Walter Charles Gibson, Jr. v. The State of Texas--Appeal from Criminal District Court of Jefferson County

 

NUMBER 13-02-250-CR

 

COURT OF APPEALS

 

THIRTEENTH DISTRICT OF TEXAS

 

CORPUS CHRISTI - EDINBURG

 

WALTER CHARLES GIBSON, JR., Appellant,

 

v.

 

STATE OF TEXAS, Appellee.

 

On appeal from the Criminal District Court

of Jefferson County, Texas.

 

MEMORANDUM OPINION //

 

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Justice Castillo

A jury convicted appellant Walter Charles Gibson, Jr. of the second-degree felony offense of possession of a controlled substance. // The jury sentenced him to twenty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and imposed a $ 10,000 fine. On original submission, we held that the trial court's denial of Gibson's Batson challenge was not supported by the record and was, therefore, clearly erroneous. See Gibson v. State, 117 S.W.3d 567, 580 (Tex. App. Corpus Christi 2003), rev'd 144 S.W.3d 530 (Tex. Crim. App. 2004); Batson v. Kentucky, 476 U.S. 79, 95-96 (1986). The Texas Court of Criminal Appeals reversed, concluding that we erroneously applied the clearly erroneous standard of review. Gibson v. State, 144 S.W.3d 530, 531 (Tex. Crim. App. 2004). Consistent with the mandate of the Court of Criminal Appeals, we consider Gibson's remaining issues on remand. We conclude that Gibsons's appeal on remand is frivolous and without merit. We affirm. I. REMAINING ISSUES ON APPEAL

Aside from his two Batson issues, Gibson's court appointed appellate counsel certifies that four additional issues requested by Gibson do not present an arguable basis for reversal. The issues are whether: (1) trial counsel was ineffective because he (a) did not relay the State's plea bargain offer, (b) did not advise that prior felony convictions could be used, and (c) called Gibson's mother to testify at the penalty phase; and (2) the cocaine admitted in evidence was the substance collected at the time of his arrest. We construe the brief as an Anders brief. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. ANDERS BRIEF

Gibson s court-appointed counsel has identified in the brief four issues which he has concluded are without merit for purposes of an appeal. Counsel has certified that Gibson requested the issues be raised on appeal. Counsel has shown, in compliance with Anders, 386 U.S. at 744-45, and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978) that: (1) he has searched the complete appellate record in this case; (2) in his opinion, there is no reversible error; (3) he served Gibson with a copy of the brief; (4) he informed Gibson by letter accompanying the appellate brief that he was unable to find any points of error on which to file a brief; (5) he informed Gibson of his right to examine the entire appellate record for the purpose of filing a pro se brief; and (6) he arranged for Gibson to inspect the appellate record in this cause. Counsel has demonstrated he notified Gibson of his right to review the record and file a pro se brief if he desires to do so. // See Anders, 386 U.S. at 744-45. Gibson has not filed a pro se brief in response to his counsel's Anders assessment of the four issues. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. [Panel Op.] 1975).

A frivolous appeal brief must demonstrate why there are no arguable grounds to be advanced by providing reference to both legal precedent and pages in the record. See High, 573 S.W.2d at 812. The brief of Gibson's counsel does advance grounds of error appellant wishes to raise, but concludes they are without merit. While arguable grounds of error, if there are any, should be advanced by counsel for an indigent appellant as required by Anders, that case should not be interpreted as requiring appointed counsel to make arguments he would not consider worthy of inclusion in a brief for a paying client or to urge reversal if in fact he can find no merit in the appeal. Id. We hold that counsel s brief is not the conclusory statement involved in Anders. Id.

We have reviewed the record, as we must. Penson v. Ohio, 488 U.S. 75, 80 (1988). As part of our review under Anders, we consider the entire record. See Gearhart v. State, 122 S.W.3d 459, 464-65 (Tex. App. Corpus Christi 2004, pet. ref'd).

