Cornelus Issac Johnson v. State

Affirmed and Memorandum Opinion filed November 25, 2008 Affirmed and Memorandum Opinion filed November 25, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00826-CR ____________ CORNELUS ISSAC JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1080969 M E M O R A N D U M   O P I N I O N Appellant, Cornelus Issac Johnson, was charged with possessing a controlled substance, specifically cocaine, weighing at least 400 grams, with the intent to deliver. He was later convicted by a jury, and punishment, enhanced by two prior felony convictions, was assessed by the trial court at 50 years in prison. In five issues, appellant challenges the legal and factual sufficiency of the evidence and contends that he received ineffective assistance of counsel. We affirm. I.  BACKGROUND After being arrested in an unrelated drug case, Bradford Lee became a confidential informant for the Texas Department of Public Safety (ADPS@). Sergeant John Hart of DPS testified that Lee assisted him in a number of criminal investigations, and Lee proved to be credible and reliable. On August 17, 2006, Sergeant Hart orchestrated a controlled drug deal between Lee and appellant wherein Lee would purchase 18 ounces of cocaine from appellant.[1] Before the prearranged drug deal, Sergeant Hart searched Lee and his vehicle to ensure that Lee was not in possession of any money, contraband, or weapons. The officers then fitted Lee with an audio recording device. After establishing audio, air, and land surveillance, the officers observed Lee meeting appellant at the agreed location, a retail parking lot in West Houston. After briefly speaking with Lee in the parking lot, appellant left in his car; Lee stayed in the parking lot. The officers observed appellant drive to a nearby gas station and then to the home of Norman Citizen, a known crack and cocaine distributor in Houston. Appellant entered Citizen=s house, and shortly thereafter, the two men left in appellant=s car. The officers observed appellant and Citizen drive back to the same parking lot where Lee was waiting. Lee then followed appellant and Citizen to a gas station and eventually to Citizen=s house. The officers testified that when the three men arrived, appellant and Citizen went into Citizen=s house, and Lee waited outside in his car. About five minutes later, the officers observed appellant exiting the house and entering Lee=s car. Minutes later, Lee exited the car and gave the officers the Apredetermined bust signal,@ indicating that appellant had the 18 ounces of cocaine and was ready to make the drug exchange. Officers moved in, surrounded Lee=s vehicle, and ordered appellant out of the car and to the ground. The officers testified that appellant initially refused to follow their commands and that they observed appellant lowering something to the floorboard on the passenger=s side of the car. Once appellant complied with the officers, he was handcuffed and secured in a police unit. The officers recovered a ziploc bag with 18 ounces of powder cocaine on the passenger=s floorboard, the same area where appellant had been reaching when the officers ordered him out of the car. The officers also found an ounce of powder cocaine in appellant=s sock and $1,800 cash in his pockets. During the arrest, appellant attempted to escape, running down the street and into a neighbor=s yard; he was quickly apprehended by Trooper Davis and Sergeant Luna. Appellant was charged with possession of a controlled substance, namely cocaine, weighing at least 400 grams, with the intent to deliver. Appellant pleaded not guilty, and the case was tried before a jury. Appellant was found guilty by the jury of felony possession with the intent to deliver at least 400 grams of cocaine. Punishment, enhanced by two prior felony convictions, was assessed by the trial court at 50 years in prison. On appeal, appellant contends: (1) the evidence is legally and factually insufficient to support the jury=s verdict on the element of possession; (2) the evidence is legally and factually insufficient to support the jury=s verdict on the element of intent to deliver; and (3) he received ineffective assistance of counsel. II.  LEGAL AND FACTUAL SUFFICIENCY In his first four issues, appellant challenges the legal and factual sufficiency of the evidence. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In a factual sufficiency review, we review all the evidence in a neutral light, favoring neither party. