R. B. Ethridge v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-94-312-CR R. B. ETHRIDGE, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT NO. 39,878, HONORABLE JOE CARROLL, JUDGE PRESIDING PER CURIAM A jury found appellant guilty of possessing cocaine. Controlled Substances Act, 71st Leg., R.S., ch. 678, sec. 1, § 481.115, 1989 Tex. Gen. Laws 2230, 2936 (Tex. Health & Safety Code Ann. § 481.115, since amended). The jury assessed punishment, enhanced by two previous felony convictions, at imprisonment for life. (1) On the afternoon of January 16, 1991, Temple police officer Danny Wills was told by a reliable confidential informer that a man in a white Buick had shown the informer a quantity of crack cocaine and told the informer that he would be selling the cocaine at the Wayman Manor Apartments. At about the same time, a second Temple police officer, William Dorsey, was told by another reliable confidential informer that appellant was selling crack cocaine from a white Buick parked at the Wayman Manor Apartments. Dorsey, Wills, and other officers drove to the apartment complex and found in the parking lot a white Buick occupied by appellant and another man. A third man was standing beside the car and fled when the officers arrived. Dorsey said this man appeared to be putting something in his mouth as he ran. Dorsey instructed appellant to exit the car. The officer frisked appellant, making sure to shake his pants legs. Dorsey then moved appellant aside and saw a small foil-wrapped object lying on the ground beside appellant's leg. The officer seized this object, which was shown to contain cocaine. Dorsey testified that he examined the ground before frisking appellant and saw nothing there. Appellant contends the evidence is legally insufficient to sustain the conviction. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). Appellant urges that the evidence merely shows that he was present when the contraband was found and that there is no evidence affirmatively linking him to the cocaine. Appellant notes that other persons were in the parking lot on the afternoon in question and argues that another person may have dropped the foil of cocaine on the ground. (2) Dorsey testified that he examined the ground before frisking appellant and saw nothing. Because we must view the evidence in the light most favorable to the verdict, this testimony excludes any reasonable possibility that the cocaine was lying in the parking lot before appellant was frisked. After the frisk, the cocaine was discovered on the ground beside appellant's leg. From these circumstances, a rational trier of fact could conclude beyond a reasonable doubt that the cocaine fell from appellant's pants. The evidence is sufficient to establish appellant's personal possession of the cocaine. See Williams v. State, 784 S.W.2d 428 (Tex. Crim. App. 1990); Joshua v. State, 696 S.W.2d 451, 455 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd). Point of error three is overruled. In two points of error, appellant contends the cocaine was seized following an unlawful arrest and search and that the district court erred by overruling his motion to suppress. When the cocaine was offered in evidence at trial, appellant stated, "No objection." This waived his claim that the evidence was inadmissible. Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992). Points of error one and two are overruled. Finally, appellant claims that his attorney at trial was ineffective because, at the suppression hearing, he did not argue all grounds alleged in the motion to suppress. In addition, appellant complains of counsel's failure to call Mitzie Avera to testify at trial. Appellant must show that these errors were of such a serious nature that counsel was not functioning effectively as counsel and that they prejudiced appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see 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). The record is silent as to why counsel chose to argue only an alleged lack of probable cause at the suppression hearing. The record reflects that counsel interviewed Avera and did not call her to testify at trial because he was of the opinion that her testimony was not necessary. (3) There is no evidence that either decision by counsel was outside the wide range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994). Points of error four and five are overruled. The judgment of conviction is affirmed. Before Justices Powers, Aboussie and B. A. Smith Affirmed Filed: January 25, 1995 Do Not Publish 1. We previously affirmed this conviction in an unpublished opinion. Ethridge v. State, No. 3-91-287-CR (Tex. App.--Austin Feb. 5, 1992, no pet.). The Court of Criminal Appeals later granted appellant a second appeal. Ex parte Ethridge, No. 71,828 (Tex. Crim. App. Apr. 20, 1994) (not designated for publication). Appellant represents himself, having knowingly and voluntarily waived counsel. 2. This cause was tried before the abandonment of the reasonable alternative hypothesis construct. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). 3. Avera was a newspaper reporter who wrote a brief article about appellant's arrest. Appellant contends that her article conflicts with Dorsey's testimony with regard to certain details.