Kimberly Dawn Gross v. The State of Texas--Appeal from 272nd District Court of Brazos County
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IN THE
TENTH COURT OF APPEALS
No. 10-10-00401-CR
KIMBERLY DAWN GROSS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 09-00778-CRF-272
MEMORANDUM OPINION
Kimberly Gross was convicted of possession of a controlled substance in an
amount less than one gram. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West
2010). She was sentenced to two years in a state jail facility. Because the evidence is
sufficient to support the conviction and because Gross did not meet the standard for
ineffective assistance of counsel, the trial court’s judgment is affirmed.
FACTS
A green pickup with two occupants went through the drive through of a fast
food restaurant and then parked in the parking lot by a white privacy fence. A few
moments later, a brown station wagon pulled in and parked next to the pickup. The
driver of the pickup got out and entered the passenger side of the station wagon. They
began to conduct a drug deal. About two minutes later, Gross pulled into the parking
lot in her pickup and parked directly behind the green pickup. She got out and greeted
the passenger of the green pickup who had also exited that pickup. Agents from the
Department of Public Safety, who had been watching from across a field, pulled into the
parking lot and interrupted the drug deal. An agent also questioned Gross. She was
asked if she had drugs in her pickup. She said yes, and told the agent that there was a
blue bank bag in the pickup bed tool box with drugs in it. Gross explained that she had
been called earlier and told the drugs were there. She was given an opportunity to tell
the agent who the person was that called her but she did not. The agent located the bag
and confirmed the presence of what appeared to be methamphetamine. The lab test
showed that the substance was methamphetamine and weighed .8 grams.
SUFFICIENCY OF THE EVIDENCE
In her first issue, Gross contends the evidence was insufficient to support her
conviction because there were no sufficient additional independent facts and
circumstances which link her to the methamphetamine. However, the “links” rule is
used when an accused is not in exclusive possession of the place where the substance
was found. See Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005). Gross
was in exclusive possession of the pickup where the drugs were found. There were no
other occupants in that pickup.
Thus, the links rule does not apply to Gross’s
predicament.
Gross v. State
Page 2
In this case, the State was required to prove (1) Gross exercised control,
management, or care over the substance; and (2) she knew the matter possessed was
contraband. Id. at 405. The DPS agent asked Gross if she had any drugs in the pickup.
She said yes and told the agent where to find them. Methamphetamine was located
where Gross said it would be. When viewing the evidence in the light most favorable
to the prosecution, we find that any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Blackman v. State, No. PD-010910, 2011 Tex. Crim. App. LEXIS 497, *18 (Tex. Crim. App. 2011); Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Gross’s first issue is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her second issue, Gross argues she was denied reasonably effective assistance
of counsel. Gross timely filed a pro se motion for new trial alleging that her trial
counsel was ineffective for failing to interview two potential witnesses, Kevin Biddle
and Jerry Wager. A hearing was held where Gross, with newly appointed counsel,
proposed to raise additional grounds of ineffective assistance of counsel. The State
objected at the hearing, and objects on appeal, to the consideration of any additional
grounds of ineffective assistance of counsel on the basis that those grounds were not
raised within thirty days of the judgment. The State argues that Rule 21.4 of the Rules
of Appellate Procedure requires that any amended motion for new trial be filed within
thirty days of the entry of the judgment or, upon their objection, the trial court cannot
consider the allegations in the amended motion. See TEX. R. APP. P. 21.4; see also State v.
Gross v. State
Page 3
Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007). We agree. Further, the trial court
stated at the hearing that it would not rule on anything not before it.
On appeal, however, Gross raises several more grounds, in addition to the
ground of failure to interview the two potential witnesses, in support of her claim of
ineffective assistance of counsel. It is well settled that the issue of ineffective assistance
of counsel may be raised for the first time on appeal without the necessity of a motion
for new trial. See Robinson v. State, 16 S.W.3d 808 (Tex. Crim. App. 2000). We, therefore,
will consider Gross’s additional grounds raised on appeal as well as the grounds raised
in her motion for new trial.
To prevail on an ineffective-assistance claim, Gross must prove (1) counsel's
representation fell below the objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel's deficiency, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). See also Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527,
156 L. Ed. 2d 471 (2003). Both prongs must be met. See Mathis v. State, 67 S.W.3d 918,
927 (Tex. Crim. App. 2002).
Gross claims that trial counsel was ineffective for failing to interview Kevin
Biddle and Jerry Wager. These were the two people engaged in the drug deal in the
station wagon when DPS agents arrived. Biddle was the driver of the green pickup,
while Wager was the driver of the station wagon. Gross also claims that trial counsel
failed to raise objections to the DPS agent’s testimony during guilt/innocence, failed to
make an objection to misstatements by the State during closing argument, and failed to
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Page 4
make objections to the State’s presentation of two extraneous offenses during the
punishment phase of the trial. Even if we were to assume Strickland's first prong was
met, Gross failed to demonstrate with a reasonable probability, that, but for counsel's
alleged unprofessional errors, the result of the proceeding would have been different.
See Harris v. State, 34 S.W.3d 609, 618 (Tex. App.--Waco 2000, pet. ref'd). The second
prong is not met. Accordingly, Gross’s second issue is overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 28, 2011
Do not publish
[CR25]
Gross v. State
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