III. BACKGROUND //

On the evening of June 16, 1997, while on criminal interdiction patrol as part

of the Jefferson County Drug Task Force, Beaumont police officer Ricky Anderson and Texas Ranger Aaron Burleson stopped a 1989 Buick on the interstate. The vehicle lacked a rear license plate and a tail light. The traffic stop was recorded by videotape. // Gibson was the passenger in the vehicle. The driver consented to the search of his vehicle. Anderson saw Gibson "stuffing something in between the seats. It looked like a plastic bag of some sort." Officer Anderson asked Gibson if he could search the item. Gibson reached over and depressed the button to open the trunk. At Anderson's request, Gibson exited the vehicle. Anderson started the search at the area where he saw Gibson place the plastic bag. He found two "cookies" inside the plastic bag. He field-tested the substance and determined it was cocaine. The cocaine was admitted in evidence. Anderson testified the substance was not in "cookie" form because, in part, the lab crushed it to analyze it and, in part, during transportation or storage it crumbled.

Claire Eaglin, a property technician, testified as to the chain of custody of the cocaine Anderson seized. Charlyn Voight, a forensic analyst with the Jefferson County Regional Crime Lab, testified that the substance tested positive for cocaine. She testified that the testing procedure involves crushing the individual items so that the final test is a mixture of all the individual pieces. The cocaine weighed 49.03 grams.

After the State rested, Gibson's counsel requested a record outside the presence

of the jury. The colloquy between Gibson and his counsel follows:

[Counsel]: Mr. Gibson, you realize we have spoken regarding you taking the stand on your own behalf. You realize that?

[Gibson]: Yeah.

[Counsel]: You remember talking about that. And is it your wish to take the stand and testify on your own behalf?

[Gibson]: Yeah. I want to get up there and represent myself.

[Counsel]: Okay. And do you realize that when you take the stand that all your prior felonies and crimes of moral turpitude will be entered against you.

[Gibson]: Yeah, but I want it known to the Court that I'm a first offender. I've only been convicted once.

[Counsel]: Okay. But do you realize that they are going to try to prove other felonies against you?

[Gibson]: But that's what I'm saying. I did my time.

[Counsel]: But do you realize that?

[Gibson]: Yeah, I realize all of it, but I still want the jury to hear everything.

[Counsel]: And you realize it is my advise [sic] that you do not take the stand?

[Gibson]: Yeah, but I'm saying I'm a first offender.

[Counsel]: Answer my question.

[Gibson]: Yeah, I want to take the stand.

[Counsel]: Okay. You wish to take the stand and waive your right to remain silent?

[Gibson]: Yeah. I want to take the stand.

A break in the proceedings occurred to allow a bench conference to consider Gibson's request to change his plea to no contest. At the conclusion of the bench conference, Gibson decided not to change his plea. Gibson testified he realized he had the right to remain silent and wished to waive the right. He admitted he had reviewed the videotape and the discovery in his case. According to Gibson, the driver and owner of the vehicle, Kenneth Christy, picked him up in Louisiana the day before the arrest. Christy is Gibson's cousin. Gibson was staying with his sister in Louisiana. The two traveled to Houston and stayed with Christy's mother. In Houston, the two parted when Christy left to visit his children. On the return trip, they were stopped. He denied knowing Christy had drugs in the car. At the time of the stop, Gibson was asleep. When he woke up, he saw the "dope" on the console. He admitted he "pushed the stuff down" and the police saw him.

On cross-examination, Gibson admitted, "We both possessed it at the time." Gibson added:

They dropped [Christy's] case just on his word that him saying that it was mine. It's his car. He's the owner of the car. The owner supposed to know what's in his car at all times. So, by him telling the police that . . . it was mine or whatever, he's saying immediately that he knew that he was in possession of a controlled substance from the start.

 

Later, Gibson denied he possessed the cocaine. Gibson admitted he had been convicted of seven felonies and the sentences ran concurrently, including possession and distribution of cocaine, attempted armed robbery, aggravated assault, and escape. Three of the charges were cocaine related. He admitted telling the prosecutor out of the presence of the jury, "I made the statement about the cocaine that they had. I told them that the cocaine that they had was not the kind of amount of cocaine that they're saying that I had. That it was a lot less." He admitted saying that the cocaine "[did not] weigh 49.03 grams." Gibson testified that the cocaine weighed "no more than 20 grams." He testified that the cocaine admitted in evidence was not the substance seized from the vehicle. He admitted that Christy had no criminal record. Gibson admitted he fled the state after bonding out of jail.

