. Houston [1st Dist.] 1994, pet. ref'd).

In the case at hand, Appellant chronicles, in great detail, his attorney s allegedly poor performance at trial. Yet, the record is silent as to the reasons underlying Appellant s counsel s alleged ineffective acts and omissions during trial. Although Appellant argues that his trial counsel failed to object to Ray s testimony and that such objections would have been sustained, Appellant s argument is not a substitute for record evidence indicating why Appellant s trial counsel chose the course he did. See Jackson, 877 S.W.2d at 771. As a result, Appellant cannot overcome the strong presumption that his counsel performed effectively. Therefore, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant s trial counsel s reasons for choosing the course he did. Thus, we cannot conclude that Appellant's trial counsel was ineffective in failing to object to Ray s testimony. Appellant s third issue is overruled.

Disposition

Having overruled Appellant s first, second, and third issues, we affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered October 25, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Reynolds later testified that based on his training and experience, it is common that drug trafficking occurs on eastbound interstate highways toward Louisiana. He further stated that such narcotics often come through Dallas, Texas, which is a large narcotics distribution center.

2 Reynolds testified that he did not locate any items in the car that would be commonly associated with a grocery store or gas station such as soda cans or food wrappers.

3 Reynolds testified that the four bundles underneath the console were accessible from either the driver or passenger side of the vehicle. Reynolds further testified that one bag was smeared with grease, a common tactic used to interfere with the scent detection of a narcotics dog.

4 Ray further testified that uncut cocaine hydrochloride typically contains approximately ninety percent pure cocaine. Ray stated that cocaine is typically cut repeatedly to a mixture containing approximately twenty-eight percent cocaine by the time it reaches an end user.

5 However, contrary evidence does not have to outweigh evidence of guilt; it has to be only enough to provide reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004).

6 This court has recently addressed the issue concerning whether a traffic stop exceeded the scope of the initial detention in Willis v. State, 192 S.W.2d 585 (Tex. App. Tyler 2006, pet. ref d). As we noted in Willis, during a routine traffic stop, an officer may request a driver's license, liability insurance information, vehicle ownership information, information concerning the driver's destination, and information concerning the purpose of the trip. Id. at 590-91.