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) whether, considering the conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414‑15, 417; Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder. Watson, 204 S.W.3d at 414. For the offense possession of a controlled substance with intent to deliver, the State must prove that the defendant: (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew the substance in his possession was a controlled substance. See Tex. Health & Safety Code '' 481.002(38), 481.112(a), (f). A. Possession In issues one and two, appellant contends that the evidence is legally and factually insufficient to show that he possessed the seized cocaine. APossession@ means actual care, custody, control, or management. Id. ' 481.002(38). The element of possession may be proven by circumstantial evidence. Moreno v. State, 195 S.W.3d 321, 325 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). Because appellant was not in exclusive possession of the vehicle where most of the contraband was found, the State must affirmatively link appellant to the contraband. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex. Crim. App. 2006). The following factors are evidence of affirmative links between a defendant and contraband: (1) the defendant=s presence when a search is conducted; (2) whether the contraband was in plain view; (3) how close and accessible the drugs were to the defendant; (4) whether the defendant was under the influence of narcotics when arrested; (5) the defendant=s possession of other contraband or narcotics when arrested; (6) any incriminating statements the defendant made when arrested; (7) whether the defendant made furtive gestures or attempted to flee; (8) an odor of contraband; (9) the presence of other contraband or drug paraphernalia; (10) the defendant=s ownership or right to possess the place where the drugs were found; (11) whether the place where the drugs were found was enclosed; (12) the defendant=s possession of a large amount of cash; (13) the presence of a large quantity of contraband; and (14) any conduct by the defendant indicating a consciousness of guilt. Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Affirmative links are established by the totality of the circumstances. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Here, appellant argues that because this case lacks several of the above-listed affirmative links, the evidence is legally and factually insufficient. We disagree. While the cocaine was not in plain view and the car was not owned by appellant, the record reveals multiple affirmative links between appellant and the cocaine. The seized cocaine was a large quantity of contraband, and it was found in a small semi-enclosed area in Lee=s car, evidencing appellant=s knowledge of its existence. See Olivarez, 171 S.W.3d at 291 (recognizing the presence of a large quantity of contraband as a factor affirmatively linking an appellant to the contraband). The cocaine was found well within appellant=s reach; in fact, the cocaine was found in the same area that the officers observed appellant reaching for when they ordered him out of the car. Other contraband, an ounce of powder cocaine, was found in appellant=s sock when he was arrested. See id. (reasoning that the presence of other drugs is evidence of an affirmative link between the defendant and contraband). Officers found $1,800.00 cash in appellant=s pockets. See Classe v. State, 840 S.W.2d 10, 12 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d) (finding that a large amount of cash discovered on the defendant was an affirmative link between the defendant and contraband). Appellant also attempted to escape after the officers found the contraband. See Olivarez, 171 S.W.3d at 291 (considering escape as a factor in determining affirmative link). Viewing the evidence in the light most favorable to the verdict, we conclude that the factors affirmatively linking appellant to the cocaine and the logical inferences that may reasonably be drawn from these factors together provide legally sufficient evidence that appellant possessed the cocaine. We further conclude that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust, and the proof of guilt is not so weak as to undermine confidence in the jury=s determination. We overrule appellant=s first and second issues. B. Intent To Deliver In his third and fourth issues, appellant alleges that the evidence is legally and factually insufficient on the element of intent to deliver. Deliver means to transfer, actually or constructively, a controlled substance to another. Tex. Health & Safety Code ' 481.002(8). Intent to deliver a controlled substance can be proved by circumstantial evidence, including evidence that an accused possessed the contraband. Reed v. State, 158 S.W.3d 44, 48 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Factors we may consider include: (1) the nature of the location at which the accused was arrested; (2) the quantity of contraband in the accused=s possession; (3) the manner of packaging; (4) the presence or lack thereof of drug paraphernalia (for either use or sale); (5) the accused=s possession of large amounts of cash; and (6) the accused=s status as a drug user. Id. at 48-49; Moreno, 195 S.W.3d at 325-26. The number of factors present is not as important as the logical force the factors have in establishing the elements of the offense. Moreno, 195 S.W.3d at 326. Several of the factors showing intent to deliver are present in this case. The officers