Kevin Lamont Carlton v. State of Texas--Appeal from 42nd District Court of Taylor County

Opinion filed December 6, 2007

In The

Eleventh Court of Appeals

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 No. 11-06-00175-CR

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KEVIN LAMONT CARLTON, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 21,994-A

O P I N I O N

The jury convicted Kevin Lamont Carlton of possession of cocaine with intent to deliver. The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty-five years in accordance with a plea agreement between appellant and the State.[1] Appellant attacks his conviction in a single issue. We affirm.

Background Facts

Officer Chris Smith of the Abilene Police Department testified that he monitored an Abilene apartment over the course of a week based upon a report of a man selling crack cocaine from the apartment. He identified appellant as the target of the investigation. While Officer Chris Smith was in the process of obtaining a search warrant for the apartment, Officer Rodney Smith observed appellant and Shevondelinda Lurry leave the apartment in a vehicle. At Officer Chris Smith=s direction, Officer Rodney Smith followed appellant and Lurry. Officer Rodney Smith took appellant and Lurry into custody when Officer Chris Smith advised him that the search warrant had been signed by a magistrate.

Appellant and Lurry were transported back to the apartment by several officers. Officer Chris Smith testified that appellant and Lurry informed him that they lived in the apartment. Officer Chris Smith further testified that appellant and Lurry provided him with a key to gain entrance to the apartment. A search of the apartment revealed pieces of crack cocaine in the seat of a leather recliner in the living room. The officers found additional crack cocaine inside a pantry and inside a dresser drawer. Officers also found mail addressed to appellant inside the dresser drawer where the cocaine was located.

Appellant called Lurry as a witness during his case-in-chief. She testified that appellant did not live at the apartment and that the crack cocaine belonged to her. She further testified that appellant did not know that she had cocaine in the apartment. During his cross-examination of Lurry, the prosecutor asked her about a recorded phone conversation she had with appellant while he was incarcerated pending trial. Lurry stated as follows to appellant during the conversation: AYou know, I know I might not be telling the whole truth but, you know, give me the words I need to say.@ Appellant replied as follows to this statement: AI=ve been reading the Bible and even the Disciples of Christ lied for him.@

Ineffective Assistance of Counsel

Appellant alleges in his issue that his trial counsel rendered ineffective assistance of counsel. The Sixth Amendment guarantees the right to reasonably effective assistance of counsel in a state criminal proceeding. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. Const. amend. VI. To determine whether appellant=s trial counsel rendered ineffective assistance, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and an appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The second prong requires a showing that counsel=s errors were so serious as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687. Prejudice is demonstrated when the defendant shows Aa reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.@ Id. at 694. Although it is possible that a single egregious error of omission or commission by appellant=s counsel constitutes ineffective assistance, counsel=s actions must be judged by the Atotality of the representation@ rather than by isolated acts or omissions of trial counsel. Thompson, 9 S.W.3d at 813; see Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985).

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. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking 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 record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. The record on direct appeal is usually inadequate because it is silent as to trial counsel=s strategy.

Appellant bases his ineffective assistance claim on two instances where trial counsel did not object to testimony elicited at trial. The first instance involved a question by the prosecutor to Officer Chris Smith. The prosecutor asked Officer Smith if either appellant or Lurry denied ownership of the cocaine after its discovery. Officer Smith testified that neither of them denied owning the cocaine or living in the apartment. Appellant cites Doyle v. Ohio, 426 U.S. 610, 618 (1976), for the proposition that the State is prohibited from using an accused=s silence after receiving Miranda[2] warnings against him at trial. See Sanchez v. State, 707 S.W.2d 575, 577 (Tex. Crim. App. 1986). The second instance also involved a question by the prosecutor to Officer Chris Smith. Officer Smith testified in response to the question that appellant claimed ownership of the cocaine while being Adebriefed@ after the search.

The record on direct appeal does not reflect trial counsel=s reasoning for not objecting to the testimony cited by appellant. If the record on appeal is undeveloped and does not show the motives behind trial counsel=s actions, then the defendant cannot be said to have overcome the presumption that his counsel=s actions were strategic. Rylander v. State, 101 S.W.3d 107, 110 11 (Tex. Crim. App. 2003). Furthermore, even if we were to assume that appellant=s trial counsel=s failure to object to the testimony fell below an objective standard of reasonableness, appellant must establish by a reasonable probability that the outcome would have been different. We conclude that appellant has not met this burden. The State=s case against appellant appeared to be strong. Officer Chris Smith testified observing appellant operating out of the apartment for a week. The officers found one bag of cocaine in a dresser that only contained men=s clothing in a drawer that contained mail addressed to appellant. Furthermore, the veracity of the testimony that appellant elicited from Lurry is suspect given the recorded telephone conversations between her and appellant. In this regard, appellant entered into a plea agreement with the State as to punishment. In exchange for appellant=s plea of Atrue@ to two prior convictions alleged for enhancement purposes and his acceptance of a thirty-five-year term of confinement, the State agreed not to prosecute Lurry for aggravated perjury regarding the testimony she gave at trial. Appellant=s issue is overruled.

This Court Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

December 6, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]The plea agreement expressly preserved appellant=s right to appeal his conviction.

[2]Miranda v. Arizona, 384 U.S. 436 (1966).