Francis Patrick Esser v. The State of Texas--Appeal from County Court at Law No 4 of Collin County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00154-CR

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FRANCIS PATRICK ESSER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 4

Collin County, Texas

Trial Court No. 4-81169-02

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Francis Patrick Esser appeals from his conviction by the court for possession of between two and four ounces of marihuana. The evidence shows that Esser's father found the marihuana in a box beside Esser's bed and turned it over to police. The court sentenced Esser to ninety days' confinement and a $200.00 fine. //

Esser contends the evidence is both legally and factually insufficient to support the conviction because there are insufficient affirmative links to show that the contraband belonged to him. He also contends trial counsel was ineffective for not objecting to admission of the hearsay statement made by Esser to his father that he was holding the marihuana for someone else, that he (Esser) owed someone a thousand dollars, and that he had to get the marihuana back from his father so he could return it to that person.

In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing factual sufficiency, we view the evidence in a neutral light, favoring neither party. Id. We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

There is evidence the contraband was found in Esser's bedroom, next to his bed. There is Esser's own admission he knew it was there and his insistence on recovering it. That evidence is legally sufficient to support the verdict. Further, there is no real contradictory testimony, except for Esser's statement he was just holding it for someone else. However, Esser also said he needed to use the contraband to discharge his own debt. If we treat this testimony as inconsistent, when evidence both supports and conflicts with the verdict, we must assume the fact-finder resolved the conflict in favor of the verdict. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Because the jury is the sole judge of weight and credibility of the witnesses, it may accept or reject any or all testimony of any witness. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Again, our role is not to "find" facts; rather, it is to see if we can determine that the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust. Zuliani v. State, 97 S.W.3d 589, 594 95 (Tex. Crim. App. 2003). Under this state of the evidence, we find it both legally and factually sufficient to support the verdict.

Esser next contends he received ineffective assistance of counsel at trial. The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness, and (2) that the deficient performance prejudiced his or her defense. Id. at 686; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, an appellant must prove that the 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. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).

Esser specifically complains counsel was ineffective for failing to object to the father's testimony about the statements made by his son regarding the marihuana, contending it was inadmissible hearsay. Under Tex. R. Evid. 801(e)(2)(A), the statement was an admission against interest, made by a party and offered against him or her. Under the rule, it is defined as "not hearsay." Counsel does not act below an objective standard of reasonableness when he or she does not object to evidence which is admissible. Luster v. State, 85 S.W.3d 865, 870 (Tex. App. Eastland 2002, pet. ref'd); Manley v. State, 28 S.W.3d 170, 175 (Tex. App. Texarkana 2000, pet. ref'd). Accordingly, we cannot conclude counsel acted below an objective standard of reasonableness in this instance. The contention of error is overruled.

We affirm the judgment.

Donald R. Ross

Justice

Date Submitted: March 24, 2004

Date Decided: April 29, 2004

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