Jonathan Wayne Atkinson v. State ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00083-CR
JONATHAN WAYNE ATKINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 26909
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Moseley
OPINION
A Lamar County jury convicted Jonathan Wayne Atkinson of manufacture or delivery of
more than four grams, but less than 200 grams, of methamphetamine. See TEX. HEALTH & SAFETY
CODE ANN. § 481.112(a) (West 2017). In accord with the jury’s verdict, the trial court sentenced
Atkinson to fifteen years’ imprisonment.
On appeal, Atkinson argues that he received ineffective assistance of counsel because
(1) counsel did not lodge an objection to the laboratory report confirming that the substance found
in Atkinson’s possession was methamphetamine, (2) counsel did not request a hearing outside of
the jury’s presence to challenge the arresting officer’s expert opinions, and (3) counsel did not
object to the officer’s expert opinions at trial. Because Atkinson cannot meet his burden to show
that counsel rendered ineffective assistance from the silent record before us, we affirm the trial
court’s judgment.
I. Factual and Procedural Background
At trial, Jeffrey Padier, an officer with the Paris Police Department Canine Unit, testified
that he conducted a traffic stop of a vehicle Atkinson was driving after spotting an inoperable brake
light. Padier stated that he immediately smelled marihuana as Atkinson opened the door and,
during a search of the vehicle, uncovered a bag of marihuana, a methamphetamine pipe, several
empty zip-lock bags used to package narcotics, “loaded bags . . . [f]ull of methamphetamine,” a
scale containing what appeared to be methamphetamine residue, $514.00, and three cell phones.
After conducting a field test to determine that the substances found in the vehicle were, in fact,
methamphetamine, Padier arrested Atkinson.
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Without objection,1 the State introduced a laboratory report authored by the Texas Department of
Public Safety, which stated that analysis of one of the zip-lock bags revealed that it contained 5.45
grams of methamphetamine and that no analysis was conducted on three other bags containing a
“crystalline material.” The laboratory report was accompanied by a “Certificate of Analysis and
Chain of Custody Affidavit” executed by Karen Collins, the forensic scientist in the Controlled
Substances Section of the Crime Laboratory who conducted the test of the methamphetamine
found in Atkinson’s possession. In the affidavit, Collins set forth her educational and employment
background in detail, explained why the training she had received qualified her to analyze the test
results, and described the chain of custody of the test sample. Collins also stated that she used
“[p]reliminary tests such as macroscopic examinations, color/odor tests, TLC, UV/Vis, and/or
pharmaceutical identification; and confirmatory tests such as microscopic examination, FTIR
spectrophotometry and/or GC mass spectrometry.” Collins averred that these tests were reliable
and that the results were correctly reflected by the laboratory report. 2
Padier testified that based on his experience in law enforcement, he was able to discern “a
user amount of methamphetamine” from “a dealer amount.” He stated that the amount of
methamphetamine found in the vehicle led him to conclude that Atkinson was “a low-level street
dealer.”
1
The appellate record established that Atkinson’s attorney agreed with the State to pre-admit all exhibits before trial,
without objection.
2
Padier also testified about the contents of the report, without objection, and the physical drugs were admitted for the
jury’s review.
3
During cross-examination, Padier stated that (1) the vehicle was borrowed from Deanna
Pendergraff, (2) he recognized the passenger as someone who was known for possessing
methamphetamine, (3) other methamphetamine not mentioned during direct examination was
found in the front passenger floorboard, (4) two syringes containing methamphetamine were found
on the passenger floorboard, (5) he had seen movements by both Atkinson and the passenger
indicating they had placed the bag containing the methamphetamine on the driver’s side floorboard
of the back seat where it was found, (6) Atkinson told him the methamphetamine did not belong
to him, (7) there was no evidence that Atkinson knew about the contents of the center console
where the pipe, bags, and scale were found, and (8) he had previously arrested Atkinson for
possessing only small amounts of methamphetamine.
Atkinson testified in his defense, stated that he had borrowed the car, and claimed that
while the marihuana was his, he was unaware of the other illegal contents. He said that he was
carrying a large amount of cash because he did not have a bank account. Atkinson testified that
he had picked up the passenger, but did not state that the drugs belonged to her. The jury rejected
Atkinson’s testimony and found him guilty of the offense.
