Mickle A. Nelson v. State

NO. 07-03-0179-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL E MARCH 15, 2004 ______________________________ MICKLE A. NELSON, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2002-401,159; HON. JIM BOB DARNELL, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN and REAVIS, JJ., and BOYD, S.J. (1) Appellant Mickle A. Nelson contests his conviction for possessing a controlled substance (cocaine). Through two issues, he contends that the evidence was both legally and factually insufficient to support the conviction. We affirm the judgment of the trial court. Appellant was indicted for the offense of possessing, with intent to deliver, a controlled substance. However, the trial court incorporated into its jury charge the lesser included offense of simple possession. See Hanks v. State, 104 S.W.3d 695, 699 -700 (Tex. App.-El Paso 2003, pet. granted in part) (stating that simple possession is a lesser- included offense of possession with intent to deliver). Neither party objected to the trial court's action. Thereafter, the jury found appellant guilty of the lesser offense. By failing to object to the inclusion of the lesser-included offense in the jury charge, an appellant is estopped from complaining on appeal that the evidence is legally or factually insufficient to support the verdict. Jaramillo v. State, No. 07-00-0077-CR, 2000 Tex. App. Lexis 7697 at 2-3 (Tex. App.-Amarillo November 13, 2000, pet. ref'd); Otting v. State, 8 S.W.3d 681, 686-87 (Tex. App.-Austin 1999, pet. ref'd); Reaves v. State, 970 S.W.2d 111, 118 (Tex. App.-Dallas 1998, no pet.); Bisco v. State, 964 S.W.2d 29, 30 (Tex. App.-Tyler 1997, pet. ref'd); Taylor v. State, 947 S.W.2d 698, 702 (Tex. App.-Fort Worth 1997, pet. ref'd); see Tamez v. State, 865 S.W.2d 518, 519-20 (Tex. App.-Corpus Christi 1993, pet. ref'd) (applying the rule to issues involving legal sufficiency). Here, appellant did not object to the inclusion of the lesser offense below. Thus, he cannot now question either the legal or factual sufficiency of the evidence underlying his conviction. Id. Nevertheless, we reviewed the evidence of record and find it both legally and factually sufficient to illustrate that he knowingly possessed the cocaine found in the car. Though appellant was a passenger, the 13 cocaine rocks were found in a plastic gray case sticking out between the seat and the center armrest on the passenger side of the vehicle. Furthermore, appellant had on his person a crack cocaine pipe. So too were two marijuana cigarette butts found in the car ashtray, and the arresting officer noted the smell of burned marijuana in the vehicle before making the arrests. The smell of marijuana, the presence of marijuana cigarette butts within appellant's reach, the presence of a large amount of crack cocaine next to appellant (as opposed to the driver of the car) and appellant's possession of a device used to ingest contraband of the ilk discovered are affirmative links upon which a jury could conclude beyond reasonable doubt that appellant knowingly possessed the cocaine. And, though other evidence illustrated that the driver may have possessed the contraband, it was not so weighty as to overwhelm that which also linked appellant to the drug. Accordingly, we overrule both issues and affirm the judgment. Brian Quinn Justice Do not publish. 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004). brough, "We could see, you know, if [Yarbrough] could come and pick up Bonnie [Rodriguez]," and then asked Rodriguez "if [Rodriguez] wanted to go somewhere." According to Rodriguez, appellant was aware that Yarbrough was looking for "some stuff" which Rodriguez understood meant drugs. Williamson testified that after Rodriguez returned with the cocaine, appellant suggested everyone go inside to avoid possible police surveillance. Without considering Yarbrough's testimony, we conclude that, viewed in the light most favorable to the verdict, the remaining evidence tends to connect appellant with the offense. Thus, the evidence is sufficient to corroborate Yarbrough's testimony as required by art. 38.141. We next review the evidence, including Yarbrough's testimony, for legal sufficiency. Scott Williams, a chemist with the Texas Department of Public Safety's laboratory, testified that the substance sold to Williamson contained 1.64 grams of cocaine, a second degree felony amount. See Tex. Health & Safety Code Ann. § 481.112(c) (Vernon 2003). Yarbrough testified that appellant told her during the phone call arranging the transaction that, "I don't have any stuff, but I can make a phone call and I can get you some." Appellant also arranged for Yarbrough to let Rodriguez borrow Yarbrough's car. Yarbrough testified that she did not deal directly with Rodriguez initially because she was more comfortable with appellant, and knew appellant could get her the cocaine. Finally, Yarbrough testified that she believed Rodriguez was acting under appellant's control. Considering this evidence in the light most favorable to the jury's verdict, we conclude