Pickens, Dennis Earl v. State ( 2004 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DENNIS EARL PICKENS,                                  )

                                                                              )     No.  08-02-00163-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )     195th District Court

THE STATE OF TEXAS,                                     )

                                                                              )     of Dallas County, Texas

Appellee.                           )

                                                                              )     (TC# F-0153823-HN)

                                                                              )

O P I N I O N

Appellant Dennis Earl Pickens appeals his conviction for the offense of possession of a controlled substance, to wit:  cocaine, in an amount by aggregate weight, including any adulterants or dilutants, of one gram or more but less than four grams. A jury found Appellant guilty and assessed punishment at 25 years= imprisonment in the Texas Department of Criminal Justice, Institutional Division.^[1]  On appeal, Appellant challenges the legal sufficiency of the evidence to support his conviction, asserts several jury charge errors, and argues that his trial counsel rendered ineffective assistance.  We affirm.

FACTUAL SUMMARY

On June 19, 2001, the Dallas Police Department received several citizen=s complaints about illegal drug sales at a car wash in the 2400 block of Starks in South Dallas.  Officers Thomas Peterson and Scott Sayers were working on special assignment in the area and were dispatched to investigate the drug complaints.  Officer Peterson conducted field surveillance on foot some distance from the scene while his partner stayed in the patrol car at another location.  Officer Peterson concealed himself behind some cut tree limbs in the backyard of a nearby residence and observed the activities at the car wash with a pair of binoculars.

From the hidden location, which was about fifteen to twenty yards away from the car wash, Officer Peterson observed Appellant standing out in the parking lot, engaging in what appeared to be a hand-to-hand drug transaction with personal property exchanged for something Officer Peterson could not see.  The officer then saw Appellant walk over to a vehicle, get into the driver=s seat, and lean the seat back.  Appellant was the only passenger in the vehicle and he kept the door of the vehicle open.  An unknown individual then approached the vehicle and handed Appellant money.  Officer Peterson observed Appellant lift up the plastic cup holder console and remove a clear plastic baggie which contained several capsules.  Appellant shook a few of the capsules into the palm of his hand and the unknown individual removed several capsules and left. In a period of ten to fifteen minutes, Officer Peterson observed two other similar hand-to-hand transactions. Based on previous experience, Officer Peterson knew from the packaging that such capsules typically contain powdered heroin and powdered cocaine.

After witnessing what he believed to be a felony in progress, Officer Peterson radioed Officer Sayers a description of Appellant and told him to get backup.  Officer Sayers later radioed and told Officer Peterson that he was en route to detain Appellant until backup arrived.  Officer Peterson then observed Officer Sayers approach Appellant and ask him to exit the vehicle.  Officer Sayers testified that when he approached the vehicle, Appellant was sitting on the driver=s side with his legs hanging out of the vehicle and the door open.  When Appellant exited the vehicle, Officer Sayers frisked him for weapons.  Appellant was taken into custody and backup officers at the scene conducted an inventory search of the vehicle prior to having it towed to the city pound.

The officers recovered from the vehicle a plastic bag with white and brown pills from underneath the cup holder and discovered additional drugs in the glove box.  The drugs tested positive for cocaine and heroin.  The drug analysis report showed the drugs recovered were controlled substances, which consisted of 59 capsules of brown powder, containing heroin and weighing 9.9 grams, and 31 half-pink capsules, containing cocaine and weighing 2.2 grams.  Money inside an organizer, totaling $540, was also seized from inside the vehicle.

Appellant testified that in the morning on the day he was arrested, he called a wrecker to pick up his car and take it to a mechanic=s garage for wiring repair.  Appellant lead the tow truck driver to the garage in another vehicle he had purchased the day before.  After leaving the garage, Appellant planned to take the vehicle he was driving back to the seller for brake work.  Appellant arranged for an acquaintance, Wayne Pratt, to follow him to the seller=s business, so he could drop the vehicle off and not have to sit around and wait for the repairs to be done.  Appellant left with Mr. Pratt and another person named Charles Frazier.  Mr. Pratt was driving them around, making stops on their way back to South Dallas. At the intersection of Starks and Bexar, Mr. Pratt pulled into a car wash and Appellant got out of the vehicle to talk with a friend.

Appellant was talking with his friend when Officers Peterson and Sayers pulled into the car wash and parked by a dryer.  People started running away.  The officers left and went to another building down the street. Appellant continued talking with friends.  Officer Sayers then returned to the car wash by himself.  Officer Sayers pointed at Appellant, who was standing by a Suburban van, called him over and asked him what he was doing.  The officer told Appellant to stand at the back of the vehicle that Mr. Pratt had been driving.  Officer Sayers got into the car and started to look around for a few seconds. The officer then exited and told Appellant to go stand at the front of the vehicle.  Officer Sayers then handcuffed Appellant and escorted him to the patrol car.