During the penalty phase, the State adduced evidence of Gibson's flight and apprehension. Records of Gibson's convictions were admitted in evidence. Called by the defense, Gibson's mother testified that he had learning disabilities as a child and started getting in trouble after his father left the family and the parents divorced. Because she had to work to meet the family's needs, she believed her absence from home contributed to Gibson's troubles with the law. She asked the jury for leniency in punishment. She acknowledged that Gibson "was on the run."

IV. DISPOSITION

The trial court appointed substitute appellate counsel on the State's petition for discretionary review. The record contains no additional briefing. We proceed with our Anders review.

A. Independent Review of the Record

Since this is an Anders case, we independently review the record for error. See Ohio, 488 U.S. at 80; see also Gearhart, 122 S.W.3d at 464-65; Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App. Corpus Christ 2002, no pet.).

1. The Indictment

The indictment properly alleges the offense of possession of a controlled substance. See Tex. Health & Safety Code Ann. 481.115(a) (Vernon 2003). Even if errors did exist in the indictment, the error could not be raised on appeal because Gibson did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2004-05); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990) (en banc). We find no arguable error in the indictment.

2. Pre-Trial Motions

The record reflects Gibson's defense counsel filed numerous motions including motions for discovery and to suppress evidence. During the pretrial hearing, the trial court denied Gibson's Batson challenge and motion to suppress evidence of extraneous matters and flight. The trial court ruled that all "the standard and regular routine motions are granted as required by law." The trial court considered the motions, heard the arguments of counsel, and ruled. The Batson ruling has been affirmed in the Court of Criminal Appeal's opinion in Gibson, 144 S.W.3d at 531. The record does not reflect that the trial court abused its discretion in its rulings adverse to Gibson. Rulings

favorable to Gibson present nothing for review. See Tex. R. App. P. 33.1. We find no arguable error in the trial court's pre-trial rulings.

3. Voir Dire

A review of the voir dire examination shows that venire members responded to questioning by the prosecutor and defense counsel. Neither the State nor Gibson raised any challenge for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001) (en banc); see also Allen v. State, 54 S.W.3d 427, 428 (Tex. App. Waco 2001, pet. ref'd). Further, the trial court did not limit Gibson's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). The trial court properly overruled the Batson challenge. See Gibson, 144 S.W.3d at 531. We find no arguable error in the voir dire.

4. Opening Statements

 

A prosecutor's opening statement is authorized by article 36.01(a)(3) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(3) (Vernon Supp. 2004-05). The opening statement should inform the jury of the nature of the accusation and the facts that the State expects to prove. See Taylor v. State, 947 S.W.2d 698, 706 (Tex. App. Fort Worth 1997, pet. ref'd) (per curiam). If improper statements were made, an appellate court must determine whether the impropriety constitutes reversible error. Herrera v. State, 915 S.W.2d 94, 97 (Tex. App. San Antonio 1996, no writ.). We view the improper statements in conjunction with the record as a whole, and ascertain whether the statement was so prejudicial as to deny an appellant a fair trial. Id. Similarly, the defendant has the right to make an opening statement. See Tex. Code Crim. Proc. Ann. art. 36.01(b) (Vernon Supp. 2004-05).

The State presented its opening statement. Gibson, by choice, did not. Gibson's counsel objected to one statement during the culpability phase on the basis of admissibility of the evidence of Gibson's flight and apprehension. The trial court sustained the objection. However, Gibson admitted at trial he fled and did not return voluntarily. Harm, if any, was cured because the evidence came in elsewhere. See Tex. R. App. P. 44.2; see also Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). We find no arguable error in the prosecution's opening statement.

5. Sufficiency of the Evidence

a. Standards of Review

(1). Legal Sufficiency

A legal-sufficiency challenge calls for appellate review of the relevant evidencein the light most favorable to the prosecution. Jackson v.Virginia, 443 U.S. 307, 319 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legalsufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim.App. 2001).

In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v.State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (en banc) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3dat 7.

If we reverse a criminal case for legal insufficiency following a jury trial, we

reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

(2). Factual Sufficiency

We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App. Corpus Christi 2002, pet. ref'd). We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. The Texas Court of Criminal Appeals has restated the factual sufficiency standard of review:

There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

 

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, No. AP-74,487, 2005 Tex. Crim. App. LEXIS 110, at *16-*17 (Tex. Crim. App. January 26, 2005).

