Jesse Dan Cates v. State of Texas

11th Court of Appeals 11th Court of Appeals Eastland, Texas Opinion Jesse Dan Cates Appellant Vs. No. 11-01-00090-CR B Appeal from Stephens County State of Texas Appellee A jury convicted Jesse Dan Cates of possession of a controlled substance in a drug-free zone and assessed his punishment at 25 years confinement and a $10,000 fine. We affirm. Appellant asserts the following points of error: (1) the trial court erred in denying the amended motion to suppress evidence and in refusing to allow appellant to put on witnesses in connection with the hearing; (2) trial counsel provided ineffective assistance by failing to file a motion to identify informant and by failing to have a full hearing to disclose the identity of the informant; (3) trial counsel provided ineffective assistance by failing to preserve the testimony of witnesses in support of the motion to suppress; and (4) the evidence is insufficient to prove that appellant had possession and control of over 4 grams of a controlled substance. In his first point of error, appellant argues that the trial court erred in denying his motion to suppress evidence and in refusing to allow him to put on witnesses in connection with the hearing. We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763 (Tex.Cr.App.2002). We reverse the trial court=s decision only when it applied an erroneous legal standard or when no reasonable review of the record could support the trial court=s conclusion under the correct law and the facts viewed in the light most favorable to its legal conclusion. Williams v. State, 37 S.W.3d 137, 140 (Tex.App. B San Antonio 2001, pet=n ref=d). The affidavit supporting the search warrant reveals the following information: (1) a confidential informant visited appellant=s home within 72 hours of the affidavit being made and observed Donnie Hope and Willie Cates in possession of an off-white powder that Hope purported to be methamphetamine; (2) the affiant, Marty Baker, an agent with the West Central Texas Interlocal Crime Task Force, had known the confidential informant for 3 years; and (3) the informant had provided information to the affiant in the past which had always proven to be true. At the suppression hearing, appellant offered no evidence to contradict the allegations in the affidavit. Probable cause to support the issuance of a search warrant exists where the facts given to the magistrate are sufficient to justify the conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Ramos v. State, 934 S.W.2d 358, 363 (Tex.Cr.App.1996). The allegations are sufficient, and the trial court did not abuse its discretion in denying the motion to suppress. Additionally, TEX. CODE CRIM. PRO. ANN. art. 28.01, ' 1(6) (Vernon 1989), provides that, in conducting a hearing on a motion to suppress, a trial court may determine the merits of the motion by considering the motion standing alone, by considering the motion plus affidavits, or by considering the motion plus oral testimony. State v. Brunner, 917 S.W.2d 103, 105 (Tex.App. - San Antonio 1996, pet=n ref=d). The three methods of consideration exist independently of one another. State v. Brunner, supra at 105. The trial court had discretion as to what to consider in determining the merits of the motion to suppress. The refusal of the trial court to require witnesses to testify at the hearing was within the trial court=s discretion. The first point of error is overruled. In his next two points, appellant argues that trial counsel provided ineffective assistance of counsel. In his second point of error, appellant argues that trial counsel was ineffective by failing to file a motion to identify the informant and by failing to have a hearing to disclose the identity of the informant. When confronted with a claim of ineffective assistance of counsel, this court applies the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong of the Strickland test requires appellant to show that his counsel=s performance was Adeficient.@ Strickland v. Washington, supra at 687. A showing that counsel was deficient requires a showing that the representation fell below an objective standard of reasonableness. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000). The second prong of the Strickland test requires appellant to show that there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Tong v. State, supra at 712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra at 694. There is a strong presumption that counsel=s actions fell within the wide range of reasonable professional assistance. Strickland v. Washington, supra at 690. Appellant has the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The appellate court looks at the totality of the representation in reviewing a claim of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App.1999); McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993). TEX.R.EVID. 508(c)(2) provides that an in-camera