that the evidence was sufficient to allow a rational jury to find the essential elements of the offense alleged beyond a reasonable doubt. (3) See Jackson, 443 U.S. at 319; Clewis, 922 S.W.2d at 132. Therefore, the evidence was legally sufficient to support the jury's verdict. We next review the evidence for factual sufficiency. In doing so, we review all of the evidence in a neutral light to determine whether a rational jury could have found appellant guilty beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. In addition to evidence we have previously noted, Rodriguez testified that appellant did not direct her to get the cocaine. She claimed that the transaction was her doing, and pled guilty to the offense. However, the jury is the final judge of the weight and credibility of the evidence. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). We will not consider a jury's findings unjust because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410. Hence, the jury could have resolved the conflicting testimony by discounting Rodriguez's testimony minimizing appellant's role in the transaction and believing the evidence portraying appellant as being in control of the transaction. Our review of the evidence leads us to conclude that (1) the evidence supporting the verdict was not too weak to support a finding of guilt beyond a reasonable doubt, and (2) the evidence contrary to the verdict was not so strong that the jury could not have found appellant guilty beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. That being so, the evidence was factually sufficient. Id. We overrule appellant's first issue. ISSUE TWO: INEFFECTIVE ASSISTANCE OF COUNSEL By his second issue, appellant contends that his trial counsel provided ineffective assistance by failing to (1) object to prosecutorial remarks during voir dire and closing; (2) object to remarks of the presiding judge; (3) request a directed verdict; (4) request a mistrial; (5) request a new trial; and (6) request probation from the judge after the jury returned its verdict on punishment. A claim of ineffective assistance of counsel requires appellant to show (1) that counsel's performance was so deficient that counsel was not functioning as the "counsel" guaranteed under the Sixth Amendment, and (2) that counsel's deficient performance prejudiced appellant, depriving him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). To prevail in a claim of ineffective assistance of counsel, appellant must prove both prongs of Strickland by a preponderance of the evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). To successfully present an argument that counsel was ineffective because of a failure to object to the State's questioning and argument, appellant must show that the trial court would have committed error in overruling such objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996) (en banc). Appellant does not contend that the trial court would have erred in overruling an objection to the challenged prosecutorial comments. He simply claims that the statements were manifestly improper. This contention does not present anything for review. Id. Further, although appellant claims that comments by the trial judge explaining why he was sitting by assignment were prejudicial, he fails to cite supporting authority for his contention or explain his failure to do so. See Tex. R. App. P. 38.1(h); Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000) (argument that fails to cite supporting authority presents nothing for review). This contention presents nothing for review. Appellant's proposition that trial counsel should have moved for a directed verdict or new trial relies on the assumption that Yarbrough's testimony was inadequately corroborated and that the evidence was legally and factually insufficient to support a guilty verdict. However, we have previously determined that Yarbrough's testimony was corroborated and that the evidence was sufficient to support the conviction. Hence, appellant has not shown that he would have been entitled to a directed verdict or new trial and that trial counsel's performance prejudiced his defense. See Charleston v. State, 33 S.W.3d 96, 101 (Tex.App.-Texarkana 2000, pet. ref'd). Regarding trial counsel's failure to request a motion for mistrial or to request probation from the trial judge after the jury's verdict, appellant does not demonstrate or contend that there was a reasonable probability that either a mistrial or probation would have been granted. He has not shown that but for counsel's action the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (en banc); Miranda v. State, 993 S.W.2d 323, 329 (Tex.App.-Austin 1999, no pet.). Appellant has failed to show prejudice from trial counsel's representation. Hence, he has not met his burden to show ineffective assistance of counsel. See McFarland, 928 S.W.2d at 500. We overrule his second issue. Having overruled appellant's two issues, we affirm the judgment of the trial court. Phil Johnson Chief Justice Do not publish. 1. " " - 2. " " 3. § § §