Appellant testified that the vehicle the police searched that day was not his.  Appellant explained that his organizer was on top of the vehicle.  The cash in his organizer was money he earned by driving around a handicapped woman.  Appellant denied possessing the heroin and cocaine.  The vehicle was registered to someone named Pamela Jean Conley who lived at 4927 Bonnie View.  Appellant admitted that he lived at that address prior to his incarceration, but did not know the individual listed as the owner.  Appellant knew nothing about the drugs found in the vehicle.

DISCUSSION

Legal Sufficiency

In Issue One, Appellant challenges the legal sufficiency of the evidence to sustain his conviction for possession of a controlled substance because the indictment charged him with possession with intent to deliver.  Specifically, Appellant contends that because the trial court never physically amended the indictment after granting the State=s motion to reduce the charge to possession, the jury charge did not encompass the indicted offense.  Appellant also contends that possession was not a lesser included offense under the facts of this case.

We first address Appellant=s contentions that the State=s motion to reduce the charge before trial was a failed attempt to amend the indictment.  Appellant was originally charged in cause number F-0153823-HN by an indictment which alleged that he Adid unlawfully, knowingly and intentionally possess with intent to deliver, a controlled substance, to-wit:  COCAINE, in an amount by aggregate weight, including any adulterants or dilutants, of 1 gram or more but less than 4 grams.@  Before trial commenced, the State moved to reduce the charge to possession.  The trial court asked Appellant if he had any objection to reducing the charge and Appellant replied, ANo, sir.@ The trial court then granted the motion.^[2]

The State may abandon an allegation essential to the offense charged if the effect of the abandonment was to leave the accused on trial for a lesser included offense.  Allison v. State, 618 S.W.2d 763, 764 (Tex.Crim.App. 1981); Stockton v. State, 756 S.W.2d 873, 875 (Tex.App.--Austin 1988, no pet.).  In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.  Tex.Code Crim.Proc.Ann. art. 37.08 (Vernon 1981).  As reasoned in Allison, the greater offense, when properly alleged, necessarily includes all the lesser included offenses, whether each of their constituent elements are alleged in the indictment on the greater offense or not. Allison, 618 S.W.2d at 764.  If the State fails to prove an element of the offense alleged in the indictment, but proves all elements of a lesser included offense, the accused is not entitled to an acquittal but may be convicted of a lesser included offense.  Stockton, 756 S.W.2d at 875. 

An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charge.  Tex.Code Crim.Proc.Ann. art. 37.09(1). Possession of a controlled substance is a lesser included offense of possession with intent to deliver.^[3]  See Upchurch v. State, 23 S.W.3d 536, 538 (Tex.App.--Houston [1st Dist.] 2000, pet. ref=d); Greer v. State, 783 S.W.2d 222, 224 (Tex.App.--Dallas 1989, no pet.).  By its motion, the State reduced the charge to simple possession of cocaine, abandoning the allegation of intent to deliver prior to trial in order to proceed with a lesser included offense.  See Stockton, 756 S.W.2d at 875.  The State=s motion was not an amendment of the indictment, but rather an announcement of the State=s decision to try Appellant for the lesser included offense.  See id.

Next, we address Appellant=s challenge to the legal sufficiency of the evidence to sustain his conviction.  Appellant argues there is no evidence that he simply possessed the drugs.

Standard of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d).  Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421-22.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.

Possession of a Controlled Substance

In cases involving possession of a controlled substance, the State must prove beyond a reasonable doubt that the accused:  (1) exercised care, custody, control, or management over the contraband; and (2) knew the substance he possessed was contraband.  See Tex.Health & Safety Code Ann. '' 481.115(a), 481.002(38)(Vernon Supp. 2004); see also Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995); Menchaca v. State, 901 S.W.2d 640, 651 (Tex.App.--El Paso 1995, pet. ref=d).  An affirmative link must be established between the accused and the contraband, demonstrating both that the accused had control over it and had knowledge of its existence and character.  See Brown, 911 S.W.2d at 747; Menchaca, 901 S.W.2d at 651. Knowledge can be inferred from the conduct of and remarks by the accused and from circumstances surrounding the acts engaged in by the accused. Menchaca, 901 S.W.2d at 652.