hearing regarding a confidential informant=s identity is required if the defendant makes a plausible showing that the informant=s information is necessary to a fair determination of his guilt or innocence. Appellant must show that the informant=s testimony will significantly assist him. Bodin v. State, 807 S.W.2d 313, 318 (Tex.Cr.App.1991). However, mere supposition about the relevance of the potential testimony is insufficient. Bodin v. State, supra at 318. There was no affirmative showing that the informant=s potential testimony would significantly aid in the determination of appellant=s guilt or innocence. Therefore, appellant was not entitled to learn the identity of the informant. Counsel did not provide ineffective assistance by failing to request that the identity of the informant be disclosed. The second point of error is overruled. In his third point of error, appellant argues that trial counsel provided ineffective assistance by failing to put testimony of witnesses in support of the motion to suppress in the record by offer of proof or other means. Appellant does not bring forth on appeal what that testimony was. He only complains that trial counsel erred in not offering it. This is not a proper ineffective assistance challenge. This is a type of informal fallacy that logician=s refer to as petitio principii (begging the question). This fallacy occurs whenever a person asks a question which presupposes the truth of some conclusion inferred by the question. DOUGLAS LIND, LOGIC AND LEGAL REASONING 276 (2001). Without evidence of what the potential witnesses would have testified to, this court cannot determine either prong of the Strickland standard for review. We cannot assume, as the issue on appeal would have us infer, that the testimony which trial counsel failed to elicit at the motion to suppress hearing would have made the search invalid. Without knowing what that evidence was, we cannot assume trial counsel erred in not offering it. Appellant=s third point of error is overruled. In his fourth point of error, appellant argues that the evidence is insufficient to prove that he had possession and control of over four grams of a controlled substance. The standard of review for legal sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). In reviewing factual sufficiency claims, we review all of the evidence in a neutral light to determine if the verdict is clearly wrong and manifestly unjust or against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, supra at 129. In order to establish the unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband; and (2) that the accused knew the matter possessed was contraband. Joseph v. State, 897 S.W.2d 374, 376 (Tex.Cr.App.1995); Davis v. State, 855 S.W.2d 855, 856 (Tex.App. - Eastland 1993, no pet=n). Appellant was lying on the couch in his living room when the police entered his home on the morning of February 19, 1999. Officer Jeremy Blackman testified that, when appellant asked if he could put his overalls on, Stephens County Sheriff James Reeves searched them. Sheriff Reeves found a cigarette package in the bib pocket of the overalls which contained several baggies full of a hard, off-white substance, later discovered to contain methamphetamine. The overalls were located right next to the couch where appellant had apparently been sleeping when the search warrant was executed. Sheriff Reeves said that appellant had lived in the house for a long time. Appellant had been seen in bib overalls repeatedly. Don Taylor, a chemist at the Texas Department of Public Safety (DPS) crime laboratory in Abilene, testified that the contents of the baggies in the cigarette package found in appellant=s overalls were analyzed and found to contain 5.46 grams of methamphetamine. Taylor performed two preliminary spot tests and one conclusive instrumental test on the substance in the baggies. When the accused is not in the exclusive control of the place in which the substance was found, it cannot be concluded that he had knowledge and control of it unless there are additional circumstances that affirmatively link the accused to the contraband. Guiton v. State, 742 S.W.2d 5, 8 (Tex.Cr.App.1987). However, a substance=s convenient accessibility to the accused can be sufficient to establish his knowledge, possession, and control. Joseph v. State, supra at 376. Appellant referred to the clothing where the drugs were found as Ahis@ overalls, and they were located next to where he had apparently been sleeping prior to the search. Additionally, appellant=s wife, Willie, said that the overalls belonged to appellant. The evidence is both legally and factually sufficient to support the judgment. The fourth point of error is overruled. The judgment of the trial court is affirmed. PER CURIAM May 30, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and McCall, J., and Dickenson, S.J.[1] [1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.