Melvin L. Jones v. The State of Texas--Appeal from 178th District Court of Harris County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-02-00076-CR
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MELVIN L. JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th Judicial District Court
Harris County, Texas
Trial Court No. 872931
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

I. Nature of the Case

Melvin L. Jones appeals his jury conviction of possession of one to four grams of cocaine, enhanced by two prior felony convictions. He was sentenced to sixty years in the Texas Department of Criminal Justice-Institutional Division, with no fine assessed. In one point of error, Jones contends he was denied effective assistance of counsel.II. Factual Background

On March 25, 2001, Houston Police Department narcotics officers obtained a warrant authorizing them to arrest Jones and search his residence. On March 28, 2001, after seeing Jones leave his residence in a pickup truck, officers stopped and arrested him. Jones was placed into a patrol car. When the arresting officer returned to Jones' truck to close the driver's door and turn off the ignition, he observed, plainly visible in an open ashtray, a baggie containing what appeared to be crack cocaine. A laboratory test later confirmed the baggie contained 1.9 grams of crack cocaine. Jones was charged, not based on the search and arrest warrant, but with possession of the cocaine found in the ashtray. At trial, Jones testified the cocaine was not in the ashtray at the time of his arrest.

III. Discussion

Jones contends he received ineffective assistance of counsel. Specifically, he bases his claim on four separate deficiency allegations: (1) that his trial counsel failed to object to testimony suggesting Jones had been selling drugs from his residence; (2) that his trial counsel failed to object to the admission of the search and arrest warrant; (3) that his trial counsel opened the door to prejudicial testimony about the circumstances underlying the probable cause for the arrest warrant; and (4) that his trial counsel failed to object to the prosecutor's statements, in the form of a question, that cocaine was found in the residence. Jones insists these deficiencies prejudiced him because, "but for counsel's errors, there was a reasonable probability that the jury would have acquitted . . . or deadlocked."

A. Standard of Review

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To meet this burden, an appellant must prove that his or her attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 688; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).

Our review of trial counsel's representation is highly deferential; we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). In addressing this reality, the Texas Court of Criminal Appeals recently explained: "[I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Therefore, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 813.

B. Analysis

Jones complains about the following evidence either being admitted because trial counsel failed to object or through trial counsel "opening the door": (1) testimony linking him to the sale of cocaine at his residence; (2) testimony that cocaine was found in his residence; (3) the admission of the earlier arrest and search warrant; and (4) testimony regarding the probable cause for obtaining the search warrant. If Jones' trial counsel had objected to this evidence during the State's case-in-chief, the evidence would likely have been inadmissible. But, once Jones testified during his case-in-chief, the trial court would not have abused its discretion by admitting the evidence. The essence of Jones' testimony was that the cocaine was not in his truck at the time of his arrest and that the arresting officer had planted it. This testimony would have allowed the trial court, without abusing its discretion, to admit evidence of Jones' extraneous offenses and misconduct. Once Jones testified and asserted the cocaine was not his but was planted, his knowledge, intent, and opportunity would be at issue. Therefore, such evidence would not be inherently inadmissible under Tex. R. Evid. 404(b). We note also that the earlier search and arrest warrant, State's Exhibit 1, admitted generally without objection, was relatively innocuous, arguably admissible, and not calculated to cause this conviction, while the supporting affidavit, State's Exhibit 7, containing detailed hearsay, was admitted outside the jury's presence solely for the purpose of Jones' motion to suppress the cocaine found in his vehicle. Thus, we do not detect ineffective assistance of counsel relative to State's Exhibits 1 or 7.

When reviewing an ineffective assistance of counsel claim, the first question we ask is whether trial counsel's representation fell below the standard of prevailing professional norms. See Strickland, 466 U.S. at 688; Tong, 25 S.W.3d at 712. Here, as a matter of trial strategy, Jones' trial counsel may have determined not to object and unnecessarily bring attention to the complained-of evidence, knowing the evidence would become admissible after Jones testified. It is not clear from the record what trial counsel's strategy was, and we will not speculate.

Ineffective assistance of counsel claims are not built on retrospective speculation; they must "be firmly founded in the record." That record must itself affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). We will not second-guess, through hindsight, the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Harner v. State, 997 S.W.2d 695, 704 (Tex. App.-Texarkana 1999, no pet.) (citing Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim.

 

App. 1979)). Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is in fact no plausible professional reason for a specific act or omission. From the trial record before us, one could conclude there were legitimate and professionally sound reasons for counsel's conduct, or one could speculate that there were not. Either way, without the aid of conjecture and speculation, the record alone does not rebut the strong presumption of reasonableness under Strickland. Jones' point of error is overruled.

We affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: February 19, 2003

Date Decided: March 7, 2003

 

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