Viewing the evidence in the light most favorable to the verdict, Appellant conducted hand-to-hand drug transactions while seated in the driver=s seat in a vehicle, in which he was the sole occupant.  Officer Peterson observed Appellant lift up the cup holder console near the driver=s seat and remove a plastic baggie that contained several capsules.  Appellant shook a few of the capsules into the palm of his hand and gave them to an unknown individual.  Officer Peterson recognized the drugs as capsules contained powdered heroin and powdered cocaine based on his previous experience with the packaging method.

A reasonable inference arises that Appellant knew the vehicle contained contraband because he exercised dominion and control over the vehicle.  See Menchaca, 901 S.W.2d at 652.  While the contraband was later recovered from underneath the console next to the driver=s seat, Officer Peterson observed Appellant remove the contraband from its hidden location and place the contraband within plain view.  Afterwards, some of the contraband was returned to a location which was easily accessible to Appellant.  We conclude that any rational jury could have found beyond a reasonable doubt that Appellant exercised care, custody, control, and management over the contraband and that Appellant knew the substance possessed was contraband. Therefore, we hold that the evidence was legally sufficient.  Issue One is overruled.

Jury Charge on Lesser-Included Offense

In Issue Two, Appellant asserts that the jury charge contained egregious error because the

trial court could not charge the jury on the lesser included offense of possession.  Appellant presents the same contentions he asserted in Issue One.  For the reasons discussed in our disposition of Issue One, we overrule Issue Two.

Jury Charge Errors

In Issues Three and Four, Appellant complains that the trial court erred by including in its charge an instruction regarding reasonable doubt (and erred by failing to include an Article 38.23 instruction. 

Standard of Review

When reviewing charge error, we utilize a two-step process. Orona v. State, 52 S.W.3d 242, 249 (Tex.App.--El Paso 2001, no pet.).  We first determine whether error actually exists in the charge.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985); Orona, 52 S.W.3d at 249.  If error exists, we must then determine whether sufficient harm was caused by the error to warrant reversal.  Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986).  If the charge error was the subject of timely objection, reversal is required if that error was calculated to injure the rights of the defendant thereby causing Asome harm.@  Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000).  If error exists, we must then assess whether any resulting harm requires reversal.  Almanza, 686 S.W.2d at 171.  In a case where the defendant did not properly object at trial, we will reverse only if the error is so egregious and created such harm that he was denied a fair and impartial trial.  Arline, 721 S.W.2d at 351; Almanza, 686 S.W.2d at 171.  In both circumstances, the harm suffered is examined in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171.

Reasonable Doubt Instruction

In Issue Three, Appellant argues the trial court erred in including a sentence regarding reasonable doubt in the jury charge.  Appellant admits that he did not object to the following instruction:

The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution=s proof excludes all >reasonable doubt= concerning the defendant=s guilt.  [Emphasis added].

The court=s charge in this case contained a portion of the reasonable doubt instruction approved in Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991), overruled by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000).  In Paulson, the Court disavowed the requirement that the reasonable doubt standard be defined and instead, determined that the better practice is to give no definition of reasonable doubt in the jury charge.  Paulson, 28 S.W.3d at 573.  However, the Court also determined that no reversible error would occur if both the State and defense agreed to give the Geesa instruction to the jury.  Id.

Appellant argues that the instruction favored the State because it emphasized to the jury that the State did not have to prove its case beyond all possible doubt and constitutes egregious harm in that it is still a definition whose purpose was to favor the State.  This Court recently addressed the same complaint in Hanks v. State, 104 S.W.3d 695, 702 (Tex.App.--El Paso 2003, pet. granted). In Hanks, this Court held that the same challenged instruction does not constitute a definition of reasonable doubt and therefore, does not violate Paulson.  Hanks, 104 S.W.3d at 702; see also Minor v. State, 91 S.W.3d 824, 828-29 (Tex.App.--Forth Worth 2002, pet. ref=d) (adopting the analysis followed by the First District Court of Appeals in the Carriere case); Carriere v. State, 84 S.W.3d 753, 759 (Tex.App.--Houston [1st Dist.] 2002, pet. ref=d).  As in Hanks, the charge here did not give a reasonable doubt definition, therefore no error exists.  See Carriere, 84 S.W.3d at 759.  Issue Three is overruled.

Article 38.23 Instruction

In his fourth issue, Appellant asserts that the trial court erred in failing to instruct the jury that it could disregard the evidence if it believed or had a reasonable doubt about whether the officers illegally obtained the evidence pursuant to Article 38.23 of the Texas Code of Criminal Procedure.  Tex.Code Crim.Proc.Ann. art. 38.23 (Vernon Supp. 2004).  Appellant points to his testimony as evidence that Officer Sayers without any justification, probable cause, or reasonable suspicion, searched the vehicle.  In reviewing the record, we find that Appellant failed to request an Article 38.23 instruction on the vehicle search at trial and therefore did not preserve error on this issue.  Tex.R.App.P. 33.1; Kelly v. State, 669 S.W.2d 720, 726 (Tex.Crim.App. 1984)(failure to request the instruction waives error); Oberg v. State, 890 S.W.2d 539, 544 (Tex.App.--El Paso 1994, pet. ref=d). Issue Four is overruled.