II. Standard of Review
“The applicant has the burden to prove ineffective assistance of counsel by a preponderance
of the evidence.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (quoting
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). The right to counsel does not
mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006). Thus, to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy
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the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687–88 (1984); see also
Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The first prong requires a showing
that counsel’s performance fell below an objective standard of reasonableness. Strickland, 466
U.S. at 688. This requirement can be difficult to meet since there is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
The second Strickland prong, sometimes referred to as “the prejudice prong,” requires a
showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result
of the proceeding would have been different. Id. at 694. “A reasonable probability” is defined as
“a probability sufficient to undermine confidence in the outcome.” Id. Thus, in order to establish
prejudice,
an applicant must show “that counsel’s errors were so serious as to deprive
defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at
687 . . . . It is not sufficient for Applicant to show “that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693 . . . . Rather, [he]
must show that “there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” Id. at 695 . . . .
Martinez, 330 S.W.3d at 901.
A failure to make a showing under either prong defeats a claim for ineffective assistance.
Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). Additionally, the Texas Court
of Criminal Appeals has said that “[t]rial counsel ‘should ordinarily be afforded an opportunity to
explain his actions’ before being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591,
593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)). Therefore, allegations of ineffectiveness “must ‘be firmly founded in the record.’” Bone
v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813).
5
“[T]he presumption of a sound trial strategy cannot be overcome absent evidence in the record of
the attorney’s reasons for his conduct.” Martinez, 330 S.W.3d at 901 (quoting Busby v. State, 990
S.W.2d 263, 269 (Tex. Crim. App. 1999)). Thus, where an appellate record is silent as to why
trial counsel failed to take certain actions, the appellant has “failed to rebut the presumption that
trial counsel’s decision was in some way—be it conceivable or not—reasonable.” Mata v. State,
226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999).
The Strickland test “of necessity requires a case-by-case examination of the evidence.”
Williams v. Taylor, 529 U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992)
(Kennedy, J., concurring in judgment)). We “must look to the totality of the representation, and
its decision must be based on the facts of the particular case, viewed at the time of counsel’s
conduct so as to eliminate hindsight bias.” Martinez, 330 S.W.3d at 901 (citing Strickland, 466
U.S. at 690). In all cases, the “ultimate focus of inquiry must be on the fundamental fairness of
the proceeding.” Id. (quoting Strickland, 466 U.S. at 696).
III. Ineffective Assistance of Counsel Was Not Shown
A. The Laboratory Report
In the first ground of his ineffective assistance argument, Atkinson argues that his counsel
should have objected to the laboratory report as hearsay and should have argued that its admission
violated the Confrontation Clause. Based on the Texas Supreme Court’s resolution of this issue
in Menefield v. State, 363 S.W.3d 591 (Tex. Crim. App. 2012), we conclude that Atkinson has
failed to meet the first Strickland prong.
6
In Menefield, the laboratory “report was the only evidence of appellant’s cocaine
possession” and was admitted without the testimony of the “analyst who conducted the test and
prepared the report.” Id. at 592. The appellant argued that his counsel rendered ineffective
assistance in failing to object to the admission of the testimonial report on the grounds that it
violated the Confrontation Clause. Id. The Texas Supreme Court held that the appellant could not
meet the first prong of the Strickland test on a silent record because “perhaps the State could (and
with an objection would) have brought [the analyst] to the courtroom to testify, and counsel
realized that cross-examining [him] would not benefit his client.” Id. at 593. Because, as in
Menefield, a silent record requires us to presume that counsel realized that the State would produce
Collins if he had lodged any objection to her report, we conclude that Atkinson has failed to
demonstrate that counsel’s performance fell below an objective standard of reasonableness.
Moreover, Article 38.41 of the Texas Code of Criminal Procedure sets forth the
requirements of a certificate of analysis and provides, “A certificate of analysis that complies with
this article is admissible in evidence on behalf of the state or the defendant to establish the results
of a laboratory analysis of physical evidence conducted by or for a law enforcement agency
without the necessity of the analyst personally appearing in court.” TEX. CODE CRIM. PROC. ANN.
art. 38.41, § 1 (West 2018). Similarly, a properly presented chain-of-custody affidavit removes
the “necessity of any person in the chain of custody personally appearing in court.” TEX. CODE
CRIM. PROC. ANN. art. 38.42, § 1 (West 2018). 3
We overrule Atkinson’s first point of error.
