Frederick Anang v. State ( 2004 )

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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

FREDERICK ANANG,

Appellant,

THE STATE OF TEXAS,

Appellee.

No. 08-02-00521-CR

Appeal from the

County Court at Law

of Ector County, Texas

(TC#02-0057)

MEMORANDUM OPINION

Frederick Anang was convicted by a jury of possessing two ounces or less of marijuana. As punishment, the court ordered Anang to pay a $750 fine, $368 in court costs, and $1,500 for court-appointed counsel. On appeal, Anang contends that his trial counsel was ineffective. We affirm.

Factual Background

A pest control technician testified that she found a bag of marijuana on the kitchen counter in Anang=s apartment. She informed the apartment manager and a police officer of what she had found. The police officer, Michael Gerke, testified that he went to Anang=s apartment and knocked on the door. When Anang answered, Gerke stated that he had heard that Anang had marijuana in his apartment. Anang responded that he did. Gerke asked him where it was, and Anang went to the kitchen and retrieved the bag of marijuana.

Anang testified that the bag of marijuana was not his. He had recently moved into the apartment and it was very dirty. He found the bag of marijuana on the day in question while he was cleaning behind the stove. He knew the bag contained marijuana because he had seen and smelled marijuana on some of the young people that he counseled in his job. He placed the bag on the kitchen counter, along with other items he found behind the stove. He then went to work out and to do some errands. Anang testified that he intended to throw the bag away, but Gerke knocked on his door shortly after he returned home.

The State called the apartment manager, Martha Pate, in rebuttal. She testified that before a new tenant moves in, the apartment is thoroughly cleaned, including behind the stove. Pate also testified that before the day in question, she suspected that drug trafficking was occurring at Anang=s apartment.

Standard of Review

A two-pronged test governs our review of ineffective assistance of counsel claims. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, we must determine whether counsel=s performance was deficient. Id. To establish that counsel=s performance was deficient, the defendant must show that the performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson, 9 S.W.3d at 812. Second, we must determine whether counsel=s deficient performance prejudiced the defendant. Thompson, 9 S.W.3d at 812. To establish prejudice, the defendant must show that there is a reasonable probability that the result of the proceedings would have been different but for counsel=s deficient performance. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.

We look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly deferential and presumes that counsel=s actions fell within a wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813. The defendant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813. Trial counsel should ordinarily be afforded an opportunity to explain her actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). When the record is silent as to the motivations underlying counsel=s tactical decisions, the appellant usually cannot overcome the strong presumption that counsel=s conduct was reasonable. Mallett, 65 S.W.3d at 63.

Failure to Object

In his first issue, Anang argues that his trial counsel should have objected to the following testimony by Pate:

Q: [W]hy were you familiar with [Anang=s] apartment?

A: [T]here was a lot of trafficking going up there. And then [another manager] told me there was a lot of trafficking there, so I called the Task Force.

. . .

Q: Why did you call the Task Force?

A: Because I don=t like drugs in my apartment, and if I suspect drugs in the apartments then I call the Task Force. . . . .

Q: So prior to [the date of the offense], you suspected drug activity in [Anang=s apartment]?

A: Yes, ma=am, I sure did.

Anang argues that Pate=s testimony regarding prior drug trafficking at his apartment was inadmissible under Texas Rule of Evidence 404(b). The record does not reveal trial counsel=s reasons for failing to object to this testimony. Therefore, Anang cannot overcome the strong presumption that her decision not to object was reasonable.

Moreover, when a claim of ineffective assistance is founded on the failure to object to evidence, the appellant must show that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002), cert. denied, ___ U.S. ___, 123 S. Ct. 1901, 155 L. Ed. 2d 824 (2003). Anang has not made this showing.

Anang=s defense was that he did not intentionally or knowingly possess the bag of marijuana; he simply found it in his apartment. Pate=s testimony that drug trafficking had been occurring at his apartment tended to rebut this defense. Although evidence of other crimes is inadmissible to prove the character of the defendant to show conformity therewith, it is admissible for other purposes, such as to show intent, knowledge, or absence of mistake or accident. See Tex. R. Evid. 404(b). Pate=s testimony was arguably admissible for these purposes. Anang asserts that the State could not use the testimony for these purposes because it failed to give notice of its intent to do so. Because Pate testified in rebuttal, the State was not required to notify Anang of its intent to offer this testimony. See Jaubert v. State, 74 S.W.3d 1, 3 (Tex. Crim. App.), cert. denied, 537 U.S. 1005, 123 S. Ct. 495, 154 L. Ed. 2d 403 (2002); see also Tex. R. Evid. 404(b) (providing that the State must give reasonable notice of its intent to introduce evidence of other crimes or bad acts in its case-in-chief).

Anang also complains that counsel exacerbated her error by asking Pate on cross-examination, ASo you personally witnessed what you are saying was a lot of trafficking in and out of that apartment?@ This question was part of a series of questions that were apparently designed to discredit Pate. Anang has not shown that this strategy was unreasonable.

Anang=s first issue is overruled.

Closing Argument

In his second issue, Anang argues that his trial counsel should not have stated the following during her closing argument:

So has the State proven that on December the 18th of 2001 in Ector County that Frederick Anang intentionally and knowingly possessed a usable amount of marijuana? Frederick himself said, yes, it was December the 18th, it was Ector County. Yes, he is Frederick Anang. Yes, it was marijuana. He has come forward and he has told you that he intentionally and he knowingly possessed marijuana beyond a reasonable doubt.

Anang argues that counsel effectively sabotaged his claim that he did not intentionally possess the bag of marijuana by telling the jury that he had confessed to that fact.

Before making the statements about which Anang now complains, counsel argued, AIt was his intention to throw away what he found, what was not his, what he did not intentionally or knowingly possess.@ Immediately after making the statements about which Anang complains, counsel argued:

Is there enough doubt . . . that it was intentionally and knowingly possessed? Yes, it is. He found it. You find it, look, you lay it on the cabinet, and you go about your business. I am going to deal with that, I am going to throw that away. You are arrested. He testified he found it. He testified they were not his. He testified it was his intention . . . to get rid of it. He never had that chance, and so here he sits because of that.

Frederick maintains that he is not guilty. . . . The State has not carried its burden. There was no intentionally and knowingly possession of marijuana [sic].

A review of the entire closing argument reveals that counsel emphasized Anang=s defense that he did not intentionally or knowingly possess the bag of marijuana. The complained-of statements were apparently designed to show the jury that Anang had been forthright because he was innocent. Anang has not shown that counsel=s closing argument fell below an objective standard of reasonableness.

Anang=s second issue is overruled.

Conclusion

For the reasons stated herein, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

February 26, 2004

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)