Ineffective Assistance of Counsel

In Issue Five, Appellant contends he was denied effective assistance of counsel because his trial counsel failed to request an Article 38.23 instruction and failed to object to the definition of reasonable doubt in the charge.

We review claims of ineffective assistance under the two-pronged test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prevail, the defendant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness.  Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064.  The defendant must also show that counsel=s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the defendant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d  at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.  It is the defendant=s burden to prove ineffective assistance of counsel by a preponderance of the evidence.  Thompson, 9 S.W.3d at 813.

In reviewing a claim of ineffective assistance of counsel, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy.  Thompson, 9 S.W.3d at 813.  Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption.  Id.; see Jackson, 877 S.W.2d at 771. In the majority of instances, this task is extremely difficult because Athe record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.@ Thompson, 9 S.W.3d at 813-14. When faced with a silent record as to counsel=s strategy, we will not speculate as to the reasons for counsel=s actions.  See Jackson, 877 S.W.2d at 771.

In this case, Appellant filed a motion for new trial, but did not challenge the alleged ineffectiveness of his counsel.  The record before this Court does not contain trial counsel=s explanations of the reasons for the alleged errors, therefore it will be difficult for Appellant to rebut the strong presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance.  See Thompson, 9 S.W.3d. at 814.

Appellant asserts that his trial counsel failed to request an Article 38.23 instruction, which precluded the jury from giving effect to the illegality of the search.^[4]  Specifically, Appellant points to evidence in the record concerning the Appellant=s first trial for the offense, which resulted in a hung jury because at least one of the jurors questioned the legality of the search^[5].  If the instruction had been allowed, he asserts that he could have obtained another hung jury if not an acquittal.  Appellant, however, concedes that in the first trial, the trial court refused Appellant=s request for an Article 38.23 instruction, therefore we can only speculate as to whether this trial would have reached the same outcome as the mistrial based on the alleged error.  The record before us provides no discernible explanation for trial counsel=s motivation in not requesting an Article 38.23. When faced with a silent record as to counsel=s strategy, as we are in this case, we will not speculate as to the reasons for counsel=s actions.  See Jackson, 877 S.W.2d at 771.  Appellant has failed to prove ineffective assistance of counsel based on this contention.

Appellant also asserts that his trial counsel was ineffective for failing to object to the reasonable doubt language contained in the jury charge, which Appellant asserted in Issue Three was jury charge error. In addressing that issue, we concluded that the challenged portion of the jury charge did not constitute a definition, therefore no error existed.  It follows that Appellant has failed to show ineffective assistance of counsel on that ground.  Issue Five is overruled.

Accordingly, we affirm the trial court=s judgment.

July 15, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

---

^[1] In a consolidated trial, the jury convicted Appellant of possession of cocaine in cause number F-0153823-HN and possession of heroin in cause number F-0153824-HN.  Appellant has also appealed his conviction in cause number F-0153824-HN.  We affirmed that conviction in an unpublished opinion issued this same date.  Pickens v. State, No. 08-02-00164-CR (Tex.App.--El Paso July 15, 2004, no pet.h.).

^[2] The State made a written motion to reduce the offense charged in the indictment to the lesser-included offense of possession of a controlled substance over one gram.  The trial court granted the written motion, which was filed on the same day the trial commenced.

^[3] In order to prove possession with intent to deliver, the State was required to prove Appellant possessed the controlled substance, therefore, we find Appellant=s contention that possession was not a lesser included offense, to be without merit.  See Tex.Health & Safety Code Ann. '' 481.112(a), 481.115(a)(Vernon 2003); see also Price v. State, 15 S.W.3d 577, 578 (Tex.App.--Waco 2000, pet. ref=d)(for double jeopardy purposes, possession of cocaine is a lesser‑included offense of possession with intent to deliver cocaine unless separate quantities of cocaine are identified for each offense).

^[4] Article 38.23 provides:

(a)        No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex.Code Crim.Proc.Ann. art. 38.23 (Vernon Supp. 2004).

^[5] In support of his contention, Appellant directs us to the State prosecutor=s comment during voir dire in this trial, in which the prosecutor struck a prospective juror who was a security guard because the juror who hung up the first jury trial was a security guard that

second-guessed the police officers.