Belvin S. Gaines v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00804-CR

Belvin S. GAINES,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-3965

Honorable Mary Roman, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 13, 2006

AFFIRMED

A jury convicted Belvin Gaines of possession of cocaine. On appeal, Gaines argues that the evidence is legally and factually insufficient to support his conviction, and that he was denied effective assistance of counsel. We affirm the trial court's judgment.

Background

On May 5, 2004, San Antonio police officers Kenneth Valdez and Hartford Lemm were patrolling an area known for "high drug activity." They received a call from two other officers stating they had possibly spotted a man wanted on an outstanding felony warrant. While Officers Valdez and Lemm were driving to the area where the man was seen, they passed someone, Gaines, who fit the description. While they were turning the patrol car around, Officer Valdez observed Gaines throw something at the fence line and walk away toward a car repair shop. The officers stopped Gaines near the car repair shop and questioned him about his identity and whether he had an outstanding warrant. Gaines stated that he "thought" he "had a warrant," and was in the area to check on his car at the repair shop. After determining Gaines was not the man wanted on the outstanding felony warrant, the officers permitted Gaines to leave, and he proceeded the short distance to the repair shop. Officer Valdez then went to the fence line to see what Gaines had thrown away; Valdez testified he "never took his eyes off" the spot where the item was thrown. Valdez found a plastic baggie containing what he believed to be crack cocaine, packaged in a manner consistent with drug trafficking. The officers called Gaines to come back, at which time he was handcuffed and searched. Inside Gaines' pocket, they found over $800.00 in small bills "folded in a manner that is consistent with narcotics trafficking," meaning that "the fives, the tens, the ones ... were all packaged together." The officers determined that Gaines' car was not at the repair shop, and that Gaines did not live in the area. Gaines was placed inside the patrol car and informed that he was being arrested for possession of cocaine. When he was shown the baggie of cocaine, Gaines responded, "that is not my crack." Gaines was indicted on one count of possession with intent to deliver a controlled substance, and one count of possession of a controlled substance (1 to 4 grams). The jury found Gaines guilty only of possession of the cocaine. He received a sentence of fifteen years imprisonment. Gaines timely appealed.

Analysis

Legal and Factual Insufficiency

In his first and second issues, Gaines contends the evidence is legally (1) and factually insufficient to support the jury's finding that he possessed the cocaine. When conducting a legal sufficiency review, we evaluate all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the crime's essential elements beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005). The jury, as the sole fact-finder, is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Poindexter,153 S.W.3d at 406. The jury is allowed to make reasonable inferences based on the evidence presented. Mosley v. Sate, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). In determining factual sufficiency, we view all the evidence in a neutral light, and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). In conducting a factual sufficiency review, we must avoid intruding on the fact-finder's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

To obtain a conviction for possession of a controlled substance, the State must prove that the accused (1) exercised care, control, or management of the substance, and (2) knew that the substance possessed was contraband. Tex. Health & Safety Code Ann. 481.002(38) (Vernon Supp. 2006) (defining "possession" as "actual care, custody, control or management"); Poindexter, 153 S.W.3d at 405. When the accused did not have exclusive control over the contraband, or the place where the contraband was found, the State must develop additional independent facts and circumstances which affirmatively link the accused to the contraband. Poindexter, 153 S.W.3d at 406. Whether the evidence is direct or circumstantial, the State must prove that the accused's connection with the contraband was more than just fortuitous. Id. at 405-06; de la Garza v. State, 898 S.W.2d 376, 379 (Tex. App.--San Antonio 1995, no pet.) (showing that defendant was merely present in same vicinity as controlled substance is not sufficient). We may consider the following non-exclusive factors that have been found to affirmatively link a defendant to contraband:

(1) the defendant's presence when the search was conducted; (2) whether the contraband was in plain view; (3) whether the contraband was in close proximity to, or accessible by, the defendant; (4) whether the place where the contraband was found was enclosed; (5) whether the defendant was under the influence of narcotics when arrested; (6) whether the defendant possessed other contraband or narcotics when arrested; (7) whether the defendant made incriminating statements when arrested; (8) whether the defendant attempted to flee; (9) whether the defendant made furtive gestures; (10) whether there was an odor of contraband present at the scene; (11) whether other contraband or drug paraphernalia were present; (12) whether the defendant owned or had a right to possess the place where the contraband was found; (13) whether the defendant was found with a large amount of cash; (14) whether the defendant possessed weapons; and (15) whether the conduct of the defendant indicated a consciousness of guilt.