3
Collins’ affidavit was timely filed with the trial court.
7
B. Padier’s Testimony
“A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion . . . if the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to understand the evidence or to determine a fact
in issue.” TEX. R. EVID. 702. Under Rule 705, an adverse party must “be permitted to examine
the expert about the underlying facts or data” supporting an expert opinion “outside the jury’s
hearing.” TEX. R. EVID. 705(b).
Atkinson argues that his counsel rendered ineffective assistance by failing to request a
separate Rule 705 hearing to determine whether Padier’s expert opinions were reliable.
Specifically, Atkinson takes issue with Padier’s opinions that (1) Atkinson created a dangerous
situation when he opened the door of the vehicle before Padier had approached it; (2) based on his
experience as to what amount of methamphetamine constituted a “user” versus “dealer” amount,
Atkinson was dealer; (3) the amount of cash found on Atkinson’s person suggested that he was a
drug dealer; and (4) the cell phones found in the vehicle were likely burner phones, which are often
used by drug dealers. Atkinson also argues that counsel was ineffective by failing to object to this
testimony at trial.
“Both lay and expert witnesses can offer opinion testimony.” Osbourn v. State, 92 S.W.3d
531, 535 (Tex. Crim. App. 2002) (concluding that officer’s opinion that the substance found in the
defendant’s possession was marihuana constituted an opinion from a lay witness). “A witness can
testify in the form of an opinion under Rule 701 if the opinions or inferences are (a) rationally
based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the
8
determination of a fact in issue.” Id. (citing TEX. R. EVID. 701). “When a witness who is capable
of being qualified as an expert testifies regarding events which he or she personally perceived, the
evidence may be admissible as both Rule 701 opinion testimony and Rule 702 expert testimony.”
Id. at 536. “The personal experience and knowledge of a lay witness may establish that he or she
is capable, without qualification as an expert, of expressing an opinion on a subject outside the
realm of common knowledge.” Id. at 537. “Thus, although police officers have training and
experience, they are not precluded from offering lay testimony regarding events which they have
personally observed.” Id. at 536.
Padier, who had been a police officer for seven years, testified that he had received
specialized narcotics training and was involved in many drug cases in the course of his career.
“Police officers may testify, based upon their training and experience, that a defendant’s actions
are consistent with someone selling [drugs].” Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—
Houston [1st Dist.] 1994, no pet.) (citing Williams v. State, 826 S.W.2d 783, 785 (Tex. App.—
Houston [14th Dist.] 1992, pet. ref’d)); see Williams v. State, 760 S.W.2d 292, 296 (Tex. App.—
Texarkana 1988, pet. ref’d) (officer’s testimony about “the common use of vise grips to assist in
stealing cars” was admissible under Rule 701 as lay opinion evidence based on officer’s personal
observations and experience as a police officer). Accordingly, officer testimony regarding the
amount of drugs which differentiate a normal user from a seller is admissible under Rule 701.
Reece, 878 S.W.2d at 324–25.
“The failure to object to admissible evidence is not ineffective assistance.” Burruss v.
State, 20 S.W.3d 179, 188 (Tex. App.—Texarkana 2000, pet. ref’d). Based on this silent record,
9
we conclude that counsel could have chosen not to request a Rule 705 hearing or object to Paider’s
testimony at trial because his opinions were admissible under Rule 701 as lay witness testimony
gathered from Padier’s personal observations from his training and experience as a police officer.
Because the appellate record does not affirmatively demonstrate that defense counsel’s
performance fell below an objective standard of reasonableness, we overrule Atkinson’s last two
points of error. 4
IV. Conclusion
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: November 8, 2018
Date Decided: November 9, 2018
Publish
4
Moreover, even assuming that some of Padier’s testimony could properly be characterized as only expert opinion, in
light of Padier’s lay witness observations, the video recording of the arrest, and the laboratory report, Atkinson cannot
demonstrate that prejudice resulted from any alleged ineffectiveness of counsel.
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