When the State bears the burden of proof, the proof of guilt is factually insufficient if it is so obviously weak as to indicate that a manifest injustice has occurred or if it is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of the light most favorable to the prosecution. Johnson, 23 S.W.3d. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder s role as the sole judge of the weight and credibility given to witness testimony. Id. We must consider the most important evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We always remain aware of the fact finder s role and unique position, a position we are unable to occupy. Johnson, 23 S.W.3d at 9. Exercise of our authority to disagree with the fact finder s determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder s determinations, particularly those concerning the weight and credibility of the evidence. Id. Absent exceptional circumstances, issues of witness credibility are for the jury, and we may not substitute our view of the credibility of a witness for the constitutionally guaranteed jury determination. Johnson, 23 S.W.3d at 9.

Every fact need not point directly and independently to the accused s guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak and manifestly unjust or the contrary evidence is so strong that the

standard of proof beyond a reasonable doubt could not have been met. Prible, 2005 Tex. Crim. App. LEXIS 110, at*17.

In conducting a factual sufficiency review, we review all the evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). In the opinion, we "show our work" when we consider and address the appellant s main argument for urging insufficiency of the evidence. Tex. R. App. P. 47.1; Sims, 99 S.W.3d at 603 ("A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal."). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603.

If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency so a second jury has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.

b. Elements of the Offense Possession of a Controlled Substance

In possession of controlled substance cases, the two following evidentiary requirements must be satisfied: first, the State must prove the defendant exercised actual care, control and management over the contraband; and, second, that he had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995) (en banc). The term "controlled substance" includes the "aggregate weight of any mixture, solution, or other substance containing a controlled substance." Tex. Health & Safety Code Ann. 481.002(5) (Vernon Supp. 2004-05). The State has to prove only that the aggregate weight of the controlled substance mixture, including adulterants and dilutants, equals the alleged minimum weight. Melton v. State, 120 S.W.3d 339, 344 (Tex. Crim. App. 2003). Expert witness testimony regarding the nature of the controlled substances based upon visual observation is proper evidence. See Tex. R. Evid. 702; see Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (en banc).

The mere presence of the accused at a place where contraband is located does not make him a party to joint possession, even if he knows of the contraband's existence. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982). Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner, and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. 1982). When an accused is not in exclusive possession and control of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App.1995) (en banc). Similarly, when the contraband is not found on the accused's person, or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App. El Paso 1995,pet. ref'd). The affirmative links doctrine is the appropriate means of applying the Jackson rationality standard of appellate review. Jackson, 443 U.S. at 319; Martinets v. State, 884 S.W.2d 185, 188 (Tex. App. Austin 1994, no pet.). Various factors may be considered when determining whether the evidence is sufficient to affirmatively link the accused with the contraband. The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Jones v. State, 963 S.W.2d 826, 830 (Tex. App. Texarkana 1998, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App. Houston [1st Dist.] 1994,pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App. Houston [1st Dist.] 1994, pet. ref'd).

Gaps in the chain of custody generally go to the weight and credibility of the evidence in question, not its admissibility. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997) (en banc); Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989) (en banc); Alvarez v. State, 857 S.W.2d 143, 147 (Tex. App. Corpus Christi 1993, pet. ref'd). Tagging an item of physical evidence at the time of its seizure and then identifying it at trial based upon the tag will support admission of the evidence barring any showing of tampering or altercation. Stoker, 788 S.W.2d at 10.

c. Sufficiency Analysis

(1). Legal Sufficiency

Viewed in the light most favorable to the verdict, the testimony of the arresting officer and technicians established the proper chain of custody of the cocaine from its seizure at the traffic stop to its appearance in the courtroom on the day of Gibson's trial. The arresting officer testified to each of the elements of the offense of possession of a controlled substance. He viewed the plastic bag in the vehicle, and saw Gibson take the bag in his hand and conceal it. The police technician and forensic analyst testified about the chain of custody. The forensic analyst testified that the substance was cocaine and weighed 49.03 grams. Further, Gibson admitted that he saw the controlled substance, took it, and concealed it. Gibson admitted that the arresting officer saw him take the bag in his hand. Gibson admitted he fled the state after his arrest. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) (en banc) (inference of guilt may be drawn from flight).

