Jermaine Craig Harris v. State of Texas--Appeal from County Court at Law No. 2 of Midland County

Opinion filed July 26, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00411-CR

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   JERMAINE CRAIG HARRIS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Midland County, Texas

Trial Court Cause No. CR102,428

O P I N I O N

The jury convicted Jermaine Craig Harris of possession of marihuana in an amount less than two ounces. The jury assessed punishment at 180 days confinement and a $2,000 fine. The imposition of the confinement portion of the sentence was suspended, and appellant was placed on community supervision for one year. We affirm.

There is no challenge to the sufficiency of the evidence. Midland County Deputy Sheriff Thomas Hunnicutt testified that, when he is off duty, he works as a security guard at the apartment complex where he lives. On January 2, 2004, while Deputy Hunnicutt was performing a Awalk-through@ at the apartment complex, he smelled marihuana as he passed by appellant and he saw something burning in appellant=s hand. When Deputy Hunnicutt yelled Ahey@ at appellant, appellant turned around and dropped the burning object on the ground. Deputy Hunnicutt picked it up and determined it was a Ablunt,@ a cigar hollowed out and filled with marihuana. He then arrested appellant for possession of marihuana.

Appellant testified at trial that he went to the apartment complex to pick up a friend. As he was walking toward his friend=s apartment, appellant saw a black male smoking what appeared to be a cigarette. Deputy Hunnicutt walked by the unidentified black male and appellant. Deputy Hunnicutt said, AHey, what are y=all doing?@ The unidentified black male ran away. Appellant went toward Deputy Hunnicutt. Deputy Hunnicutt asked appellant what he was smoking. Appellant replied that he was not smoking anything. Deputy Hunnicutt picked up a brown cigar containing marihuana that was still smoking and showed it to appellant. Appellant told Deputy Hunnicutt that the marihuana was not his. Deputy Hunnicutt told appellant to walk to the patrol car and to stay there while he looked for the unidentified black male. Deputy Hunnicutt returned a few minutes later without the black male and placed appellant under arrest.

In his sole issue on appeal, appellant complains that he received ineffective assistance of counsel. To prevail on an ineffective-assistance-of-counsel claim, the familiar Strickland test must be met. Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98, 101 02 (Tex. Crim. App. 2005). Under Strickland, we must determine whether counsel=s performance was deficient and, if so, whether the defense was prejudiced by counsel=s deficient performance. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 687; Andrews, 159 S.W.3d at 101. We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Staffordv. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).

Appellant=s attorney on appeal filed a brief in this court arguing that appellant=s trial counsel was ineffective in failing to conduct an independent investigation and in failing to utilize DNA evidence. We allowed that attorney to withdraw and abated the appeal for the appointment of new appellate counsel. Appellant=s newly appointed counsel filed a supplemental brief arguing that the trial strategy of appellant=s trial counsel was formed without sufficient investigation and preparation and that trial counsel was ineffective under the standards of United States v. Cronic, 466 U.S. 648 (1984).

An attorney must be acquainted with not only the law but also the facts of the case before the attorney can render reasonably effective assistance of counsel. Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987); Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). We will not reverse a conviction unless the consequence of the failure to investigate is that the only viable defense available to the accused is not advanced and there is a reasonable probability that, but for counsel=s failure to advance the defense, the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996).

Appellant=s trial counsel testified at a hearing on the motion for new trial that he met with appellant soon after being appointed to the case. At that time, appellant told his version of the events to his trial counsel. Trial counsel then reviewed the clerk=s file, and he reviewed the discovery provided by the State through its Aopen file@ policy. Trial counsel stated that the case was Apretty much as [appellant] had kind of characterized it. It was going to be his word against the officer=s.@

Appellant argues that his trial counsel was ineffective in failing to call other witnesses to testify on his behalf. Appellant=s trial counsel testified that appellant did not reveal any witnesses who would be helpful to his case and that Aeverything was pretty much undisputed between the State and [appellant].@ Appellant did not know the unidentified black male who was present at the apartment complex. Appellant has not shown that any testimony from the unidentified black male would have been beneficial to his case. Appellant contends that his trial counsel should have called appellant=s friend who resided at the apartment complex; however, there was no dispute that appellant was at the apartment complex to pick up his friend.

Appellant=s trial counsel testified that he did not request DNA testing on the marihuana because the State had the burden of proof and he felt that the absence of forensic evidence connecting appellant to the marihuana created reasonable doubt. Appellant has not shown that trial counsel=s decision concerning the DNA evidence was not based upon sound trial strategy. Appellant also has not shown that the result of the proceeding would have been different but for trial counsel=s failure to investigate.

In Cronic, 466 U.S. at 658, the Supreme Court recognized that in some circumstances the accused is not required to show prejudice but rather that there is a presumption of prejudice. Such circumstances include the complete denial of counsel, the failure of counsel to subject the prosecution=s case to meaningful adversarial testing, and the situation in which surrounding circumstances make it unlikely that any counsel could provide effective assistance. Cronic, 466 U.S. at 659-60. We do not find the presence of the extreme circumstances required to make a presumption of prejudice. Appellant has not shown that he received ineffective assistance of counsel. Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

July 26, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.