Jesus Vasquez v. The State of Texas--Appeal from 81st Judicial District Court of Wilson County

MEMORANDUM OPINION

Nos. 04-03-00536-CR & 04-03-00537-CR

Jesus VASQUEZ,

Appellant

v.

State of TEXAS,

Appellee

From the 81st Judicial District Court, Wilson County, Texas

Trial Court Nos. 01-09-0141-CRW & 01-09-0142-CRW

Honorable Donna S. Rayes, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 1, 2004

AFFIRMED

Jesus Vasquez appeals two convictions arising out of the same criminal episode: possession of a controlled substance (cocaine) with intent to deliver, and possession of heroin. Finding no error, we affirm.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the judgments of conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. Vasquez says the trial court erred by allowing the two prosecutions to be tried together when the State failed to give him the required notice of its intent to do so. However, the error, if any, was not preserved. Vasquez did not object when the cases were called for trial. "It has long been the rule in this State that where a defendant is faced with multiple pending indictments, those indictments may be consolidated into a single proceeding with the express or implied (by failure to object) consent of the defendant. . . . As a result, appellant, in failing to object to the consolidation of the two indictments into a single trial, is deemed to have given his consent." Milligan v. State, 764 S.W.2d 802, 803 (Tex. Crim. App. 1989). The issue is overruled.

2. Vasquez next says the evidence against him was legally and factually insufficient to convict him. He says the evidence failed to support a legal stop or that Vasquez was in "exclusive" possession of the narcotics.

3. The record shows the arresting officers observed the driver of the vehicle in which Vasquez was a passenger commit a traffic violation. This evidence is sufficient to legally justify stopping the vehicle. Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992).

4. The record also reveals evidence sufficient to support the elements of the offenses charged. "Where an accused is charged with unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband; and (2) that the accused knew the matter was contraband." Martin v. State, 753 S.W.2d 384, 387 (Tex. Crim. App. 1988). "Possession of the contraband need not be exclusive and evidence which shows the accused jointly possessed the contraband with another is sufficient." Id. However, "the evidence must affirmatively link the accused to the contraband in such a manner that it can be concluded that he had knowledge of the contraband as well as control over it." Id. (italics in original).

5. Vasquez was a passenger in the back seat of the vehicle when it was stopped. The heroin was in plain view on the seat where Vasquez had been sitting, and he confessed to the officers that it was his. The cocaine was found underneath the seat directly in front of where Vasquez had been sitting. And although Vasquez denied the cocaine was his, it emitted a very strong odor, which supported the jury's verdict that he had knowledge of it. This evidence is both legally and factually sufficient to support the elements of the possession offenses. The issue is overruled.

6. Finally, Vasquez says he received ineffective assistance of counsel at his trial. His principal complaint is that his trial counsel failed to object to the lack of the required written notice that the two prosecutions were to be tried together. At the hearing on Vasquez's motion for new trial, however, trial counsel testified he was well aware of the State's intent to try the offenses together and that, in any event, he knew he could not have kept evidence of one offense out of a trial of the other offense. See Maynard v. State, 685 S.W.2d 60, 66-67 (Tex. Crim. App. 1985) (where multiple offenses arise out of same transaction, extraneous offense evidence admissible "to show the context in which the criminal act occurred."). Trial counsel's decision not to object to trying the cases together was thus rationally based.

7. Vasquez also complained that his trial counsel was ineffective when he failed to try to suppress the cocaine; failed to challenge Vasquez's detention at the vehicle stop; failed to object to inappropriate statements in voir dire, the opening statement, and argument; failed to object to inadmissible evidence; failed to object to a defective chain of custody in the evidence; and failed to object to errors in the court's charge. Trial counsel testified at the motion for new trial hearing that, based on interviews with his client and the facts that were developed, he decided the best defense was to attack the legality of the initial stop. He also said he was satisfied with the chain of custody of the evidence, as well as with the court's charge, except that he successfully negotiated an additional instruction into the charge. Beyond that, however, the record is silent as to the reason for the other actions of counsel, and we will not speculate. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Absent any explanation for counsel's decisions, Vasquez has failed to overcome the strong presumption of reasonable professional assistance. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). The issue is overruled.

The convictions are affirmed.

Paul W. Green, Justice

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