Viewing the relevant evidence favorably to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7; Malik, 953 S.W.2d at 240.

(2). Factual Sufficiency

Additional evidence, viewed in a neutral light, showed that Gibson denied the cocaine was his. He denied knowing his cousin Christy had the cocaine in the vehicle. Gibson admitted he became aware of the controlled substance when he awoke after the traffic stop. Finally, Gibson admitted he had been convicted before for drug-related offenses. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Gibson, and with appropriate deference to the jury's credibility determinations, we conclude: (1) the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt; and (2) the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof. Zuniga, 144 S.W.3d at 484-85; Adi, 94 S.W.3d at 131. The evidence is legally and factually sufficient to sustain the conviction. Accordingly, we find no arguable error in the sufficiency of the evidence.

6. The Charge

The record does not show that Gibson objected to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc) (op. on reh'g). We find no arguable egregious error in the charge.

7. Closing Argument

Gibson did not object to the State's closing argument during either phase of the trial. Thus, Gibson did not preserve any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc); see also Limas v. State, 941 S.W.2d 198, 203 (Tex. App. Corpus Christi 1996, pet. ref'd). We find no arguable error in the prosecutor's jury argument.

8. Punishment Phase

The record shows that Gibson objected to extraneous evidence including flight after the guilty verdict. The trial court overruled the objection. The standard of review for a trial court's ruling under the rules of evidence is abuse of discretion. Sauceda v. State ,129 S.W.3d 116, 120 (Tex. Crim. App. 2004). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. Id. Because Gibson admitted during the culpability phase that he fled once he posted the bond, we cannot conclude that the trial court abused its discretion in allowing the evidence of flight.

The record does not establish that Gibson objected to the imposition of punishment. We conclude that he did not preserve any error as to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. // See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). We find no arguable error in the sentencing proceedings.

9. Ineffective Assistance of Counsel

Gibson asserts that counsel was ineffective because he (a) did not relay the State's plea bargain offer, (b) did not advise that prior felony convictions could be used, and (c) called Gibson's mother to testify at the penalty phase.

A claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (per curiam) (en banc). An appellant must show: (1) his counsel's performance fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would be different. McFarland v. State, 845 S.W.2d 824, 842 (Tex. Crim. App. 1992) (en banc). When determining the validity of a defendant's claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (en banc). We presume counsel's performance was the result of sound or reasonable trial strategy. Strickland v. Washington, 466 U.S. 668, 688 (1984); see Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc). We will not base a finding of ineffectiveness on speculation. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. Houston [1st Dist.] 1996, no pet.).

When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) (en banc) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

After the State rested its case during the culpability phase of the trial, Gibson's

counsel asked for leave of court and was granted the opportunity to make a record before Gibson testified in his own defense. During the proceeding, Gibson admitted that counsel relayed the State's plea bargain offer. The record of the proceeding also shows that counsel explained to Gibson that the State was "going to try to prove other felonies" against him. Gibson acknowledged he was aware and responded, "But that s what I m saying. I did my time." The record shows that Gibson elected to testify at trial, against the advice of counsel. Although Gibson s mother testified at the penalty phase of the trial, she asked the jury for leniency in punishment.

The record contains no evidentiary support for Gibson's claims of ineffective assistance of counsel. Gibson has not rebutted the presumption he was adequately represented. See Strickland, 466 U.S. at 688. Thus, on this record, we conclude that Gibson has failed to establish that his trial counsel was ineffective. // V. CONCLUSION

Accordingly, our independent review of the record concludes that Gibson's appeal is frivolous. We conclude that this appeal is without merit. See Penson, 488 U.S. at 80; see also Martin v. State, No. 13-02-118-CR, 2003 Tex. App. LEXIS 10181, at *3 (Tex. App. Corpus Christi Dec. 4, 2003, no pet. h.). We affirm the judgment and sentence of the trial court.

VI. MOTION TO WITHDRAW

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). Substitute appellate counsel in this case has not requested to withdraw from further representation of Gibson on appeal. We hereby order counsel to advise Gibson promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. See Martin, 2003 Tex. App. LEXIS 10181, at *4.

ERRLINDA CASTILLO

Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this 28th day of April, 2005.