Hargrove v. State, Nos. 04-05-00076-CR, 04-05-00077-CR, 2006 WL 1993765, at *3 (Tex. App. --San Antonio July 19, 2006, pet. filed). "The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense." Id. (quoting Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd)).

Gaines contends the evidence is legally and factually insufficient because there was no forensic or physical evidence to affirmatively link him to the cocaine, and the affirmative links evidence presented at trial was weak and contradictory. We disagree. While Gaines was in an unenclosed public space over which he did not have exclusive control, the State presented evidence of several additional circumstances that demonstrate his knowledge and control of the cocaine. Gaines was present in an area known for high drug activity, but did not live in the area. When he saw the police approaching, he threw an item toward the fence line. The officers found a plastic baggie containing crack cocaine in the area where Gaines threw the object, and no other people were in the immediate area. When questioned, Gaines lied about why he was in the area. Gaines had over $800 in small bills which were folded in a manner consistent with drug trafficking, based on the officers' experience. Finally, when shown the baggie of cocaine, Gaines stated, "that is not my crack."

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the evidence of affirmative links is legally sufficient to support a finding that Gaines knowingly and intentionally possessed the cocaine. In addition, the affirmative links evidence is not too weak or contradictory to support the jury's finding of possession beyond a reasonable doubt. Consequently, Gaines's issues challenging the sufficiency of the evidence are overruled.

Ineffective Assistance of Counsel

In his third issue, Gaines contends he received ineffective assistance of counsel during the course of his trial. To establish ineffective assistance of counsel, the defendant must show by a preponderance of the evidence that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree that it deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 n.3 (Tex. Crim. App. 1999). The defendant must show that counsel's performance fell short of an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). Any claims of ineffective assistance of counsel must be "firmly founded in the record," with the record affirmatively demonstrating the merits of the claim. Id. at 813. The reviewing court does not look at isolated acts or omissions, but reviews the totality of the representation to determine whether counsel was ineffective. Id.

Gaines contends he was denied the effective assistance of counsel when his attorney "failed to adequately object or take any other action to exclude irrelevant, inflammatory, and inadmissible evidence concerning gang activity, drug dealing, and prostitution." Additionally, Gaines argues that his counsel should have objected to the improper impeachment of a defense witness, and should have "excluded irrelevant and prejudicial evidence that Gaines believed he was wanted on a warrant." No record was developed as to counsel's reasons for his actions and omissions during trial.

In the absence of a developed evidentiary record which adequately reflects the motives behind counsel's action and inaction, it is extremely difficult to prove that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); c.f., Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (concluding that on the face of the trial record there could be no legitimate trial strategy for counsel's failure to object to prosecutor's misstatement of the law which was detrimental to defendant). Absent record evidence to the contrary, we must presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-814. To conclude that the representation by Gaines' counsel was deficient without a proper record exploring counsel's trial strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. The fact that another attorney might have pursued a different course of action or tried the case differently does not establish ineffective assistance of counsel. Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.--San Antonio 2002, no pet.). Without evidence in the record to both establish deficiency and rebut the presumption of reasonable assistance, Gaines is unable to satisfy the first prong of Strickland. Thompson, 9 S.W.3d at 814; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (record on direct appeal is often particularly inadequate to reflect the failings of trial counsel when the errors complained of are errors of omission). Failure to make the required showing of either Stricklandprong, deficient performance or sufficient prejudice, will defeat a claim for ineffective assistance. Thompson, 9 S.W.3d at 813. Accordingly, we hold that Gaines has failed to establish deficient performance by his trial counsel; therefore, we overrule his third issue.

Based on the foregoing reasons, the judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

Do Not Publish

1. In his first issue, Gaines contends the trial court erred in denying his motion for a directed verdict. We analyze error relating to the denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996).