CEVE EDWARDS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed October 19, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01361-CR
No. 05-88-01362-CR
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CEVE EDWARDS, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F87-89014-Q and F88-95527-Q
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OPINION PER CURIAM
Before Justices Stewart, Lagarde and Burnett
        Ceve Edwards appeals his convictions for conspiracy to possess cocaine with intent to deliver, and the revocation of his probation, received upon his conviction for the offense of possession of cocaine with intent to deliver. Punishment was assessed at twenty-five years' confinement on the conspiracy conviction, and ten years' confinement on the probation revocation.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed. Counsel has raised two arguable points of error, claiming that: (1) the trial court erred in allowing hearsay testimony of appellant's co-conspirator; and (2) appellant was denied effective assistance of counsel. We overrule both points and affirm the judgment of the trial court.
        Appellant claims in his first point of error that the trial court erred in admitting, over his objection, testimony concerning statements made by R. C. Dukes, one of his co-conspirators. Appellant was charged by information FN:1 with conspiring with Alma Dukes, Charles Dukes, and R. C. Dukes to possess with intent to deliver a controlled substance, to-wit: cocaine. Frank Perez, a Dallas police officer, testified that R. C. Dukes contacted him and told him that he was interested in purchasing large quantities of cocaine. He wanted to start with a purchase of one to two kilos. Following this discussion, Perez and an investigator went to R. C.'s place of business with two kilos of cocaine. They were met by Charles Dukes, who asked him how much cocaine he brought. Charles then contacted R. C., who arrived shortly thereafter. R. C. told Perez that he was going to contact his partner because he was ready to do business; after R. C. made a phone call, appellant arrived carrying three Crown Royal liquor bags. When he arrived, he was met by Alma Dukes, who arrived at the same time. The two then entered appellant's place of business, next door to R. C.'s business. Shortly after they entered, Alma motioned for Perez and the investigator to come in. Alma asked Perez if he had the cocaine; Perez responded that he wanted to see the money first. Alma took him to a room where R. C., Charles, and appellant were waiting. Alma and Charles left the room. Appellant was reluctant to show the money; he told Perez that the last time he and R. C. had purchased cocaine, a Jamaican had "ripped them off" of $52,000. After Perez again insisted on seeing the money, appellant opened one of the Crown Royal bags and showed him the money. Both appellant and R. C. then asked about the purity of the cocaine. Appellant asked if there was any way he could take the cocaine and test its purity. He also said that he and R. C. were talking about buying more in the future. During the course of the transaction, R. C. referred to appellant as his partner. Officer Perez then signalled officers, who arrested appellant and his co-conspirators.
        Hearsay statements of co-conspirators are admissible when the State proves that (1) at the time of the statements the alleged co-conspirator was participating in a conspiracy in which the defendant also participated or later joined, and (2) the statement was made during the furtherance of the conspiracy. Ward v. State, 657 S.W.2d 133, 136-137 (Tex. Crim. App. 1983). In addition, there must be evidence outside of and independent of the statements which tends to establish the joint act of the parties. Denney v. State, 558 S.W.2d 467, 469 (Tex. Crim. App. 1977), cert. denied, 437 U.S. 911 (1978).
        Appellant argues that the statements of R. C. Dukes should not have been admitted, because at the point the testimony was admitted the State had not yet establised that a conspiracy exists. We do not agree with appellant's claim. Proof of a defendant's participation in and the existence of a conspiracy need not be made prior to admission of hearsay statements of a co-conspirator. Rodriquez v. State, 552 S.W.2d 451, 454 (Tex. Crim. App. 1977). In the present cause, the State clearly established that appellant was involved in the negotiations for purchasing cocaine with R. C. Dukes, Alma Dukes, and Robert Dukes. Appellant's conduct in bringing the money to the site of the sale and his conference with Alma Dukes, as well as his concern over the purity of the cocaine, serve to prove his participation in the conspiracy. In addition, Charles Dukes' connection with the conspiracy was clearly shown by his actions in contacting R. C. Dukes, together with his assertion to police that the conspirators needed more than Perez and the investigator had brought. Since the statements made by R. C. Dukes concerned the conspiracy in which appellant was involved and occurred during the furtherance of the conspiracy, we believe that the trial court did not err in allowing these statements to be admitted. Appellant's first point of error is overruled.
