Frank Carlos v. The State of Texas--Appeal from 147th District Court of Travis County

Opinion filed May 17, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00356-CR

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FRANK CARLOS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 147th District Court

Travis County, Texas

Trial Court Cause No. D-1-DC-2005-904083

O P I N I O N

Frank Carlos appeals his conviction by a jury for the offense of possession of cocaine in an amount less than one gram. The jury, finding enhancement allegations to be true, assessed his punishment at four years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $2,000. Carlos contends in three issues that the evidence is legally and factually insufficient to support his conviction and that the trial court abused its discretion when it denied his motion for new trial. We affirm.

Carlos urges in issues one and two that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

In a possession of a controlled substance prosecution, the State must prove that: (1) the accused exercised control, management, or care over the substance and (2) the accused knew the matter possessed was contraband. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). Regardless of whether the evidence is direct or circumstantial, it must establish that the defendant=s connection with the drug was more than fortuitous. Id. Mere presence at the location where drugs are found is insufficient, by itself, to establish actual care, custody, or control of those drugs. Id. at 162. However, presence or proximity when combined with other evidence, either direct or circumstantial sometimes referred to as affirmative links, may be sufficient to establish that element beyond a reasonable doubt. Id. It is not the number of links that is controlling, but the logical force of all of the evidence, direct and circumstantial. Id.

Guillermo Salinas, an Austin police officer, testified that he stopped Carlos as he was driving a pickup at about 1:00 a.m. because the pickup did not have functional license plate lights. He said that Carlos pulled over quickly. He acknowledged that, after about an hour of a one-and-a-half to two-hour search of the vehicle, he found crumbled white cocaine on the red or maroon carpet of the vehicle behind the driver=s seat. He said that to a casual observer the cocaine could have appeared to be food particles. The search followed the officer=s discovery that Carlos had outstanding warrants for his arrest.

Salinas testified that the vehicle had a strong odor of dry leaf marihuana and that there were small pieces of marihuana all over the carpet and seats. He indicated that he found currency in a compartment located on the driver=s side rear cab. He also stated that Carlos had $1,500 on his person. He related that every time he approached the driver=s side of Carlos=s pickup, Carlos would get agitated. He indicated that Officer Elmer Settles, also with the Austin Police Department, pointed out to him that Carlos would get agitated and start yelling something like, A[L]et=s go,@ or A[W]hat are we doing here?@ Officer Settles testified that the amount of currency found in Carlos=s vehicle was $18,780.

In summary, Carlos was the driver in sole possession of a vehicle with an odor of marihuana, a vehicle that contained crumbled cocaine, marihuana residue, and $18,780 in cash. The cocaine was in open, but not necessarily plain, view just behind the driver=s seat. In addition, Carlos became very agitated every time the arresting officer approached the side of the pickup where the cocaine was located. Considering this evidence in light of the tests for legal and factual sufficiency of the evidence, we find that the evidence in this case is legally and factually sufficient.

We have listed several of the affirmative links that were shown to support Carlos=s conviction. Carlos seeks to discredit those affirmative links. Citing three cases, he suggests that mere possession of a vehicle in which contraband is found, without additional facts and circumstances connecting the accused to the contraband, will not support a conviction for possession. As we have noted in our summary of the evidence, there are additional facts and circumstances adequately connecting Carlos to the contraband.

Carlos acknowledges that he was the driver and sole occupant of the pickup where the cocaine was found, but he argues there was no evidence that he was the exclusive owner or possessor of the vehicle. Although there was no evidence presented that he owned the vehicle, his attorney, in his opening statement, referred to the vehicle as AMr. Carlos=s vehicle@ and AMr. Carlos=s truck@ and stated that Carlos Adrives a 1995 truck that has interior that is maroon.@

Citing Hernandez v. State, 867 S.W.2d 900, 905 (Tex. App.CTexarkana 1993, no pet.), Carlos suggests that his mere nervousness or anxiousness is too tenuous a link, as a matter of law, to support a conviction. However, just as was true in Hernandez, Carlos=s nervousness or anxiousness is not the only affirmative link established by the evidence showing Carlos=s knowing possession of the cocaine.

Carlos relies upon the case of Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.CAustin 1994, no pet.), in urging that courts have tended to find more of a link when the contraband is found in an enclosed place such as an ashtray. In that case, the court, in discussing affirmative links supporting the conviction, noted that the ashtray where the contraband was found was an enclosed space. Id. Although the cocaine in this case was not found in an ashtray, it was found within the pickup, which itself is an enclosed space. Because we have found the evidence legally and factually sufficient to support Carlos=s conviction, we overrule issues one and two.

Carlos insists in issue three that the trial court abused its discretion when it denied his motion for new trial because at trial he had received ineffective assistance of counsel. An appellate court reviews a trial court=s denial of a motion for new trial under an abuse of discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court=s decision was arbitrary or unreasonable. Id. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court=s ruling. Id. A trial court does not abuse its discretion by deciding a motion for new trial, which is based upon ineffective assistance of counsel, on affidavits. Id. at 764.

In his brief in support of his motion for new trial, although not in the motion itself, Carlos urged that his counsel was ineffective for failing to call a witness at trial. Carlos bases this issue on appeal on that ground. Carlos attached two supporting affidavits to his brief in support of his motion for new trial. In one affidavit, Carlos=s brother swore that, a week prior to Carlos=s arrest, when he and his friends were in the same vehicle Carlos was arrested in, A[t]wo of the guys in the backseat were using some cocain [sic].@ He said he told Carlos that he would be available to testify for him but that he was never called or subpoenaed. Carlos also included his own affidavit stating that he had told his attorney that his brother and friends had been using the same vehicle a week prior to his arrest. While the affidavit states that his brother told him that his friends had been using cocaine in the backseat and that his brother would testify on his behalf, the affidavit does not say that Carlos gave that information to his attorney. There is no affidavit from Carlos=s trial attorney indicating that he had received such information from Carlos or giving the reason why he chose not to call Carlos=s brother to testify.

We apply a two-pronged test to claims of ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, appellant must show that his counsel=s performance was deficient; second, appellant must show the deficient performance prejudiced the defense. Wiggins, 539 U.S. at 521;Strickland, 466 U.S. at 687.

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. A defendant must demonstrate that counsel=s representation fell below an objective standard of reasonableness and prevailing professional norms at the time of the alleged error. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 688-89. A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@ Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689.

The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. at 687. In other words, appellant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 697.

Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel=s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.

Carlos did not include in the record any testimony by his trial counsel in any posttrial proceeding. Further, there is arguably nothing in the record to show that trial counsel was aware of the fact that Carlos=s brother could testify that some of his friends had been using cocaine in the backseat of the vehicle in question a week prior to Carlos=s arrest. Even if he were aware of that possibility, there is no evidence as to trial counsel=s reason for not calling Carlos=s brother as a witness. Consequently, there is nothing to show that his failure to call Carlos=s brother was anything other than trial strategy. Therefore, Carlos has failed to overcome the presumption that his trial counsel=s conduct was reasonable and professional. Id. Because Carlos=s proof on his motion for new trial failed to overcome the presumption that his trial counsel=s conduct was reasonable and professional, the trial court did not abuse its discretion by denying the motion for new trial. We overrule issue three.

The judgment is affirmed.

PER CURIAM

May 17, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.