David Zapata Reyes v. The State of Texas--Appeal from 119th District Court of Tom Green County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-308-CR
DAVID ZAPATA REYES,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

 
NO. CR93-0088-B, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of delivering (three counts) and possessing (one count) cocaine. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, 481.112, .115, 1989 Tex. Gen. Laws 2230, 2935-36 (Tex. Health & Safety Code Ann. 481.112, .115, since amended). For the delivery counts, the jury assessed terms of imprisonment of twenty-five, thirty-five, and thirty-seven years, plus fines of $3000 per count. For the possession count, the jury assessed punishment at imprisonment for ten years and a $1000 fine.

Appellant contends the evidence is legally insufficient to sustain the delivery convictions because the undercover officer to whom the deliveries were made did not identify appellant as the person who made the sales. He also contends his trial counsel was ineffective because he did not move for an instructed verdict on the three delivery counts based on the alleged lack of identification.

 

The officer, Teofilo Garcia, was questioned by the prosecutor:

 

Q Do you know the defendant in this case, David Zapata Reyes?

 

A Yes, sir, I do.

 

Q Would you please point him out to the jury and tell the jury what he's wearing?

 

A He's the man seated right next to the defendant [sic] and he has the tan slacks and the white shirt.

 

Mr. Smith: Your Honor, I would like the record to reflect that the witness has identified the defendant in the case.

 

The Court: The record will so reflect.

 

Garcia went on to testify that he purchased cocaine from Reyes on three occasions. Appellant argues that Garcia did not identify him, but the person sitting next to him, as the David Zapata Reyes who sold the cocaine.

Appellant's argument would have more weight if Garcia had merely stated that David Zapata Reyes was the man seated next to the defendant. But he also described Reyes's clothes. In the absence of evidence that anyone else was wearing tan slacks and a white shirt, we assume that the district court relied on this description when he indicated for the record that Garcia identified the defendant, our appellant. Under the circumstances, we further assume that Garcia misspoke when he said that Reyes was sitting next to the defendant. We conclude that the evidence is legally sufficient to support the jury's determination that appellant is the David Zapata Reyes who sold cocaine to the undercover officer. See Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). It follows that defense counsel was not ineffective for failing to move for an instructed verdict on that basis.

In his brief, appellant lists three other errors he claims his counsel made at trial. He later concedes, however, that these alleged errors do not meet both prongs of the Strickland test for ineffectiveness. Strickland v. Washington, 466 U.S. 668 (1984); and see Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). We agree with this concession, and add that at least two of the three "errors" were not errors at all. (1) We find no basis in the record for concluding that trial counsel was not functioning effectively.

Points of error one and two are overruled. The judgments of conviction are affirmed.

 

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: January 25, 1995

Do Not Publish

1. Appellant complains that his attorney failed to preserve for review the overruling of his motion to suppress evidence. Contrary to appellant's contention, it was not necessary for counsel to object to the introduction of the evidence before the jury in order to preserve the district court's order for review. As for counsel's failure to make an opening statement, we find that this was trial strategy.