        In his second point of error, appellant claims that he was denied effective assistance of counsel. Our review of appellant's claim is controlled by the standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this State in Hernandez v. State, 727 S.W.2d 53, 57 (Tex. Crim. App. 1986). Appellant must first demonstrate that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Appellant must then show that, but for counsel's errors, the result of the proceeding would likely have been different. Strickland, 466 U.S. at 694; Hernandez, 726 S.W.2d at 55.
        Appellant cites two omissions on the part of counsel that he believes were erroneous. First, he claims that counsel erred in failing to obtain a voice exemplar of R. C. Dukes. Appellant notes that there was conflicting testimony concerning whether Dukes had a speech impediment. Officer Perez had testified that Dukes spoke normally, while defense witnesses testified that he had a noticeable speech impediment. Appellant claims that had a voice exemplar been made available, it could have served to impeach the testimony of Officer Perez. We note that R. C. Dukes testified in this cause. His testimony was limited to giving his name, date of birth, home address, and address of his place of business. Appellant has not explained to this Court why this sample of Dukes' speech patterns was not sufficient to resolve the issue of speech impediment of R. C. Dukes. Accordingly, we cannot conclude from the record before us that counsel erred in failing to obtain a voice exemplar of R. C. Dukes that was any greater than the sample given the court.
        Second, appellant claims that counsel was ineffective because he did not file a motion to suppress evidence seized from his safe. According to Officer Perez, following the arrest the police searched the premises; however, at the time of the search they had not obtained a warrant. In the course of the search, police found $13,000 in the safe. At a hearing on the motion for new trial, appellant offered the testimony of Mark Hasse, counsel for R. C. Dukes. Mr. Hasse testified that had he tried the case, he would have filed a motion to suppress. However, he admitted that in some cases he would not file motions to suppress as a matter of trial strategy.
        This Court analyzes trial counsel's strategy presuming that counsel's representation was adequate. See Johnson v. State, 614 S.W.2d 148, 152 (Tex. Crim. App. 1981). Given this presumption, we will not inquire into matters of trial strategy unless from all appearances there still is no plausible basis in strategy or tactics for counsel's actions. Id. In the present cause, appellant claimed that the money found in the safe was his share of the proceeds from a real estate transaction; he introduced a settlement statement from the Chicago Title Insurance Company to support this claim. Appellant had claimed that his involvement in the transaction was inadvertent; he testified that he was present at his shop only because he had agreed to loan $7,000 to R. C. Dukes so that Dukes could pay his taxes. Testimony concerning the money in the safe was peripheral to the State's case, which was that appellant and the Dukes family were acting together in obtaining cocaine from police agents. We conclude that, even if we assume the search of the safe was inadmissible, counsel for appellant could have decided as a matter of trial strategy to forego a motion to suppress.
        In addition, we have conducted a review of the record. Counsel called five witnesses on appellant's behalf. One of the witnesses, R. C. Dukes, refused to testify beyond giving his name, date of birth, home address and address of his place of business. However, counsel examined all other witnesses thoroughly, vigorously cross-examined the State's witnesses, and made a competent closing argument to the court. We cannot say, based on the record before us, that appellant was deprived of effective assistance of counsel. Appellant's second point of error is overruled.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
881361.U05
 
FN:1 Appellant waived his right to be charged by indictment. See Tex. Code Crim. Proc. Ann. art. 1.141 (Vernon 1971).
File Date[10-18-89]
File Name[881361]