Kevin Damon Neal v. State of Texas

11th Court of Appeals Eastland, Texas Opinion Kevin Damon Neal Appellant Vs. No. 11-01-00239-CR C Appeal from Dallas County State of Texas Appellee The jury convicted appellant of possession of cocaine with intent to deliver. The trial court assessed punishment at 6 years confinement and a $5,000 fine. We affirm. There is no challenge to the sufficiency of the evidence. The record shows that on November 9, 2000, Dallas police officers executed a search warrant at 8350 Park Lane, Apartment No. 361 in Dallas County. Upon entering the apartment, the officers found two individuals in the bedroom and found appellant on the balcony of the apartment. Appellant was lying on his stomach on the floor of the balcony and around him were several baggies of crack cocaine, loose rocks of crack cocaine, and a broken plate. Officers who were in the parking lot of the apartment complex observed appellant come out onto the balcony carrying a plate, and they saw him throw small objects. The officers recovered 17 baggies containing crack cocaine that appellant threw from the balcony. In his sole point of error, appellant complains that he received ineffective assistance of counsel. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991). Appellant specifically argues that his trial counsel was ineffective in failing to Apursue a challenge of evidence recovered pursuant to an invalid search warrant.@ Appellant contends that the search warrant was invalid because the supporting affidavit did not state any time frame during which the offense occurred. The trial court, in determining whether a probable cause affidavit sufficiently supports a search warrant, examines the totality of the circumstances and gives great deference to the magistrate's decision to issue the warrant. Ramos v. State, 934 S.W.2d 358, 362‑63 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1198 (1997); State v. Duncan, 72 S.W.3d 803 (Tex.App. ‑ Fort Worth 2002, pet=n dism=d); Saunders v. State, 49 S.W.3d 536, 542 (Tex.App. ‑ Eastland 2001, pet=n ref'd). In determining whether probable cause exists to issue a warrant, a magistrate may draw reasonable inferences from the affidavit and must interpret the affidavit in a common-sense and realistic manner. Ramos v. State, supra. The allegations in the affidavit are sufficient if they would "justify a conclusion that the object of the search is probably on the premises." Ramos v. State, supra at 363. The affidavit states that: It is the belief of Affiant, and he hereby charges and accuses, that: The subject described in paragraph #3[1] did on the 7th day of November, 2000 in the City of Dallas, Dallas County, Texas possess a controlled substance, to wit: Cocaine at 8350 Park Lane #361. Affiant has probable cause for said belief by reason of the following facts: Affiant, A. D. Gipson #4420, is employed as a detective by the City of Dallas Police Department and is currently assigned to the Narcotics Division. On November 7, 2000, the Affiant received information from a confidential informant that the informant had been to the location described in paragraph above and seen the subject described in paragraph #3 above in possession of and selling cocaine. The Affiant knows from past dealings with the informant that the informant is familiar with the appearance and packaging of the drug cocaine. The informant stated that he/she had been inside the location within the past 24 hours, and also that he/she had been inside the location on previous occasions and seen the subject in paragraph #3 in possession of and selling cocaine. Appellant argues that the affidavit does not state when the informant saw the subject in possession of cocaine. Officer Gipson stated in his affidavit that he believed the subject to be in possession of cocaine on November 7, 2000, because of information received that same day from a reliable confidential informant. We find that the affidavit alleges facts from which the magistrate could have found that cocaine was on the premises. Ramos v. State, supra. Therefore, trial counsel was not ineffective in failing to challenge the validity of the search warrant. See McFarland v. State, 845 S.W.2d 824, 846 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993). Moreover, in a pretrial motion, appellant=s trial counsel requested a Ahearing outside the presence and hearing of the jury to determine the admissibility of any physical evidence recovered during the investigation of this case.@ There was not a hearing conducted at trial. The record is silent as to why appellant=s trial counsel did not request a hearing on the admissibility of the evidence at trial. Appellant has not overcome the presumption that his trial counsel=s decision was based upon sound trial strategy. Thompson v. State, 9 S.W.3d 808 (Tex.Cr.App.1999). Appellant=s sole point of error is overruled. The judgment of the trial court is affirmed. TERRY McCALL JUSTICE October 10, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]Appellant is not the subject described in Paragraph No. 3 of the affidavit.