testified that based on their experience, the amount of cocaine seized, over 500 grams, was not an amount intended for personal use. See Robinson v. State, 174 S.W.3d 320, 331 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d) (reasoning that the defendant=s possession of two kilograms of cocaine indicated intent to deliver because it was in excess of the typical amount possessed for personal use). No drug paraphernalia for use of the cocaine was found in appellant=s vehicle or on his person. See Mack v. State, 859 S.W.2d 526, 528-29 (Tex. App.CHouston [1st Dist.] 1993, no pet.) (finding that the absence of paraphernalia supported inference that cocaine was intended for delivery rather than consumption). Andrew Gardnier, a forensic scientist for DPS, testified that the seized cocaine was of high purity. Sergeant Hart testified that when broken down for individual use, the street value of the seized cocaine would be worth approximately $50,000. See id. (holding that 8.9 grams of crack cocaine, valued at $600, was a sufficient amount from which to infer an intent to deliver); Pitts v. State, 731 S.W.2d 687, 691-92 (Tex. App.CHouston [1st Dist.] 1987, pet. ref=d). Additionally, when he was arrested, appellant possessed $1,800 cash. See Reed, 158 S.W.3d at 49 (considering the accused=s possession of large amounts of cash as a factor in determining intent to deliver). Based on the applicable standards of review, we conclude that the evidence is legally and factually sufficient that appellant intended to deliver the cocaine. We overrule appellant=s third and fourth issues. III.  INEFFECTIVE ASSISTANCE OF COUNSEL In his fifth issue, appellant contends that he was denied effective assistance of counsel. Specifically, appellant argues that trial counsel (1) failed to request a continuance to secure the testimony of Lee and (2) failed to object to various evidence regarding the search of Citizen=s house. To prove ineffective assistance of counsel, appellant must demonstrate that: (1) his counsel=s performance was deficient because it fell below an objective standard of reasonableness; and (2) there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). There is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We also indulge a strong presumption that counsel=s actions were motivated by sound trial strategy, and we will not conclude that the action was deficient unless it was so outrageous that no competent attorney would have engaged in such conduct. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003). We look to the totality of the representation and not to isolated instances of error or to only a portion of the proceedings. Thompson, 9 S.W.3d at 813. In the absence of evidence regarding counsel=s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506-507 (Tex. Crim. App. 2003). A. Ineffective Assistance of Counsel B Motion for Continuance With respect to a request for a continuance, we have no explanation from trial counsel as to why he did not seek a continuance to secure the trial testimony of Lee. Appellant neither filed a motion for new trial nor otherwise developed a record establishing trial counsel=s motive behind his actions. It is possible that trial counsel did not seek a continuance because, as a confidential informant for the State, Lee=s testimony would not have benefitted appellant. However, we cannot speculate on counsel=s motives in the face of a silent record. See Thompson, 9 S.W.3d at 813-14. In cases where the record is silent as to trial counsel=s alleged failures, a claim of ineffective assistance generally fails to rebut the presumption that trial counsel=s conduct fell within the wide range of professional norms. Id. We overrule appellant=s third issue. B. Ineffective Assistance of Counsel B Evidentiary Objections Appellant also argues that he received ineffective assistance of counsel because his trial counsel failed to object to evidence regarding the search of Citizen=s house. Again, we have no explanation from trial counsel as to why he did not object to the evidence of this particular search. It is possible that trial counsel believed that such evidence, to the extent that it showed no connection between appellant and Citizen=s house, was beneficial to appellant. However, the record provides no explanation for trial counsel=s actions. On this silent record, appellant has not overcome the strong presumption that counsel might have acted pursuant to sound trial strategy. See id. We overrule appellant=s fifth issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed November 25, 2008. Panel consists of Chief Justice Hedges and Justices Guzman and Brown. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Also assisting in this supervised drug deal were Sergeants Kenneth Parks, Kevin Odom, Pete Luna, Trooper Jeff Davis, and Corporal Matt Ochoa (collectively Athe officers@). The officers testified that appellant was under constant surveillance, both by air and land, during the controlled drug buy with Lee.